Agricultural Marketing Service
National Foundation on the Arts and the Humanities
Foreign-Trade Zones Board
International Trade Administration
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Energy Efficiency and Renewable Energy Office
Federal Energy Regulatory Commission
Children and Families Administration
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United States Mint
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Court Services and Offender Supervision Agency for the District of Columbia.
Final rule.
The Court Services and Offender Supervision Agency for the District of Columbia (CSOSA or Agency), with the concurrence of the Office of Government Ethics (OGE), is adopting as final, without change, the interim CSOSA rule that supplements the executive-branch-wide Standards of Ethical Conduct (Standards) issued by OGE, and requires employees of CSOSA and employees of the District of Columbia Pretrial Services Agency (PSA), an independent entity within CSOSA, to obtain approval before engaging in outside employment.
This final rule is effective June 21, 2011.
Theresa A. Rowell, Assistant General Counsel, Office of General Counsel, telephone: (202) 220-5364; e-mail:
CSOSA published, with OGE concurrence, an interim rule in 76 FR 22293, on April 21, 2011, requiring employees of CSOSA and PSA to obtain prior written approval before engaging in outside employment. No comments were received. CSOSA has determined, with OGE concurrence, to adopt the interim rule as final without any change. The interim rule being adopted as final provides that employees of CSOSA and PSA must obtain prior written approval before engaging in outside employment. The rule defines outside employment and sets out the procedure for seeking approval.
For a detailed section analysis of this final rule, see the preamble of the interim rule as published in 76 FR 22293.
CSOSA, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this rule and by approving it certifies that this rule will not have a significant economic impact upon a substantial number of small entities. This rule pertains to agency management, and its economic impact is limited to the agency's appropriated funds.
The Paperwork Reduction Act, 44 U.S.C. chapter 35, does not apply because this rulemaking does not contain information collection requirements subject to the approval of the Office of Management and Budget.
CSOSA has determined that this rule is not a rule as defined in 5 U.S.C. 804, and thus, does not require review by Congress.
Conflict of interests, Government employees.
5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.801, 2635.802, 2635.803.
Accordingly, the Court Services and Offender Supervision Agency for the District of Columbia, with the concurrence of the Office of Government Ethics, is adopting the interim rule adding 5 CFR chapter LXX, consisting of part 8001, which was published in 76 FR 22293 on April 21, 2011, as a final rule without change.
Agricultural Marketing Service, USDA.
Affirmation of interim rule as final rule.
The Department of Agriculture (USDA) is adopting, as a final rule, without change, an interim rule that decreases the assessment rate established for the California Olive Committee (Committee) for 2011 and subsequent fiscal years from $44.72 to $16.61 per ton of olives handled. The Committee locally administers the marketing order which regulates the handling of olives grown in California. Assessments upon olive handlers are used by the Committee to fund reasonable and necessary expenses of the program. The fiscal year began January 1 and ends December 31. The assessment rate will remain in effect indefinitely unless modified, suspended, or terminated.
Effective June 22, 2011.
Jerry L. Simmons, Marketing Specialist, or Kurt J. Kimmel, Regional Manager, California Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906, or E-mail:
Small businesses may request information on complying with this and other marketing order and/or agreement regulations by viewing a guide at the following Web site:
This rule is issued under Marketing Agreement No. 148 and Order No. 932, both as amended (7 CFR part 932), regulating the handling of olives grown in California, 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 Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
The handling of olives grown in California is regulated by 7 CFR part 932. California olive handlers are subject to assessments. Prior to this change handlers were assessed $44.72 per ton of olives handled.
The Committee met on December 15, 2010, and unanimously recommended an assessment rate of $16.61 per ton of olives. The assessment rate of $16.61 is $28.11 per ton lower than the rate currently in effect. The Committee recommended the lower assessment rate because of a substantial increase in assessable olives for the 2011 fiscal year.
The assessment rate established in this rule will be applicable to all assessable olives beginning on January 1, 2011, and continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information. Although this assessment rate is effective for an indefinite period, the Committee will continue to meet prior to or during each fiscal year to recommend a budget of expenses and consider recommendations for modification of the assessment rate.
In an interim rule published in the
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 final 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 the 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 1,000 producers of California olives in the production area and 2 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,000,000.
Based upon information from the industry and the California Agricultural Statistics Service (CASS), the average grower price for 2010 was approximately $811 per ton and total grower production was around 165,000 tons. Based on production, producer prices, and the total number of California olive producers, the average annual producer revenue is less than $750,000. Thus, the majority of olive producers may be classified as small entities. Both of the handlers may be classified as large entities.
This rule decreases the assessment rate established for the Committee and collected from handlers for the 2011 and subsequent fiscal years from $44.72 to $16.61 per ton of olives. The Committee unanimously recommended 2011 expenditures of $2,203,909 and an assessment rate of $16.61 per ton. The recommended assessment rate of $16.61 is $28.11 lower than the 2010 rate. Income generated from the $16.61 per ton assessment rate should be adequate to meet this year's expenses when combined with funds from the authorized reserve and interest income.
The major expenditures recommended by the Committee for the 2011 fiscal year include $1,093,009 for Research Programs, $700,000 for Marketing Programs, $335,900 for General Administration, and $75,000 for Inspection Equipment Development. Budgeted expenses for these items in 2010 were $300,000, $255,000, $324,923, and $50,000, respectively.
The Committee recommended the lower assessment rate because of a substantial increase in assessable olives for the 2011 fiscal year. The fiscal year 2011 olives as reported by CASS total 164,984 tons, as compared to 23,033 tons reported for the 2010 fiscal year.
The Committee reviewed and unanimously recommended 2011 expenditures of $2,203,909, which included increases in administrative expenses, marketing programs, equipment development and research programs. Prior to arriving at this budget, the Committee considered information from various sources, such as the Executive Subcommittee, Marketing Subcommittee, Inspection Subcommittee, and the Research Subcommittee. Alternative expenditure levels were discussed by these groups, based upon the relative value of various projects to the olive industry. The assessment rate of $16.61 per ton of assessable olives was derived by considering anticipated expenses, the volume of assessable olives, and additional pertinent factors.
A review of historical information and preliminary information indicates that grower price could range between approximately $811 per ton and $1,105 per ton. Therefore, the estimated assessment revenue for the 2011 fiscal year as a percentage of total grower revenue could range between 1.5 and 2 percent.
This action decreases the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers.
This action imposes no additional reporting or recordkeeping requirements on either small or large California olive handlers. 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.
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.
USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.
Comments on the interim rule were required to be received on or before May 3, 2011. No comments were received. Therefore, for the reasons given in the interim rule, we are adopting the interim rule as a final rule, without change.
To view the interim rule, go to:
This action also affirms information contained in the interim rule concerning Executive Orders 12866 and 12988, the Paperwork Reduction Act (44 U.S.C. Chapter 35), and the E-Gov Act (44 U.S.C. 101).
After consideration of all relevant material presented, it is found that finalizing the interim rule, without change, as published in the
Olives, Marketing agreements, Reporting and recordkeeping requirements.
Board of Governors of the Federal Reserve System (Board).
Final rule.
The Board is adopting a final rule that allows bank holding companies that have made a valid election to be taxed under Subchapter S of Chapter 1 of the U.S. Internal Revenue Code (S-Corp BHCs) and bank holding companies organized in mutual form (Mutual BHCs) to include the full amount of any subordinated debt securities issued to the U.S. Department of the Treasury (Treasury) under the capital purchase program (CPP), in tier 1 capital for purposes of the Board's risk-based and leverage capital guidelines for bank holding companies, provided that the Subordinated Securities will count toward the limit on the amount of other restricted core capital elements includable in tier 1 capital; and allows bank holding companies that are subject to the Board's Small Bank Holding Company Policy Statement (small bank holding companies) and that are S-Corp BHCs or Mutual BHCs to exclude the CPP Subordinated Securities from treatment as debt for purposes of the debt-to-equity standard under the Small Bank Holding Company Policy Statement (Policy Statement). The Board is also adopting, and requesting comment on, an interim final rule that allows small bank holding companies that are S-Corps or Mutual BHCs to exclude from treatment as debt for purposes of the debt-to-equity standard under the Policy Statement subordinated debt securities issued to the Treasury through the Small Business Lending Fund established under the Small Business Jobs Act of 2010.
The final rule will become effective on June 21, 2011. Comments on allowing S-Corp BHCs and Mutual BHCs that issue SBLF Subordinated Securities to the Treasury to exclude the securities from the definition of debt under the Policy Statement are due by July 30, 2011.
Anna Lee Hewko, (202) 530-6260, Assistant Director, Capital and Regulatory Policy, or Brendan G. Burke, (202) Senior Supervisory Financial Analyst, Division of Banking Supervision and Regulation; April C. Snyder, Counsel, (202) 452-3099, or Benjamin W. McDonough, Counsel, (202) 452-2036, Legal Division; Board of Governors of the Federal Reserve System, 20th Street and Constitution Ave., NW., Washington, DC 20551. For the hearing impaired
On June 1, 2009, the Board issued an interim final rule (CPP interim rule) (74 FR 26077) to allow bank holding companies that have made a valid election to be taxed under Subchapter S of Chapter 1 of the U.S. Internal Revenue Code (S-Corp BHCs) and bank holding companies organized in mutual form (Mutual BHCs) to include the full amount of any subordinated debt securities issued to the Treasury under the capital purchase program (CPP Subordinated Securities) established by Treasury under the Economic Stabilization Act of 2008 (EESA)
The Board is now adopting the CPP interim final rule as a final rule in substantially the same form, as discussed below. In addition, for the reasons explained below, the Board is adopting as an interim final rule a provision that would allow bank holding companies that are subject to the Board's Policy Statement and that are S-Corp BHCs or Mutual BHCs to exclude subordinated debt securities issued to the Treasury through the Small Business Lending Fund established under the Small Business Jobs Act of 2010 (SBLF Subordinated Securities) from debt for purposes of the debt-to-equity standard under the Policy Statement.
Under the Troubled Asset Relief Program (TARP) established in the Emergency Economic Stabilization Act of 2008 (EESA), Division A of Pub. L. No. 110-343, 122 Stat. 3765 (2008), Treasury provided capital to eligible banks, bank holding companies and savings associations (collectively, banking organizations), as well as certain other financial institutions (CPP).
Under the CPP, Treasury purchased the CPP Subordinated Securities, which rank senior to common stock but are subordinated to the claims of depositors and other creditors unless such other claims are explicitly made pari passu or subordinated to the Subordinated Securities.
As with other securities issued to Treasury under the CPP, and as described in further detail in the interim final rule, the CPP Subordinated Securities included certain features designed to make them attractive to a wide array of generally sound S-Corp and mutual banking organizations and to encourage such companies to replace such securities with private capital once the financial markets return to more normal conditions. In particular, the CPP Subordinated Securities bear an interest rate that increases substantially five years after issuance.
Under the Board's current Capital Guidelines, the CPP Subordinated Securities generally would be ineligible for tier 1 capital treatment because they are subordinated debt, but would be eligible for inclusion in tier 2 capital.
For these reasons and in order to support the participation of S-Corp BHCs in the Capital Purchase Program, promote the stability of banking organizations and the financial system, and help banking organizations meet the credit needs of creditworthy customers, the Board adopted the CPP interim rule to permit S-Corp BHCs that issued CPP Subordinated Securities to the Treasury to include the full amount of such securities in tier 1 capital for purposes of the Board's Capital Guidelines, subject to certain limitations.
The Board received two comments on the CPP interim rule. Both comments generally were in favor of the Board's action. One commenter suggested that the Board extend the capital treatment provided by the CPP interim rule to instruments with similar terms issued to private entities. Another commenter expressed support for the CPP interim rule generally and asked that the Board clarify in the final rule that the capital treatment of the CPP interim rule would apply to all CPP Subordinated Securities issued, whether before or after the publication of the CPP interim rule.
As discussed in the CPP interim rule, the Board, as a matter of prudential policy and practice, generally has not allowed subordinated debt to be included in tier 1 capital, given the contractual obligations they place on the issuing banking organization and consequent limited ability to absorb losses. The Board remains concerned that instruments with debt or debt-like features have limited ability to absorb losses. However, as discussed above and in the CPP interim rule, issuance of the CPP Subordinated Securities to Treasury in connection with TARP was consistent with a strong public policy objective, which was to increase the capital available to banking organizations generally in a stressed economic environment and thereby promote stability in the financial markets and the banking industry as a whole, as well as facilitate the ability of banking organizations to meet the needs of creditworthy households, businesses, and other customers. In addition, as discussed above and in the CPP interim rule, the terms and public policy considerations related to the CPP Subordinated Securities mitigated supervisory concerns. These facts and circumstanced, viewed in light of the unique, temporary, and extraordinary nature of the CPP, countervailed in many respects the Board's concerns with regard to the subordinated debt nature of the securities. For these reasons and others related to subsequent legislation, as described below, the Board has not extended the capital treatment provided under the CPP interim rule to subordinated debt other than the CPP Subordinated Securities.
Since the issuance of the CPP interim rule, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (DFA).
For the reasons above, the Board has adopted the CPP interim rule as a final rule, clarifying that the provisions apply to all CPP Subordinated Securities issued to Treasury prior to October 4, 2010, in accordance with the DFA.
The Board expects S-Corp BHCs that issue CPP Subordinated Securities, like all other bank holding companies, to hold capital commensurate with the level and nature of the risks to which they are exposed. In addition, the Board expects banking organizations that issue CPP Subordinated Securities to appropriately incorporate the obligations associated with the CPP Subordinated Securities into the organization's liquidity and capital funding plans.
In the CPP interim rule, in order to maintain competitive equality between large and small bank holding companies, the Board also amended the Policy Statement to allow bank holding companies that are subject to the Policy Statement and that are S-Corp BHCs to exclude the Subordinated Securities from debt for purposes of the debt-to-equity standard under Policy Statement.
The Policy Statement limits the ability of a small bank holding company to pay dividends if its debt-to-equity ratio exceeds certain limits. However, the Policy Statement provides that small bank holding companies may exclude from debt an amount of subordinated debt associated with qualifying trust preferred securities up to 25 percent of the bank holding company's equity (as defined in the Policy Statement), less goodwill on the parent company's balance sheet, in determining compliance with the requirements of certain provisions of the Policy Statement.
Because the CPP Subordinated Securities and the junior subordinated notes underlying qualifying trust preferred securities have very similar features, and to facilitate the participation of small bank holding companies in the Capital Purchase Program, the Board adopted the CPP interim rule to allow small bank holding companies that are S-Corp BHCs to exclude the CPP Subordinated Securities from the definition of debt for purposes of the debt-to-equity ratio standard under the Policy Statement. The factors and considerations discussed above with respect to the Board's treatment of the CPP Subordinated Securities under its Capital Adequacy Guidelines also apply equally to the Board's decision to modify the Policy Statement in this manner.
Section 171 of the DFA, by its terms, does not apply to any small bank holding company that is subject to the Policy Statement as in effect on May 19, 2010. The CPP Subordinated Securities may be excluded from the definition of debt under the Policy Statement as in effect on May 19, 2010. Therefore, S-Corp BHCs and Mutual BHCs subject to the Policy Statement as in effect on May 19, 2010, are not subject to the requirements of section 171 and may under the final rule continue to exclude the CPP Subordinated Securities from debt.
Under the Small Business Jobs Act of 2010 (SBJA),
Treasury has established term sheets for the issuance of subordinated securities by S-Corp BHCs and Mutual BHCs that are eligible for the SBLF program, with terms and structure similar to the CPP Subordinated Securities. The SBLF Subordinated Securities, like the CPP Subordinated Securities, are deeply subordinated, cannot be redeemed by a bank holding company issuer without the permission of the Federal Reserve, and cannot provide for accelerated interest except in liquidation or bankruptcy.
Based on these facts and circumstances, the Board has concluded that the SBLF Subordinated Securities are in terms and substance substantially equivalent to the CPP Subordinated Securities and may be excluded from debt under the Policy Statement as in effect on May 19, 2010, on the same basis and for the same reasons as described above. The Board therefore has approved an interim final rule for public comment that allows S-Corp and mutual bank holding companies that issue SBLF Subordinated Securities to the Treasury to exclude the securities from the definition of debt under the Policy Statement.
The Board requests comment on allowing S-Corp BHCs and Mutual BHCs to exclude the SBLF Subordinated Securities from debt under the Policy Statement.
As discussed above and in the interim final rule, the Board found good cause for issuing the CPP interim rule and
Pursuant to sections 553(b) and (d) of the Administrative Procedure Act (5 U.S.C. §§ 553(b) and (d)), the Board also finds that there is good cause for issuing this interim final rule with respect to the SBLF Securities and making the rule effective on June 21, 2011, and that it is impracticable, unnecessary, or contrary to the public interest to issue a notice of proposed rulemaking. The Board is requesting public comment on the interim final rule.
As explained, the SBLF Subordinated Securities are substantially equivalent to the CPP Subordinated Securities in terms and substance. Furthermore, the Board has adopted the interim final rule in light of the important policy considerations of the SBLF program and to help address the continued effects of the financial crisis and recession on small businesses. The rule will allow S-Corp BHCs that are subject to the Policy Statement to exclude the SBLF Subordinated Securities from debt for purposes of the debt-to-equity ratio standard of the Policy Statement. This will help counteract the effects of the recent financial crisis on lending to small businesses and promote stability in the banking system as well as economic growth through increased availability of credit to small businesses.
The Board believes it is important to provide S-Corp BHCs that are subject to the Policy Statement immediately with guidance concerning the capital treatment of the SBLF Subordinated Securities so that they may make appropriate judgments concerning the extent of their participation in the SBLF program and to provide S-Corp BHCs with immediate certainty concerning the treatment of SBLF Subordinated Securities under the Policy Statement.
The Regulatory Flexibility Act, 5 U.S.C. 601
The purpose of the final rule for CPP Subordinated Securities, like the interim final rule, is to facilitate participation in the CPP for S-Corp and Mutual BHCs, increase capital available to banking organizations, and promote stability in the financial markets and banking industry. Similarly, the purpose of the interim final rule for SBLF Subordinated Securities is to facilitate participation by S-Corp BHCs and Mutual BHCs in the SBLF program, thereby making more capital available for small business lending and alleviate the effects of the financial crisis and economic downturn on lending to small businesses.
As a general matter, the Capital Guidelines apply only to a bank holding company that has consolidated assets of $500 million or more. Therefore, the final rule, like the CPP interim rule, would not affect small bank holding companies. Furthermore, the final rule has no new effect on small bank holding companies that were applicants to the CPP and excluded CPP Subordinated Securities from the definition of debt under the Policy Statement pursuant to the CPP interim rule, which reduced burden and benefited small bank holding companies, as explained in the CPP interim rule. Therefore, the Board believes adoption of the final rule for CPP Subordinated Securities will not result in a significant economic impact on small bank holding companies.
The changes to the Policy Statement under the interim final rule for SBLF Subordinated Securities will also reduce burden and benefit small bank holding companies. By allowing them to exclude the SBLF Subordinated Securities from treatment as debt for purposes of the debt-to-equity standard under the Policy Statement, issuance of the subordinated securities to Treasury would have a neutral effect on the ability of the issuing small bank holding company to issue dividends or make acquisitions with regard to its debt-to-equity ratio. Furthermore, the interim final rule does not appear to duplicate, overlap, or conflict with any other Federal rules. Therefore, the Board believes that the interim final rule will not result in a significant economic impact on a substantial number of small entities. Nonetheless, the Board seeks comment on whether the interim final rule would impose undue burdens on, or have unintended consequences for, small banking organizations, and whether there are ways such potential burdens or consequences could be minimized in a manner consistent with the purpose of the interim final rule.
In accordance with the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3506), the Board has reviewed the final rule and interim final rule to assess any information collections. There are no collections of information as defined by the Paperwork Reduction Act in the final rule or interim final rule.
Section 722 of the Gramm-Leach-Bliley Act, Public Law 106-102, requires the Federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. The Board invites comment on how to make the interim final rule easier to understand. For example:
• Have we organized the material to suit your needs? If not, how could the rule be more clearly stated?
• Are the requirements in the rule clearly stated? If not, how could the rule be more clearly stated?
• Do the regulations contain technical language or jargon that is not clear? If so, which language requires clarification?
• Would a different format (grouping and order of sections, use of headings, paragraphing) make the regulation easier to understand? If so, what changes would make the regulation easier to understand?
• Would more, but shorter, sections be better? If so, which sections should be changed?
• What else could we do to make the regulation easier to understand?
Administrative practice and procedure, Banks, Banking, Federal Reserve System, Holding companies, Reporting and recordkeeping requirements, Securities.
Accordingly, the interim rule amending 12 CFR part 225 which was published at 74 FR 26077 on June 1, 2009, is adopted as a final rule with the following changes:
12 U.S.C. 1817(j)(13), 1818, 1828(o), 1831i, 1831p-1, 1843(c)(8), 1844(b), 1972(1), 3106, 3108, 3310, 3331-3351, 3906,
II. * * *
A. * * *
1. * * *
a. * * *
iv. * * *
(5) Subordinated debentures issued prior to October 4, 2010, to the Treasury under the TARP (TARP Subordinated Securities) established by the EESA by a bank holding company that has made a valid election to be taxed under Subchapter S of Chapter 1 of the U.S. Internal Revenue Code (S-Corp BHC) or by a bank holding company organized in mutual form (Mutual BHC).
In addition, notwithstanding any other provision of this policy statement and for purposes of compliance with paragraphs 2.C., 3.A., 4.A.i, and 4.B.i. of this policy statement, both a bank holding company that is organized in mutual form and a bank holding company that has made a valid election to be taxed under Subchapter S of Chapter 1 of the U.S. Internal Revenue Code may exclude from debt subordinated debentures issued to the United States Department of the Treasury under (i) the Troubled Asset Relief Program established by the Emergency Economic Stabilization Act of 2008, Division A of Public Law 110-343, 122 Stat. 3765 (2008), and (ii) the Small Business Lending Fund established by the Small Business Jobs Act of 2010, Title IV of Public Law 111-240, 124 Stat. 2504 (2010).
Federal Deposit Insurance Corporation (FDIC).
Interim rule with request for comments.
The Dodd-Frank Wall Street Reform and Consumer Protection Act (Act), abolished the Office of Thrift Supervision (OTS) and redistributed, as of July 21, 2011, the statutorily prescribed transfer date (Transfer Date), the functions and regulations of the OTS relating to savings and loan holding companies, Federal savings associations, and State savings associations to the Board of Governors of the Federal Reserve System (FRB), the Office of the Comptroller of the Currency (OCC), and the FDIC, respectively. The Board of Directors has determined that, effective on the Transfer Date, the OTS Freedom of Information Act (FOIA) and Privacy Act (PA) regulations will not be enforced by the FDIC and that, instead, all FOIA and PA issues will be addressed under the FDIC's regulations involving disclosure of information and the PA, as amended. In taking this action the FDIC's goal is to avoid potential confusion and uncertainty that may arise regarding information concerning State savings associations after the Transfer Date.
The effective date of the Interim Rule is July 21, 2011. Written comments must be received by the FDIC no later than August 22, 2011.
You may submit comments by any of the following methods:
A. Ann Johnson, Counsel, Legal Division, (202) 898-3573 or
The Act, signed into law on July 21, 2010, provides for a substantial reorganization of the regulation of savings associations and their holding companies. Beginning July 21, 2011, the Transfer Date established in Dodd-Frank, functions formerly performed by the OTS will be divided among the FRB, OCC, and FDIC. Section 316(b) of the Act provides that all orders, resolutions, determinations, and regulations issued, made, prescribed, or allowed to become effective by the OTS that were in effect on the day before the Transfer Date continue in effect and are enforceable by the appropriate successor Federal banking agency until modified, terminated, set aside, or superseded in accordance with applicable law by such successor agency, by any court of competent jurisdiction, or by operation of law. Section 323(b) also provides for the transfer on the Transfer Date of OTS property, including books, accounts, records, reports, files, memoranda, paper, reports of examination, work papers, and correspondence relating to such reports, to the respective agencies, that were used by the OTS on the day before the Transfer Date to support OTS functions.
Section 316(c) of the Act further provides for the identification of OTS regulations relating to the supervision of State savings associations to be transferred to the FDIC. The FDIC does not intend to continue or enforce existing OTS regulations regarding the Freedom of Information Act or Privacy Act.
The OTS regulations governing Freedom of Information Act and Privacy Act issues are contained in 12 CFR parts 503 and 505. Because the OTS, unlike the FDIC, is a component part of the Department of the Treasury (Treasury), the OTS rules supplement Treasury's
The Act provides for a 90 day “wind down” period for the OTS beginning on the Transfer date and it will cease operating as a Federal banking agency on July 21, 2011. Because the OTS' functions and property relating to State savings associations will transfer to the FDIC on the Transfer Date, the FDIC believes that the existence of two sets of regulations addressing the same subject areas would lead to confusion concerning which rules and procedures govern FOIA and PA issues applicable to State savings associations. Therefore, the FDIC is providing the public with notice that the FDIC intends to apply the FDIC's existing FOIA and PA regulations to all records or other matters transferred from the OTS to the FDIC, as well as FDIC matters, as of the Transfer Date. In addition, the FDIC is making certain technical amendments to the FDIC's existing regulations to correct addresses and other matters that have changed since the FDIC's rules involving disclosure of information and the PA were last revised. Finally, the FDIC is substituting the Bureau of Consumer Financial Protection for the OTS in section 309.06(b)(3) as a Federal financial institution supervisory agency, for purposes of section 309.6, to whom exempt records may be disclosed.
The Interim Rule revises parts 309 and 310 of the FDIC's regulations as follows:
The Interim Rule will apply to all existing and future FOIA and PA issues involving State savings associations as of the Transfer Date. In this regard, the FDIC invokes the good cause exception to the requirements in the Administrative Procedure Act (“APA”) that, before a rulemaking can be finalized, it must first be issued for public comment and, once finalized, must have a delayed effective date of 30 days from the publication date.
The FDIC believes good cause exists for making the Interim Rule effective immediately on the Transfer Date. Since the OTS will continue to function as a Federal banking agency until the Transfer Date and is a component part of the Department of Treasury, its existing rules will need to remain in place until the Transfer Date. On the Transfer Date, however, the OTS will cease functioning as a Federal banking agency and its responsibility for FOIA and PA issues relating to State savings associations will transfer to the FDIC. As indicated above, the FDIC believes that the existence of essentially duplicate FOIA and PA regulations on the Transfer Date creates the possibility of public confusion. Therefore, the FDIC is providing this Interim Rule before the Transfer Date to provide clarity on this issue to the public and to facilitate a smooth transition of covered matters from the OTS to the FDIC.
For these reasons, in accordance with section 553(b)(B) of the Administrative Procedure Act (APA), the FDIC has determined that good cause exists to waive the general notice and opportunity for pubic comment requirements of the APA. Similarly, the FDIC has determined that good cause exists to make this Interim Rule effective as of the Transfer Date.
The Regulatory Flexibility Act, 5 U.S.C. 601,
The Office of Management and Budget has determined that the Interim Rule is not a “major rule” within the meaning of the relevant sections of the Small Business Regulatory Enforcement Act of l996 (“SBREFA”) (5 U.S.C. 801
Banks, Banking, Freedom of Information, Privacy, Savings associations.
For the Reasons stated above, the Board of Directors of the Federal Deposit Insurance Corporation amends parts 309 and 310 of chapter III of title 12 of the Code of Federal Regulations as follows:
5 U.S.C. 552; 12 U.S.C. 1819 “Seventh” and “Tenth.”
This part sets forth the basic policies of the Federal Deposit Insurance Corporation regarding information it maintains and the procedures for obtaining access to such information, including disclosure of information transferred to Federal Deposit Insurance Corporation from the Office of Thrift Supervision pursuant to section 312 and 323 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203. Section 309.2 sets forth definitions applicable to this part 309. Section 309.3 describes the types of information and documents typically published in the
(b)
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(1) * * *
(ii) By facsimile clearly marked Freedom of Information Act Request to the FOIA/PA Group: (703) 562-7977; or
(iii) By sending a letter to: Federal Deposit Insurance Corporation, Attn: FOIA/PA Group, 550 17th Street, NW., Washington, DC 20429.
(f) * * *
(4) * * *
(i) * * *
(ii) The fee schedule will be set forth in the “Notice of Federal Deposit Insurance Corporation Records Fees” issued in December of each year or in such “Interim Notice of Federal Deposit Insurance Corporation Records Fees” as may be issued. Copies of such notices may be obtained at no charge from the Federal Deposit Insurance Corporation, FOIA/PA Group, 550 17th Street NW., Washington, DC 20429, and are available on the FDIC's World Wide Web page as noted in paragraph (f)(4)(i) of this section.
(h) Appeals. (1) Appeals should be addressed to the Federal Deposit Insurance Corporation, Attn: FOIA/PA Group, FDIC, 550 17th Street, NW., Washington, DC 20429.
(b) * * *
(3) Disclosure to federal financial institutions supervisory agencies and certain other agencies. The Director of the Corporation's Division having primary authority over the exempt records, or designee, may in his or her discretion and for good cause, disclose to any authorized officer or employee of any federal financial institution supervisory agency including the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, Bureau of Consumer Financial Protection, the Financial Stability Oversight Council, the Securities and Exchange Commission, the National Credit Union Administration, or any other agency included in section 1101(7) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3401
(5) Disclosure to servicers and serviced institutions. The Director of the Corporation's Division having primary authority over the exempt records, or designee, may disclose copies of any exempt record related to a depository institution data center, service corporation, or any other data center that provides data processing or related services to an insured institution (hereinafter referred to as “data center”) to:
5 U.S.C. 552a.
The purpose of this part is to establish regulations implementing the Privacy Act of 1974, 5 U.S.C. 552a. These regulations delineate the procedures that an individual must follow in exercising his or her access or amendment rights under the Privacy Act to records maintained by the Corporation in systems of records, including information transferred to Federal Deposit Insurance Corporation from the Office of Thrift Supervision pursuant to sections 312 and 323 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203.
(b) Requests by individuals for access to records pertaining to them and maintained within one of the Corporation's designated systems of records should be submitted in writing to the Federal Deposit Insurance Corporation, Attn: FOIA/PA Group, 550 17th Street, NW., Washington, DC 20429. Each such request should contain a reasonable description of the records sought, the system or systems in which such record may be contained, and any additional identifying information, as specified in the Corporation's
(a) Individuals may request access to records pertaining to themselves by submitting a written request as provided in § 310.3 of these regulations, or by appearing in person on weekdays, other than official holidays, at the Federal Deposit Insurance Corporation, Attn: FOIA/PA Group, 550 17th Street, NW., Washington, DC 20429, between the hours of 8:30 a.m. and 5 p.m.
The Corporation will maintain all records it uses in making any determination about any individual with such accuracy, relevance, timeliness and completeness as is reasonably necessary to assure fairness to the individual in the determination. An individual may request that the Corporation amend any portion of a record pertaining to that individual which the Corporation maintains in a designated system of records. Such a request should be submitted in writing to the Federal Deposit Insurance Corporation, Attn: FOIA/PA Group, 550 17th Street, NW., Washington, DC 20429 and should contain the individual's reason for requesting the amendment and a description of the record (including the name of the appropriate designated system and category thereof) sufficient to enable the Corporation to identify the particular record or portion thereof with respect to which amendment is sought.
(a) Requests by individuals for the amendment of records will be acknowledged by the FOIA/PA Group, and referred to the system manager of the system of records in which the record is contained for determination, within ten business days following receipt of such requests. Promptly thereafter, the FOIA/PA Group will notify the individual of the system manager's decision to grant or deny the request to amend.
(a) A system manager's denial of an individual's request for access to or amendment of a record pertaining to him/her may be appealed in writing to the Corporation's General Counsel (or designee) within 30 business days following receipt of notification of the denial. Such an appeal should be addressed to the Federal Deposit Insurance Corporation, Attn: FOIA/PA Group, 550 17th Street, NW., Washington, DC 20429, and contain all the information specified for requests for access in § 310.3 or for initial requests to amend in § 310.7, as well as any other additional information the individual deems relevant for the consideration by the General Counsel (or designee) of the appeal.
By order of the Board of Directors.
Farm Credit Administration.
Notice of effective date.
The Farm Credit Administration (FCA or Agency), through the FCA Board (Board), issued a final rule under parts 651 and 652 on April 27, 2011 (76 FR 23459) amending our regulations on the Risk-Based Capital Stress Test used by the Federal Agricultural Mortgage Corporation. In accordance with 12 U.S.C. 2252, the effective date of the final rule is 30 days from the date of publication in the
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E Airspace at Cocoa, FL, as the Merritt Island Non-Directional Beacon (NDB) has been decommissioned and new Standard Instrument Approach Procedures have been developed at Merritt Island Airport. This action enhances the safety and airspace management of Instrument Flight Rules (IFR) operations at the airport.
Effective 0901 UTC, August 25, 2011. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
On April 15, 2011, the FAA published in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends Class E airspace extending upward from 700 feet above the surface to accommodate new standard instrument approach procedures developed at Merritt Island Airport, Cocoa, FL. Airspace reconfiguration is necessary due to the decommissioning of the Merritt Island NDB and cancellation of the NDB approach, and for continued safety and management of IFR operations at the airport.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace at Merritt Island Airport, Cocoa, FL.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.3-mile radius of the Merritt Island Airport and within 2.5 miles each side of the 303° bearing from the Merritt Island Airport, extending from the 6.3-mile radius to 7 miles northwest of the airport; excluding that airspace within the Titusville, FL, and Melbourne, FL, Class E airspace areas.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action modifies Class E airspace at Bozeman, Gallatin Field Airport, Bozeman, MT, to accommodate aircraft using Instrument Landing System (ILS) Localizer (LOC) standard instrument approach procedures at the airport. This improves the safety and management of Instrument Flight Rules (IFR) operations at the airport. This action also adjusts the airport's geographic coordinates for the Class D and E airspace areas, and updates the airport name.
Effective date, 0901 UTC, August 25, 2011. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
Eldon Taylor, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue, SW., Renton, WA 98057; telephone (425) 203-4537.
On April 7, 2011, the FAA published in the
Class D and E airspace designations are published in paragraph 5000, 6002, 6004 and 6005, respectively, 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 D and Class E airspace
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying Class E surface airspace designated as an extension to Class D surface area at Bozeman, Gallatin Field Airport, Bozeman, MT. Controlled airspace is necessary to accommodate aircraft using the ILS LOC standard instrument approach procedures at the airport. This action is necessary for the safety and management of IFR operations. The geographic coordinates of the airport for Class D airspace, Class E surface area airspace, and Class E airspace extending upward from 700 feet above the surface, are being adjusted in accordance with the FAA's aeronautical database. This action also updates the airport name to Bozeman, Gallatin Field Airport, MT, from Bozeman, Gallatin Field, MT.
The FAA has determined this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 discusses the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies controlled airspace at Bozeman, Gallatin Field Airport, Bozeman, MT.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR Part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from the surface to and including 7,000 feet MSL within a 4.4-mile radius of Bozeman, Gallatin Field Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
Within a 4.4-mile radius of Bozeman, Gallatin Field Airport. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
That airspace extending upward from the surface within 3 miles each side of the 316° bearing of Bozeman, Gallatin Field Airport extending from the 4.4-mile radius of the airport to 15.5 miles northwest of the airport, and that airspace 2.4 miles each side of the 212° bearing of the Bozeman, Gallatin Field Airport extending from the 4.4-mile radius of the airport to 7 miles southwest of the airport.
That airspace extending upward from 700 feet above the surface within a 13.5-mile radius of Bozeman, Gallatin Field Airport, and within 4.8 miles northeast and 13 miles southwest of the 316° bearing of the airport extending from the 13.5-mile radius to 24.4 miles northwest of the airport.
Mine Safety and Health Administration, Labor.
Final rule.
This final rule replaces the Mine Safety and Health Administration's Emergency Temporary Standard (ETS) pursuant to section 101(b) of the Federal Mine Safety and Health Act of 1977. The final rule adopts the requirements contained in the ETS. Under the final rule, mine operators must maintain the incombustible content of combined coal dust, rock dust, and other dust to at least 80 percent in underground areas of bituminous coal mines. The final rule further requires that the incombustible content of such combined dust be increased 0.4 percent for each 0.1 percent of methane present.
Accumulations of coal dust can ignite, resulting in an explosion, or after an explosion, they can intensify flame propagation, increasing the severity of explosions. The final rule, like the ETS, reduces both the potential for a coal mine explosion and the severity of explosions should they occur.
Roslyn B. Fontaine, Acting Director, Office of Standards, Regulations, and Variances, MSHA, at
MSHA is including the following outline to assist the public in finding information in the preamble.
Rock dust is a pulverized stone used to cover coal dust and render accumulations of it inert. The Mine Safety and Health Administration (MSHA) defines “rock dust” under 30 CFR 75.2 as:
Pulverized limestone, dolomite, gypsum, anhydrite, shale, adobe, or other inert material, preferably light colored, 100 percent of which will pass through a sieve having 20 meshes per linear inch and 70 percent or more of which will pass through a sieve having 200 meshes per linear inch; the particles of which when wetted and dried will not cohere to form a cake which will not be dispersed into separate particles by a light blast of air; and which does not contain more than 5 percent combustible matter or more than a total of 4 percent free and combined silica (SiO
Mine operators are required to apply rock dust in underground bituminous coal mines to reduce the explosion potential of coal dust and other dust generated during mining operations. Effective and frequent rock dust application is essential to protect miners from the potential of a coal dust explosion, or if one occurs, to reduce its severity.
When drafting the Federal Coal Mine Safety Act of 1952, Public Law 49-77 (1952), the Congress recognized a need to prevent major disasters in underground coal mines. At that time, the Congress particularly noted the threat of coal mine explosions due to accumulations of coal dust.
Under the Federal Coal Mine Health and Safety Act of 1969 (Coal Act), Public Law 91-173, Congress emphasized, among other things, the need for interim safety standards to improve control of combustibles—such as loose coal—that propagate explosions. The Congress also recognized the need to prevent coal dust from accumulating in explosive quantities and to prevent coal dust explosions. Congress included language related to rock dusting, which provided:
Where rock dust is required to be applied, it shall be distributed upon the top, floor, and sides of all underground areas of a coal mine and maintained in such quantities that the incombustible content of the combined coal dust, rock dust, and other dust shall be not less than 65 per centum, but the incombustible content in the return aircourses shall be no less than 80 per centum. Where methane is present in any ventilating current, the per centum of incombustible content of such combined dust shall be increased 1.0 and 0.4 per centum for each 0.1 per centum of methane where 65 and 80 per centum, respectively, of incombustibles are required. [Conference Report No. 91-761, Section 304(d)].
The Congress retained this Coal Act provision in the Federal Mine Safety and Health Act of 1977 (Mine Act). The higher limit for return airways was determined in large part because fine “float” coal dust (100 percent < 200 mesh or 75 micrometers (µm)) tends to collect in these airways.
On September 23, 2010, under section 101(b) of the Mine Act, MSHA published an ETS, notice of public hearings, and notice of close of comment period (75 FR 57849) revising the existing standard at 30 CFR 75.403, “Maintenance of incombustible content of rock dust” applicable to underground areas of bituminous coal mines. The ETS served both as an emergency temporary final rule with immediate effect and provided an opportunity for notice and comment. Under the Act, MSHA is required to promulgate a final rule within nine months after publication of an ETS.
The legislative history of the Mine Act reinforces the statutory language regarding the ETS providing opportunity for comment “so that all views can be carefully considered in connection with the issuance of a permanent standard.” S. Rept. No. 95-181, 24 (1977). With publication of this final rule, MSHA has fulfilled its obligations under section 101(b) of the Mine Act.
MSHA held four public hearings on the ETS: St. Louis, Missouri, October 26, 2010; Birmingham, Alabama, October 28, 2010; Lexington, Kentucky, November 16, 2010; and Charleston, West Virginia, November 18, 2010. The public comment period closed on December 20, 2010. In addition to testimony provided by the mining community at the public hearings, MSHA received comments to the rulemaking record. Comments are discussed below.
To clarify MSHA's enforcement under the ETS, the Agency issued Program Information Bulletin (PIB) No. P10-18, “Accumulation of Combustible Materials and Rock Dust,” on September 21, 2010 (September 2010 PIB). The PIB emphasized that underground coal mine operators had not been rock dusting in all required areas and were not maintaining the required levels of rock dust applications in compliance with the previous MSHA standard of no less than 65 per centum in intake aircourses, and no less than 80 per centum in return aircourses under 30 CFR 75.403.
On October 14, 2010, MSHA issued Procedure Instruction Letter No. 10-V-16, “Accumulation of Combustible Materials and Rock Dust” (October 2010 PIL). The October 2010 PIL provided instruction for MSHA enforcement personnel regarding accumulation of combustible materials and rock dust. In the 2010 PIL, MSHA emphasized each mine operator's responsibility to comply with the ETS by October 7, 2010, for newly mined areas; and November 22, 2010, for all other areas of the mine. MSHA provided instruction to Agency personnel for enforcing the ETS and for taking spot rock dust samples at applicable mines.
Final 30 CFR 75.403 retains the requirements of the ETS verbatim to
In developing the final rule, MSHA considered its accident investigation reports of mine explosions in intake air courses that involved coal dust (Dubaniewicz 2009); the National Institute for Occupational Safety and Health's (NIOSH) Report of Investigations 9679 (Cashdollar
In the 1920s, the U.S. Bureau of Mines (the Bureau) conducted industry-wide surveys of coal dust particle size produced by mining. The Bureau conducted large-scale explosion tests using dust particles of the size range obtained from the survey to determine the amount of rock dust required to prevent explosion propagation. The results of this research were the basis for the interim safety standard under the Coal Act and the standard promulgated under the Mine Act.
Mining technology, equipment, and methods have changed significantly since the 1920s. In the latest study, NIOSH and MSHA collaborated to conduct a survey to update information about existing coal dust particle size distribution in underground bituminous coal mines. MSHA inspectors collected a variety of dust samples from intake and return airways from these mines. NIOSH found that the coal dust particle size distribution in intake airways is much finer than in mines of the 1920s because of the significant changes in mining methods and equipment (Cashdollar
Given the results of this latest coal dust particle size survey, NIOSH conducted a series of large-scale dust explosion tests at the NIOSH Lake Lynn Experimental Mine (LLEM) using the dust survey results to determine the incombustible content necessary to prevent explosion propagation. NIOSH determined that to significantly decrease the potential for propagation of explosions, the finer coal dust particle size found in intake airways requires a greater incombustible content than the 65 percent required under MSHA's standard at that time, since the explosion hazard increases as the coal dust particle size decreases. Based on the results of the LLEM testing, NIOSH recommended an 80 percent total incombustible content (TIC) in both intake and return airways of bituminous coal mines. In addition, despite survey indications that return dust particle sizes are finer than those in past studies, NIOSH found that the existing requirement of 80 percent TIC is still sufficient for these areas, in the absence of methane. The testing showed that the TIC required to prevent flame propagation becomes much less dependent on coal particle size as the TIC approaches and exceeds 80 percent (Cashdollar
In 2009, NIOSH published a paper examining past mine explosions to identify the ignition locations and ignition sources responsible for the most severe explosion events ignited in intake air courses resulting in death (Dubaniewicz 2009). MSHA reviewed all of the accident reports identified by NIOSH for the period from 1976 through 2001 (26 years). MSHA determined that there were six explosions that resulted in 46 fatalities in which rock dusting conditions and practices in intake air courses contributed to the severity of the explosions. These explosions occurred at: Scotia Mine in 1976; Adkins Coal Company, No. 11 Mine in 1981; No. 1 Mine, RFH Coal Company in 1982; Southmountain Coal Company Mine No. 3 in 1992; No. 9 Mine, Day Branch Coal Company in 1994; and Jim Walter Resources, Inc. No. 5 Mine in 2001.
The Scotia Mine, Scotia Coal Company, experienced two explosions in 1976: March 9 and March 11. The first explosion, which claimed the lives of 15 miners, resulted from the ignition of a large methane accumulation. Coal dust entered into this explosion, but only to a minor degree. The second explosion, which claimed the lives of eleven miners, started as a methane explosion and coal dust entered into the explosion and aided in the propagation of the explosion (DOL/MSHA 1993).
On December 7, 1981, an explosion at the Adkins Coal Company, No. 11 Mine resulted in fatal injuries to eight miners. A coal dust explosion occurred when a blown-out shot ignited coal dust put into suspension by other blasts of the coal face. Sufficient quantities of rock dust were not applied to the mine surfaces and coal dust deposited on the floor, roof, and ribs from previously mined areas ignited and propagated the explosion away from the face (DOL/MSHA 1981).
The No. 1 Mine, RFH Coal Company, experienced an explosion on January 20, 1982, resulting in the death of seven miners. Flames from explosives were not contained within the limits of the coal being blasted killing two miners. A coal dust explosion occurred when the flame ignited coal dust put into suspension by previous blasts. Sufficient quantities of rock dust were not applied to the mine surfaces and coal dust propagated the explosion throughout the entire mine. This coal dust explosion claimed the lives of five more miners (DOL/MSHA 1982).
The Southmountain Coal Company Mine No. 3 experienced an explosion on December 7, 1992, resulting in fatal injuries to eight miners. An explosion fueled by a limited quantity of methane created enough force to place coal dust into suspension ahead of the flame front. Ignition of the coal dust allowed immediate propagation of the explosion because sufficient quantities of incombustible rock dust were not available to inert the coal dust. The coal dust explosion propagated to the surface areas of the mine (DOL/MSHA 1993).
The No. 9 Mine, Day Branch Coal Company, experienced an explosion on May 11, 1994, resulting in fatal injuries to two miners. A limited quantity of methane was ignited, and both methane and coal dust accumulations contributed to the propagation of the initial explosion flame. As the explosion traveled through the panel the methane was consumed, however, coal dust suspended in the air propagated the explosion approximately 715 feet away from the face (DOL/MSHA 1995).
On September 23, 2001, two explosions at the Jim Walter Resources, Inc. No. 5 Mine resulted in fatal injuries to thirteen miners. The first explosion was a methane explosion caused when a roof fall occurred and damaged a large
The impact of these mine explosions might have been significantly reduced had there been quantities of rock dust applied in accordance with the final rule. The rock dust would have prevented the explosions from propagating to areas where miners were working, thus saving lives.
In addition, MSHA is also aware of at least 4 explosions or ignitions occurring in underground bituminous mines from 1985 through 2008 which did not result in miner injuries or fatalities; however, MSHA investigation reports concluded that poor rock dust practices contributed to these explosions.
Several commenters on the ETS, including participants at the public hearings, stated that they agreed with MSHA's actions in issuing the ETS and the supporting documentation for increasing the incombustible content in intake entries to 80 percent in underground bituminous coal mines. These commenters stated that explosions in U.S. underground coal mines have escalated in magnitude. According to the commenters, one explosion was so powerful that it had ripped a roof strap bolted to the mine roof, while another explosion destroyed the welds on a scoop bucket. MSHA's experience indicates that many explosions in underground bituminous coal mines can be intensified by coal dust.
Where rock dust is required to be applied, the final rule requires that mine operators distribute it upon the top, floor, and sides of all underground areas of a coal mine. MSHA intends for mine operators to rock dust areas that pose the greatest risk to miners. These areas include areas near the active faces and areas that contain ignition sources, such as conveyor belt drives and conveyor belt entries because they pose the greatest potential for methane and coal dust explosions.
Some commenters expressed concerns with MSHA's enforcement of the ETS because they believe mine operators are applying less rock dust in underground bituminous mines than required under the ETS. For example, they noted a longwall tailgate where a longwall shearer had cut across a “thousand-plus foot longwall face” and deposited considerable coal dust accumulations in the immediate tailgate entry that was not cleaned up or effectively rock dusted. They also questioned MSHA's enforcement of the rock dust maintenance standard in remote areas such as remotely-located bleeder entries. These commenters noted that in Alabama, underground coal mine bleeder entries have high levels of methane, pillars yielding raw coal ribs with fresh sloughage, coal accumulation, and no mechanism to apply rock dust.
The ETS and this final rule do not change existing 30 CFR 75.402 which addresses remote areas where there is no feasible mechanism to apply additional rock dust and states:
All underground areas of a coal mine, except those areas in which the dust is too wet or too high in incombustible content to propagate an explosion, shall be rock dusted to within 40 feet of all working faces, unless such areas are inaccessible or unsafe to enter or unless the Secretary or his authorized representative permits an exception upon his finding that such exception will not pose a hazard to the miners. All crosscuts that are less than 40 feet from a working face shall also be rock dusted.
The September 2010 PIB provided guidance to operators on existing § 75.402 and ETS § 75.403. It suggested that they use bulk dusters, trickle dusters or high-pressure rock dusting machines to blow the rock dust into inaccessible areas to maintain the 80% TIC in remote areas.
In the ETS preamble, MSHA stated that “Rock dust, when effectively applied, can prevent explosions or reduce the severity of explosions” (75 FR 57851). In response, commenters questioned what MSHA meant by the term “effectively.” In the September 2010 PIB, MSHA emphasized that mine operators are responsible for applying rock dust in areas of underground bituminous coal mines to inert coal and float coal dust, loose coal, and other combustible materials to comply with the ETS. Miners are exposed to grave hazards in these underground mines. As little as 0.005 inch (the thickness of a sheet of paper) of coal and float coal dust on top of rock dusted surfaces is capable of propagating an explosion. Therefore, removal of coal dust, including float coal dust, loose coal, other combustible materials, and the application and re-application, where necessary, of rock dust are essential to effectively protect miners from the potential of a coal dust explosion; or if one occurs, to reduce its severity and prevent loss of life.
In the October 2010 PIL, MSHA issued instructions to its inspectorate to enhance enforcement of the ETS and to check mine operators' compliance with the ETS and to take appropriate action, as necessary. MSHA stated that if mine operators allow coal, float coal dust, and other combustible materials to accumulate in active workings and on equipment in the mine, or if the TIC of the combined coal dust, rock dust, and other dust in any area of the mine does not meet the quantities required by the ETS, inspectors should take appropriate enforcement action.
MSHA stated in the October 2010 PIL that during regular inspections MSHA inspectors should continue to sample the incombustible content as required by MSHA's existing sampling policy and procedures for collecting rock dust samples, including sampling to within 50 feet of the tailpiece. In addition, the 2010 PIL instructed inspectors to take selective spot samples in areas that were rock dusted prior to September 23, 2010 (the date the ETS was published), to determine whether the mine operator is maintaining the 80 percent TIC requirements of the ETS. MSHA also recommended that inspectors conduct selective spot sampling in immediate return entries, especially longwall tailgate entries, and areas containing seals. MSHA instructed inspectors to begin spot sampling near the active faces and in areas that contain ignition sources, such as conveyor belt drives and conveyor belt entries because these areas pose the greatest potential for methane and coal dust explosions. Inspectors were instructed to identify the spot samples in the same manner as samples collected under the existing sampling policy and use the same mailing procedures. MSHA's existing sampling policy and procedures are under review.
When MSHA found a violation of 30 CFR 75.400, 75.402, or 75.403 under the ETS, the October 2010 PIL instructed Agency inspectors that abatement should be set at the shortest reasonable time after careful evaluation of conditions on a mine-by-mine basis, including whether the mine liberates large volumes of methane gas or has a history of methane ignitions. Inspectors were further instructed that if an operator failed to totally abate the violation within the specified time, they should consider issuance of a Section 104 (b) Order of Withdrawal.
If a mine operator has repeat violations of §§ 75.400, 75.402 or 75.403, the October 2010 PIL advised that inspection personnel should discuss the adequacy of the cleanup program with the operator and consider
A commenter suggested dividing existing § 75.400 (accumulations) into three requirements. According to the commenter, this action would separate violations for accumulations on rock dusted surfaces, on mobile equipment, and on fixed plant equipment. This comment is outside the scope of this rulemaking.
Some commenters objected to application of rock dust by hand. In their opinion, this method is inadequate to protect miners. Application of rock dust by hand is not prohibited under the final rule, as long as the 80 percent incombustible content of the combined coal dust, rock dust, and other dust is maintained. Based on MSHA experience, mine operators are capable of maintaining the requirements of the final rule through application of rock dust by hand. However, MSHA acknowledges that there are more efficient methods of rock dusting, such as:
• High pressure bulk—transfers large dust quantities in short time with limited labor required.
• Bantam—portable unit that can mount on equipment to easily dust face areas or can be used to spot dust.
• Slinger—portable duster with good perimeter coating in a single pass.
• Trickle—good for dusting return entries or belt entries, run continuously.
• Wet/Slurry—more coverage per pound of dust, good adherence to coal, can dust with miners inby and can be easily applied in high areas.
• Mine-wide automated dusting systems—System can be controlled by programmable logic controllers requiring less labor.
A commenter questioned whether it is appropriate for MSHA to rely on results of the NIOSH explosibility testing (Cashdollar
In its experimental studies of the effect of particle size on explosion hazard, NIOSH used coal from the Pittsburgh coal seam. The data represent the worst-case condition as stated in the ETS preamble and in the NIOSH Report of Investigations 9679 (Cashdollar
Lower volatile coals (less than 30% volatile matter) require less rock dust to inert the coal dust, although it would not be a significant reduction in the amount of rock dust. The final rule is based on the worst-case conditions of coal dust (particles less than 200 mesh) for high volatile bituminous coals. Therefore, the final rule retains the ETS language and provides an extra margin of safety for coals with lower volatile content.
Commenters questioned whether additional rock dust, particularly in intake airways, increases miners' exposures to respirable coal mine dust above the allowable limit. This commenter suggested that the ETS, coupled with MSHA's proposal to reduce the respirable coal mine dust limit by half in these same air courses, created incompatible standards. This commenter believes that if MSHA is to require both standards, then MSHA must revise its position with regard to the use of wet dusting systems for intake roadways and aircourses to reduce respirable dust exposures from rock dusting.
MSHA standards do not require that rock dust contain any respirable fraction. MSHA's existing definition for rock dust establishes specifications for rock dust. Operators must assure that rock dust applied meets this definition.
With regard to the utility of wet dusting methods to control rock dust in underground coal mines, MSHA believes that for this approach to be effective, the wet products must be applied often enough to prevent an accumulation of float coal dust atop coated surfaces. The use of wet dusting technology has some limitations in an underground coal mine. The use of wet or foam-type application of rock dust and the use of other inerting agents have been explored for decades. These wet products work by binding or coating coal dusts and preventing them from being entrained in an explosion front rather than mixing with and inerting the coal dust. This creates a coating on surfaces, on top of which new coal dust can accumulate. This coating will not provide as effective inerting capability in the event of an explosion as dry rock dust.
Finally, some commenters expressed concern that MSHA is precluding some mine operators from using scrubbers in underground mines. These commenters suggested that MSHA should allow the immediate use of scrubbers on mining machinery where coal dust is being generated at the face, stating that scrubbers remove 92 percent of respirable dust out of the air, which would help operators achieve the rock dusting requirements. Commenters did not provide supporting data. Although MSHA does not prohibit the use of scrubbers in appropriate cases, this issue is outside the scope of this rulemaking.
Commenters objected to the protracted time that it takes MSHA to obtain results of rock dust samples. These commenters also inquired as to the availability of a method to immediately assess compliance through real-time monitoring instead of waiting weeks for compliance results. The Coal Dust Explosibility Meter (CDEM) is new technology that uses optical reflectance to measure the relative concentration ratio of coal dust (black) to rock dust (white/grey) in a rock dust sample collected in an underground coal mine. The CDEM is intended to be used by mine operators and MSHA as a screening tool inside the mine to assess the explosion hazard potential in real time and take prudent actions to
Under Executive Order (E.O.) 12866, the Agency must determine whether a regulatory action is “significant” and subject to review by the Office of Management and Budget (OMB). Section 3(f) of E.O. 12866 defines a “significant regulatory action” as an action that is likely to result in a rule: (1) Having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety or state local or tribal governments or communities (also referred to as “economically significant”); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.
Under E.O.s 13563 and 12866, the Agency must assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
MSHA has determined that this final rule does not have an annual effect of $100 million or more on the economy, and is not an economically “significant regulatory action” pursuant to § 3(f) of E.O. 12866. However, the final rule, like the ETS, raises novel, legal or policy issues and is therefore subject to OMB review.
MSHA has not prepared a separate regulatory economic analysis for this rulemaking. Rather, the analysis is presented below.
The final rule applies to all underground bituminous coal mines in the United States. There are approximately 415 active underground bituminous coal mines employing 47,119 miners. Table 1 presents the 415 underground bituminous coal mines by employment size.
The 415 underground coal mines produced an estimated 331.7 million short tons of coal in 2009. The average price of coal in underground mines in 2009 was $55.77 per short ton and was obtained from the U.S. Department of Energy (DOE), Energy Information Administration (EIA),
Since MSHA did not receive any comments on the benefits analysis presented in the preamble of the ETS, the Agency has retained that analysis for the final rule. For the convenience of the reader, the entire benefits analysis is presented below.
Accumulations of coal dust can propagate and contribute to the severity of mine explosions. During the period 1976 to 2001 (26 years) there were 26 fatal methane and/or coal dust explosions in underground coal mines that resulted in 139 fatalities (Dubaniewicz, 2009). In 6 of those 26 explosions, the rock dusting conditions and practices in intake air courses were identified as either the cause or a contributing factor in the explosions. In addition to reviewing the Dubaniewicz report, MSHA also reviewed the Agency's own fatal investigation reports for these explosions. Based upon this
MSHA also studied explosions and ignitions resulting in non-fatal injuries that occurred during the period from 1986 through 2001 (16 years). During that time, there were 3 explosions that resulted in at least 4 non-fatal injuries in which rock dusting conditions and practices contributed to the explosions. Based on the data, MSHA determined that the requirements in the final rule will prevent 1 additional injury about every 4 years (4 injuries/16 years).
However, these estimates are not precise and the final rule could prevent additional injuries. MSHA is also aware of at least 4 explosions or ignitions occurring from 1985 through 2008 which did not result in any injuries or fatalities; however, the investigation report concluded that poor rock dust practices contributed to these explosions. MSHA projects that the final rule will improve rock dust practices in underground bituminous coal mines and the safety and health of miners.
The final rule will decrease explosibility of the coal dust deposited in underground bituminous coal mines, which will decrease both the probability that an explosion will occur and, if an explosion does occur, the severity of the explosion. MSHA projects a significant reduction in fatalities and injuries with the implementation of the final rule.
MSHA calculates benefits in terms of an annual average. However, the final rule is targeted at mine explosions, which are catastrophic events that may not occur on a regular basis. They can unfortunately occur multiple times in a single year, but may not occur again for a number of years. Thus, MSHA's average estimate of 1 to 1.5 deaths prevented a year cannot fully reflect the impact of preventing a given explosion or series of explosions, since each would be unique in terms of its impacts. MSHA has estimated the benefits of the final rule within this context. The number of fatalities and injuries that may be prevented by this final rule may be understated.
MSHA did not receive any comments that directly addressed the cost estimates presented in the preamble of the ETS. For this reason, MSHA has retained that analysis for the final rule, with one change as is noted below to address rock dusting in hard-to-reach areas, such as remote bleeder entries.
MSHA estimates that the final rule will result in total yearly costs for operators of underground bituminous coal mines of approximately $26.3 million: $0.3 million for mines with 1-19 employees; $18.9 million for mines with 20-500 employees; and $7.2 million for mines with 501 or more employees. The totals above do not sum due to rounding.
As is noted below, MSHA's cost estimates are based upon 2009 data. On April 14, 2010, West Virginia (WV) issued an Executive Order requiring that dust samples meet the NIOSH recommendation of 80% total incombustible content. MSHA did not consider the WV requirement in its analysis; thus the cost estimates attributable to the final rule may be overstated.
Results from 26,576 intake rock dust samples collected by MSHA in 2009 show that over 75% of the samples had a total incombustible content (TIC) equal to or greater than 80%. While it is not possible to precisely determine the additional amount of rock dust needed based upon these samples, MSHA developed cost estimates using the following:
• MSHA assumed that the costs related to the 25% of samples that were below 80% TIC were the costs of going from 65% required under the existing standard to 80% TIC.
• Some samples that were below 80% TIC were below 65% TIC and others were above 65% TIC. To calculate costs, MSHA assumed that 25% of the mines in each size category would have to increase the TIC in the intakes from 65% to 80%, and developed costs accordingly.
MSHA estimates that approximately 18 mines with fewer than 20 employees (73 mines × 25%); 83 mines with 20-500 employees (330 mines × 25%); and 3 mines with more than 500 employees (12 mines × 25%) will incur costs to comply with the final rule.
MSHA also estimates that these mines will require 115% more rock dust to comply with the final rule. The 115% increase in the amount of rock dust needed was calculated by solving the following set of equations:
• The initial amount of rock dust (RD
• The initial amount of rock dust (RD
Based upon the experience of MSHA's field staff, MSHA estimates the total costs associated with purchasing and applying rock dust to comply with the previous rock dust requirements were $0.20 per ton of coal produced for mine operators with fewer than 20 employees and $0.23 per ton of coal produced for mine operators with 20 or more employees. Therefore, the regulatory economic analysis for the ETS estimated additional compliance cost for the affected mines would be $0.23 ($0.20 × 115%) per ton of coal produced for mines with fewer than 20 employees and $0.27 ($0.23 × 115%) per ton of coal produced for mines with 20 or more employees.
In response to commenters' concerns, MSHA has increased the estimated cost to purchase and apply rock dust by 20 percent in this analysis to account for the additional cost related to applying rock dust in hard-to-reach areas. Thus the compliance cost for the affected mines will be $0.28 ($0.23 × 120%) per ton of coal produced for mines with fewer than 20 employees and $0.32 ($0.27 × 120%) per ton of coal produced for mines with 20 or more employees.
From these estimates, MSHA projects that the costs for purchasing and applying rock dust would increase by $26.3 million per year due to the final rule. Table 3 shows that, disaggregated by mine size, yearly costs will be approximately: $0.3 million for mine operators with fewer than 20 employees; $18.9 million for mine operators with 20-500 employees; and $7.2 million for mine operators with more than 500 employees. The totals above do not sum due to rounding.
Since MSHA did not receive any comments in the net benefits analysis in the preamble of the ETS, the Agency has retained that analysis for the final rule. The only changes are due to the changes in the estimated costs discussed in the previous section.
This section presents a summary of the estimated net benefits of the final rule for informational purposes only. Under the Mine Act, MSHA is not required to use estimated net benefits as the basis for its decision.
MSHA based its estimates of the monetary values for the benefits associated with the final rule on relevant literature. To estimate the monetary values of these reductions in cases, MSHA performed an analysis of the imputed value of fatalities prevented based on a willingness-to-pay approach. This approach relies on the theory of compensating wage differentials (
Viscusi and Aldy (2003) conducted an analysis of studies that use a willingness-to-pay methodology to estimate the imputed value of life-saving programs (
Although MSHA is using the Viscusi and Aldy (2003) study as the basis for monetizing the expected benefits of the final rule, the Agency does so with several reservations, given the methodological difficulties involved in estimating the compensating wage differentials (see Hintermann
MSHA recognizes that monetizing the value of a statistical life is difficult and involves uncertainty and imprecision. In the future, MSHA plans to work with other agencies to refine the approach taken in this final rule.
Based upon the estimated prevention of 1 to 1.5 deaths per year and 1 injury every 4 years, the final rule will result in monetized benefits of approximately $8.7 to 13.1 million per year. As noted above, MSHA believes that the final rule may prevent additional injuries; however, due to data limitations, quantification is not possible and they have not been included in the monetized benefits.
In addition to the injuries and fatalities prevented, MSHA anticipates that savings to operators will result from the final rule preventing or reducing the severity of explosions. As noted above, 6 explosions (about 0.23 per year) involving fatalities occurred in the 26 year period 1976 to 2001 and 4 explosions (about 0.17 per year) that did not involve any fatalities or injuries occurred in the 24 year period 1985 through 2008. MSHA estimates that the final rule will prevent or reduce the severity of about one explosion every two and a half years.
Explosions can result in tremendous costs to a mine operator. MSHA estimates that the time to recover a mine after an explosion is a minimum of 8 weeks. Factors such as lost wages, lost production, rehabilitation, payment for the mine rescue teams and other staff, and miscellaneous expenses could result in costs that range between $2 and $7 million, depending on the extent of the explosion and the size of the mine.
Additional costs include lost equipment, which could run into the millions of dollars. For example, the cost of a set of advancing type mining equipment (continuous mining machine, roof bolting machine, shuttle car, scoop and power center) would be approximately $8 million while the cost of a longwall unit would be approximately $200 million. Replacing the electric and waterlines, rails, roof supports, pumps, and power centers could add a couple of million dollars more to costs.
If a mine operator is unable to reopen the mine after an explosion like some of the mines examined by MSHA, costs will vary depending on the amount of recoverable reserves. The anticipated cost of lost reserves could range from a few million dollars for a small mine to in excess of hundreds of millions dollars for a large mine.
Based upon these values, MSHA estimates that preventing or reducing the severity of a typical explosion in an underground coal mine will save the operator approximately $15 to $40 million in direct costs (
MSHA did not receive any comments on the feasibility analysis presented in the preamble of the ETS. The Agency concludes that the requirements of the final rule are technologically and economically feasible.
MSHA concludes that this final rule is technologically feasible. The final rule is not technology-forcing. The benefits of rock dusting have been known for at least a century. Mine operators have been required to comply with the Coal Act, Mine Act, and ETS rock dusting requirements in 30 CFR 75.403, collectively for more than 40 years. The final rule adopts the ETS requirement for total incombustible content of dust in the mine. The final rule does not require operators to make any innovations in existing equipment or techniques used to rock dust.
MSHA also concludes that this final rule is economically feasible. The U.S. underground bituminous sector produced an estimated 331,682,552 short tons of coal in 2009. Using the 2009 price of underground coal of $55.77 per short ton, and estimated 2009 coal production in tons, underground coal revenues are estimated to be approximately $18.5 billion. MSHA estimated the yearly compliance costs of the final rule to be $26.3 million, which is 0.14 percent of revenues ($26.3 million/$18.5 billion) for underground bituminous coal mines. MSHA has traditionally used a revenue screening test—whether the yearly compliance costs of a regulation are less than 1 percent of revenues—to establish presumptively that compliance with the regulation is economically feasible for the mining community.
Pursuant to the Regulatory Flexibility Act (RFA) of 1980, as amended by SBREFA, MSHA has analyzed the impact of the final rule on small businesses. Based on that analysis, MSHA has notified the Chief Counsel for Advocacy, Small Business Administration, and made the certification under the Regulatory Flexibility Act at 5 U.S.C. 605(b) that the final rule will not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is presented below.
Under the RFA, in analyzing the impact of the final rule on small entities, MSHA must use the Small Business Administration (SBA) definition for a small entity or, after consultation with the SBA Office of Advocacy, establish an alternative definition for the mining industry by publishing that definition in the
In addition to examining small entities as defined by SBA, MSHA has also looked at the impact of this final rule on underground bituminous coal mines with fewer than 20 employees, which MSHA and the mining community have traditionally referred to as “small mines.” These small mines differ from larger mines not only in the number of employees, but also in economies of scale in material produced, in the type and amount of production equipment, and in supply inventory. The costs of complying with the final rule and the impact of the final rule on small mines will also be different. It is for this reason that small mines are of special concern to MSHA.
MSHA concludes that it can certify that the final rule will not have a significant economic impact on a substantial number of small entities that are covered by this final rule. The Agency has determined that this is the case both for mines with fewer than 20 employees and for mines with 500 or fewer employees.
MSHA initially evaluates the impacts on “small entities” by comparing the estimated compliance costs of a rule for small entities in the sector affected by the rule to the estimated revenues for the affected sector. When estimated compliance costs are less than one percent of the estimated revenues, the Agency believes it is generally appropriate to conclude that there is no significant economic impact on a substantial number of small entities. When estimated compliance costs exceed one percent of revenues, MSHA investigates whether a further analysis is required.
For underground bituminous coal mines, the estimated preliminary 2009 production was 4,972,836 short tons for mines that had fewer than 20 employees and 241,426,542 short tons for mines that had 500 or fewer employees. Using the 2009 price of underground coal of $55.77 per short ton and total 2009 coal production in short tons, underground coal revenues are estimated to be approximately $277.3 million for mines employing fewer than 20 employees and $13.4 billion for mines employing 500 or fewer employees. The yearly costs of the final rule for mines that have fewer than 20 employees is 0.12 percent ($338,000/$277.3 million) of annual revenues, and the yearly costs of the final rule for mines that have 500 or fewer employees is 0.14 percent ($19.2 million/$13.5 billion) of annual
The final rule contains no additional information collections under the Paperwork Reduction Act.
MSHA has reviewed the final rule under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501
The final rule does not have “federalism implications” because 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.” Accordingly, under E.O. 13132, no further Agency action or analysis is required.
Section 654 of the Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 601 note) requires agencies to assess the impact of Agency action on family well-being. MSHA has determined that the final rule will have no effect on family stability or safety, marital commitment, parental rights and authority, or income or poverty of families and children. The final rule impacts only the underground bituminous coal mine industry. Accordingly, MSHA certifies that the final rule will not impact family well-being.
The final rule does not implement a policy with takings implications. Accordingly, under E.O. 12630, no further Agency action or analysis is required.
The final rule was written to provide a clear legal standard for affected conduct and was carefully reviewed to eliminate drafting errors and ambiguities, so as to minimize litigation and undue burden on the Federal court system. Accordingly, the final rule will meet the applicable standards provided in section 3 of E.O. 12988, Civil Justice Reform.
The final rule will have no adverse impact on children. Accordingly, under E.O. 13045, no further Agency action or analysis is required.
The final rule does not have “tribal implications” because it will 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.” Accordingly, under E.O. 13175, no further Agency action or analysis is required.
Executive Order 13211 requires agencies to publish a statement of energy effects when a rule has a significant energy action (
Mine safety and health, Underground coal mines, Combustible Materials and Rock Dusting.
Chapter I of Title 30, part 75 of the Code of Federal Regulations is amended as follows:
30 U.S.C. 811.
Where rock dust is required to be applied, it shall be distributed upon the top, floor, and sides of all underground areas of a coal mine and maintained in such quantities that the incombustible content of the combined coal dust, rock dust, and other dust shall be not less than 80 percent. Where methane is present in any ventilating current, the percent of incombustible content of such combined dust shall be increased 0.4 percent for each 0.1 percent of methane.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, First Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Amtrak Railroad Bridge at mile 3.4, across the Connecticut River at Old Lyme, Connecticut. The deviation is necessary to facilitate scheduled maintenance at the bridge. This deviation allows the bridge to remain in the closed position during the deviation period.
This deviation is effective from 12:01 a.m. through 6 a.m. on June 23, 2011.
Documents mentioned in this preamble as being available in the docket are part of docket USCG-2011-0492 and are available online at
If you have questions on this rule, call or e-mail Mr. Judy Leung-Yee, Project Officer, First Coast Guard District,
The Amtrak Railroad Bridge, across the Connecticut River at mile 3.4, at Old Lyme, Connecticut, has a vertical clearance in the closed position of 19 feet at mean high water and 22 feet at mean low water. The drawbridge operation regulations are listed at 33 CFR 117.205(b).
The waterway users are commercial and recreational vessels.
The owner of the bridge, National Railroad Passenger Company (Amtrak), requested a temporary deviation from the regulations to facilitate repair of the main gear box and secondary reducer at the bridge.
Under this temporary deviation the Amtrak Railroad Bridge may remain in the closed position between 12:01 a.m. and 6 a.m. on June 23, 2011. Vessels that can pass under the bridge in the closed position may do so at any time.
The local marinas and commercial users were notified. No objections were received.
In accordance with 33 CFR 117.35(e), the bridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, First Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Long Beach Bridge at mile 4.7, across Reynolds Channel at Nassau, New York. The deviation is necessary to facilitate public safety for a public event. This deviation allows the bridge to remain in the closed position for two hours.
This deviation is effective from 10 p.m. on June 25, 2011, through 11:59 p.m. on June 26, 2011.
Documents mentioned in this preamble as being available in the docket are part of docket USCG-2011-0481 and are available online at
If you have questions on this rule, call or e-mail Mr. Judy Leung-Yee, Project Officer, First Coast Guard District,
The Long Beach Bridge, across Reynolds Channel at mile 4.7, at Nassau, New York, has a vertical clearance in the closed position of 20 feet at mean high water and 24 feet at mean low water. The drawbridge operation regulations are listed at 33 CFR 117.799(g).
The waterway users are mostly commercial operators.
The owner of the bridge, Nassau County Department of Public Works, requested a temporary deviation from the regulations to facilitate public safety during a public event, the Annual Salute to Veterans Fireworks Display on Saturday June 25, 2011.
Under this temporary deviation the Long Beach Bridge may remain in the closed position between 10 p.m. and 11:59 p.m. on June 25, 2011. In the event of inclement weather on the scheduled date the fireworks display will occur between 10 p.m. and 11:59 p.m. on June 26, 2011. Vessels that can pass under the bridge in the closed position may do so at any time.
The commercial users were notified. No objections were received.
In accordance with 33 CFR 117.35(e), the bridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), jointly with the State of Oregon, and in cooperation with the U.S. Forest Service, Mt. Hood National Forest (USFS), National Marine Fisheries Service (NMFS), and Confederated Tribes of the Warm Springs Reservation of Oregon (CTWSRO), will establish a nonessential experimental population (NEP) of bull trout (
This rule is effective June 21, 2011.
This final rule, along with the public comments, Environmental Assessment (EA), and Finding of No Significant Impact (FONSI), is available on the Internet at
Chris Allen at the address listed above. If you use a telecommunication device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
The 1982 amendments to the Act (16 U.S.C. 1531
Before authorizing the release as an experimental population of any population (including eggs, propagules, or individuals) of an endangered or threatened species, and before authorizing any necessary transportation to conduct the release, the Service must find, by regulation, that such release will further the conservation of the species. In making such a finding, the Service uses the best scientific and commercial data available to consider: (1) Any possible adverse effects on extant populations of a species as a result of removal of individuals, eggs, or propagules for introduction elsewhere; (2) the likelihood that any such experimental population will become established and survive in the foreseeable future; (3) the relative effects that establishment of an experimental population will have on the recovery of the species; and (4) the extent to which the introduced population may be affected by existing or anticipated Federal or State actions or
Furthermore, as set forth in 50 CFR 17.81(c), all regulations designating experimental populations under section 10(j) must provide: (1) Appropriate means to identify the experimental population, including, but not limited to, its actual or proposed location, actual or anticipated migration, number of specimens released or to be released, and other criteria appropriate to identify the experimental population(s); (2) a finding, based solely on the best scientific and commercial data available, and the supporting factual basis, on whether the experimental population is, or is not, essential to the continued existence of the species in the wild; (3) management restrictions, protective measures, or other special management concerns of that population, which may include but are not limited to, measures to isolate and/or contain the experimental population designated in the regulation from natural populations; and (4) a process for periodic review and evaluation of the success or failure of the release and the effect of the release on the conservation and recovery of the species.
Under 50 CFR 17.81(d), the Service must consult with appropriate State fish and wildlife agencies, local governmental entities, affected Federal agencies, and affected private landowners in developing and implementing experimental population rules. To the maximum extent practicable, section 10(j) rules represent an agreement between the Service, the affected State and Federal agencies, and persons holding any interest in land which may be affected by the establishment of an experimental population.
Under 50 CFR 17.81(f), the Secretary of the Interior (Secretary) may designate critical habitat as defined in section 3(5)(A) of the Act for an essential experimental population. In those situations where a portion or all of an essential experimental population overlaps with a natural population of the species during certain periods of the year, no critical habitat will be designated for the area of overlap unless implemented as a revision to critical habitat of the natural population for reasons unrelated to the overlap itself. No designation of critical habitat will be made for nonessential experimental populations.
Any population determined by the Secretary to be an experimental population will be treated as if it were listed as a threatened species for purposes of establishing protective regulations with respect to that population. The protective regulations adopted for an experimental population will contain applicable prohibitions, as appropriate, and exceptions for that population.
Any experimental population designated for a listed species (1) determined not to be essential to the survival of that species and (2) not occurring within the National Park System or the National Wildlife Refuge System, will be treated for purposes of section 7 (other than subsection (a)(1) thereof) as a species proposed to be listed under the Act as a threatened species.
Any experimental population designated for a listed species that either (1) has been determined to be essential to the survival of that species, or (2) occurs within the National Park System or the National Wildlife Refuge System as now or hereafter constituted, will be treated for purposes of section 7 of the Act as a threatened species. Notwithstanding the foregoing, any biological opinion prepared pursuant to section 7(b) of the Act and any agency determination made pursuant to section 7(a) of the Act will consider any experimental and nonexperimental populations to constitute a single listed species for the purposes of conducting the analyses under such sections.
On December 9, 2009, the Service published: (1) A proposed rule in the
The bull trout is a large native char found in the coastal and intermountain west of North America and is one of five species in the genus
The historical range of bull trout in the coterminous United States extended from the Canadian border south to the Jarbidge River in northern Nevada and from the Pacific Ocean inland to the Clark Fork River in western Montana and the Little Lost River in central Idaho. Genetic analyses have shown that bull trout in the coterminous United States are divided into major genetically differentiated (
In a finer-scale analysis, the Service recently identified additional genetic units within the coastal and interior lineages (Ardren
Bull trout exhibit both resident and migratory life-history strategies, although bull trout in the “coastal” lineage are largely migratory. Migratory bull trout spawn in tributary streams where juvenile fish rear for 1 to 4 years before migrating to either a lake (adfluvial form), river (fluvial form) (Fraley and Shepard 1989, pp. 138-139; Goetz 1989, p. 24), or saltwater (anadromous form) to rear as subadults and to live as adults (Cavender 1978, p. 139; McPhail and Baxter 1996, p. 14; Washington Department of Fish and Wildlife (WDFW)
The current distribution of bull trout in the lower Columbia River portion of the “coastal” lineage includes populations in the Deschutes, Hood, Lewis, Klickitat, and upper Willamette rivers. Throughout much of its historical range, the decline of bull trout has been attributed to habitat degradation and fragmentation, the blockage of migratory corridors, poor water quality, angler harvest, entrainment (the incidental withdrawal of fish and other aquatic organisms in water diverted out-of-stream for various purposes) into diversion channels and dams, and introduced nonnative species. Specific land and water management activities that may negatively impact bull trout populations and habitat, if not implemented in accordance with best management practices, include the operation of dams and other diversion structures, forest management practices, livestock grazing, agriculture, agricultural diversions, road construction and maintenance, mining, and urban and rural development (Beschta
The historical distribution of bull trout in the Clackamas River subbasin likely extended from the lower Clackamas River upstream to headwater spawning and rearing areas (Shively
The last documented bull trout observation in the Clackamas River subbasin was in 1963 (Stout 1963, p. 97). Due to geographic distance to extant bull trout populations in other subbasins, natural recolonization of the Clackamas River subbasin is extremely unlikely (USFWS 2002, Ch. 5, p. 9). Extirpation was likely caused by many of the factors that led to the decline in the species across its range, including migration barriers from hydroelectric and diversion dams, direct and incidental harvest in sport and commercial fisheries, targeted eradication through bounty fisheries (currently known as “sport reward” programs), and habitat and water quality degradation from forest management and agricultural activities not in accordance with best management practices (Shively
On November 1, 1999, we published a final rule to list bull trout within the coterminous United States as threatened under the Act (64 FR 58910). This final rule served to consolidate the five separate DPS listings into one listing throughout the species' entire range in the coterminous United States. We published notices of availability of draft recovery plans for the Columbia River, Klamath River, and St. Mary-Belly River segments on November 29, 2002 (67 FR 71439), and the Coastal Puget Sound and Jarbidge River segments on July 1, 2004 (69 FR 39950 and 69 FR 39951, respectively). We published a revised final rule on October 18, 2010 (75 FR 63898), designating critical habitat for bull trout in the coterminous United States. We anticipate publishing a draft revised recovery plan for bull trout in the coterminous United States in 2011, and a final recovery plan in 2012. The recovery objectives from the 2002 draft recovery plan are:
(1) Maintain current distribution of bull trout within core areas as described in recovery unit chapters and restore distribution where recommended in recovery unit chapters;
(2) Maintain stable or increasing trend in abundance of bull trout;
(3) Restore and maintain suitable habitat conditions for all bull trout life-history stages and strategies; and
(4) Conserve genetic diversity and provide opportunity for genetic exchange.
As noted above in
(1) Distribution criteria will be met when bull trout are distributed among five or more local populations in the recovery unit: four in the Upper Willamette River core area and one in the Clackamas River core habitat.
(2) Abundance criteria will be met when an estimated abundance of adult bull trout is from 900 to 1,500 or more individuals in the Willamette River Recovery Unit, distributed in each core area as follows: 600 to 1,000 in the Upper Willamette core area and 300 to 500 in the Clackamas River core habitat.
(3) Trend criteria will be met when adult bull trout exhibit stable or increasing trends in abundance in the Willamette River Recovery Unit, based on a minimum of 10 years of monitoring data.
(4) Connectivity criteria will be met when migratory forms are present in all local populations and when intact migratory corridors among all local populations in core areas provide opportunity for genetic exchange and diversity.
Establishment of an experimental population of bull trout in the Clackamas River will help to achieve distribution in the Clackamas River core habitat (recovery criterion 1 and
When we establish experimental populations under section 10(j) of the Act, we must determine whether such a population is essential to the continued existence of the species in the wild. Although the experimental population will contribute to the recovery of the bull trout in the Willamette River basin, it is not essential to the continued existence of the species in the wild. Bull trout populations are broadly distributed, occurring in 121 core areas in 5 western States, and the species' continued existence is dependent upon conserving a number of interacting populations that are well distributed throughout its range. Because the donor stock for the reintroduction will come from a wild population of bull trout, the reintroduced population will not possess markedly divergent genetic components or adaptive traits. Furthermore, the Clackamas River is not a unique or unusual ecological setting or geographical context for bull trout. Bull trout occur in other portions of the Willamette River basin and in other nearby tributaries to the Columbia River. Therefore, as required by 50 CFR 17.81(c)(2), we find that the experimental population is not essential to the continued existence of the species in the wild, and we hereby designate the experimental population in the Clackamas River as a nonessential experimental population (NEP).
The NEP area includes the entire Clackamas River subbasin as well as the mainstem Willamette River, from Willamette Falls to its points of confluence with the Columbia River, including Multnomah Channel. The Willamette River's confluence with the Columbia River occurs at river mile (RM) 101, near the City of Portland. A secondary channel of the Willamette River, named the Multnomah Channel, branches off the Willamette River approximately 3 river miles (5 river kilometers) upstream from its confluence with the Columbia River. This secondary channel runs approximately 20 river miles (32 river kilometers) along the west side of Sauvie Island before joining the Columbia River at RM 86 near the town of St. Helens. The NEP boundary extends down the Multnomah Channel to its confluence with the Columbia River, as well as the mainstem Willamette River, from Willamette Falls to its confluence with the Columbia River.
Under this final rule, the Service will release bull trout into areas of suitable spawning and rearing habitat in the Clackamas River subbasin. The portion of the subbasin currently containing these areas is limited to the mainstem Clackamas River and its tributaries in the upper headwaters of the subbasin, upstream of the Collawash River confluence. This portion of the subbasin, referred to as the upper Clackamas River subbasin, contains a total of 70.1 river miles (112.8 river kilometers) of suitable spawning and rearing habitat. The amount and characteristics of habitat in the Clackamas River subbasin compare favorably to other river systems in the lower Columbia River with extant bull trout populations (
Section 10(j) of the Act requires that an experimental population be geographically separate from wild populations of the same species. The nearest wild bull trout populations to the Clackamas River are located in the following tributaries of the lower Columbia River: The Lewis (RM 84), Hood (RM 165), and Deschutes (RM 200) rivers. Because fluvial populations of bull trout tend to migrate, individual fish from these populations may seasonally occupy the mainstem of the lower Columbia River. Although we have no records of bull trout in the mainstem Willamette River, given our understanding of bull trout ecology in other river systems, it is likely that, historically, bull trout seasonally occupied the mainstem Willamette River. If a reintroduction of bull trout to the Clackamas River is successful, it is possible that a small percentage of adult bull trout will migrate to, and overwinter in, the mainstem Willamette River, between Willamette Falls and its points of confluence with the Columbia River, including Multnomah Channel. Should any bull trout be found in the Willamette River within the NEP boundary, the Service will assume the fish to be part of the reintroduced population, unless the fish is tagged or otherwise known to be from another population.
It is unlikely that reintroduced bull trout will migrate outside of the NEP boundary into the Columbia River or upstream of Willamette Falls in the Willamette River due to the significant distance to spawning and rearing habitats in the upper Clackamas River. Bull trout found outside of the NEP boundary but known to be part of the NEP will assume the status of bull trout within the geographic area in which they are found. Although Willamette Falls and the confluence points of the Willamette and Columbia Rivers are not absolute boundaries, the NEP is geographically separate from other wild bull trout populations due to geographic distance.
The Service, USFS, State of Oregon (hereafter referred to as either the State of Oregon or the Oregon Department of Fish and Wildlife (ODFW)), and other major stakeholders established the Clackamas River Bull Trout Working Group (CRBTWG) to assess the feasibility of bull trout reintroductions. In 2007, the CRBTWG completed the Clackamas River Bull Trout Reintroduction Feasibility Assessment (Feasibility Assessment), a scientifically rigorous examination of habitat suitability and projected viability of a reintroduced population (Shively
(1) There is a high level of confidence that bull trout have been locally extirpated from the Clackamas River subbasin;
(2) The causes for their decline have been sufficiently mitigated;
(3) High-quality habitat is available in sufficient amounts;
(4) Nearby donor stocks are unlikely to naturally recolonize;
(5) Suitable donor stocks are available that can withstand extraction of individuals;
(6) Nonnative brook trout presence is restricted to a small portion of the suitable habitat and not a likely threat; and
(7) A diverse and abundant fish assemblage would serve as a sufficient prey base with no obvious threats posed by bull trout to these species (Shively
Based on this assessment, reintroduced bull trout are likely to become established and persist in the Clackamas River subbasin. Copies of the Feasibility Assessment can be obtained: (1) Online at
Investigating the causes for decline and extirpation of bull trout in the Clackamas River is necessary to understand whether the threats have been sufficiently curtailed such that reintroduction efforts are likely to be successful. The CRBTWG identified the primary threats to be hydroelectric dams (passage and screening), forest management (
Diversion dams that would impede bull trout migration were present in the late 1800s and early 1900s, but no longer exist in the lower Clackamas River subbasin. Within bull trout historical habitat in the Clackamas River subbasin there are three existing dams owned and operated by Portland General Electric (PGE). Beginning in the late 1990s, PGE began Federal relicensing proceedings for its hydroelectric dams in the Clackamas River subbasin. In their final license application to the Federal Energy Regulatory Commission (FERC) and in an accompanying Settlement Agreement among more than 30 local, State, Federal, and Tribal governments, nongovernmental organizations, and other interested stakeholders, PGE proposed to make several upstream and downstream fish passage improvements for the three dams along the mainstem Clackamas River. One improvement, which is already completed, is the reconstruction of the River Mill Dam fish ladder. Other improvements include upgrades to the downstream fish collection facility and bypass at North Fork Dam, construction of a new fish trap and handling facility at the North Fork fishway, and new downstream fish passage facilities at River Mill Dam (Shively
The majority of lands in the upper portion of the Clackamas River subbasin are USFS- and Bureau of Land Management (BLM)-administered public forest lands. These lands are managed in accordance with the Mt. Hood National Forest Land and Resource Management Plan (USFS 1990) or the Salem District BLM Resource Management Plan (USDI 1995), respectively, as amended by the 1994 Northwest Forest Plan (USDA and USDI 1994). The 1994 Northwest Forest Plan established an Aquatic Conservation Strategy (ACS) with protective measures, standards and guidelines, and land allocations to maintain and restore at-risk fish species, including bull trout. The ACS Riparian Reserve land allocation extends a minimum of 300 feet (91.4 meters) on both sides of all fish-bearing streams and prohibits scheduled timber harvest. These plans, along with the Omnibus Public Land Management Act of 2009 (Pub. L. 111-11) that established several new wilderness areas in the upper Clackamas River watershed, provide substantial protections for watersheds and aquatic habitats on USFS- and BLM-administered public lands in the upper subbasin. No additional changes or protections regarding forest management activities on public or non-public forest lands are necessary to support a successful reintroduction of bull trout in the Clackamas River subbasin (Shively
When the NMFS listed salmon and steelhead in the Clackamas River as threatened under the Act (64 FR 14308, March 24, 1999; 70 FR 37160, June 28, 2005; 71 FR 834, January 5, 2006), fisheries management practices for the portion of the Clackamas River subbasin upstream of North Fork Reservoir changed substantially. For example, stocking of catchable rainbow trout within the Clackamas River has been discontinued altogether along the mainstem and tributaries upstream of North Fork Reservoir, and current sport fishing regulations now require catch and release of all native trout caught in the Clackamas River subbasin. Additionally, angling is restricted to the use of artificial flies and lures upstream of North Fork Reservoir. All waters in the Willamette Zone for the State of Oregon's sport fishing regulations are closed to angling for bull trout. Beginning in 2003, ODFW eliminated the stocking of nonnative brook trout in lakes with outlets to streams in the upper Clackamas River subbasin that provide suitable bull trout spawning and rearing habitat. With these significant changes in angling regulations and stocking of nonnative brook trout, no additional changes to angling regulations and stocking in the upper portion of the subbasin are necessary to support a successful reintroduction of bull trout (Shively
A donor stock should be composed of fish that most closely resemble the bull trout that historically inhabited the Clackamas River (
By exploring issues associated with life-history strategy, metapopulation dynamics, biogeography, and genetic considerations, the CRBTWG identified bull trout populations in the “coastal” lineage as the best source for a donor population (see
Specific benchmarks have been developed concerning the minimum bull trout population size necessary to maintain genetic variation important for short-term fitness and long-term evolutionary potential. Rieman and Allendorf (2001, pp. 762) concluded that an average of 100 spawning adults each year is required to minimize risks of inbreeding in a bull trout population and that 1,000 spawning adults each year will likely prevent loss of genetic diversity due to genetic drift. This latter value of 1,000 spawning adults may also be reached with a collection of local populations among which gene flow occurs. The CRBTWG utilized these
When the Feasibility Assessment was developed in December 2007, bull trout from two of the above five river basins, the Lewis River and Deschutes River, contained groups of interacting local populations that exceeded 1,000 spawning adults. For the Lewis River basin, this total included the combined Pine Creek and Rush Creek populations that occur above Swift Dam. For the Deschutes River basin, it included the three interacting populations present in the Metolius River subbasin. Since 2007, adult bull trout abundance in the Lewis River has declined, with the current number of annual spawners estimated to be approximately 536 adults (Byrne 2010, pers. comm.). The Metolius River bull trout population has also declined but has still maintained a spawning population size greater than 1,000 adults, which is sufficiently large enough to protect against the loss of genetic diversity from genetic drift (Rieman and Allendorf 2001, p. 762). The Metolius River population of bull trout comprised an estimated 1,458 spawning adults in 2010 (Ratliff 2010, pers. comm.). Given the long-term stability and size of the Metolius River bull trout population, the Service has determined this population to be at very low risk of impact from loss of individuals from contribution as donor stock, and the least “at risk” of the potential donor stocks that were considered.
This final action allows for the direct transfer of wild bull trout adults, subadults, juveniles, fry, and fertilized eggs from the Metolius River subbasin to the Clackamas River. The numbers and life stages of fish transferred each year will be linked strongly to the annual population size of the donor stock, as well as to information derived from monitoring the success of the various life stages in the NEP over the initial few years of the project. Details regarding the implementation strategy such as release sites and timing, annual stocking numbers, disease screening, and monitoring and evaluation are contained in the Implementation, Monitoring, and Evaluation Plan, which is appended to our final EA, and can be obtained: (1) In person at the Oregon Fish and Wildlife Office (see
We conclude that the effects of Federal, State, or private actions and activities will not pose a substantial threat to bull trout establishment and persistence in the Clackamas River subbasin, because most activities currently occurring in the NEP area are compatible with bull trout recovery and there is no information to suggest that future activities would be incompatible with bull trout recovery. Most of the area containing suitable release sites with high potential for bull trout establishment is managed by the USFS and is protected from major development activities and timber harvest through the following mechanisms:
(1) Forty-seven miles (76 kilometers) of the Clackamas River, from its headwaters to the Big Cliff area just upstream of North Fork Reservoir, was designated in 1988 as part of the Federal Wild and Scenic Rivers System (USFS 1993, p. 14).
(2) The State of Oregon designated 82 miles (132 kilometers) of the Clackamas River and its tributaries as part of the Oregon Scenic Waterway Program in 1989 (ORS 390.826).
(3) The 1994 Northwest Forest Plan established protective measures, standards and guidelines, and land allocations to maintain and restore at-risk fish species, including bull trout.
(4) NMFS' listings of salmon and steelhead under the Act caused fisheries management practices (
(5) The Federal Omnibus Public Land Management Act of 2009 (Pub. L. 111-11) designated two new wilderness units in the upper Clackamas River watershed, at Sisi Butte (3,245 acres) and at Big Bottom (1,264 acres), and also designated the Big Bottom Protection Area (1,581 acres) as a special management unit adjacent to the Big Bottom Wilderness unit.
The Service recognizes that the provisions of PGE's Clackamas Settlement Agreement do not reflect the reintroduced presence of bull trout in the Clackamas River subbasin. However, no additional changes or protections regarding PGE's operation of the Clackamas River Hydroelectric Project are necessary to support a successful reintroduction of bull trout to the Clackamas River subbasin.
The Service, ODFW, and the USFS, in cooperation with members of the CRBTWG, will implement and manage the reintroduction of bull trout. In addition, these agencies will carefully collaborate on collection and transportation of donor stock, releases, monitoring and evaluation, coordination with landowners and land managers, public awareness, and other tasks necessary to ensure successful reintroduction of the species. A few specific management considerations related to the experimental population are addressed below.
In the development of this action, we have addressed concerns over predation and competition to listed anadromous salmonids by sponsoring an expert science panel workshop specifically to assess the potential impacts of a Clackamas River bull trout reintroduction on listed anadromous salmonids (Marcot
Adaptive management will guide how this project is implemented on an annual basis. The primary tool to accomplish adaptive management is monitoring and evaluation. The monitoring of impacts to salmon and steelhead will provide valuable information that will inform how the project is implemented in future years including numbers, life stages, and release locations of bull trout, as well as the disposition of individual fish should they be documented or observed staging near, within, or immediately below fish bypass systems where juvenile salmonids may be particularly vulnerable to predation.
An adaptive approach provides flexibility to act in the face of uncertainty, is learning based, and specifies what actions are to be taken and when. Consistent with this approach, we developed, in consultation and coordination with NMFS, the State of Oregon, and other project partners, a Stepwise Impact Reduction Plan (SIRP), to facilitate management decisions associated with potential impacts from the bull trout reintroduction on listed anadromous salmonids.
The purpose of the SIRP, which is described in more detail in the EA, is to outline a sequence of management actions that will be taken to minimize impacts to salmon and steelhead from the reintroduction of bull trout in the Clackamas River, if specific bull trout and/or anadromous salmonid thresholds are triggered. Management actions implemented under the SIRP, and the frequency of those actions, will be informed by: (1) The reintroduction project's monitoring and evaluation program, jointly implemented by the Service, ODFW, and USFS; and (2) the conservation status of the listed Clackamas River anadromous salmonid populations.
While we believe the SIRP will provide much of the guidance necessary to address potential impacts to salmon and steelhead from the reintroduction project, we acknowledge our inability to predict all likely impact scenarios and appropriate management responses. To that end, we anticipate the SIRP will be modified as necessary, in consultation and coordination with NMFS, the State of Oregon, and other project partners, consistent with the overall adaptive management of the project.
Our analysis (USFWS 2010, pp. 109-131) indicated a low likelihood for population-level impacts to Federally listed salmon and steelhead populations. However if the Service determines, in consultation and coordination with the State of Oregon, NMFS and other project partners, and based on project monitoring and evaluation, that the reintroduction efforts are not consistent with the recovery of salmon or steelhead, the reintroduction program will be discontinued and bull trout will be removed from the experimental population area. The Service initiated formal consultation with NMFS pursuant to section 7(a)(2) of the Act in December 2010 (USFWS 2010) and will ensure section 7(a)(2) compliance prior to releasing bull trout into the Clackamas River.
The adaptive management of the bull trout reintroduction project will be based in part on guidance provided in the Department of the Interior's technical guide to adaptive management (USDI 2009). The guidance defines adaptive management as a decision process that promotes flexible
Monitoring and evaluation will inform the adaptive management of this project, including the appropriate management of this experimental population of bull trout both during the period they are being reintroduced and post-project if we are successful in reestablishing a self-sustaining population in the Clackamas River.
Acknowledging the limited availability of information on fish introductions and reintroductions (Seddon
In order to document and adaptively manage the project, a robust monitoring and evaluation program is necessary. Along with other project documentation, we expect information gained from the monitoring and evaluation program will contribute significantly to other fish reintroductions, and specifically bull trout recovery projects that we anticipate will occur across the species' range consistent with recovery guidance for the species (USFWS 2002, Ch. 1). The monitoring and evaluation program, detailed in the Implementation, Monitoring, and Evaluation Plan appended to the final EA, has three major goals: (1) Monitor and evaluate bull trout reintroduction effectiveness, (2) monitor and evaluate donor population status, and (3) monitor and evaluate impacts to listed anadromous salmonids. These three major components are summarized below:
In order to assess impacts to listed anadromous salmonids we propose to: (1) Determine if adult and subadult bull trout occupy areas within the PGE hydroelectric project during periods in which they could consume particularly high numbers of rearing or migrating juvenile salmon and steelhead; (2) if so, determine if survival rates are affected for listed anadromous salmonid juveniles rearing in, or moving through the PGE hydroelectric project area; and (3) determine the degree to which bull trout are responsible for such impacts by using field data, bioenergetics, and life-cycle modeling. Monitoring of impacts to anadromous salmonids will be conducted by the Service and ODFW, with possible assistance from USGS, PGE, University of Washington, and the National Oceanic and Atmospheric Administration's Northwest Fisheries Science Center (NOAA-NWFSC).
We requested written comments from the public on the proposed rule and draft EA published on December 9, 2009 (74 FR 65045). We also contacted the appropriate Federal, State, and local agencies; Tribes; scientific organizations; and other interested parties and invited them to comment on the proposed rule. The comment period was open from December 9, 2009, to February 10, 2010.
We reviewed all comments received for substantive issues and new information regarding the proposed NEP. Substantive comments received during the comment period have either been addressed below or incorporated directly into this final rule.
We received comments from eight parties, including comments from natural resource management agencies, not-for-profit organizations, and private
(1)
We have assessed existing or anticipated Federal or State actions and private activities within or adjacent to the experimental population area and, along with the applicable prohibitions in this final rule, we have determined these actions to be compatible with, and protective of, a reestablished population of bull trout in the Clackamas River. We believe, based on this assessment, that the protective regulations adopted by this rule are appropriate and provide adequate protections for a reintroduced population of bull trout.
Lastly, under 50 CFR 17.81(f), the Secretary may designate critical habitat as defined in section 3(5)(A) of the Act for an essential experimental population but not for a nonessential population.
(2)
(3)
(4)
(5)
(6)
Although systematic quantitative surveys for brook trout have not occurred in the upper Clackamas River, stream surveys and biological inventories by the USFS over the last several decades provide a reliable source for documenting observations of brook trout in particular river segments and streams (Shively
(7)
(8)
(9)
Scoping and public comments identified concerns with potential impacts to the Clackamas River hydroelectric project settlement agreement, as well as to salmon and steelhead populations from predation and competition by bull trout. We have addressed these concerns by: (1) Including clarifying language in several sections of this final rule and the final EA, (2) modifying components of the proposed action, and (3) developing a Stepwise Impact Reduction Plan as part of our adaptive management program to reduce risk and uncertainty with regards to impacts to listed anadromous salmonids, and to guide management of a Clackamas River bull trout population and future implementation of the project.
As noted elsewhere in this final rule, the designation of an NEP population of bull trout in the Clackamas River will not cause additional requirements of Portland General Electric above and beyond those currently outlined in the multiparty settlement agreement for relicensing of the Clackamas Hydroelectric Project, nor will any potential ecological effects from the bull trout reintroduction project in and of itself trigger mitigation requirements outlined in the agreement. While we acknowledge some uncertainty around the interactions between bull trout and anadromous salmon and steelhead, the preponderance of information does not suggest that significant population- level impacts will occur.
(10)
(11)
The language above does not require the Service to agree on all issues and concerns, nor are we required to have full agreement from potentially affected local, State, Federal, and private partners prior to finalizing section 10(j) experimental population rules. In development of the proposed and final rule, we coordinated closely with the appropriate State fish and wildlife agencies, local governmental entities, affected Federal agencies, and affected private landowners, to resolve as many concerns as possible. In addition, we assembled management and technical committees with representation from all major stakeholders in the reintroduction, to further ensure we addressed as many concerns as possible prior to finalization of the final rule. Given these efforts, it is clear that we have complied with the requirements of section 10(j) of the Act in the development of the proposed rule and this final rule. As during the development of this action, we are committed to working with project partners and stakeholders during and following implementation of the reintroduction to address concerns that may arise.
(12)
The expert science panel workshop (Marcot
(13)
The goal of the project is to reestablish a self-sustaining bull trout population of 300-500 spawning adults in the Clackamas River by 2030 that contributes to the recovery of bull trout in the Willamette basin and to overall recovery criteria outlined in the Service's 2002 draft recovery plan (USFWS 2002, Chapter 1, p. v). For this project we define a self-sustaining population as one that maintains a minimum adult annual spawner abundance of 100 individuals, contains a high level of genetic diversity representative of the donor stock, and requires little or no additional transfers. The numerical goal of 300-500 adult spawners is consistent with 2002 draft recovery planning targets for bull trout abundance in the Clackamas River subbasin. Although the amount of suitable habitat in the Clackamas River suggests there is sufficient capacity to support a population of this size, bull trout distribution across the species' range, even within areas of suitable habitat, is patchy; thus, the true capacity of the Clackamas River subbasin is unknown.
The Service and our project partners view the inclusion of older life stages of bull trout in the implementation strategy as an important component of the project. In addition, we believe that, given the limited number of these older-aged individuals that will be transferred, the risk of exceeding the carrying capacity of the Clackamas River is extremely low. We chose to use multiple life stages of bull trout in order to maximize our likelihood of success with the reintroduction, and to test whether older life stages of bull trout could be successfully moved from one
(14)
The State and NMFS are jointly developing a formal recovery plan for the threatened salmon and steelhead in the lower Columbia River, which includes the threatened species of salmon and steelhead found in the Clackamas River. The current draft recovery plan, and the information utilized in development of the draft plan, does not include information that would allow the Service to define an “acceptable level of impact” as applied to recovery planning objectives for threatened salmon and steelhead. We expect NMFS may conduct this type of analysis as part of the section 7 consultation process in response to the biological assessment we submitted in December 2010.
Independent of the formal consultation process with NMFS, we have initiated discussions with technical staff from NMFS NW Region Science Center and the U.S. Geological Survey (USGS) to investigate the feasibility and utility of life-cycle and bioenergetics modeling to better predict the potential influence of the bull trout reintroduction project on threatened salmon and steelhead in the Clackamas River. We are committed to working closely with the State of Oregon, NMFS, and other project partners and stakeholders during and following project implementation to assess the potential impact of the bull trout reintroduction on threatened salmon and steelhead in the Clackamas River.
We followed the procedures required by the Act, NEPA, and the Administrative Procedure Act during this Federal rulemaking process. We solicited public comment on the proposed NEP designation. We have considered all comments received on the proposed rule and the draft EA before making this final determination. Based on the above information, and using the best scientific and commercial data available (in accordance with 50 CFR 17.81), we find that releasing bull trout into the Clackamas River subbasin will further the conservation of the species but that this population is not essential to the continued existence of the species in the wild.
The Director has determined, pursuant to 5 U.S.C. 553(d)(3), that the agency has good cause to make this rule effective upon publication. The Service has previously provided an opportunity for public comment on the rule, and has consulted extensively with involved stakeholders. In addition, the seasonal window for implementing this reintroduction project is driven by the biology of the species. Collection of donor stock is best accomplished during the late spring and early summer when fish are most vulnerable to capture techniques, and late spring/early summer outplanting of donor stock is preferred given that seasonal productivity of aquatic systems is high that time of year and donor stock would be expected to have higher survival than if outplanted at other times of the year. In making this final rule effective immediately upon publication, it increases the likelihood that the Service and our primary partners will be able to successfully implement this project during the preferred window for implementation in 2011.
A final draft of the CRBTWG's Feasibility Assessment was provided to the State of Oregon Independent Multidisciplinary Science Team (IMST) for peer review. The IMST is an impartial scientific review panel charged with advising the State of Oregon on matters of science related to fish recovery, water quality improvements, and enhancing watershed health. The IMST, appointed by the Governor, provides independent, scientific analysis and evaluation of State actions and policies under the Oregon Plan for Salmon and Watersheds (Oregon Plan). The charge of the IMST is to focus on science, maintain its independence, operate by consensus, and report its findings and conclusions in written reports and reviews.
The Service, along with USFS and ODFW, presented a summary of the goals, analyses, and intended use of the Feasibility Assessment at the IMST's October 16, 2006, public meeting. The IMST received a draft of the Feasibility Assessment for review on November 28, 2006. The IMST review of the draft Feasibility Assessment was by an IMST subcommittee including four scientists. The subcommittee held a public meeting on December 13, 2006, to discuss the Feasibility Assessment and to prepare a draft review. The draft review was discussed and unanimously adopted (one member absent from vote) at the January 18, 2007, IMST public meeting. Comments on the draft Feasibility Assessment were provided to the Service, USFS, and ODFW on January 30, 2007. Comments were subsequently posted on the IMST Web site:
The IMST peer review of the science in the final Feasibility Assessment, much of which was incorporated into this final rule, meets our responsibilities under our policy on peer review, published on July 1, 1994 (59 FR 34270).
The Office of Management and Budget (OMB) has determined that this rule is not significant under Executive Order 12866 (E.O. 12866). OMB bases its determination upon the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal agencies' actions.
(c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
(d) Whether the rule raises novel legal or policy issues.
Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 801
The area affected by this rule includes the Clackamas River subbasin and the mainstem of the Willamette River, from Willamette Falls to its points of confluence with the Columbia River, including Multnomah Channel, in Oregon. Because NEP designations do not establish substantial new regulation of activities, we do not expect this rule would have any significant effect on recreational, agricultural, hydropower generation, or development activities. Although the entire NEP boundary encompasses a large area, the section of the NEP area where we can anticipate the establishment of an experimental population of bull trout is mainly public land owned by the USFS. In addition, NEPs occurring outside the National Refuge System or the National Park System are treated as proposed for listing under the provisions of section 7 (other than section 7(a)(1)) of the Act. In these instances, NEPs provide additional flexibility because Federal agencies are not required to consult with us under section 7(a)(2) of the Act. Section 7(a)(1) of the Act requires Federal agencies to use their authorities to further the conservation of listed species. Section 7(a)(4) of the Act requires Federal agencies to confer (rather than consult) with the Service on actions that are likely to jeopardize the continued existence of a proposed species. The results of a conference are advisory in nature and do not restrict agencies from carrying out, funding, or authorizing activities.
The principal activities on private property near the expected reestablishment area in the NEP are agriculture, ranching, hydropower generation, and recreation. The presence of bull trout would likely not affect the use of lands for these purposes because there would be no new or additional economic or regulatory restrictions imposed upon States, non-Federal entities, or members of the public due to the presence of bull trout. Therefore, this rulemaking is not expected to have any significant adverse impacts to recreation, agriculture, hydropower generation, or any development activities.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This rule would not “significantly or uniquely” affect small governments. We have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502
(2) This rule would not produce a Federal mandate of $100 million or greater in any year (
In accordance with Executive Order 12630 (76 FR 6733), this final rule does not have significant takings implications. This rule allows for the take of reintroduced bull trout when such take is incidental to an otherwise legal activity, such as recreation (
A takings implication assessment is not required because this rule: (1) Would not effectively compel a property owner to suffer a physical invasion of property, and (2) would not deny any economically beneficial or productive use of the land or aquatic resources. This rule would substantially advance a legitimate public interest (conservation and recovery of a listed fish species) and would not present a barrier to all reasonable and expected beneficial use of private property.
In accordance with Executive Order 13132 (70 FR 23775), we have considered whether this final rule has significant Federalism effects and have determined that a Federalism assessment is not required. This rule would not have substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. In keeping with Department of the Interior policy, we requested information from and coordinated development of this final rule with the affected resource agencies in Oregon. Achieving the recovery goals for this species will contribute to its eventual delisting and return to State management. No intrusion on State
In accordance with Executive Order 12988 (February 7, 1996; 61 FR 4729), the Office of the Solicitor has determined that this rule would not unduly burden the judicial system and meets the requirements of sections (3)(a) and (3)(b)(2) of the Order.
Office of Management and Budget (OMB) regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act (44 U.S.C. 3501
In compliance with all provisions of the National Environmental Policy Act of 1969 (NEPA), we have analyzed the impact of this rule. Based on this analysis and information resulting from public comment on the proposed action, we determined that this action will not have significant impacts or effects. We have prepared a final EA on this action, which is available for public inspection: (1) In person at the Oregon Fish and Wildlife Office (see
In accordance with the presidential memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 229511), Executive Order 13175 (65 FR 67249), and the Department of the Interior Manual Chapter 512 DM 2, we have considered possible effects on Federally recognized Indian Tribes and have determined that 2 percent of the acreage included in the Clackamas River subbasin, including the upper Clackamas and Oak Grove Fork drainage, is within the exterior boundaries of the reservation of the Confederated Tribes of the Warm Springs Reservation (CTWSRO). Furthermore, donor stock for the reintroduction will, in part, originate from a section of the Metolius River located within the exterior boundary of the CTWSRO reservation. Since 2007, the CTWSRO has been an active participant in the CRBTWG discussions on bull trout recovery in the Clackamas River basin. In August 2010, the CTWSRO Tribal Council passed a resolution supporting the utilization of bull trout from the Metolius River subbasin as donor stock for the Clackamas River bull trout reintroduction project. The resolution requested the Service and project partners consult with the CTWSRO on an annual basis regarding utilization of bull trout for the Clackamas reintroduction, and further, that annual schedules for donor stock collection, including locations, methodologies, precise numbers to be collected, and dates of collections, be coordinated with staff from the CTWSRO Natural Resources Program. The Service will continue to consult, on a government-to-government basis, with the CTWSRO for the duration of this Federal action.
Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not expected to significantly affect energy supplies, distribution, and use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
A complete list of all references cited in this final rule is available at
The primary author of this final rule is Chris Allen of the Oregon Fish and Wildlife Office (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we hereby amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
(h) * * *
(w) Bull Trout (
(1)
(i) The NEP area for the bull trout is within the species' historical range and is defined as follows: the entire Clackamas River subbasin as well as the mainstem Willamette River, from Willamette Falls to its points of confluence with the Columbia River, including Multnomah Channel.
(ii) Bull trout are not currently known to exist in the Clackamas River subbasin or the mainstem Willamette River, from Willamette Falls to its points of confluence with the Columbia River, including Multnomah Channel, in Oregon. Should any bull trout be found in the Willamette River within the NEP boundary, the U.S. Fish and Wildlife Service (Service) will assume the fish to be part of the reintroduced population, unless the fish is tagged or otherwise known to be from another population. Given the presence of suitable overwintering and forage habitat in the upper portion of the Clackamas River, as well as the geographic distance from spawning and rearing habitat in the upper Clackamas River to any overwintering and foraging habitat in the lower Clackamas and Willamette Rivers, we do not expect the reintroduced fish to become established outside the NEP. Bull trout found outside of the NEP boundary, but known to be part of the NEP, will assume the status of bull trout within the geographic area in which they are found.
(iii) We do not intend to change the NEP designation to “essential experimental,” “threatened,” or “endangered” within the NEP area. Additionally, we will not designate critical habitat for the NEP, as provided by 16 U.S.C. 1539(j)(2)(C)(ii).
(2)
(i) Bull trout may be taken within the NEP area, provided that such take is:
(A) Not willful, knowing, or due to negligence.
(B) Incidental to and not the purpose of carrying out an otherwise lawful activity, such as recreation (
(C) Consistent with Oregon Department of Fish and Wildlife (ODFW) fishing regulations that have been coordinated with the Service, if due to fishing.
(D) Incidental to any activities related to or associated with the operation and maintenance of the Clackamas River Hydroelectric Project (FERC Project No. 2195) by Portland General Electric (PGE) as administered under a license issued by FERC. Acceptable forms of taking of bull trout include, but are not limited to, mortality, stranding, injury, impingement and entrainment at project facilities, or delay in up- or downstream passage associated with or caused by any of the following activities. Activities related to the operation and maintenance of Project 2195 include, but are not limited to:
(E) Consistent with the adaptive management process identified for this project including:
(
(
(ii) Any person with a valid permit issued by the Service under § 17.32 and a valid State permit issued by ODFW may take bull trout for educational purposes, scientific purposes, the enhancement of propagation or survival of the species, zoological exhibition, and other conservation purposes consistent with the Act.
(3)
(i) Except as expressly allowed in paragraph (w)(2) of this section, all the provisions of § 17.31(a) and (b) apply to the fish identified in paragraph (w)(1) of this section.
(ii) Any manner of take not described under paragraph (w)(2) of this section or Oregon Revised Statute (ORS) 498.002 and Oregon Angling Regulations pursuant to ORS 498.002 is prohibited in the NEP area. Should State statutes or regulations change, take prohibitions will change accordingly. Any changes to State recreational fishing regulations pertaining to the experimental population of bull trout in the Clackamas River subbasin will be made by the State in collaboration with the Service. We may refer unauthorized take of this species to ODFW law enforcement authorities or Service law enforcement authorities for prosecution.
(iii) A person may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever any of the identified fishes, or parts thereof, that are taken or possessed in a manner not expressly allowed in paragraph (w)(2) of this section, or in violation of the applicable State fish and wildlife laws or regulations or the Act.
(iv) A person may not attempt to commit, solicit another to commit, or cause to be committed any offense except the take expressly allowed in paragraph (w)(2) of this section.
(4)
(i) Effectiveness monitoring of the project will be conducted jointly by the Service and ODFW, with assistance from the U.S. Forest Service (USFS) and PGE.
(ii) We will monitor the effectiveness of the reintroduction during phase 1 of the project (2011-2017) by annually assessing: Distribution and movement, relative survival of translocated bull trout via presence and absence surveys, occurrence of spawning and reproduction, and genetic health, as measured against the donor population. These monitoring objectives will be accomplished by methodologies that include Passive Integrated Transponder (PIT) tagging of all fish translocated to the Clackamas River, radio tagging of the adult and subadult life stages, snorkel surveys, redd surveys, and minnow trapping.
(iii) If successful reproduction of reintroduced bull trout is detected, we will incorporate monitoring to assess the distribution, movement, growth, and survival of the initial cohorts of naturally produced bull trout.
(iv) Monitoring activities in phase 2 (2018-2024) and phase 3 (2025-2030) will be informed by phase 1 monitoring and evaluation.
(v) Annual reports that summarize the implementation and monitoring activities that occurred the previous year will be collaboratively developed by the Service, ODFW, and USFS.
(vi) We will evaluate the implementation strategy annually, and we will evaluate the reestablishment effort at the completion of phase 1 to determine whether to continue translocation of bull trout in phase 2.
(5)
(i) In consultation and coordination with the National Marine Fisheries Service (NMFS) and other project partners, we have developed a plan to facilitate management decisions associated with potential impacts from the bull trout reintroduction on listed anadromous salmonids. If specific bull trout and/or anadromous salmonid thresholds are triggered, we will follow the planned management actions to minimize impacts to salmon and steelhead from the reintroduction of bull trout in the Clackamas River.
(ii) Our management actions implemented and the frequency of those actions, will be informed by:
(A) The reintroduction project's monitoring and evaluation program, jointly implemented by the Service, ODFW, and USFS; and
(B) The conservation status of the listed Clackamas River anadromous salmonid populations.
(iii) Because we cannot predict all likely impact scenarios and appropriate management responses, we will modify our plan as necessary, in consultation and coordination with NMFS, ODFW, and other project partners, consistent with the overall adaptive management of the project.
(iv) Although our analysis indicates a low likelihood for population-level impacts to Federally listed salmon and steelhead populations, if the Service determines, in consultation and coordination with the State of Oregon, NMFS, and other project partners, and based on project monitoring and evaluation, that the reintroduction efforts are not consistent with the recovery of salmon or steelhead, the reintroduction program will be discontinued and bull trout will be removed from the experimental population area.
(v) Prior to releasing bull trout into the Clackamas River, the Service will complete any required interagency cooperation with NMFS pursuant to section 7(a)(2) of the Act.
(6)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; correction.
NMFS, upon application from Neptune LNG LLC (Neptune), issued 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 a period of 5 years. The final rule, which published in the
Effective from July 11, 2011, through July 10, 2016.
Candace Nachman, Office of Protected Resources, NMFS, (301) 713-2289, ext 156.
On June 13, 2011, final regulations for the take of marine mammals incidental to the operation and repair and maintenance of the Neptune Port off Massachusetts published in the
Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation.
For reasons set forth in the preamble, FR Doc. 2011-14614, published June 13, 2011, at 76 FR 34157, is corrected as follows:
“DATES: Effective from July 11, 2011, through July 10, 2016.”
Regulations in this subpart are effective from July 11, 2011, through July 10, 2016.”
Agricultural Marketing Service, USDA.
Proposed rule.
This rule invites comments on revisions to the handling regulation for onions handled under the Idaho-Eastern Oregon onion marketing order. The marketing order regulates the handling of onions grown in designated counties in Idaho, and Malheur County, Oregon, and is administered locally by the Idaho-Eastern Oregon Onion Committee (Committee). This rule would revise the marketing order's handling regulation to allow special purpose shipments of onions for experimentation. The revision would allow the Idaho-Eastern Oregon onion industry to identify and develop new market niches and is expected to benefit producers, handlers, and consumers of onions. This proposal also announces the Agricultural Marketing Service's (AMS) intent to request a revision of the currently approved information collection requirements under the order.
Comments must be received by August 22, 2011.
Interested persons are invited to submit written comments concerning this proposal. Comments must be sent to the Docket Clerk, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or Internet:
Barry Broadbent or Gary D. Olson, Northwest Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 805 SW., Broadway, Suite 930, Portland, OR 97205; Telephone: (503) 326-2724, Fax: (503) 326-7440, 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 rule is issued under Marketing Agreement No. 130 and Marketing Order No. 958, both as amended (7 CFR part 958), regulating the handling of onions grown in certain designated counties in Idaho, and Malheur County, Oregon, 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 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 § 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.
This proposed rule invites comments on revisions to the handling regulation for onions handled under the order. Specifically, this rule would revise the handling regulation to allow special purpose shipments of onions for the purpose of experimentation without regard to the minimum grade, size, maturity, pack, and inspection requirements of the order. The revision would give the Idaho-Eastern Oregon onion industry the opportunity to identify and develop new markets. The changes are expected to benefit producers, handlers, and consumers of onions. This rule was unanimously recommended by the Committee at its January 20, 2011, meeting.
Sections 958.42, 958.51, 958.52, and 958.60 of the order provide authority for assessment, mandatory inspection, and establishment of grade, size, quality, maturity, and pack regulations applicable to the handling of onions. Section 958.53 of the order provides authority for the issuance of special regulations, or the modification, suspension, or termination of requirements in effect pursuant to §§ 958.42, 958.52, 958.60, or any combination thereof, in order to facilitate the handling of onions for certain specified purposes.
Section 958.328 establishes minimum requirements for onions handled subject to the order. Currently, no person shall handle any lot of onions unless such onions are inspected, are at least “moderately cured”, and meet the grade, size, maturity, and pack requirements of paragraphs (a), (b), and (c). Paragraph (e) delineates specific types of special purpose shipments that are exempt from the requirements of the order. Paragraph (f) outlines the safeguards for such special purpose shipments.
The Committee recommended the proposed revision to the handling
An example of a scenario that would demonstrate the benefits of such a provision to the industry would be a handler's desire to produce and ship a unique, irregularly shaped small onion (
The potential for marketing opportunities like the one described above motivated the Committee to recommend modifying the handling regulation to add “experimentation” to the already established list of special purpose shipments allowed under the order. Shipments for experimental purposes would be exempt from the grade, size, maturity, pack, and inspection requirements of the handling regulation. Shipments made under the experimental exemption would continue to be subject to the assessment requirement of the order. With a special purpose shipment provision for experimentation, handlers would have greater flexibility in pursuing various types of unique marketing opportunities that are currently not available under the handling regulation.
The Committee would require handlers to request pre-approval for such experimental exemptions. Through the approval process, the Committee would be able to regulate the quantity and timing of such shipments. It is the goal of the Committee that any experimental shipments of onions would be temporary in nature. At the point that the emerging experimental market were to reach a sufficient volume or continue for such a length of time as to be deemed sustainable by the Committee, the Committee could then recommend changes to the handling regulation requirements to accommodate the marketing of such onions on a permanent basis.
Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA), 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 35 handlers of Idaho-Eastern Oregon onions who are subject to regulation under the order and about 250 onion producers in the regulated area. Small agricultural service firms, which include onion handlers and receivers, are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $7,000,000, and small agricultural producers are defined as those whose annual receipts are less than $750,000.
The National Agricultural Statistics Service (NASS) reported in the “Vegetables 2010 Summary,” published in January 2011, that the total F.O.B. value of onions in the regulated production area for 2010 was $133,041,000. Based on an industry estimate of 35 handlers, the average value of onions handled per handler is $3,801,000, well below the SBA threshold for defining small agricultural service firms. In addition, based on an industry estimate of 250 producers, the average F.O.B. value of onions produced in the industry is $532,164 per producer. Since the F.O.B. value is usually significantly higher than the farm gate value that the producers actually receive, most onion producers within the order's production area would be considered small agricultural producers under the SBA definition. Therefore, it can be concluded that the majority of handlers and producers of Idaho-Eastern Oregon onions may be classified as small entities as defined by the SBA.
This rule would revise § 958.328(e) of the order's handling regulation to allow special purpose shipments of onions for the purpose of experimentation without regard to the minimum grade, size, maturity, pack, and inspection requirements currently prescribed under paragraphs (a), (b), and (c) of § 958.328. The recommended revision would allow the Idaho-Eastern Oregon onion industry to identify and develop new markets for non-standard onions that are currently not open to them. The changes are expected to benefit producers, handlers, and consumers of onions.
At the January 20, 2011 meeting, the Committee discussed the impact of the recommended changes on handlers and producers in terms of increased costs. The Committee believes that, since this proposed change exempts certain shipments of onions from regulation, this action would not add any additional requirements or costs relative to the existing regulation. Since the utilization of the special purpose shipment provision is voluntary in nature, any additional regulatory burden placed on a handler as a result of this proposed rule would be by their choice. The proposed changes may, however, create opportunities for producers and handlers to develop new markets and to enhance revenues. The Committee believes that the potential benefit associated with this proposed action outweighs any potential increase in administrative cost or regulatory burden incurred by the handler.
The Committee discussed various alternatives to adding experimental shipments to the list of special purpose shipment exemptions contained in the order's handling regulation. Some members suggested that the provision was too broad in scope and needed greater restrictions. After deliberation, the Committee concluded that it would be impossible to anticipate what might be “experimental” in the future and that affording the greatest latitude to the provision, while maintaining strict Committee oversight, was in the best interest of the industry. The Committee also considered taking no action with regard to adding an experimental shipment provision, citing the potential for abuse. After deliberation, the Committee agreed that the experimental shipment provision is needed to respond to changes in the industry and that there would be sufficient safeguards to protect the integrity of the order.
This proposed rule would impose additional reporting burdens on handlers who make special purpose shipments of experimental onions. This
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.
In addition, the Committee's meeting was widely publicized throughout the onion industry, and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the January 20, 2011 meeting was a public meeting and all entities, both large and small, were able to express their views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and informational impacts of this action on small businesses.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice announces that AMS is requesting the Office of Management and Budget's (OMB) approval for a revision to currently approved forms used to collect information under this marketing order. Once the modified forms are approved, they will be merged with the forms contained in OMB No. 0581-0178 “Generic OMB Vegetable Crops.”
On January 20, 2011, the Committee unanimously recommended revising the handling regulation to allow special purpose shipments of onions for experimentation. To maintain the handling regulation safeguards, the proposed action would require minor revisions to three previously approved Committee forms: FV-34, FV-35, and FV-36.
Safeguard requirements in the order's handling regulation require each handler making special purpose shipments outside the production area to furnish an
Also, after an approved handler has shipped and billed or consigned a special purpose onion shipment or shipments, the handler shall furnish to the Committee an
In addition, as authorized in the order's handling regulation safeguards, the Committee may contact the receiver or receiver's agent of special purpose onion shipments for verification and request that such receiver or receiver's agent complete a
The information collected will be used only by authorized representatives of the USDA, including AMS, Fruit and Vegetable Programs' regional and headquarters' staff, and authorized Committee employees. Authorized Committee employees are the primary users of the information and AMS is the secondary user.
The request for approval of the modification of information collection under the order is as follows:
Application to Make Special Purpose Shipments—Certificate of Privilege.
As discussed previously,
Also as mentioned previously,
Additionally, as previously mentioned,
Comments should reference OMB No. 0581-0178 and the Marketing Order for Onions Grown in Certain Counties of Idaho, and Malheur County, Oregon, and be sent to the USDA in care of the Docket Clerk at the previously mentioned address. All comments timely received will be available for public inspection during regular business hours at the same address.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record. Upon OMB approval, this collection will be merged with the forms currently approved for use under OMB No. 0581-0241 “Generic OMB Vegetable Crops.” As mentioned previously, all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
A 60-day comment period is provided to allow interested persons to respond to this proposal. All written comments timely received will be considered before a final determination is made on this matter.
Marketing agreements, Onions, Reporting and recordkeeping requirements.
For the reasons set forth above, 7 CFR part 958 is proposed to be amended as follows:
1. The authority citation for 7 CFR part 958 continues to read as follows:
7 U.S.C. 601-674.
2. In § 958.328, revise paragraph (e) and paragraph (f) introductory text to read as follows:
(e)
(i) Planting,
(ii) Livestock feed,
(iii) Charity,
(iv) Dehydration,
(v) Canning,
(vi) Freezing,
(vii) Extraction,
(viii) Pickling, and
(ix) Disposal.
(2) Shipments of onions for the purpose of experimentation, as approved by the Committee, may be made without regard to the minimum grade, size, maturity, pack, and inspection requirements of this section. Assessment requirements shall be applicable to such shipments.
(3) The minimum grade, size, and maturity requirements set forth in paragraph (a) of this section shall not be applicable to shipments of pearl onions, but the maximum size requirement in paragraph (h) of this section and the assessment and inspection requirements shall be applicable to shipments of pearls onions.
(f)
Federal Election Commission.
Rulemaking petition: Notice of availability.
On April 21, 2011, the Commission received a Petition for Rulemaking from Representative Chris Van Hollen. The Petition urges the Commission to revise and amend the regulations at 11 CFR 109.10(e)(1)(vi) regarding the reporting of independent expenditures by persons other than political committees. The Petition is available for inspection in the Commission's Public Records Office, on its website,
Statements in support of or in opposition to the Petition must be submitted on or before August 22, 2011.
All comments must be in writing. Comments may be submitted electronically via the Commission's Web site at
Mr. Robert M. Knop, Assistant General Counsel, or Ms. Cheryl A. F. Hemsley, Attorney, 999 E Street, NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.
The Federal Election Commission (“Commission”) has received a Petition for Rulemaking from United States Representative Chris Van Hollen. The petitioner asks that the Commission revise and amend 11 CFR 109.10(e)(1)(vi) “relating to disclosure of donations made to persons [other than political committees], including corporations and labor organizations, which make independent expenditures, in order to conform the regulation with the law.” The Commission seeks comments on the petition.
Copies of the Petition for Rulemaking are available for public inspection at the Commission's Public Records Office, 999 E Street, NW., Washington, DC 20463, Monday through Friday between the hours of 9 a.m. and 5 p.m., and on the Commission's Web site,
Consideration of the merits of the Petition will be deferred until the close of the comment period. If the Commission decides that the Petition has merit, it may begin a rulemaking proceeding. Any subsequent action taken by the Commission will be announced in the
Federal Election Commission.
Rulemaking petition: Notice of Availability.
On January 26, 2010, the James Madison Center for Free Speech submitted to the Commission a Petition for Rulemaking. The Petition urges the Commission to conform its regulations regarding independent expenditures and electioneering communications made by corporations, membership organizations, and labor organizations to the decision of the Supreme Court in
Statements in support of or in opposition to the Petition must be submitted on or before August 22, 2011.
All comments must be in writing. Comments may be submitted electronically via the Commission's Web site at
Mr. Robert M. Knop, Assistant General Counsel, or Ms. Cheryl A.F. Hemsley, Attorney, 999 E Street, NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.
The Federal Election Commission (“Commission”) has received a Petition for Rulemaking from the James Madison Center for Free Speech. The petitioner asks that the Commission conform FEC regulations at 11 CFR 114.2, 114.4, 114.9, 114.10, 114.14, and 114.15 to the decision of the Supreme Court in
Copies of the Petition for Rulemaking are available for public inspection at the Commission's Public Records Office, 999 E Street, NW., Washington, DC 20463, Monday through Friday between the hours of 9 a.m. and 5 p.m., and on the Commission's Web site,
Consideration of the merits of the Petition will be deferred until the close of the comment period. If the Commission decides that the Petition has merit, it may begin a rulemaking proceeding. Any subsequent action taken by the Commission will be announced in the
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This rulemaking would establish noise certification standards for issuing type and airworthiness certificates for a new civil, hybrid airplane-rotorcraft known as the tiltrotor. This rule proposes to adopt the same recommended guidelines for noise certification found in the International Civil Aviation Organization (ICAO) Annex 16, Volume 1, Chapter 13, Attachment F (Amendment 7) for tiltrotors certificated in the United States (U.S.). The ICAO recommended practices are already harmonized internationally, and the adoption as standards into our regulations would be consistent with the Federal Aviation Administration's (FAA) goal of harmonizing U.S. regulations with international standards.
The proposed standards would apply to the issuance of the original type certificate, changes to the type certificate, and standard airworthiness certificates for tiltrotors.
Send your comments on or before October 19, 2011.
You may send comments identified by Docket Number [Insert docket number, for example, FAA-2011-0629] using any of the following methods:
•
•
•
•
For technical questions concerning this proposed rule contact Sandy Liu, AEE-100, Office of Environment and Energy, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 493-4864; facsimile (202) 267-5594; e-mail:
The FAA's authority to issue rules on aviation safety is found in Title 49 of the United States Code. Subtitle I, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart III, section 44715, Controlling aircraft noise and sonic boom. Under that section, the FAA is charged with prescribing regulations to measure and abate aircraft noise. This proposed regulation is within the scope of that authority since it would establish new noise certification test procedures and noise limits for a new class of aircraft. Applicants for type certificates, changes in type design, and airworthiness certificates for tiltrotors would be required to comply with these new regulations.
A new aircraft type known as a tiltrotor is currently in development after more than six decades. The aircraft uses a hybrid of propellers and helicopter rotors to provide both lift and propulsive force using rotating nacelles. The aircraft is designed to function as a helicopter for takeoff and landing and as an airplane during the en-route portion of flight operations.
The most recognizable tiltrotor operating today is the V-22 Osprey used by the U.S. Marines and the U.S. Air Force. The V-22 Osprey was tailored for the Department of Defense Special Operations Forces and can transport 24 fully equipped troops. The proposed civil version of the tiltrotor would carry up to nine passengers.
The tiltrotor concept was first explored for the U.S. Army in the mid-1950s as a convertiplane concept that incorporated mixed vertical and forward flight capabilities. In 1958, Bell Helicopter Textron Inc. (Bell) of Fort Worth, Texas developed the XV-3 tiltrotor for a joint research program between the U.S. Army and the U.S. Air Force. The Bell XV-3 completed a successful full conversion from vertical flight to forward cruise and demonstrated the feasibility of tiltrotor technology. Following the U.S. Army and National Aeronautics and Space Administration prototype development contract award to Bell in the mid-1970s, two Bell XV-15 tiltrotor demonstrator aircraft were built as predecessors to the V-22 Osprey to demonstrate mature tiltrotor technology and flight capabilities.
The ICAO is the international body with responsibility for the development of International Standards and Recommended Practices pursuant to the Convention on International Civil Aviation (the Chicago Convention). Consistent with their obligations under the Chicago Convention, Contracting States agree to implement ICAO standards in their national regulations to the extent practicable. The standards for aircraft noise are contained in Annex 16, Environmental Protection, Volume 1, Aircraft Noise.
In anticipation of civil tiltrotor production, ICAO's Committee on Aviation Environmental Protection (CAEP) chartered the Tiltrotor Task Group (TRTG) to develop noise certification guidelines for tiltrotors in 1997. The FAA participated in the TRTG and its development of the tiltrotor noise guidelines from 1997 to 2000. The ICAO tiltrotor guidelines used the same noise limits that the United States had incorporated into part 36, Appendix H for helicopter noise certification. The ICAO has included additional requirements that are unique to the design of tiltrotors.
On June 29, 2001, the TRTG's guidelines were adopted by the ICAO Council for incorporation into Annex 16, Volume 1, Chapter 13, Attachment F (Amendment 7). The ICAO guidelines became effective on October 29, 2001, with an applicability date of March 21, 2002.
Current regulations in part 36 do not contain noise certification requirements specific to the tiltrotor and its unique flight capabilities. Since no standards for the tiltrotor currently exist, the FAA proposes to adopt the guidelines through rulemaking and add the new standards to part 36 and amend § 21.93 (Classification of Changes in Type Design) to accommodate certification of the tiltrotor. In order to harmonize the U.S. regulations with the international standards, this rulemaking proposes the adoption of the same noise certification guidelines used in ICAO Annex 16, Volume 1, Chapter 13, Attachment F (Amendment 7) for tiltrotors.
As the tiltrotor concept and technology proved promising with the production of the V-22 Osprey, Bell and Agusta-Westland established a joint business venture in 1998 to co-develop the Bell/Agusta model BA609 civil tiltrotor.
In August 1996, Bell applied for a U.S. type certificate for the model
The standards proposed in this rulemaking would apply to the issuance of an original type certificate, changes to a type certificate, and the issuance of a standard airworthiness certificate for tiltrotors. This rulemaking proposes noise certification standards that would be applicable to all tiltrotors, including the Bell/Agusta Model BA609, which is currently under development. This rule proposes to incorporate the guidelines of ICAO Annex 16, Volume 1, Chapter 13, Attachment F (Amendment 7) for tiltrotors, consistent with the FAA goal of harmonization of regulations with international standards.
These proposed regulations would:
• Amend § 21.93 for acoustical changes in type design to add the tiltrotor as a class of aircraft;
• Amend § 36.1 noise certification standards for the issuance of type and airworthiness certificates for the new tiltrotor class of aircraft (including the definitions and applicability);
• Add a new § 36.13 acoustical change requirements for tiltrotors;
• Add a new subpart K to part 36 that includes noise measurement, evaluation and calculation criteria and maximum noise limits of tiltrotors;
• Add a new Appendix K to part 36 that includes noise certification standards (including the reference test conditions and reference test procedures) for tiltrotors certificated in the United States.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined there would be no new requirement for information collection associated with this proposed rule. The requirements are the same as for any other new aircraft type certification.
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform our regulations to ICAO Standards and Recommended Practices to the maximum extent practicable. In 2001, ICAO adopted tiltrotor noise guidelines. This proposed regulation will harmonize U.S. noise standards with the international standards by adopting the same requirements, adapted for the U.S. regulatory format.
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Public Law 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this proposed rule.
Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this proposed rule. The reasoning for this determination follows:
(1) Has benefits that justify its costs,
(2) Is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866;
(3) Would not have a significant economic impact on a substantial number of small entities;
(4) Would not have a significant effect on international trade; and
(5) Would not impose an unfunded mandate on state, local, or tribal governments, or on the private sector by exceeding the monetary threshold identified.
The tiltrotor aircraft is a new class of aircraft. Currently there are no part 36 certification standards for tiltrotor aircraft. This proposed rule would provide for the part 36 certification requirements for this new class of aircraft. The benefit of this proposed rule is that it would allow the startup and development of a market for a new class of aircraft, the tiltrotor. The FAA believes that this would result in substantial benefits.
The potential size of the tiltrotor market can be estimated by the sales projections of the current developer, Bell/Agusta. In the next 10 years, only one model of tiltrotor is expected to be available, the BA609 currently in development. The price of a BA609 is expected to be $10 to $14 million, up from the original estimate of $7 million to the current $14 million. When first priced in 2000, the $7 million price was equivalent to the replacement value of a Bell 412 helicopter. The BA609 has unique capabilities, such as vertical takeoff and landing, combined with the speed and range of a turboprop airplane.
Bell estimates that it will sell approximately 100 BA609s, making the potential near-term tiltrotor market worth a nominal $1 billion to $1.4 billion. Table 1 shows the nominal and present value estimates of the tiltrotor market. The present value is based on a 7 percent discount rate, and a ten year production period with 10 tiltrotors being delivered each year. The present value of the tiltrotor market is estimated to be between $702,000,000 and $983,000,000.
Table 2 shows the incremental manufacturer costs for the noise certification of a civil tiltrotor aircraft. The costs consist of four major items: Acoustics; Flight Test; Aircraft; and Miscellaneous. For tiltrotor aircraft noise certification, as for any aircraft certification, the noise demonstration flight testing and reporting is the major incremental cost.
To meet the proposed requirements of noise control, acoustical measurements are used to quantify the characteristic noise levels of the aircraft. Almost half the expense ($250,000) is invested in the acoustics group equipment and analysis. This cost includes overall noise test planning and coordination, noise test site preparation and measurement set-up.
The next highest expense involves the support of the flight test group ($220,000). These expenses are needed to configure and prepare the aircraft to execute the required noise flight test procedures.
The last two major expense groups are aircraft and miscellaneous expenses. The aircraft expense ($50,000) involves costs associated with aircraft flight time, fuel, and flight crew support. Most other general expenses of test support are miscellaneous costs ($68,000).
Issuance of a type certificate requires compliance with the applicable noise certification requirements of part 36. Full noise certification testing is generally required for new aircraft types and for certain voluntary changes to type design that are classified as acoustical change under § 21.93(b). The incremental costs recur only when a new type certificate is issued, or when a change to a type design results when an acoustical change is made.
As shown in Table 2, the estimated total incremental cost of a single noise certification is $588,000. As the $588,000 would be incurred in the first year, the nominal value equals the present value. The cost estimates for noise certification were prepared by Bell Helicopter Textron. The cost of noise certification for the tiltrotor is comparable to that for a large helicopter (over 7,000 pounds). Since noise testing is required for new aircraft to gain U.S. certification, the cost burden is comparable and does not impose any unexpected burden on manufacturers.
The FAA may incur costs in this certification process, including the adoption of the new regulations. However, these costs are not expected to vary significantly from the agency's current costs to noise certificate any other new aircraft type.
Based on the above analyses, this proposed rule is considered to be a minimal cost rule.
Since the tiltrotor industry is still developing, the costs and benefits discussed are based on a single tiltrotor program. The proposed rule would require the noise certification of a tiltrotor aircraft type. While the estimated benefits and costs are based on a single tiltrotor type, we believe the benefits will exceed the costs for any future designs. Bell Agusta anticipates selling 100 tiltrotor aircraft, allowing a $1 to $1.4 billion ($700 million to $1billion in present value) new market to start up and develop.
The present value cost of the proposed rule is $588,000 for the certification of one aircraft type. The estimated 100 tiltrotor aircraft that would be sold would be covered under this type certificate, unless major modifications were made that would change the original certification. Therefore, the total present value cost of the proposed rule is $588,000, which the FAA considers to be minimal.
Although the FAA cannot quantify the benefits of the proposed rule, the FAA believes that the benefits would be substantial. Because of this and the minimal cost nature of the proposed rule the FAA believes that the proposed rule would be cost beneficial.
The Regulatory Flexibility Act of 1980 (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.” To achieve that principle, the RFA requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions. The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations and small governmental jurisdictions.
Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the Act.
However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the 1980 RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
Size standards for small entities are published by the Small Business Administration (SBA) on their Web site at
Bell Helicopter is a wholly owned subsidiary of Textron Inc. Bell Helicopter employed approximately 9,800 employees at the end of 2009 while Textron employed approximately 32,000 employees. (Textron Fact Book 2009). Agusta-Westland is a wholly owned subsidiary of Finmeccanica. Agusta-Westland employed 13,886 employees at September 30, 2010 while Finmeccanica employed 75,733 employees. (Finmeccanica Press Release, Rome, 3 November 2010) Since the only tiltrotor manufacturer, Bell Helicopter, employs more than 1,500 employees, there are no small-entity tiltrotor manufacturers.
Consequently, the FAA certifies that this proposed rule would not have a significant economic impact on a substantial number of small tiltrotor manufacturers.
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create
The FAA has assessed the potential effect of this proposed rule and determined that it would encourage international trade by using international standards as the basis for a rule for the noise certification of tiltrotors.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action”. The FAA currently uses an inflation-adjusted value of $140.8 million in lieu of $100 million. This proposed rule does not contain such a mandate; therefore, the requirements of Title II do not apply.
The FAA has analyzed this proposed rule under the principles and criteria of Executive Order 13132, Federalism. The agency determined that this action would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have federalism implications.
FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. This rule adopts internationally established noise guidelines for a new civil, hybrid airplane-rotorcraft known as the tiltrotor. Based on the dual helicopter and propeller airplane characteristics inherit in the tiltrotor, the noise guidelines utilize preexisting helicopter noise certification limits and procedures. This rule adopts these noise limits to control the harshest (maximum) noise levels when the tiltrotor operates in its noisiest configuration—helicopter mode. In airplane mode, the tiltrotor is significantly quieter given its low cruise RPM design. The FAA finds the applicability of the noise guidelines to be technologically and environmentally consistent for this new class of aircraft. The tiltrotor will function as a helicopter and will follow the same helicopter noise certification requirements, thus maintaining a comparable level of environmental protection.
The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 312f and involves no extraordinary circumstances.
The FAA has analyzed this NPRM under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency determined that it is not a “significant energy action” under the executive order, it is not a “significant regulatory action” under Executive Order 12866 and DOT's Regulatory Policies and Procedures, and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, please send only one copy of written comments, or if you are filing comments electronically, please submit your comments only one time.
We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.
You can get an electronic copy of rulemaking documents using the Internet by—
1. Searching the Federal eRulemaking Portal (
2. Visiting the FAA's Regulations and Policies Web page at
3. Accessing the Government Printing Office's Web page at
You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the docket or notice number of this rulemaking.
You may access all documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, from the internet through the Federal eRulemaking Portal referenced in paragraph (1).
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
Aircraft, Noise control.
In consideration of the foregoing, the Federal Aviation Administration proposes to amend chapter I of title 14, Code of Federal Regulations, as follows:
1. The authority citation for part 21 continues to read as follows:
42 U.S.C. 7572; 49 U.S.C. 106(g), 40105, 40113, 44701-44702, 44704, 44707, 44709, 44711, 44713, 44715, 45303.
2. Amend § 21.93 by adding paragraph (b)(5) to read as follows:
(b) * * *
(5) Tiltrotors.
3. The authority citation for part 36 continues to read as follows:
42 U.S.C. 4321
4. Amend § 36.1 as follows:
A. Add paragraph (a)(5);
B. Amend paragraph (c) by removing the phrase “or 36.11” and adding the phrase “36.11 or 36.13” in its place; and
C. Add paragraph (i).
The additions and revisions read as follows:
(a) * * *
(5) Type certificates, changes to those certificates, and standard airworthiness certificates, for tiltrotors.
(i) For the purpose of showing compliance with this part for tiltrotors, the following terms have the specified meanings:
V
V
V
5. Add § 36.13 to subpart A to read as follows:
The following requirements apply to tiltrotors in any category for which an acoustical change approval is applied for under § 21.93(b) of this chapter on or after [effective date of final rule]:
(a) In showing compliance with Appendix K of this part, noise levels must be measured, evaluated, and calculated in accordance with the applicable procedures and conditions prescribed in Appendix K of this part.
(b) Compliance with the noise limits prescribed in section 4 of Appendix K of this part must be shown in accordance with the applicable provisions of sections K2 (Noise Evaluation Measure), K3 (Noise Measurement Reference Points), K6 (Noise Certification Reference Procedures), and K7 (Test Procedures) of Appendix K of this part.
(c) After a change in type design, tiltrotor noise levels may not exceed the limits specified in § 36.1103.
6. Add Subpart K of part 36 to read as follows:
For tiltrotors, the noise generated must be measured and evaluated under Appendix K of this part, or under an approved equivalent procedure.
(a) Compliance with the maximum noise levels prescribed in Appendix K of this part must be shown for a tiltrotor for which the application for the issuance of a type certificate is made on or after [effective date of the final rule].
(b) To demonstrate compliance with this part, noise levels may not exceed the noise limits listed in section K4 of Appendix K of this part. Appendix K of this part (or an approved equivalent procedure) must also be used to evaluate and demonstrate compliance with the approved test procedures, and at the applicable noise measurement points.
7. Add Appendix K of part 36 to read as follows:
This appendix prescribes noise limits and procedures for measuring noise and adjusting the data to standard conditions for tiltrotors as specified in § 36.1 of this part.
The noise evaluation measure is the effective perceived noise level in EPNdB, to be calculated in accordance with section A36.4 of Appendix A of this part, except corrections for spectral irregularities must be determined using the 50 Hertz sound pressure level found in section H36.201 of Appendix H of this part.
The following noise reference points must be used when demonstrating tiltrotor compliance with section K6 (Noise Certification Reference Procedures) and section K7 (Test Procedures) of this appendix:
(a)
As shown in Figure K1 below:
(1) The centerline noise measurement flight path reference point, designated A, is located on the ground vertically below the reference takeoff flight path. The
(2) Two sideline noise measurement points, designated as S(starboard) and S(port), are located on the ground perpendicular to and symmetrically stationed at 492 feet (150 m) on both sides of the takeoff reference flight path. The measurement points bisect the centerline flight path reference point A.
(b)
As shown in Figure K2 below:
(1) The centerline noise measurement flight path reference point, designated A, is located on the ground 492 feet (150 m) vertically below the reference flyover flight path. The measurement point is defined by the flyover reference procedure in section K6.3 of this appendix;
(2) Two sideline noise measurement points, designated as S(starboard) and S(port), are located on the ground perpendicular to and symmetrically stationed at 492 feet (150 m) on both sides of the flyover reference flight path. The measurement points bisect the centerline flight path reference point A.
(c)
As shown in Figure K3 below:
(1) The centerline noise measurement flight path reference point, designated A, is located on the ground 394 feet (120 m) vertically below the reference approach flight path. The measurement point is defined by the approach reference procedure in section K6.4 of this appendix. On level ground, the measurement point corresponds to a position 3,740 feet (1,140 m) from the intersection of the 6.0 degree approach path with the ground plane;
(2) Two sideline noise measurement points, designated as S(starboard) and S(port), are located on the ground perpendicular to and symmetrically stationed at 492 feet (150 m) on both sides of the approach reference flight path. The measurement points bisect the centerline flight path reference point A.
For a tiltrotor, the maximum noise levels, as determined in accordance with the noise evaluation in EPNdB and calculation method described in section H36.201 of Appendix H of this part, must not exceed the noise limits as follows:
(a)
(b)
(c)
If the noise evaluation measurement exceeds the noise limits described in K4 of this appendix at one or two measurement points:
(a) The sum of excesses must not be greater than 4 EPNdB;
(b) The excess at any single point must not be greater than 3 EPNdB; and
(c) Any excess must be offset by the remaining noise margin at the other point or points.
(a) [Reserved]
(b) [Reserved]
(c) The takeoff, flyover and approach reference procedures must be established in accordance with sections K6.2, K6.3 and K6.4 of this appendix, except as specified in section K6.1(d) of this appendix.
(d) When the design characteristics of the tiltrotor prevent test flights to be conducted in accordance with section K6.2, K6.3 or K6.4 of this appendix, the applicant must revise
(e) The following reference atmospheric conditions must be used to establish the reference procedures:
(1) Sea level atmospheric pressure of 2,116 pounds per square foot (1,013.25 hPa);
(2) Ambient air temperature of 77° Fahrenheit (25° Celsius, i.e., ISA + 10 °C);
(3) Relative humidity of 70 percent; and
(4) Zero wind.
(f) For tests conducted in accordance with sections K6.2, K6.3, and K6.4 of this appendix, use the maximum normal operating RPM corresponding to the airworthiness limit imposed by the manufacturer. For configurations for which the rotor speed automatically links with the flight condition, use the maximum normal operating rotor speed corresponding for that flight condition. For configurations for which the rotor speed can change by pilot action, use the highest normal rotor speed specified in the flight manual limitation section for power-on conditions.
(a) A constant takeoff configuration must be maintained, including the nacelle angle selected by the applicant;
(b) The tiltrotor power must be stabilized at the maximum takeoff power corresponding to the minimum installed engine(s) specification power available for the reference ambient conditions or gearbox torque limit, whichever is lower. The tiltrotor power must also be stabilized along a path starting from a point located 1,640 feet (500 m) before the flight path reference point, at 65 ft (20 m) above ground level;
(c) The nacelle angle and the corresponding best rate of climb speed, or the lowest approved speed for the climb after takeoff, whichever is the greater, must be maintained throughout the takeoff reference procedure;
(d) The rotor speed must be stabilized at the maximum normal operating RPM certificated for takeoff;
(e) The weight (mass) of the tiltrotors must be the maximum takeoff weight (mass) as requested for noise certification; and
(f) The reference takeoff flight profile is a straight line segment inclined from the starting point 1,640 feet (500 m) before to the center noise measurement point and 65 ft (20 m) above ground level at an angle defined by best rate of climb and the speed corresponding to the selected nacelle angle and for minimum specification engine performance.
(a) The tiltrotor must stabilize for level flight along the centerline flyover flight path and over the noise measurement reference point at an altitude of 492 ft (150 m) above ground level;
(b) A constant flyover configuration must be maintained;
(c) The weight (mass) of the tiltrotor must be the maximum takeoff weight (mass) as requested for noise certification;
(d) In the VTOL/Conversion mode:
(1) The nacelle angle must be at the authorized fixed operation point that is closest to the shallow nacelle angle certificated for zero airspeed;
(2) The airspeed must be 0.9V
(3) The rotor speed must be stabilized at the maximum normal operating RPM certificated for level flight.
(a) The tiltrotor must be stabilized to follow a 6.0 degree approach path;
(b) An approved airworthiness configuration in which maximum noise occurs must be maintained;
(1) An airspeed equal to the best rate of climb speed corresponding to the nacelle angle, or the lowest approved airspeed for the approach, whichever is greater, must be stabilized and maintained; and
(2) The tiltrotor power during the approach must be stabilized over the flight path reference point, and continue to a landing;
(c) The rotor speed must stabilize at the maximum normal operating RPM certificated for approach;
(d) The constant approach configuration used in airworthiness certification tests, with the landing gear extended, must be maintained; and
(e) The weight (mass) of the tiltrotor at landing must be the maximum landing weight (mass) as requested for noise certification.
(a) For takeoff: 4.0 EPNdB, of which the arithmetic sum of delta 1 and the term −7.5 log (QK/QrKr) from delta 2 must not in total exceed 2.0 EPNdB;
(b) For flyover or approach: 2.0 EPNdB.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
[T]he Federal Aviation Administration (FAA) has published Special Federal Aviation Regulation (SFAR) 88, and the Joint Aviation Authorities (JAA) has published Interim Policy INT/POL/25/12. The review conducted by Fokker Services on the Fokker F27 and F28 type designs in response to these regulations revealed that, under certain failure conditions, a short circuit can develop in the fuel pilot valve solenoid or in the wiring to the solenoid. Such a short circuit may result in an ignition source in the wing tank vapour space.
This condition, if not corrected, could result in a wing fuel tank explosion and consequent loss of the aeroplane.
We must receive comments on this proposed AD by August 5, 2011.
You may send comments by any of the following methods:
• Federal eRulemaking Portal: Go to
• Fax: 202-493-2251.
• Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590.
• Hand Delivery: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-40, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
For service information identified in this proposed AD, contact Fokker Services B.V., Technical Services Dept., P.O. Box 231, 2150 AE Nieuw-Vennep, the Netherlands; telephone +31 (0)252-627-350; fax +31 (0)252-627-211; e-mail
You may examine the AD docket on the Internet at
Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone 425-227-1137; fax 425-227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2010-0195, dated September 29, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
[T]he Federal Aviation Administration (FAA) has published Special Federal Aviation Regulation (SFAR) 88, and the Joint Aviation Authorities (JAA) has published Interim Policy INT/POL/25/12. The review conducted by Fokker Services on the Fokker F27 and F28 type designs in response to these regulations revealed that, under certain failure conditions, a short circuit can develop in the fuel pilot valve solenoid or in the wiring to the solenoid. Such a short circuit may result in an ignition source in the wing tank vapour space.
This condition, if not corrected, could result in a wing fuel tank explosion and consequent loss of the aeroplane.
For the reasons described above, this AD requires [re-working the wiring and] the installation of a fuse packed in a jiffy junction [i.e., crimped wire in-line junction device] in the wiring to the fuel pilot valve solenoid.
The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83).
Among other actions, SFAR 88 requires certain type design (
In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: Single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.
The Joint Aviation Authorities (JAA) has issued a regulation that is similar to SFAR 88. (The JAA is an associated body of the European Civil Aviation Conference (ECAC) representing the civil aviation regulatory authorities of a number of European States who have agreed to co-operate in developing and implementing common safety regulatory standards and procedures.) Under this regulation, the JAA stated that all members of the ECAC that hold type certificates for transport category airplanes are required to conduct a design review against explosion risks.
We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination
Fokker Services B.V. has issued the Fokker service bulletins listed in the following table.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 6 products of U.S. registry. We also estimate that it would take about 6 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost up to $2,198 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be up to $16,248, or up to $2,708 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by August 5, 2011.
(b) None.
(c) This AD applies to Fokker Services B.V. Model F.27 Mark 050, 200, 300, 400, 500, 600, and 700 airplanes; Fokker Services B.V. Model F.28 Mark 0070, 0100, 1000, 2000, 3000, and 4000 airplanes; certificated in any category; all serial numbers.
This AD requires revisions to certain operator maintenance documents to include a new Critical Design Configuration Control Limitation (CDCCL). Compliance with this CDCCL is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance (AMOC) according to paragraph (j)(1) of this AD. The request should include a description of changes to the required inspections that will ensure the continued operational safety of the airplane.
(d) Air Transport Association (ATA) of America Code 28: Fuel.
(e) The mandatory continuing airworthiness information (MCAI) states:
[T]he Federal Aviation Administration (FAA) has published Special Federal Aviation Regulation (SFAR) 88, and the Joint Aviation Authorities (JAA) have published Interim Policy INT/POL/25/12. The review conducted by Fokker Services on the Fokker F27 and F28 type designs in response to these regulations revealed that, under certain failure conditions, a short circuit can develop in the fuel pilot valve solenoid or in the wiring to the solenoid. Such a short circuit may result in an ignition source in the wing tank vapour space.
This condition, if not corrected, could result in a wing fuel tank explosion and consequent loss of the aeroplane.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) Within 24 months after the effective date of this AD, re-work the wiring and install the fuses packed in jiffy junctions (i.e., crimped wire in-line junction device), in accordance with the Accomplishment Instructions of the applicable Fokker service bulletin identified in table 1 of this AD.
(h) Before further flight after doing the actions required by paragraph (g) of this AD: Revise the aircraft maintenance program by incorporating the CDCCL specified in paragraph 1.L.(1)(c) of the applicable Fokker service bulletins identified in table 1 of this AD.
(i) After accomplishing the revision required by paragraph (h) of this AD, no alternative CDCCLs may be used unless the CDCCLs are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (j) of this AD.
This AD differs from the MCAI and/or service information as follows: Although European Aviation Safety Agency (EASA) Airworthiness Directive 2010-0195, dated September 29, 2010, specifies revising the maintenance program to include maintaining CDCCLs, this AD only requires the revision. Requiring a revision of the maintenance program, rather than requiring maintaining CDCCLs, requires operators to record AD compliance only at the time the revision is made. Maintaining CDCCLs specified in the airworthiness limitations must be complied with in accordance with 14 CFR 91.403(c).
(j) The following provisions also apply to this AD:
(1) Alternative Methods of Compliance: The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone 425-227-1137; fax 425-227-1149. Information may be e-mailed to:
(2) Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(k) Refer to MCAI EASA Airworthiness Directive 2010-0195, dated September 29, 2010, and the Fokker service bulletins identified in table 1 of this AD, for related information.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to modify the Palm Beach International Airport Class C airspace area by raising the floor of Class C airspace above Palm Beach County Park Airport (LNA) from 1,200 feet MSL to 1,600 feet MSL. The FAA is proposing this action to enhance safety and enable more efficient operations at LNA.
Comments must be received on or before August 22, 2011.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001;
Paul Gallant, Airspace, Regulations and ATC Procedures Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591;
Interested parties are invited to participate in this proposed rulemaking 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-2011-0527 and Airspace Docket No. 11-AWA-2) and be submitted in triplicate to the Docket Management Facility (see
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Nos. FAA-2011-0527 and Airspace Docket No. 11-AWA-2.” The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. 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 through the Internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to modify the Palm Beach International Airport Class C airspace area by raising the floor of Class C airspace to 1,600 feet MSL within an area overlying, and to the south of, the Palm Beach County Park Airport (see attached chart). Currently, the floor of Class C airspace in the vicinity of LNA is at 1,200 feet MSL. Raising the Class C floor as proposed would enhance safety by providing additional clearance between rotorcraft and fixed-wing aircraft entering the traffic pattern at LNA. This would allow fixed-wing aircraft entering the traffic pattern to safely overfly the existing helicopter patterns and also would allow LNA helicopter training activities to take place at higher altitudes. The boundaries would be depicted as subareas A, B, and C for clarity.
In addition, a minor correction is made to the geographic coordinates of LNA to reflect the current information in the FAA's aeronautical database.
Class C airspace areas are published in paragraph 4,000 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 C airspace area modification proposed in this document would be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (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, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies terminal airspace as required to preserve the safe and efficient flow of air traffic.
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 the Federal Aviation Administration Order 7400.9U, Airspace Designations and Reporting Points, dated August 18, 2010, and effective September 15, 2010, is amended as follows:
Area A. That airspace extending upward from the surface to and including 4,000 feet MSL within a 5-mile radius of Palm Beach International Airport, excluding that airspace within a 2-mile radius of the Palm Beach County Park Airport.
Area B. That airspace extending upward from 1,600 feet MSL to and including 4,000 feet MSL within an area bounded on the north by a line direct from the intersection of the Florida Turnpike (Highway 91) and Lantana Road to the intersection of a 5-mile radius of the Palm Beach International Airport and a 2-mile radius west of the Palm Beach County Park Airport and a 2-mile radius north of the Palm Beach County Park Airport, on the east by a line direct from the intersection of a 5-mile radius of the Palm Beach International Airport and a 2-mile radius east of the Palm Beach County Park Airport to the intersection of a 10-mile radius of the Palm Beach International Airport and US 1, on the south by a 10-mile radius of the Palm Beach International Airport, and on the west by the Florida Turnpike.
Area C. That airspace extending upward from 1,200 feet MSL to and including 4,000 feet MSL within a 10-mile radius of the Palm Beach International Airport, excluding area B.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class D and Class E airspace at Casper, Natrona County International Airport, Casper, WY, by adjusting the geographic coordinates of the airport. This action also would establish Class E En Route Domestic airspace at the airport, to facilitate vectoring of Instrument Flight Rules (IFR) traffic from en route airspace to Casper, WY. The FAA is proposing this action to enhance the safety and management of aircraft operations at Casper, Natrona County International Airport.
Comments must be received on or before August 5, 2011.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590; telephone (202) 366-9826. You must identify FAA Docket No. FAA-2011-0439; Airspace Docket No. 11-ANM-10, at the beginning of your comments. You may also submit comments through the Internet at
Eldon Taylor, Federal Aviation Administration, Operations Support
Interested parties are invited to participate in this proposed rulemaking 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 2011-0439 and Airspace Docket No. 11-ANM-10) and be submitted in triplicate to the Docket Management System (see
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2011-0439 and Airspace Docket No. 11-ANM-10”. The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. 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 through the Internet at
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 NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by amending the Class D and Class E airspace areas by adjusting the geographic coordinates of Casper, Natrona County International Airport to be in concert with the FAA's aeronautical database. Also, this action would establish Class E en route domestic airspace extending upward from 1,200 feet above the surface at the airport that would enhance the safety and management of IFR operations by vectoring IFR aircraft from en route airspace to the airport.
Class E airspace designations are published in paragraphs 5000, 6002, 6004, 6005 and 6006, respectively, of FAA Order 7400.9U, dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designation listed in this document will be published subsequently in this Order.
The FAA has determined this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation; (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified 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 U.S. Code. Subtitle 1, Section 106, describes the authority for the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it creates additional controlled airspace at Casper, Natrona County International Airport, Casper, WY.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for 14 CFR 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 part 71.1 of the Federal Aviation Administration Order 7400.9U, Airspace Designations and Reporting Points, dated August 18, 2010, and effective September 15, 2010 is amended as follows:
That airspace extending upward from the surface to and including 7,800 feet MSL within a 4.3-mile radius of Natrona County International Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
Within a 4.3-mile radius of Natrona County International Airport. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
That airspace extending upward from the surface within 4.3 miles each side of the Muddy Mountain VORTAC 216° radial extending from the VORTAC to 29 miles southwest of the VORTAC, and within 2.7 miles each side of the ILS localizer west course extending from .9 miles east to 9 miles west of the Johno LOM. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
That airspace extending upward from 700 feet above the surface within a 23.5-mile radius of the Casper ASR; that airspace extending upward from 1,200 feet above the surface within the 37.5-mile radius of the Casper ASR, and within an area extending from the 37.5-mile radius to the 36.6-mile radius of the Muddy Mountain VORTAC, bounded on the north by the Muddy Mountain VORTAC 060° radial and on the south by the Muddy Mountain VORTAC 111° radial; that airspace extending upward from 11,500 feet MSL extending from the 37.5-mile radius to the 52.2-mile radius of the Muddy Mountain VORTAC, bounded on the east by the west edge of V-19 and on the south by the north edge of V-298.
That airspace extending upward from 1,200 feet above the surface within a 85-mile radius of Natrona County International Airport; excluding existing controlled airspace 7,100 feet MSL and above.
Food and Drug Administration, HHS.
Proposed rule.
The Food and Drug Administration (FDA) proposes to amend the sterility test requirements for biological products. This proposed rule is intended to provide manufacturers of biological products greater flexibility and to encourage use of the most appropriate and state-of-the-art test methods for assuring the safety of biological products. We are taking this action as part of our continuing effort to review and, as necessary, update the biologics regulations.
Submit either electronic or written comments on this proposed rule by September 19, 2011. See section X of this document for the proposed effective date of any final rule that may publish based on this proposal.
You may submit comments, identified by Docket No. FDA-2011-N-0080, by any of the following methods:
Submit electronic comments in the following way:
• Federal eRulemaking Portal:
Submit written submissions in the following ways:
• FAX: 301-827-6870.
• Mail/Hand delivery/Courier (For paper, disk, or CD-ROM submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
Paul E. Levine, Jr., Center for Biologics Evaluation and Research (HFM-17), Food and Drug Administration, 1401 Rockville Pike, Suite 200N, Rockville, MD 20852-1448, 301-827-6210.
Any product that purports to be sterile should be free of viable contaminating microorganisms to assure product safety (§ 600.3(q) (21 CFR 600.3(q)). Absolute sterility of a lot cannot be practically demonstrated without complete destruction of every finished article in that lot (United States Pharmacopeia (USP) Chapter 1211). Therefore, sterility assurance is accomplished primarily by validation of the sterilization process or of the aseptic processing procedures under current good manufacturing practice (CGMP), and is supported by sterility testing using validated and verified test methods. (See
In the
Over the years, FDA has amended the biologics regulations, as necessary, to clarify and update the sterility test requirements. On March 11, 1976 (41 FR 10427) and March 2, 1979 (44 FR 11754), we updated § 610.12 to clarify the procedures for repeat testing. On April 18, 1984 (49 FR 15186), we amended § 610.12 by removing and reserving paragraph (g)(3) previously entitled
Section 610.12 currently requires that the sterility of most licensed biological products
The regulation, under § 610.12, also specifies the test method and culture media to be used. For instance, the prescribed sterility test methods rely upon culture media (either Fluid Thioglycollate Medium or Soybean-Casein Digest Medium) to detect growth of microorganisms (§ 610.12(a)(1) and (a)(2)). Moreover, § 610.12 specifies criteria, such as incubation conditions (time and temperature) to be used during testing, suitable test organisms for the evaluation of the growth-promoting qualities of the culture media, storage and maintenance of test organism cultures, and storage and condition of media.
Manufacturers of innovative products, such as cell and gene therapy products, as well as manufacturers of currently approved products, may benefit from sterility test methods with rapid and advanced detection capabilities. Advances in technology in recent years have allowed the development of new sterility test methods that yield accurate and reliable test results in less time and with less operator intervention than the currently prescribed methods. Some examples of novel methods with the potential to detect viable contaminating microorganisms include the Adenosine Triphosphate (ATP) bioluminescence, chemiluminescence, and carbon dioxide head space measurement.
We are proposing to amend § 610.12 to promote improvement and innovation in the development of sterility test methods, to address the challenges of novel products that may be introduced to the market in the future, and to potentially enhance sterility testing of currently approved products. This proposed revision would provide manufacturers the flexibility to take advantage of modern methods as they become available, provided that these methods meet certain criteria.
We are proposing to amend the sterility test requirements for biological products to provide manufacturers with greater flexibility to encourage use of the most appropriate and state-of-the-art test methods. The most significant proposed changes include the following:
• Elimination of specified sterility test methods, culture media formulae (or formulations), and culture media test requirements;
• Elimination of specified membrane filtration procedure requirement for certain products;
• Elimination of specified sterility test requirements for most bulk material;
• Modification of the repeat sterility test requirements, so that repeat tests would occur only once for each lot. These tests would be limited to situations when the quality control unit conclusively determines, after conducting an investigation upon detection of viable microbial contamination during the initial test of the lot, that the contamination is the result of laboratory error or faulty materials used in conducting the sterility test;
• Replacement of the storage and maintenance requirements for cultures of test organisms used to determine the “growth-promoting qualities” of culture media with: (1) Validation requirements specifying that any sterility test used is able to consistently detect the presence of viable contaminating microorganisms and (2) verification of “growth-promoting properties”
• Replacement of the sample size or amount requirement with a requirement that the sample be appropriate to the material being tested;
• Replacement of the
• Simplification of the
This proposed rule is intended to promote improvement and innovation in the development of sterility test methods by allowing manufacturers flexibility needed for sterility testing of some novel products that may be introduced to the market, to enhance sterility testing of currently approved products, and to encourage manufacturers to benefit from scientific and technological advances in sterility test methods as they become available.
Currently, sterility testing must be performed, with certain limited
We propose to eliminate the sterility test requirement for most bulk materials. We have determined that, in most cases, for purposes of sterility testing, the most appropriate test material is the final container material. We recognize that, due to the nature of some biological products, testing the final container material may not always be feasible or appropriate. Thus, proposed § 610.12 would require that prior to release, manufacturers of biological products must perform sterility testing of each lot of each biological product's final container material or other material (
If this proposed rule is finalized, a manufacturer who desires to utilize an alternate sterility test method other than the one approved in its BLA must submit a BLA supplement in accordance with § 601.12(b).
Currently, § 610.12(a), (b), and (e) prescribe the culture-based test method to be used for sterility testing, including the acceptable culture media (either Fluid Thioglycollate Medium or Soybean-Casein Digest Medium) and incubation conditions (time and temperature) to be used during testing, with exceptions provided in § 610.12(g). In addition, § 610.12(f) provides that a membrane filtration test method, set forth in (USP 23d revision, 1995), may be used to test bulk and final container materials or products containing oil products in water-insoluble ointments. We propose to eliminate references to specific test methods and culture media for sterility testing, and instead require that the sterility test be appropriate to the material being tested such that the material does not interfere with or otherwise hinder the test. We believe that this revision recognizes current practices and provides manufacturers the flexibility to take advantage of suitable modern sterility test methods and keep pace with advances in science and technology. Because we are proposing to expand potentially acceptable sterility test methods to include non-culture-based methods in addition to culture-based methods, we also propose to remove the definition of a lot of culture medium currently defined in § 610.12(e)(2)(i) as “* * * that quantity of uniform material identified as having been thoroughly mixed in a single vessel, dispensed into a group of vessels of the same composition and design, sterilized in a single autoclave run, and identified in a manner to distinguish one lot from another. * * *” Although we still consider this definition to apply, we believe that this concept is captured by the definition of “lot” in § 600.3(x). This change also reflects our recognition that prepared culture media may be purchased, in which case a lot may be predetermined by the vendor.
Section 610.12(e)(2)(i) currently provides an exception to the growth-promoting test requirements for dehydrated culture media provided that the manufacturer has an approved validation program for autoclaves used to sterilize these media and the manufacturer has received approval for this practice from the Director of CBER or CDER, as appropriate. We propose to eliminate this exception. Proposed § 610.12(h)(2) provides that all manufacturers seeking an exemption from the sterility test requirements must submit, in their BLA or BLA supplement, data that adequately establish that the route of administration, the method of preparation, or any other aspect of the product precludes or does not necessitate a sterility test.
Additionally, current § 610.12(e)(2)(ii) stipulates the test organisms, strains, characteristics, identity, and verification to be used. We propose to eliminate the requirement to test culture media with specific test organisms and to eliminate the requirement regarding the number of organisms that must be used to demonstrate the growth-promoting qualities of the culture media. This flexibility would allow manufacturers to use sterility test methods that are either culture-based or non-culture-based, which may necessitate different verification activities. Thus, instead of specifying the number and type of test organisms, proposed § 610.12(b) would require the following: (1) Use of a sterility test method that is appropriate to the material being tested such that the material does not interfere with or otherwise hinder the test; (2) validation studies to demonstrate that the sterility test method used is capable of consistently detecting the presence of viable contaminating microorganisms; and (3) verification that the sterility test method and test components used can detect the presence of viable contaminating microorganisms.
Due to the variety of currently available and potential future sterility test methods, we propose to eliminate specified incubation conditions (time and temperature) and visual examination requirements currently prescribed in § 610.12. Because we propose to allow any validated sterility test method that is appropriate to the material being tested, rather than specifying the test and the media used, we also propose to eliminate the Fluid Thioglycollate Medium incubation temperatures prescribed in § 610.12(a)(1)(ii) for the final container material containing a mercurial preservative.
The International Conference on Harmonisation (ICH) Q2(R1) “Validation of Analytical Procedures: Text and Methodology” dated November 2005, states that “[t]he objective of validation of an analytical procedure is to demonstrate that it is suitable for its intended purpose.”
We propose to eliminate the prescribed sterility test methods found in current § 610.12 and instead allow the use of sterility test methods that are validated in accordance with established protocols, to be capable of consistently detecting the presence of viable contaminating microorganisms. If an established USP compendial sterility test method is used, a manufacturer must verify that this established method is suitable for application to the specific product; however, FDA considers established USP compendial sterility test methods to already have been validated using an established validation protocol, so their accuracy, specificity, and reproducibility need not be re-established to fulfill the proposed validation requirement. In contrast, novel methods and any methods that deviate from the USP compendial sterility test methods would require the detailed validation discussed in the following paragraphs.
Proposed § 610.12 allows the use of a material sample that does not interfere with or otherwise hinder the sterility test from detecting viable contaminating microorganisms. This requirement is crucial, because the material itself or substances added to the material during formulation may make some sterility tests inappropriate for use. A validated sterility test method is a critical element in assuring the safety and quality of the product. USP General Chapter 1223, as well as the ICH Guideline for Industry (Text on Analytical Procedures), provide general descriptions of typical validation parameters, how they are determined, and which subset of each parameter is required to demonstrate validity, based on the method's intended use. Validation of each test method should be performed on a case-by-case basis, to ensure that the parameters are appropriate for the method's intended use. In the context of reviewing sterility test methods as part of BLAs and BLA supplements, FDA may decide, as appropriate, to encourage the use of the compendial method as a benchmark or starting point for validation of novel methods and certain other methods. FDA is specifically seeking comments on whether the proposed requirements are sufficient to ensure adequate validation of novel sterility test methods or whether additional criteria or guidance is needed.
It is important to consider validation principles, such as limit of detection, specificity, ruggedness, and robustness, while developing the validation protocol and performing validation studies. These terms are defined as follows:
• The limit of detection reflects the lowest number of microorganisms that can be detected by the method in a sample matrix. This is necessary to define what is considered contaminated.
• Specificity is the ability of the test method to detect a range of organisms necessary for the method to be suitable for its intended use. This is demonstrated by challenging the sterility test with a panel of relevant organisms in the sample matrix.
• Ruggedness is the degree of reproducibility of results obtained by analysis of the same sample under a variety of normal test conditions, such as different analysts, different instruments, and different reagent lots.
• Robustness is the capacity of the test method to remain unaffected by small, but deliberate variations in method parameters, such as changes in reagent concentration or incubation temperatures.
Under 21 CFR 211.160(b), laboratory controls must include the establishment of scientifically sound and appropriate specifications, standards, sampling plans, and test procedures designed to assure that components, drug product containers, closures, in-process materials, labeling, and drug products conform to appropriate standards of identity, strength, quality, and purity. We consider such laboratory controls to be needed for both culture-based and non-culture-based sterility test methods. The manufacturer must establish and document the test method's accuracy, sensitivity, specificity, and reproducibility (§ 211.165(e) (21 CFR 211.165(e)), as specified in the BLA or BLA supplement (§§ 601.2 and 601.12). For sterility tests, FDA believes that a validation protocol that would meet these standards would, at a minimum, include samples of the material to be marketed, and incorporate appropriate viable contaminating microorganisms to demonstrate the sterility test's growth-promoting properties or the method's detection system capabilities, depending on the type of test method used. In addition, validation protocols for culture-based methods should include both aerobic and anaerobic microorganisms when selecting test organisms and include microorganisms that grow at differing rates so that manufacturers can establish that the test media are capable of supporting the growth of a wide range of microorganisms.
When utilizing culture-based methods, validation protocols should require that challenge organisms be added directly to the product prior to membrane filtration or direct inoculation. If this is not possible due to inhibition by the product, then validation protocols should require that the challenge organism be added to the final portion of sterile diluent used to rinse the filter if a membrane filtration test method is used, or directly to the media containing the product if a direct inoculation test method is used. For non-culture-based methods, the feasibility of identifying microorganisms from a contaminated sample should be evaluated during validation. If a method does not have the capability to identify microorganisms to the species level, the validation protocol should require that an additional method for species identification be utilized for investigation of detected contaminants. The test organisms selected should reflect organisms that could be found in the product, process, or manufacturing environment.
The validation study design should contain the appropriate controls to evaluate the product sample's potential to generate false positive and false negative results. Validation of the sterility test should be performed on all new products, and repeated whenever there are changes in the test method that could potentially inhibit or enhance detection of viable contaminating microorganisms.
Verification is the confirmation that specified requirements have been fulfilled as determined by examination and provision of objective evidence. While validation of a sterility test method is the initial process of demonstrating that the procedure is suitable to detect viable contaminating microorganisms, verification occurs over the lifetime of the sterility test method and is the process of confirming that the sterility test and test components continue to be capable of consistently detecting viable
We propose to replace the requirement for
Proposed § 610.12 allows the use of either culture-based or non-culture-based sterility test methods to evaluate material for sterility. There are marked differences between culture-based and non-culture-based sterility tests. Proposed § 610.12(c) provides the following minimum critical considerations that must be included in written procedures for both culture-based and non-culture-based sterility tests:
• The sterility test method to be used;
• The method of sampling, including the number, volume, and size of articles to be tested;
• Written specifications for the acceptance or rejection of each lot; and
• A statement of any other function critical to the particular sterility test method to ensure consistent and accurate results.
For culture-based sterility test methods, FDA believes the minimum critical considerations include the composition of media, growth promotion test requirements, and incubation conditions (time and temperature). For non-culture-based sterility test methods, the Agency believes critical considerations include the composition of test components, test parameters, and the controls used to verify the test method's ability to consistently detect the presence of viable contaminating microorganisms.
Selection of an appropriate sample of a lot is critical for purposes of sterility testing. Current § 610.12(d) prescribes the number of samples for testing bulk and final container material. Due to the variety of products covered under § 610.12, including innovative products that may be introduced to the market in the future, such as cell and gene therapy products, we propose to eliminate the sample number requirement and instead require that the sample be appropriate to the material being tested. In selecting an appropriate sample size, proposed § 610.12(d) requires that the following minimal criteria be considered:
• The size or volume of the final product lot. For example, a final product lot size of 100,000 units would necessitate a greater number of samples to be evaluated than a final product lot size of 5,000 units;
• The duration of manufacturing of the drug product.
• The final container configuration and size. We believe this will ensure appropriate representation of the lot;
• The quantities or concentrations of inhibitors, neutralizers, and preservatives, if present, in the test material;
• For a culture-based test method, the volume of test material that results in a dilution of the product that was determined not to be bacteriostatic or fungistatic; and
• For a non-culture-based test method, the volume of test material that results in a dilution of the product that does not inhibit or otherwise hinder the detection of viable contaminating microorganisms.
Verification activities are necessary to demonstrate that sterility test methods can continue to reliably and consistently detect viable contaminating microorganisms. The degree of verification necessary depends upon the sterility test method employed. Depending upon the sterility test method, verification of each individual test might be appropriate. On the other hand, some sterility test methods may only need verification activities performed on the selected culture media or test organisms. We propose under § 610.12(e) that manufacturers perform verification activities appropriate for the sterility test method chosen as follows:
1. For culture-based test methods, manufacturers must conduct tests to demonstrate that the performance of the test organisms and culture media are acceptable to consistently detect the presence of viable contaminating microorganisms, including tests for each lot of culture media to verify its growth-promoting properties over the shelf-life of the media. Growth-promotion testing is important to demonstrate that the culture media are capable of supporting the growth of microorganisms.
2. For non-culture-based test methods, manufacturers must include, within the test itself, appropriate controls to demonstrate the ability of the test method to continue to reliably and consistently detect the presence of viable contaminating microorganisms.
Current regulations in § 610.12(b) allow one time repeat testing of the bulk material to verify results after a positive initial test. Repeat testing for final container sterility testing is permitted twice, provided there was no evidence of growth in any test of the bulk material. Under current § 610.12(c), a lot meets the test requirements for sterility if no growth appears during the repeat tests. We propose to eliminate the reference to repeat testing of bulk material, because we are proposing that sterility testing will not be required on bulk material in most instances.
Consistent with USP Chapter 71, we propose that if the initial test indicates
We further propose that for repeat testing, comparable product that is reflective of the initial sample in terms of sample location and the stage in the manufacturing process from which it was taken, and the same sterility test method must be used for both the initial and repeat tests. This is intended to ensure that the same volume of material is used for the initial test and each repeat test, and that the interpretation of the results is conducted in the same manner.
This proposed rule, if finalized, could result in the need for some manufacturers to modify their repeat test procedures. We consider these modifications to be minor changes in accordance with § 601.12(d) and to have a minimal potential for an adverse effect on the identity, strength, quality, purity, or potency of the product as they may relate to the safety or effectiveness of the product. Therefore, such changes must be reported in an annual report within 60 days of the anniversary date of approval of the BLA.
Currently, § 610.12(h) incorporates by reference the recordkeeping and maintenance requirements contained in 21 CFR 211.167 and 211.194. We propose to continue to maintain these requirements. This is intended to assure that data derived from sterility tests comply with established specifications. This includes describing the samples received for testing, stating the method used to test the samples, identifying the location of relevant validation or verification data, recording all calculations performed, and stating how the results of tests performed compare to set specifications.
We propose to maintain the current exceptions to the sterility test requirements in § 610.12(g)(4)(i) for Whole Blood, Cryoprecipitated AHF, Platelets, Red Blood Cells, Plasma, Source Plasma, Smallpox Vaccine, Reagent Red Blood Cells, Anti-Human Globulin, and Blood Grouping Reagent. However, we request comment on whether any of these current exceptions should be removed. For example, we specifically request comment on whether to remove the exemption for platelets. Bacterial contamination of platelets is a recognized public health risk and the blood collection industry has already called for and implemented methods to detect and limit or inactivate bacteria in platelet components. Requiring testing for platelets would be consistent with these industry practices.
We propose to make minor modifications to the current exception in § 610.12(g)(4)(ii), under which the Director of CBER or CDER, as appropriate, determines that data submitted adequately establish that the mode of administration, the method of preparation, or the special nature of the product precludes or does not require a sterility test or that the sterility of the lot is not necessary to assure the safety, purity, and potency of the product. Specifically, we refer to the “route of administration” rather than the “mode of administration” and to the “any other aspect of the product” rather than “the special nature of the product” in proposed § 610.12(h)(2) so as to account for novel products that may be introduced to the market in the future, such as cell and gene therapy products. This proposed exception allows the Director of CBER or CDER, as appropriate, to exempt biological material from the sterility test requirements of this section if, based upon the scientific evidence presented in the BLA or BLA supplement, the data adequately establish that the route of administration, method of preparation, or any other aspect of the product precludes or does not necessitate a sterility test to assure the safety, purity, and potency of the product. This proposed exception also would allow the Director of CBER or CDER, as appropriate, to require sterility testing of the bulk material subject to any conditions necessary to assure the safety, purity, and potency of the product.
We propose to eliminate the current exceptions under § 610.12(g)(1) and (g)(2) because they are no longer necessary given the flexibility built into this proposal. Specifically, the current exception in § 610.12(g)(1) allows for the use of different sterility test methods prescribed for certain products. We further propose to eliminate the current exception under § 610.12(g)(2), for using two sterility tests, one at incubation temperatures of 18° to 22 °C and one at 30° to 37 °C, in lieu of performing one test using an incubation temperature of 30° to 35 °C. The proposed language in § 610.12(b) requires the sterility test used to be “* * * appropriate to the material being tested * * *” and proposed § 610.12(c) requires manufacturers to specify incubation conditions (time and temperature) in written procedures for sterility testing when culture-based media are used. These proposed changes are intended to provide sufficient flexibility for the use of different sterility test methods, as appropriate.
We propose to eliminate the current exceptions for
In addition to the revisions to the sterility regulation in § 610.12, we are also proposing revisions to two other FDA regulations as a result of this proposed rule. These proposed revisions are as follows:
• Section 600.3(q): Current § 600.3(q) defines “sterility” to mean “* * * freedom from viable contaminating microorganisms, as determined by the
• Section 680.3(c): Currently, § 680.3(c) states that: “A sterility test shall be performed on each lot of each Allergenic Product, as prescribed in § 610.12 of this chapter, with the following exceptions: * * * When bulk material is not prepared, the sterility test prescribed for bulk material shall be performed on each container of each stock concentrate at the time a stock concentrate is prepared, and the test sample shall be no less than 1 ml. from each stock concentrate container. * * * For lots consisting of no more than 5 final containers, the final container test shall be performed in accordance with § 610.12(g)(6) of this chapter using the sample therein prescribed or using a sample of no less than 0.25 ml. of product from each final container, divided in approximately equal proportions for testing in Fluid Thioglycollate and Soybean-Casein Digest Media. The test sample in the later alternative method may be an overfill in the final container. * * * For products prepared in sets of individual dilution series, a test sample of 0.25 ml. shall be taken from a final container of each dilution, which samples may be pooled and one half of the pooled material used for the test with Fluid Thioglycollate Medium and one half used for the test with Soybean-Casein Digest Medium. * * * Tablets and capsules need not be tested for sterility provided aseptic techniques are employed in their manufacture.”
We are proposing to amend § 680.3(c) to eliminate the term “prescribed”. As proposed, § 680.3(c) would say that “a sterility test shall be performed on each lot of each Allergenic Product, as required by § 610.12 of this chapter.” Additionally, we are proposing to eliminate § 680.3(c)(1) through (c)(4), because these exceptions would no longer be necessary under the proposed revisions to § 610.12. As proposed § 610.12 would eliminate the sterility test requirement on most bulk material, so the exception in § 680.3(c)(1) of how to test allergenic products when bulk material is not prepared, would no longer be needed. To the extent it is appropriate to perform the sterility test on bulk product for allergenics, the approach for such testing will be explained in the BLA or BLA supplement that is submitted by the manufacturer and approved by FDA. Moreover, § 610.12, as proposed, would not prescribe a specific sample number and would not contain the specific exemption in § 610.12(g)(6) referenced in § 680.3(c)(2). The proposed requirement that the sample be appropriate to the materials being tested would accommodate the situation envisioned by current § 680.83(c)(2) for lots consisting of no more than five final containers. Current § 680.83(c)(3) should similarly be accommodated by the flexible language of the proposal such that sterility tests for sets of individual dilution series can be done on test samples that are appropriate to these material and thus a specific exception would no longer be needed for the sterility testing of these products. Finally, current § 680.83(c)(4) would be accommodated by the general exception in proposed § 610.12(h)(2) and thus this fourth exception would also be rendered unnecessary.
FDA is issuing this regulation under the biological products provisions of the Public Health Service Act (42 U.S.C. 262 and 264) and the drugs and general administrative provisions of the Federal Food, Drug, and Cosmetic Act (sections 201, 301, 501, 502, 503, 505, 510, 701, and 704) (21 U.S.C. 321, 331, 351, 352, 353, 355, 360, 371, and 374). Under these provisions of the Public Health Service Act and the Federal Food, Drug, and Cosmetic Act, we have the authority to issue and enforce regulations designed to ensure that biological products are safe, effective, pure, and potent, and to prevent the introduction, transmission, and spread of communicable disease.
FDA has examined the impacts of the proposed rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive Order 12866 directs Agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Agency believes that this proposed rule is not a significant regulatory action as defined by the Executive order.
The Regulatory Flexibility Act requires Agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because this proposed rule generally increases flexibility for sterility testing and codifies an approach for retesting similar to the approach prescribed by the USP, and does not add any new regulatory responsibilities, the Agency proposes to certify that the final rule will not have a significant economic impact on a substantial number of small entities.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that Agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $135 million, using the most current (2009) Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this proposed rule to result in any 1-year expenditure that would meet or exceed this amount.
These amendments would generally provide manufacturers of biological products with more flexibility as to how they evaluate the sterility of their products and reduce the number of evaluations required. The net effect would be to reduce costs.
One part of these proposed amendments might impose some additional costs on manufacturers, however. Under the current regulations, if a biological product fails a sterility test, the test may be repeated. If the product passes a subsequent test, it is inferred that the first test was flawed and only the later results are used. Under the new regulations, the test may be repeated only if it is possible to “ascribe definitively” the initial failure to “a laboratory error or faulty materials used in conducting the sterility testing.”
This change could increase costs for manufacturers because of the additional products that would be discarded. The size of the increase would be determined by the number of additional lots discarded, the lot sizes and the production costs per unit. Some or all of the costs of this change would be mitigated by the reduction in losses associated with the provision of contaminated products.
This change is expected to affect few manufacturers. The method for sterility testing described in Chapter 71 of USP 33-NF 28 already limits the repetition of tests to circumstances similar to those described in these amendments. It is
The benefit of limiting retests would be fewer illnesses caused by contaminated biological products. We are unable to quantify the value of the reduction in illnesses because we do not have an estimate of the risk of illness from contaminated biological products or the decline in that risk associated with limiting retests.
The Agency has determined under 21 CFR 25.31(h) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This proposed rule refers to previously approved collections of information that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (the PRA) (44 U.S.C. 3501-3520). The collections of information in §§ 211.165 and 610.12 have been approved under OMB control number 0910-0139. Therefore, FDA tentatively concludes that the proposed requirements in this document are not subject to review by OMB because they do not constitute a “new collection of information” under the PRA.
FDA has analyzed this proposed rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the proposed rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the Agency has concluded that the proposed rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required.
FDA is proposing that any final rule that may issue based on this proposal be effective 90 days after the date of its publication in the
Interested persons may submit to the Division of Dockets Management (see
Biologics, Reporting and recordkeeping requirements.
Biologics, Labeling, Reporting and recordkeeping requirements.
Biologics, Blood, Reporting and recordkeeping requirements.
Therefore, under the Federal Food, Drug, and Cosmetic Act, the Public Health Service Act, and under authority delegated to the Commissioner of Food and Drugs, it is proposed that 21 CFR parts 600, 610, and 680 be amended as follows:
1. The authority citation for 21 CFR part 600 continues to read as follows:
21 U.S.C. 321, 351, 352, 353, 355, 360, 360i, 371, 374; 42 U.S.C. 216, 262, 263, 263a, 264, 300aa-25.
2. Section 600.3 is amended in paragraph (q) by removing the phrase “prescribed in” and by adding in its place the phrase “conducted under”.
3. The authority citation for 21 CFR part 610 continues to read as follows:
21 U.S.C. 321, 331, 351, 352, 353, 355, 360, 360c, 360d, 360h, 360i, 371, 372, 374, 381; 42 U.S.C. 216, 262, 263, 263a, 264.
4. Section 610.12 is revised to read as follows:
(a)
(b)
(2) The sterility test must be validated to demonstrate that the test is capable of reliably and consistently detecting the presence of viable contaminating microorganisms.
(3) The sterility test and test components must be verified to demonstrate that the test method can consistently detect the presence of viable contaminating microorganisms.
(c)
(1) The sterility test method to be used;
(i) If culture-based test methods are used, include, at a minimum:
(A) Composition of the culture media;
(B) Growth-promotion test requirements; and
(C) Incubation conditions (time and temperature).
(ii) If non-culture-based test methods are used, include, at a minimum:
(A) Composition of test components;
(B) Test parameters, including acceptance criteria; and
(C) Controls used to verify the method's ability to detect the presence of viable contaminating microorganisms.
(2) The method of sampling, including the number, volume, and size of articles to be tested;
(3) Written specifications for the acceptance or rejection of each lot; and
(4) A statement of any other function critical to the particular sterility test method to ensure consistent and accurate results.
(d)
(1) The size and volume of the final product lot;
(2) The duration of manufacturing of the drug product;
(3) The final container configuration and size;
(4) The quantity or concentration of inhibitors, neutralizers, and preservatives, if present, in the tested material;
(5) For a culture-based test method, the volume of test material that results in a dilution of the product that is not bacteriostatic or fungistatic; and
(6) For a non-culture-based test method, the volume of test material that results in a dilution of the product that does not inhibit or otherwise hinder the detection of viable contaminating microorganisms.
(e)
(2) For non-culture-based test methods, within the test itself, appropriate controls must be used to demonstrate the ability of the test method to continue to consistently detect the presence of viable contaminating microorganisms.
(f)
(2) If the investigation described in paragraph (f)(1) of this section finds that the initial test indicated the presence of microorganisms due to laboratory error or the use of faulty materials, a sterility test may be repeated one time. If no evidence of microorganisms is found in the repeat test, the product examined complies with the sterility test requirements. If evidence of microorganisms is found in the repeat test, the product examined does not comply with the sterility test requirements.
(3) If a repeat test is conducted, the same test method must be used for both the initial and repeat tests, and the repeat test must be conducted with comparable product that is reflective of the initial sample in terms of sample location and the stage in the manufacturing process from which it was obtained.
(g)
(h)
(1) Sterility testing is not required for Whole Blood, Cryoprecipitated Antihemophilic Factor, Platelets, Red Blood Cells, Plasma, Source Plasma, Smallpox Vaccine, Reagent Red Blood Cells, Anti-Human Globulin, and Blood Grouping Reagents.
(2) A manufacturer is not required to comply with the sterility test requirements if the Director of the Center for Biologics Evaluation and Research or the Director of the Center for Devices and Radiological Health, as appropriate, determines that data submitted in the biologics license application or supplement adequately establish that the route of administration, the method of preparation, or any other aspect of the product precludes or does not necessitate a sterility test to assure the safety, purity, and potency of the product.
5. The authority citation for 21 CFR part 680 continues to read as follows:
21 U.S.C. 321, 351, 352, 353, 355, 360, 371; 42 U.S.C. 216, 262, 263, 263a, 264.
6. Section 680.3 is amended by revising paragraph (c) to read as follows:
(c)
Department of Justice.
Notice of proposed rulemaking.
On January 2, 2011, President Obama signed into law the James Zadroga 9/11 Health and Compensation Act of 2010 (Zadroga Act). Title II of the Zadroga Act reactivates the September 11th Victim Compensation Fund of 2001 and requires a Special Master, appointed by the Attorney General, to provide compensation to any individual (or a personal representative of a deceased individual) who suffered physical harm or was killed as a result of the terrorist-related aircraft crashes of September 11, 2001, or the debris removal efforts that took place in the immediate aftermath of those crashes. This rule proposes to amend the regulations implementing the Fund to reflect the changes made by the Zadroga Act.
Written comments must be postmarked and electronic comments must be submitted on or before August 5, 2011. Comments received by mail will be considered timely if they are postmarked on or before that date. The electronic Federal Docket Management System (FDMS) will accept comments until Midnight Eastern Time at the end of that day.
Comments may be mailed to Kenneth L. Zwick, Director, Office of Management Programs, Civil Division, U.S. Department of Justice, Main Building, Room 3140, 950 Pennsylvania Avenue, NW., Washington, DC 20530. However, the Department encourages commenters to submit their comments using
Kenneth L. Zwick, Director, Office of Management Programs, Civil Division, U.S. Department of Justice, Main Building, Room 3140, 950 Pennsylvania Avenue, NW., Washington, DC 20530, telephone 855-885-1555 (TTY 855-885-1558).
You are not required to submit personal identifying information in order to comment on this rule. Nevertheless, if you want to submit personal identifying information (such
If you want to submit confidential business information as part of your comment but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You also must prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on
Personal identifying information and confidential business information identified and located as set forth above will be placed in the agency's public docket file, but not posted online. If you wish to inspect the agency's public docket file in person by appointment, please see the paragraph above entitled
Pursuant to Title IV of Public Law 107-42 (“Air Transportation Safety and System Stabilization Act”) (2001 Act), the September 11th Victim Compensation Fund of 2001 was open for claims from December 21, 2001, through December 22, 2003. The Fund provided compensation to eligible individuals who were physically injured as a result of the terrorist-related aircraft crashes of September 11, 2001, and to personal representatives of those who died as a result of the crashes.
Special Master Kenneth R. Feinberg was appointed by the Attorney General to administer the Fund. The Fund was governed by Interim Final Regulations issued on December 21, 2001,
On January 2, 2011, President Obama signed the Zadroga Act into law. Title I of the Zadroga Act establishes a program within the Department of Health and Human Services to provide medical monitoring and treatment benefits to eligible individuals. Title II amends the 2001 Act and reopens the Fund. Among other changes, Title II adds new categories of beneficiaries for the Fund and sets new filing deadlines. It also imposes a cap on the total awards that can be paid by the Fund and limits the fees that an attorney may receive for awards made under the Fund.
The Zadroga Act, as originally enacted, did not appropriate administrative funds for the Fund to begin taking and processing claims. On April 15, 2011, President Obama signed into law Public Law 112-10, the continuing budget resolution for 2011, which permits the Fund to draw on the money originally allocated in the Zadroga Act in order to pay for its administrative expenses, beginning on October 1, 2011.
The Attorney General has appointed Sheila L. Birnbaum to serve as Special Master and to administer the Fund.
The James Zadroga 9/11 Health and Compensation Act of 2010 reopens the September 11th Victim Compensation Fund of 2001 to provide compensation to those who were physically injured or who died in the immediate aftermath of the terrorist attacks of September 11, 2001, including those who were injured during the clean-up and debris removal operations at a 9/11 crash site. This extension recognizes the considerable efforts of and effects on those engaged in or in the immediate vicinity of the response, recovery, and clean-up operations. The intent of the extension of the Fund is to provide fair and consistent compensation for those who are eligible and to do so in an efficient and timely manner.
As I stated when I was appointed, my goal is for the September 11th Victim Compensation Fund to be fair, transparent, and easy to navigate. In order to achieve that goal, I intend to build on the strong foundation that was established by Special Master Kenneth Feinberg in the first iteration of the Victim Compensation Fund and listen carefully to the views and concerns expressed by those who will be most affected by the program. I have sought to publish these proposed regulations quickly, so that there will be ample time for others to review them and for comments to be fully evaluated and the regulations revised, where appropriate, before the Victim Compensation Fund opens later this year. Given the Victim Compensation Fund's success in its previous iteration, I propose to implement the original processes where I can and to propose additional or different procedures where the Zadroga Act requires a different approach.
At the outset, I would highlight some key principles that will guide my effort to create a process that is fair, transparent, and easy to navigate. First, I intend to make decisions based on the best scientific and medical evidence that is available. The Zadroga Act requires the Special Master to make a number of decisions about who is eligible to bring a claim, based on the nature of the individual's injuries, how it was caused, and whether the individual was present in an area where there was a demonstrable risk of physical harm resulting from the crashes. In order to make these determinations in a fair manner, I intend to look to the evidence that scientists and medical professionals rely on in exercising their best professional judgment. I also intend for the Victim Compensation Fund to keep pace with the evolving science and to ensure that as we learn more about conditions that may have been caused by the crashes or related debris-removal efforts, we are able to compensate claimants accordingly.
Second, Congress has appropriated a capped amount—$2.775 billion payable over a period of years—for this program. Only $875 million may be spent in the first five years of the program with the remainder being paid out in the sixth year. It is important therefore to assure that funds are targeted to the payment of eligible claims and to avoid procedures or guidelines that will dilute those payments. Funds used to process ineligible claims or for unnecessary administrative costs result in fewer funds available to pay intended and deserving claimants. In implementing the program, I intend to initiate procedures that will permit efficiency without sacrificing fairness, and to seek ways to minimize administrative expenses, thereby maximizing the amount available for distribution to eligible claimants.
Third, it is exceedingly important, in my view, to fully investigate the facts and circumstances surrounding the response, clean-up and debris removal activities necessitated by the attacks and the injuries that have resulted from these activities. To achieve these goals over the next several months, I will hold meetings with interested parties to explain the Victim Compensation Fund
The following discussion explains the proposed updates to the regulations governing the Fund. The proposed regulations are based on the Final Regulations governing the Fund from 2001-2004. Nevertheless, the Zadroga Act requires certain changes. Section I discusses proposed changes to the eligibility criteria; Section II discusses proposed procedures for amending claims; Section III discusses awards and proration of awards; and Section IV discusses proposed changes to the claims evaluation process. The text of the proposed regulations, as amended, is set forth following these explanatory sections. More detailed information, including a comparison of the original regulations to these proposed regulations, will be available on the Victim Compensation Fund's Web site at
Title II of the Zadroga Act sets criteria for determining whether a claimant is eligible to receive compensation from the Fund. The Act made changes to the criteria that governed eligibility in the Fund's previous iteration. In order to be eligible for the Fund, Title II of the Zadroga Act requires an individual to have been present at a “9/11 crash site” at the time or in the immediate aftermath of the crashes, and have suffered “physical harm or death as a result of” one of the air crashes or debris removal. In making these determinations, the Special Master is mindful that Congress has appropriated a limited amount of funds for paying awards, and therefore that inappropriate expansions of eligibility may result in lower awards for deserving claimants.
In requiring that a claimant have been present at a “9/11 crash site” in order to receive compensation from the Fund, Title II of the Zadroga Act recognizes that such sites include more than just the World Trade Center, Pentagon, and Shanksville, Pennsylvania sites and the buildings that were destroyed as a result. The Zadroga Act also encompasses two other areas.
First, Title II of the Zadroga Act defines “9/11 crash site” to include both the crash sites themselves and any area that is contiguous to one of the crash sites that the Special Master “determines was sufficiently close to the site that there was a demonstrable risk of physical harm resulting from” the impact of the aircraft or subsequent fire, explosions, or building collapses.
During the Fund's first iteration, Special Master Feinberg applied a regulation that required him to make this same determination. At that time, the most prevalent physical injuries were blunt trauma injuries suffered by those who were struck by debris or who were in the zone in which there was a demonstrable risk of physical harm from falling debris, explosions, or fire. Accordingly, the relevant area was defined to include the immediate area surrounding the World Trade Center: starting from the intersection of Reade and Center Streets, the northern boundary ran west along Reade Street to the Hudson River; the western boundary was the Hudson River; the southern boundary ran from the Hudson River, east along the line of W. Thames Street, Edgar Street and Exchange Place to Nassau Street; and the eastern boundary, starting from the intersection of Exchange Place and Nassau Street, ran north along Nassau Street to the intersection of Center and Reade Streets.
In determining which other areas to include, the Special Master will consider scientific evidence regarding the risks of physical harm resulting from the crashes and the text and structure of the Act, including the relationship between Title I and Title II and the goal of allocating the available funds to deserving claimants. Given these considerations, this proposed rule suggests that the term “9/11 crash site” includes the area in Manhattan south of the line that runs along Reade Street from the Hudson River to the intersection of Reade Street and Centre Street, south on Centre Street to the Brooklyn Bridge, and along the Brooklyn Bridge, or any other area contiguous to the crash sites that the Special Master determines was sufficiently close to the site that there was a demonstrable risk of physical harm resulting from the impact of the aircraft or any subsequent fire, explosions, or building collapses (including the immediate area in which the impact occurred, fire occurred, portions of buildings fell, or debris fell upon and injured individuals). These proposed boundaries are substantially broader than those used in the Fund's first iteration and narrower than boundaries used for the World Trade Center (WTC) Health Program in Title I of the Act. The Special Master invites comments on the proposal.
Second, the Zadroga Act defines the term “9/11 crash site” to include “any area related to, or along, routes of debris removal, such as barges and Fresh Kills.” The Special Master invites comments that provide information regarding the routes of debris removal.
In requiring that a claimant have suffered “physical harm or death as a result of” one of the air crashes or the debris removal, the Zadroga Act also requires the Special Master to determine which physical harms and deaths were “a result of” the crashes or debris removal within the meaning of the statute. The Department notes that Title II of the Zadroga Act does not provide additional specificity about the harms that are to be covered by the Fund.
However, Title I of the Zadroga Act, which establishes the WTC Health Program, contains a list of illnesses and health conditions for which exposure to air borne toxins, other hazards and any other adverse conditions resulting from the September 11, 2001 terrorists attacks could be determined by experienced medical professionals to be substantially likely to have been a significant factor in aggravating, causing, contributing to illness or health condition, as well as procedures for adding additional conditions to the list over time. That title also provides that in order for an individual to receive treatment under the WTC Health Program, there must be an individual determination that the WTC attacks were “substantially likely to be a significant factor in aggravating, contributing to, or causing the illness or health condition.”
Accordingly, the Special Master proposes that the Fund maintain and publish a list of presumptively covered conditions that resulted from the air crashes or debris removal, and that this list shall consist of the physical injuries and conditions that are found, under the WTC Health Program, to be WTC-related
The Special Master notes that as in the Fund's first iteration, the statute limits eligible injuries to those consisting of “physical harm.” Accordingly, as in the Fund's first iteration, the statutory language does not permit the Fund to cover individuals with only mental and emotional injuries, even if the mental and emotional injuries are covered by the WTC Health Program.
Finally, the Special Master notes that the proposed regulations does not make the list of presumptively covered conditions the only conditions for which a claimant may seek coverage from the Fund. Where the claimant is otherwise eligible for an award and establishes extraordinary circumstances that were not adequately taken into account in the list of presumptively covered conditions, the proposed rules will permit the Special Master to find the claimant eligible even if the injury in question is not on the list of presumptively covered conditions. Because the list of presumptively covered conditions will be set based on the WTC Health Program's process for making decisions based on the best available science, it is anticipated that these instances will be rare.
The 2001 Act provided that “not more than one claim may be submitted under this Title by an individual or on behalf of a deceased individual.” The Zadroga Act did not amend this limitation. This provision does not appear to bar individuals who previously submitted claims from amending those earlier claims if additional relevant information has become available. The Special Master proposes that claimants be permitted to amend their claims to reflect the following circumstances:
(i) An injury that the claimant had not suffered (or did not reasonably know the claimant suffered) at the time the claimant filed the previous claim;
(ii) A condition that the Special Master has identified, since the time the claimant filed the previous claim, as a presumptively covered condition;
(iii) An injury for which the claimant was compensated by the Fund, but only if that injury has substantially worsened, resulting in damages or loss that was not previously compensated; and;
(iv) Claims for which the individual is an eligible claimant as a result of amendments contained in the James Zadroga 9/11 Health and Compensation Act of 2010, Title II of Public Law 111-347.
Accordingly, the proposed regulations permit claimants to amend claims in those circumstances.
The 2001 Act provides that the Fund will pay benefits for both “economic losses,” which consist of pecuniary losses such as lost earnings, medical expenses, and other costs, and “noneconomic losses,” which include losses for physical and emotional pain, suffering, and loss of companionship. The Zadroga Act did not amend those provisions; however, the Zadroga Act does limit the total amount of funds available for paying awards and prohibits the Fund from distributing more than a certain amount of compensation within the first five years.
The 2001 rule included a provision for “advance benefits” for eligible claimants to be paid during the pendency of the claims process, in recognition of the exigency of the circumstances and the urgency of the need for providing some immediate compensation to those who, without a moment's notice, were physically injured and the families of those who were killed. The context at this point is different. The statute already contemplates two separate rounds of payments, one in the first five years and a second in the program's sixth year. Further, the administrative costs associated with additional rounds of payments reduce the funds available to pay claimants. Accordingly, the proposed rule does not include a provision for payment of advance benefits.
The determination of “economic losses” will be made, as in the Fund's first iteration, on a case-by-case basis according to the losses that each claimant has demonstrated. In the Fund's first iteration, the Special Master determined that the “noneconomic losses” of a claimant who was killed in the 9/11 crashes themselves would be $250,000 plus an additional $100,000 for each dependent. Those dollar values were consistent with the compensation that Congress made available under existing federal programs for certain citizens who have also died, often without a moment's notice: public safety officers who are killed while on duty and members of our military who are killed in the line of duty while serving our nation.
The Special Master proposes that the methodologies for establishing, and the compensation offered for, harms in the first iteration of the Fund are initially appropriate here. The Special Master will continue to consider whether noneconomic damages for such deaths should be adjusted.
In the Zadroga Act, Congress appropriated $2.775 billion to be provided by the Fund during this second iteration. Of this amount, the Act provides that only $875 million may be spent during the program's first five years, with the remaining funds to be paid during the sixth year.
In order to ensure that the $875 million cap is not exceeded during those first five years, the Zadroga Act requires the Special Master to ratably reduce the amount of compensation paid to claimants during that time to ensure that all claimants entitled to payment “receive a payment” during that period and to ensure that the $875 million cap is not exceeded. The Act further requires that claimants whose payments are ratably reduced during this time are to receive a second payment in the year after the claims period has ended (July 1, 2016 to June 30, 2017), consisting of the difference between the amount that the claimant should have been paid under the Act and the reduced amount paid during the first five years. The regulations accordingly require the Special Master to prorate payments in a manner consistent with the statute, based on available information regarding potential future claims and available funds. The Special Master invites comments on the best manner to fulfill the statute's purposes in this respect.
Because the $2.775 billion appropriated by Congress for the Fund must pay for claimant awards as well as the Fund's administrative expenses, it is important for the Fund to keep administrative expenses low in order to
Previously, claimants could select one of two procedures: Track A or Track B. Under Track A, the Fund would determine eligibility and a presumed award based on the claimant's filings. The claimant could then either (1) accept the presumed award and request payment or (2) request a hearing for further review of the determination. Importantly, every claimant had the option of a hearing to determine whether the claimant's presumptive award was correct.
Under Track B, claimants proceeded directly to a hearing following a finding of eligibility. Only after that hearing would the Fund make an award determination, which was not subject to any further review or appeal.
The proposed regulations eliminate Track B. In doing so, the proposed regulations seek to reduce administrative expenses in order to maximize the funds available to pay claimants. Hearings are a substantial source of administrative expenses, and eliminating the initial hearing under Track B would still ensure that any claimant who wanted a hearing, after receiving his or her presumptive award, could receive one. Because some claimants who might have opted for a Track B initial hearing will find that they are satisfied with their presumptive award, some hearings will be avoided—and the costs associated with those hearings can instead be used to pay claimants.
The proposed regulations address a number of other issues. Among other things, the regulations address the ability of individuals who have settled civil actions to participate in the Fund, and the amounts that attorneys may charge claimants for services rendered in connection with a claim to the Fund. The Special Master invites comments on these and any other issues relating to the Fund.
This rule proposes to implement Title II of the Zadroga Act which reactivates the September 11th Victim Compensation Fund of 2001. In order to be able to evaluate claims and provide compensation, the Fund will need to collect information from an individual (or a personal representatives of a deceased individual) who suffered physical harm or was killed as a result of the terrorist-related aircraft crashes of September 11, 2001 or the debris removal efforts that took place in the immediate aftermath of those crashes. Accordingly, the Department of Justice (DOJ), Civil Division will submit an information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the emergency review procedures of the Paperwork Reduction Act of 1995. The Department will also publish a Notice in the Federal Register soliciting public comment on the information collection associated with this rulemaking.
These regulations set forth procedures by which the Federal government will award compensation benefits to eligible victims of the September 11, 2001 terrorist attacks. Under 5 U.S.C. 601(6), the term “small entity” does not include the Federal government, the party charged with incurring the costs attendant to the implementation and administration of the Victims Compensation Fund. Accordingly, the Department has reviewed this rule in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)) and by approving it certifies that this rule will not have a significant economic impact on a substantial number of small entities because it provides compensation to eligible individuals who were physically injured as a result of the terrorist-related aircraft crashes of September 11, 2001, and compensation through a “personal representative” for those who were killed as a result of those crashes. This rule provides compensation to individuals, not to entities.
This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review” section 1(b), Principles of Regulation and in accordance with Executive Order 13563 “Improving Regulation and Regulatory Review” section 1(b) General Principles of Regulation.
The Department of Justice has determined that this rule is an “economically significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and accordingly this rule has been reviewed by the Office of Management and Budget.
Further, both Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department has assessed the costs and benefits of this regulation and believes that the regulatory approach selected maximizes net benefits.
As required by Executive Order 13563 and Executive Order 12866 for economically significant regulatory actions, the Department has assessed the benefits and costs anticipated from this rulemaking and considered whether there are reasonably feasible alternatives to this rulemaking, including considering whether there are reasonably viable non-regulatory actions that could be taken in lieu of this rulemaking. The purpose of this rulemaking is to provide the legal and administrative framework necessary to provide compensation to any individual (or a personal representative of a deceased individual) who suffered physical harm or was killed as a result of the terrorist-related aircraft crashes of September 11, 2001 or the debris removal efforts that took place in the immediate aftermath of those crashes, as provided by Title II of the Zadroga Act. The primary benefits and costs of this rulemaking are both set by statute as Congress has appropriated a capped amount—$2.775 billion payable over a period of years—for this program. Because the $2.775 billion appropriated by Congress for the Fund must pay for claimant awards as well as the Fund's administrative expenses, it is important for the Fund to keep administrative expenses low in order to maximize the amount of funds available for claimants. Finally, based on past practice with the operation of the original Fund and the necessity to establish the legal and administrative framework for the reopened Fund, the Department concludes that there are no viable non-regulatory actions that it could take to implement the Zadroga Act in a fair and efficient manner.
This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and
This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.
This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
Disaster assistance, Disability benefits, Terrorism.
Accordingly, for the reasons set forth in the preamble, Part 104 of chapter I of Title 28 of the Code of Federal Regulations is proposed to be amended by revising part 104 to read as follows:
Title IV of Pub. L. 107-42, 115 Stat. 230, 49 U.S.C. 40101 note; Title II of Pub.L. 111-347, 124 Stat. 3623.
This part implements the provisions of the September 11th Victim Compensation Fund of 2001, Title IV of Public Law 107-42, 115 Stat. 230 (Air Transportation Safety and System Stabilization Act), as amended by the James Zadroga 9/11 Health and Compensation Act of 2010, Title II of Public Law 111-347, to provide compensation to eligible individuals who were physically injured as a result of the terrorist-related aircraft crashes of September 11, 2001 or debris removal during the immediate aftermath of those crashes, and to the “personal representatives” of those who were killed as a result of the crashes. All compensation provided through the Fund will be on account of personal physical injuries or death.
(a)
(1) Individuals present at a 9/11 crash site at the time of or in the immediate aftermath of the terrorist-related aircraft crashes and who suffered physical harm, as defined herein, as a direct result of the crashes or debris removal;
(2) The Personal Representatives of deceased individuals aboard American Airlines flights 11 or 77 and United Airlines flights 93 or 175; and
(3) The Personal Representatives of individuals who were present at a 9/11 crash site at the time of or in the immediate aftermath of the crashes and who died as a direct result of the terrorist-related aircraft crash.
(4) The term eligible claimants does not include any individual or representative of an individual who is identified to have been a participant or conspirator in the terrorist-related crashes of September 11.
(b)
(c)
(2) The physical injury must be verified by medical records created by or at the direction of the medical professional who provided the medical care contemporaneously with the care.
(d)
(e)
(f)
(g)
(1) The World Trade Center site, Pentagon site, and Shanksville, Pennsylvania site; or
(2) The buildings or portions of buildings that were destroyed as a result of the terrorist-related airplane crashes of September 11, 2001; or
(3) The area in Manhattan south of the line that runs along Reade Street from the Hudson River to the intersection of Reade Street and Centre Street, south on Centre Street to the Brooklyn Bridge, and along the Brooklyn Bridge, or any other area contiguous to the crash sites that the Special Master determines was sufficiently close to the site that there was a demonstrable risk of physical harm resulting from the impact of the aircraft or any subsequent fire, explosions, or building collapses (including the immediate area in which the impact occurred, fire occurred, portions of buildings fell, or debris fell upon and injured individuals); or
(4) Any area related to, or along, routes of debris removal, such as barges and Fresh Kills.
(a)
(b)
(1) The claimant demonstrates that a minor child of the victim was born or adopted on or after January 1 of the year of the victim's death;
(2) Another person became a dependent in accordance with then-applicable law on or after January 1 of the year of the victim's death; or
(3) The victim was not required by law to file a federal income tax return for the year prior to the year of the victim's death.
(c)
(1) The victim was married or divorced in accordance with applicable state law on or after January 1 of the year of the victim's death; or
(2) The victim was not required by law to file a federal income tax return for the year prior to the year of the victim's death.
(d)
(e)
(f)
(a)
(1) An individual appointed by a court of competent jurisdiction as the Personal Representative of the decedent or as the executor or administrator of the decedent's will or estate.
(2) In the event that no Personal Representative or executor or administrator has been appointed by any court of competent jurisdiction, and such issue is not the subject of pending litigation or other dispute, the Special Master may, in her discretion, determine that the Personal Representative for purposes of compensation by the Fund is the person named by the decedent in the decedent's will as the executor or administrator of the decedent's estate. In the event no will exists, the Special Master may, in her discretion, determine that the Personal Representative for purposes of compensation by the Fund is the first person in the line of succession established by the laws of the decedent's domicile governing intestacy.
(b)
(2) Personal delivery or transmission by certified mail, return receipt requested, shall be deemed sufficient notice under this provision. The claim forms shall require that the purported Personal Representative certify that such notice (or other notice that the Special Master deems appropriate) has been given. In addition, as provided in § 104.21(b)(5) of this part, the Special Master may publish a list of individuals who have filed Eligibility Forms and the names of the victims for whom compensation is sought, but shall not publish the content of any such form.
(c)
(d)
In the case of claims brought by or on behalf of foreign citizens, the Special Master may alter the requirements for documentation set forth herein to the extent such materials are unavailable to such foreign claimants.
Claimants are entitled to have their claims processed in accordance with the provisions of this Part that were in effect at the time that their claims were submitted under § 104.22(d). All claims will be processed in accordance with the current provisions of this Part, unless the claimant has notified the Special Master that he or she has elected to have the claim resolved under the regulations that were in effect at the time that the claim was submitted under § 104.22(d).
(a)
(b)
(c)
(1) Presents extraordinary circumstances not adequately addressed by the list of presumptively covered conditions; and
(2) Is otherwise eligible for payment.
(a)
(b)
(1) The Eligibility Form may require that the claimant certify that he or she has dismissed any pending lawsuit seeking damages as a result of the terrorist-related airplane crashes of September 11, 2001, or for damages arising from or related to debris removal (except for actions seeking collateral source benefits) within 90 days of the effective date of this part pursuant to section 405(c)(3)(C)(ii) of the Act and that there is no pending lawsuit brought by a dependent, spouse, or beneficiary of the victim.
(2) The Special Master may require as part of the notice requirement pursuant to § 104.4(b) that the claimant provide copies of a designated portion of the Eligibility Form to the immediate family of the decedent (including, but not limited to, the spouse, former spouses, children, other dependents, and parents), to the executor, administrator, and beneficiaries of the decedent's will, and to any other persons who may reasonably be expected to assert an interest in an award or to have a cause of action to recover damages relating to the wrongful death of the decedent.
(3) The Eligibility Form may require claimants to provide the following proof:
(i) Proof of death: Death certificate or similar official documentation;
(ii) Proof of presence at site: Documentation sufficient to establish presence at a 9/11 crash site, which may include, without limitation, a death certificate, proof of residence, records of employment or school attendance, contemporaneous medical records, contemporaneous records of federal, state, city or local government, an affidavit or declaration of the decedent's or injured claimant's employer, or other sworn statement (or unsworn statement complying with 28 U.S.C. 1746) regarding the presence of the victim;
(iii) Proof of physical harm: Certification of a conclusion by the WTC Health Program that the claimant suffers from a WTC-related health condition; a health form provided by the Fund and completed by a licensed medical professional.
(iv) Personal Representative: Copies of relevant legal documentation, including court orders; letters testamentary or similar documentation; proof of the purported Personal Representative's relationship to the decedent; copies of wills, trusts, or other testamentary documents; and information regarding other possible beneficiaries as requested by the Eligibility Form;
(v) Any other information that the Special Master deems necessary to determine the claimant's eligibility.
(4) The Special Master may also require waivers, consents, or authorizations from claimants to obtain directly from third parties tax returns, medical information, employment information, or other information that the Special Master deems relevant in determining the claimant's eligibility or award, and may request an opportunity to review originals of documents submitted in connection with the Fund.
(5) The Special Master may publish a list of individuals who have filed Eligibility Forms and the names of the victims for whom compensation is sought, but shall not publish the content of any such form.
(c)
(1) Claimants shall, at a minimum, submit all tax returns that were filed for the period beginning three years prior to the year of death or discovery of the injury and ending with the year the claim was filed or the year of death. The Special Master may, at the Special Master's discretion, require that claimants submit copies of tax returns or other records for any other period of years the Special Master deems appropriate for determination of an award. The Special Master may also require waivers, consents, or authorizations from claimants to obtain directly from third parties medical information, employment information, or other information that the Special Master deems relevant to determining the amount of any award.
(2) Claimants may attach to the “Personal Injury Compensation Form” or “Death Compensation Form” any additional statements, documents or analyses by physicians, experts, advisors, or any other person or entity that the claimant believes may be relevant to a determination of compensation.
(d)
(e)
(1) An injury that the claimant had not suffered (or did not reasonably know the claimant suffered) at the time the claimant filed the previous claim;
(2) A condition that the Special Master has identified and published in accordance with 104.21(a), since the time the claimant filed the previous claim, as a presumptively covered condition;
(3) An injury for which the claimant was previously compensated by the Fund, but only if that injury has substantially worsened, resulting in damages or loss that was not previously compensated; and
(4) Claims for which the individual is an eligible claimant as a result of amendments contained in the James Zadroga 9/11 Health and Compensation Act of 2010, Title II of Public Law 111-347.
(f)
(a)
(b)
(c)
Any claimant deemed ineligible by the Claims Evaluator may appeal that decision to the Special Master or her designee by filing an eligibility appeal within 30 days on forms created by the office of the Special Master.
(a)
(b)
(c)
(d)
(e)
(f)
(1) There was an error in determining the presumptive award, either because the claimant's individual criteria were misapplied or for another reason; or
(2) The claimant presents extraordinary circumstances not adequately addressed by the presumptive award.
(g)
The Special Master reserves the right to publicize the amounts of some or all of the awards, but shall not publish the name of the claimants or victims that received each award.If published, these decisions would be intended by the Special Master as general guides for potential claimants and should not be viewed as precedent binding on the Special Master or her staff.
The Special Master and her staff will endeavor to evaluate promptly any information submitted by claimants. Nonetheless, it is the responsibility of the claimant to keep the Special Master informed of his or her current address and to respond within the duration of this five-year program to requests for additional information. Claims outstanding at the end of this program because of a claimant's failure to
As provided in section 405(b)(1)(B)(ii) of the Act, in determining the amount of compensation to which a claimant is entitled, the Special Master shall take into consideration the harm to the claimant, the facts of the claim, and the individual circumstances of the claimant. The individual circumstances of the claimant may include the financial needs or financial resources of the claimant or the victim's dependents and beneficiaries. As provided in section 405(b)(6) of the Act, the Special Master shall reduce the amount of compensation by the amount of collateral source compensation the claimant (or, in the case of a Personal Representative, the victim's beneficiaries) has received or is entitled to receive as a result of the terrorist-related aircraft crashes of September 11, 2001. In no event shall an award (before collateral source compensation has been deducted) be less than $500,000 in any case brought on behalf of a deceased victim with a spouse or dependent, or $300,000 in any case brought on behalf of a deceased victim who was single with no dependents.
The phrase “to the extent recovery for such loss is allowed under applicable state law,” as used in the statute's definition of economic loss in section 402(5) of the Act, is interpreted to mean that the Special Master is not permitted to compensate claimants for those categories or types of economic losses that would not be compensable under the law of the state that would be applicable to any tort claims brought by or on behalf of the victim.
In reaching presumed determinations for economic loss for Personal Representatives bringing claims on behalf of decedents, the Special Master shall consider sums corresponding to the following:
(a)
(b)
(c)
(d)
(e)
The presumed non-economic losses for decedents shall be $250,000 plus an additional $100,000 for the spouse and each dependent of the deceased victim. Such presumed losses include a noneconomic component of replacement services loss.
In reaching presumed determinations for economic loss for claimants who suffered physical harm (but did not die), the Special Master shall consider sums corresponding to the following:
(a)
(1) Disability; in general. In evaluating claims of disability, the Special Master will, in general, make a determination regarding whether the claimant is capable of performing his or her usual profession in light of the injuries.
(2) Total permanent disability. With respect to claims of total permanent disability, the Special Master may accept a determination of disability made by the Social Security Administration as evidence of disability without any further medical evidence or review. The Special Master may also consider determinations of permanent total disability made by other governmental agencies or private insurers in evaluating the claim. The Special Master may require that the claimant submit an evaluation of the claimant's disability and ability to
(3) Partial disability. With respect to claims of partial disability, the Special Master may consider evidence of the effect of the partial disability on the claimant's ability to perform his or her usual occupation as well as the effect of the partial disability on the claimant's ability to participate in usual daily activities.
(b)
(c)
(d)
The Special Master may determine the presumed noneconomic losses for claimants who suffered physical harm (but did not die) by relying upon the noneconomic losses described in § 104.44 and adjusting the losses based upon the extent of the victim's physical harm. Such presumed losses include any noneconomic component of replacement services loss.
(a)
(b)
(1) The value of services or in-kind charitable gifts such as provision of emergency housing, food, or clothing; and
(2) Charitable donations distributed to the beneficiaries of the decedent, to the injured claimant, or to the beneficiaries of the injured claimant by privately funded charitable entities; provided however, that the Special Master may determine that funds provided to victims or their families through a privately funded charitable entity constitute, in substance, a payment described in paragraph (a) of this section.
(3) Tax benefits received from the Federal government as a result of the enactment of the Victims of Terrorism Tax Relief Act.
(a)
(1) The claimant accepts the presumed award; or
(2) A final award for the claimant is determined after a hearing on appeal.
(b)
(c)
(1)
(2)
(i) The amount that the claimant would have been paid under the presumed award; and
(ii) The amount the claimant was paid during the period from [EFFECTIVE DATE OF FINAL RULE], 2011 to [DATE 5 YEARS AFTER EFFECTIVE DATE OF FINAL RULE].
(3) In the event that the total amount of all claims under paragraph (c)(2) of this section exceeds the amount available under law, the Special Master
The Personal Representative shall distribute the award in a manner consistent with the law of the decedent's domicile or any applicable rulings made by a court of competent jurisdiction. The Personal Representative shall, before payment is authorized, provide to the Special Master a plan for distribution of any award received from the Fund. Notwithstanding any other provision of these regulations or any other provision of state law, in the event that the Special Master concludes that the Personal Representative's plan for distribution does not appropriately compensate the victim's spouse, children, or other relatives, the Special Master may direct the Personal Representative to distribute all or part of the award to such spouse, children, or other relatives.
(a)
(b)
(c)
(a)
(1) In the case that the individual knew (or reasonably should have known) before [EFFECTIVE DATE OF FINAL RULE], 2011 that the individual suffered a physical harm at a 9/11 crash site as a result of the terrorist-related aircraft crashes of September 11, 2001, or as a result of debris removal, and that the individual knew (or should have known) before such specified date that the individual was eligible to file a claim under this title, the individual may file a claim not later than [DATE 2 YEARS AFTER EFFECTIVE DATE OF FINAL RULE].
(2) In the case that the individual first knew (or reasonably should have known) on or after [EFFECTIVE DATE OF FINAL RULE], that the individual suffered such a physical harm or that the individual first knew (or should have known) on or after that date that the individual was eligible to file a claim under this title, the individual may file a claim not later than the last day of the 2-year period beginning on the date that the individual first knew (or should have known) that the individual both suffered from such harm and was eligible to file a claim under this title, but in no event beyond [DATE 5 YEARS AFTER EFFECTIVE DATE OF FINAL RULE].
(b)
Compensation under this Fund does not constitute the recovery of tort damages against a third party nor the settlement of a third party action, and the United States shall be subrogated to all potential claims against third party tortfeasors of any victim receiving compensation from the Fund. For that reason, no person or entity having paid other benefits or compensation to or on behalf of a victim shall have any right of recovery, whether through subrogation or otherwise, against the compensation paid by the Fund.
(a)
(1) Verify, authenticate, and audit claims;
(2) Analyze claim submissions to detect inconsistencies, irregularities, duplication, and multiple claimants; and
(3) Ensure the quality control of claims review procedures.
(b)
(c)
(a)
(2)
(b)
(2)
(i) Ten (10) percent of such aggregate amount through the settlement, minus
(ii) The total amount of all legal fees charged for services rendered in connection with such settlement.
(c)
Office of Surface Mining Reclamation and Enforcement, Interior.
Proposed rule; public comment period and opportunity for public hearing on proposed amendment.
We are announcing receipt of a proposed amendment to the Colorado regulatory program (hereinafter, the “Colorado program”) under the Surface Mining Control and Reclamation Act of 1977 (“SMCRA” or “the Act”). Colorado proposes both additions of and revisions to the rules and regulations of the Colorado Mined Land Reclamation Board for Coal Mining, concerning valid existing rights, ownership and control, and other regulatory issues. Colorado intends to revise its program to be consistent with the corresponding Federal regulations and SMCRA, clarify ambiguities, and improve operational efficiency.
This document gives the times and locations that the Colorado program and proposed amendment to that program are available for your inspection, the comment period during which you may submit written comments on the amendment, and the procedures that we will follow for the public hearing, if one is requested.
We will accept written comments on this amendment until 4 p.m., mountain standard time July 21, 2011. If requested, we will hold a public hearing on the amendment on July 18, 2011. We will accept requests to speak until 4 p.m., mountain standard time, on July 6, 2011.
You may submit comments, identified by “CO-040-FOR”, using any of the following methods:
•
•
Kenneth Walker, Chief, Denver Field Division, Office of Surface Mining Reclamation and Enforcement, 1999 Broadway, Suite 3320, Denver, CO 80202, Phone: (303) 293-5012, Fax: (303) 293-5058, E-mail:
David Berry, Director, Office of Mined Land Reclamation, Colorado Division of Reclamation, Mining, and Safety, Department of Natural Resources, 1313 Sherman Street, Suite 215, Denver, CO 80203, E-mail:
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Colorado program on December 15, 1980. You can find background information on the Colorado program, including the Secretary's findings, the disposition of comments, and the conditions of approval of the Colorado program in the December 15, 1980,
By letter dated April 8, 2011, Colorado sent us a proposed amendment to its approved regulatory program (Administrative Record Docket ID No. OSM-2011-0002) under SMCRA (30 U.S.C. 1201
Specifically, Colorado proposes substantive revisions to the Colorado Code of Regulations at 2 CCR 407-2 Rules 1.07 (Procedures for Valid Existing Rights Determinations), 2.01 (General Requirements for Permits), 2.02 (General Requirements for Coal Exploration), 2.03 (Application for Permit for Surface Coal Mining and Reclamation Operations: Minimum
Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the Colorado program.
Send your written comments to OSM at the addresses given above. Your comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final regulations will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent State or Federal laws or regulations, technical literature, or other relevant publications.
We will not consider or respond to your comments when developing the final rule if they are received after the close of the comment period (see Dates). We will make every attempt to log all comments into the administrative record, but comments delivered to an address other than the Denver Field Division may not be logged in.
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.
If you wish to speak at the public hearing, contact the person listed under
To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.
If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under
This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.
When a State submits a program amendment to OSM for review, our regulations at 30 CFR 732.17(h) require us to publish a notice in the
Intergovernmental relations, Surface mining, Underground mining.
Office of Surface Mining Reclamation and Enforcement, Interior.
Proposed rule; public comment period and opportunity for public hearing on proposed amendment.
We are announcing receipt of a proposed amendment to the Wyoming regulatory program (hereinafter, the “Wyoming program”) under the Surface Mining Control and Reclamation Act of 1977 (“SMCRA” or “the Act”). Wyoming proposes revisions and additions to rules concerning noncoal mine waste, valid existing rights, and individual civil penalties. Wyoming intends to revise its program to be consistent with the corresponding Federal regulations and SMCRA, clarify ambiguities, and improve operational efficiency.
This document gives the times and locations that the Wyoming program and proposed amendment to that program are available for your
We will accept written comments on this amendment until 4:00 p.m., M.D.T. July 21, 2011. If requested, we will hold a public hearing on the amendment on July 18, 2011. We will accept requests to speak until 4 p.m., M.D.T. on July 6, 2011.
You may submit comments by either of the following two methods:
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For detailed instructions on submitting comments and additional information on the rulemaking process, see III. Public Comment Procedures in the
In addition to viewing the docket and obtaining copies of documents at
Jeffrey Fleischman, Director, Casper Field Office, Office of Surface Mining Reclamation and Enforcement, Dick Cheney Federal Building, POB 11018, 150 East B Street, Casper, Wyoming 82601-1018, (307) 261-6547,
John V. Corra, Director, Wyoming Department of Environmental Quality, Herschler Building, 122 West 25th Street, Cheyenne, Wyoming 82002, (307) 777-7046,
Jeffrey Fleischman,
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Wyoming program on November 26, 1980. You can find background information on the Wyoming program, including the Secretary's findings, the disposition of comments, and the conditions of approval of the Wyoming program in the November 26, 1980,
By letter dated April 28, 2011, Wyoming sent us a proposed amendment to its approved regulatory program (Administrative Record Docket ID No. OSM-2011-0004) under SMCRA (30 U.S.C. 1201
Specifically, Wyoming proposes to amend the Land Quality Division Coal Rules and Regulations at Chapter 2, Section2(a)(v)(A) and 2(a)(v)(A)(II) (adjudication requirements for noncoal mine waste); Chapter 2, Section 5(a)(xx) and (xxi) (permit application plans for the management and disposal of noncoal mine waste); Chapter 4, Section 2(c)(xiii) (general environmental protection performance standards for noncoal mine waste); Chapter 7, Section 1(a) (underground coal mining permit application content requirements); Chapter 7, Section 2(b) (applicability of noncoal mine waste management and performance standards to underground mining operations); Chapter 1, Section 2(fl) (definition of VER and the applicable standards and procedures used to evaluate VER claims); Chapter 10, Section 2(a), (b)(xiii) and 3(c)(iv) (clarifying language regarding the operation of VER in relation to coal exploration activities); Chapter 12, Section 1(a)(v)-(xi) (VER determination and permitting procedures); and Chapter 16, Section 4 (procedural mechanisms related to the assessment of individual civil penalties). The full text of the program amendment is available for you to read at the locations listed above under
Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the Wyoming program.
If you submit written comments, they should be specific, confined to issues pertinent to the proposed regulations, and explain the reason for any recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final regulations will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent Tribal or Federal laws or regulations, technical literature, or other relevant publications.
We cannot ensure that comments received after the close of the comment period (see
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that
If you wish to speak at the public hearing, contact the person listed under
To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.
This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.
When a State submits a program amendment to OSM for review, our regulations at 30 CFR 732.17(h) require us to publish a notice in the
Intergovernmental relations, Surface mining, Underground mining.
Environmental Protection Agency (EPA).
Notice of availability and public comment period.
Notice is hereby given that the EPA has posted its responses to State and tribal designation recommendations for the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS) on its Internet Web site. The EPA invites public comments on its responses during the comment period specified in the
Comments must be received on or before July 21, 2011. Please refer to
Submit your comments, identified by Docket ID No. OAR-2009-0443, by one of the following methods:
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For general questions concerning this action, please contact Rhonda Wright, U.S. EPA, Office of Air Quality Planning and Standards, Air Quality Planning Division, C539-04, Research Triangle Park, NC 27711, telephone (919) 541-1087, e-mail at
The purpose of this notice is to solicit public comments from interested parties other than states and tribes on the EPA's recent responses to the State and tribal designation recommendations for the 2008 Pb NAAQS. These responses can be found on the EPA's Internet Web site at
Please refer to the
As required under CAA section 107(d), the EPA has identified five areas as not meeting the 2008 Pb NAAQS and will be designating these areas as nonattainment. The EPA is proposing that all other areas be designated as unclassifiable/attainment. In establishing nonattainment area boundaries, the EPA is required to include any nearby area that is contributing to the area that does not meet that standard. We are particularly interested in receiving comments, supported by relevant information, if you believe that a specific geographic area that the EPA is proposing to identify as a nonattainment area should not be categorized by the CAA section 107(d) criteria as nonattainment, or if you believe that a specific area not proposed by the EPA to be identified as a nonattainment area should in fact be categorized as nonattainment using the CAA section 107(d) criteria. Please be as specific as possible in supporting your views.
• Describe any assumptions and provide any technical information and/or data that you used.
• 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.
Do not submit this information to the EPA through
2.
• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions.
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
On October 15, 2008, the EPA substantially strengthened the primary NAAQS for Pb to provide increased protection against adverse health effects associated with exposure to Pb in at-risk groups, especially children. The revised primary NAAQS was lowered from the 1.5 micrograms per cubic meter (μg/m
The process for designating areas following promulgation of a new or revised NAAQS is contained in CAA section 107(d) (42 U.S.C. 7407).
The CAA requires the EPA to complete the initial designation process within 2 years of promulgating a new or revised NAAQS. If the Administrator has insufficient information to make these designations, the EPA has the authority to extend the designation process by up to 1 year. In light of the new monitoring network, the EPA is completing the Pb designations in two rounds. In the first round, published on November 16, 2010, the EPA designated as “nonattainment” 16 areas as violating the 2008 Pb NAAQS based on data from the pre-2010 monitoring network. For all other areas, the EPA extended the deadline for designations by up to 1 year so that data from the newly deployed monitors can be considered in making appropriate designation decisions. States previously submitted air quality recommendations including appropriate boundaries within 1 year of promulgation of the NAAQS (tribes are not required to submit recommendations, but the EPA encourages their participation in the designations process), as required by the CAA. They were given an opportunity to update their recommendation letters for those remaining areas for our consideration in the second round of designations by December 15, 2010. By no later than 120 days prior to promulgating designations, the EPA is required to notify states or tribes of any intended modification to an area designation or boundary recommendation that the EPA deems necessary. On or about June 15, 2011, the EPA notified states and tribes of its intended area designations for the 2008 Pb NAAQS. States and tribes now have an opportunity to demonstrate why they believe a modification proposed by the EPA may be inappropriate. In these responses, the EPA has encouraged states and tribes to provide comments and additional information for consideration by the EPA in finalizing designations. The EPA intends to make final designation determinations for the 2008 Pb NAAQS by October 14, 2011.
The EPA has also established a Web site for this rulemaking at
Federal Emergency Management Agency, DHS.
Proposed rule.
Comments are requested on the proposed Base (1% annual-chance) Flood Elevations (BFEs) and proposed BFE modifications for the communities listed in the table below. The purpose of this proposed rule is to seek general information and comment regarding the proposed regulatory flood elevations for the reach described by the downstream and upstream locations in the table below. The BFEs and modified BFEs are a part of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). In addition, these elevations, once finalized, will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents in those buildings.
Comments are to be submitted on or before September 19, 2011.
The corresponding preliminary Flood Insurance Rate Map (FIRM) for the proposed BFEs for each community is available for inspection at the community's map repository. The respective addresses are listed in the table below.
You may submit comments, identified by Docket No. FEMA-B-1197, to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-4064, or (e-mail)
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-4064, or (e-mail)
The Federal Emergency Management Agency (FEMA) proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings.
Comments on any aspect of the Flood Insurance Study and FIRM, other than the proposed BFEs, will be considered. A letter acknowledging receipt of any comments will not be sent.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
Accordingly, 44 CFR part 67 is proposed to be amended as follows:
1. The authority citation for part 67 continues to read as follows:
42 U.S.C. 4001
2. The tables published under the authority of § 67.4 are proposed to be amended as follows:
Fish and Wildlife Service, Interior.
Notice of a 90-day petition finding.
We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the Utah population of the Gila monster (
The finding announced in this document was made on June 21, 2011.
This finding is available on the Internet at
Larry Crist, Field Supervisor, Utah Ecological Services Office (see
Section 4(b)(3)(A) of the Act (16 U.S.C. 1531
Our standard for substantial scientific or commercial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly conduct a species status review, which we subsequently summarize in our 12-month finding.
On January 27, 2010, we received a petition, dated January 22, 2010, from WildEarth Guardians and Daniel Beck, requesting that the Utah population of the Gila monster (
The Gila monster was included as a category 2 candidate species in
The Gila monster is a reptile in the family Helodermatidae, which contains only one extant genus,
The Gila monster is the largest native species of lizard in the United States (Sullivan
Gila monsters are slow-moving lizards with a specialized feeding niche that depends almost solely on vertebrate eggs and young in nests (Beck 1990, p. 54; Beaman
Gila monsters do not appear to inject venom into their prey; they most likely use their venomous bite as a defense mechanism (Beck 1990, p. 56; Beaman
Male Gila monsters fight for dominance in spring and early summer during the mating season (Beck 2005, pp. 140-141). During these combat bouts, which may last for hours, males use their heads in attempts to gain or
Rangewide, the Gila monster may be found from elevations near sea level up to 5,600 feet (ft) (1,738 meters (m)) (Beck 2005, p. 26). The Gila monster appears to be limited to habitat that receives more than 25 percent of its annual precipitation during the summer (Beck 2005, p. 29). The size of the species' home range is 15 to 363 acres (ac) (6 to 147 hectares (ha)), while three home ranges in Utah measured from 15 to 163 ac (6 to 66 ha) (Beck 2005, p. 91). The availability and quality of suitable shelters affect habitat selection (Beck 2005, p. 91). In Utah, Gila monsters favor rocky slopes, washes, and sandy valleys at the base of sandstone bluffs (Beck 2005, p. 29). Dominant vegetation in the species' habitat in Utah includes
The Gila monster occurs in portions of the Mohave Desert in southwestern Utah, southeastern Nevada, southeastern California, and northwestern Arizona; in the Sonoran Desert in southwestern Arizona and Sonora, Mexico; and in small portions of the Chihuahuan Desert in southeastern Arizona and southwestern New Mexico (Beck 2005, p. 26). Its range throughout the United States and Mexico encompasses approximately 80,000 to 1,000,000 square miles (mi) (200,000 to 2,500,000 square kilometers (km)) (NatureServe 2009, p. 5). In Utah, it is found only in Washington County (Beck 2005, p. 29), which comprises less than 1 percent of the species' total range. Important habitat for the Gila monster occurs in the southern portion of Washington County, including Red Cliffs Desert Reserve; Webb Hill; Smoot's Hill; the locale including Stone Cliff, Bloomington West, and Stucki Springs; the locale including Fort Pierce Wash, Warner Ridge, and Sand Mountain; and Beaver Dam Slope (McLuckie
As stated previously, Gila monsters spend much of their time underground and are difficult to accurately count. The current total population size is unknown, but there are probably at least several thousand adult Gila monsters rangewide (International Union for Conservation of Nature 2010, p. 2). The species is ranked by NatureServe as “apparently secure” rangewide, but “critically imperiled” in Utah (NatureServe 2009, pp. 1-2). In the late 1970s and early 1980s, there were 20 to 25 Gila monsters per square mi (8 to 10 per square km) near St. George, Utah. Recent development has likely decreased that density (Beck 2005, p. 115); however, we have no information concerning the current density.
Gila monster populations are declining over most of their range in the United States, but the rate of decline is probably less than 30 percent over three generations (International Union for Conservation of Nature 2010, p. 2). In Utah, the species is uncommon, and its current population trend is suspected to be declining (McLuckie
The petitioners requested that we list the Utah population of the Gila monster as a DPS. To interpret and implement the DPS provisions of the Act, the Service and the National Oceanic and Atmospheric Administration published the Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act in the
Under the DPS policy, a population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions: (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors (quantitative measures of genetic or morphological discontinuity may provide evidence of this separation); or (2) it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act.
The petitioners assert that the Utah population of the Gila monster is markedly separated from other populations throughout its range due to geographic isolation as well as ecological, physiological and behavioral factors. The petitioners assert that in Washington County, Utah, the Virgin River Gorge and the Beaver Dam Mountains to the southwest and the Pine Valley Mountains to the north separate the Utah population from the rest of the species.
The petitioners also assert that Gila monster populations in the Mohave Desert of Utah show physiological, ecological, and behavioral differences due to the difference in precipitation patterns between the Mohave and Sonoran Deserts. They assert that there is a difference in aboveground activity between populations in the Mohave and Sonoran Deserts, since Gila monsters in the Mohave Desert typically spend less time above ground during late summer due to the absence of July and August monsoons. Finally, they also describe a relatively high rate of cutaneous water loss (water loss through the skin) specifically for the Gila monster compared to that of other lizards from arid environments.
We agree that the Virgin River Gorge and Beaver Dam Mountains may present physical barriers within portions of Washington County, Utah. However, Gila monster populations occur in Washington County on either side of the Beaver Dam Mountains near the border with Nevada and Arizona, as well as on either side of the Virgin River Gorge and Interstate 15 near the Arizona border (McLuckie
Regarding the petitioners' claims concerning differences in aboveground activity between Gila monster populations in the Mohave and Sonoran Deserts, we find that this claim is irrelevant to the issue of discreteness of the Utah population based upon physiological, ecological, and behavioral differences because the boundary of the Mohave Desert does not correspond with the boundaries of the petitioned DPS. The Mohave Desert extends beyond southwestern Utah into portions of southeastern Nevada, southeastern California, and northwestern Arizona. Gila monsters are found in suitable habitat throughout the Mohave Desert in each of these States (Beck 2005, p. 26; Douglas
In conducting their analysis, the petitioners appear to have used the incorrect standard when asserting that the Utah population of the Gila monster constitutes a valid DPS on the basis of physiological differences due to its high rate of cutaneous water loss. The petitioners present information comparing the rate of cutaneous water loss between Gila monsters and other species of lizard. However, our DPS policy requires that a population be markedly separated from other populations
Although the Gila monster also occurs in Mexico, the DPS proposed by the petitioners occurs solely within the United States. Therefore, there are no international governmental boundaries to consider.
The Gila monster has a patchy but contiguous distribution from Utah into the adjoining States of Arizona and Nevada. The portion of the species' range within the Mohave Desert includes southwestern Utah, southeastern Nevada, southeastern California, and northwestern Arizona. Since it is neither geographically isolated nor physiologically, ecologically, or behaviorally different from other Gila monsters in the Mojave Desert, the Utah population is not markedly separated from other populations. Additionally, there are no international boundaries adjacent to the Utah population. Therefore, we find that the petitioner did not present substantial information indicating that the discreteness criteria of our DPS policy have been met.
Under the DPS policy, a discrete population segment of a vertebrate species may be considered significant if there is: (1) Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon; (2) evidence that loss of the discrete population segment would result in a significant gap in the range of the taxon; (3) evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range; or (4) evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics.
We concluded in the previous section that the Utah population of the Gila monster did not meet the discreteness criteria. Therefore, we do not need to evaluate the significance criteria. However, while it is not our normal practice, we would like to respond to the petitioners' assertion that the Utah population of the Gila monster is significant because of its unique ecological setting in Jurassic Navajo sandstone and Holocene basaltic lava flows.
We agree that the geology of Washington County, Utah, is unusual, but the geological setting does not equate to the ecological setting. We consider the ecological setting to be the sum of all biotic and abiotic components in a given environment. It encompasses not only geology, but also other components such as climate, plant life, and resident wildlife. We consider the ecological setting of the Utah population of Gila monsters to be the Mohave Desert. As previously noted, the Mohave Desert extends beyond southwestern Utah into portions of southeastern Nevada, southeastern California, and northwestern Arizona. Therefore, we find that the petitioner did not present substantial information indicating that Utah may constitute a unique ecological setting for the Gila monster, because the same setting exists in the Mohave Desert in three other States.
Although the petitioner presented information on only one of the four significance criteria, we also note that none of the other significance criteria were met. As previously stated, the portion of the species' range in Utah is less than 1 percent of the species' total range throughout the United States and Mexico. Therefore, loss of the Utah population would not result in a significant gap in the range of the taxon. The Utah population does not represent the only surviving natural occurrence of the taxon. Lastly, the Utah population does not differ markedly from other populations with respect to genetic characteristics (Douglas
As stated previously, we determined that the Utah population of the Gila monster does not meet the discreteness criteria or the significance criteria. Therefore, the Utah population does not constitute a valid DPS. As such, we do not need to evaluate whether the information contained in the petition regarding the conservation status in relation to the Act's standards for listing is substantial.
In summary, the petition does not present substantial information supporting the characterization of the Utah population of the Gila monster as a DPS, because the discreteness and significance criteria were not met. Therefore, this population is not a valid listable entity under section 3(16) of the Act.
On the basis of our determination under section 4(b)(3)(A) of the Act, we conclude that the petition does not present substantial scientific or commercial information to indicate that listing the Utah population of the Gila monster as a DPS as threatened or endangered under the Act may be warranted at this time. Although we will not review the status of the species at this time, we encourage interested parties to continue to gather data that will assist with conservation of the Gila monster. If you wish to provide information regarding the Gila monster, you may submit your information or materials to the Utah Field Supervisor (see
A complete list of references cited is available on the Internet at
The primary authors of this notice are staff members of the Mountain-Prairie Regional Office and the Utah Field Office (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of revised 90-day petition finding.
We, the U.S. Fish and Wildlife Service (Service), announce a revised 90-day finding on a petition to reclassify the Utah prairie dog (
The revised 90-day finding announced in this document was made on June 21, 2011.
This finding is available on the Internet at
Larry Crist, Field Supervisor, Utah Ecological Services Field Office (see
Section 4(b)(3)(A) of the Act (16 U.S.C. 1531
Our standard for substantial scientific or commercial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial information was presented, we are required to promptly conduct a species status review, which we subsequently summarize in our 12-month finding.
In making this finding, we applied the standards described above for substantial information. Under the Act, a threatened species is defined as a species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. An endangered species is defined as a species which is in danger of extinction throughout all or a significant portion of its range. Therefore, in evaluating the information in this petition to reclassify the Utah prairie dog from threatened to endangered, we have based our determination on whether the petition presents substantial scientific and commercial information indicating that the species may be currently in danger of extinction throughout all or a significant portion of its range.
On February 3, 2003, we received a petition, dated the same day, from Forest Guardians, Center for Native Ecosystems, Escalante Wilderness Project, Boulder Regional Group, Southern Utah Wilderness Alliance, and Terry Tempest Williams (Petitioners) requesting that the Utah prairie dog be reclassified as endangered under the Act (Forest Guardians
On February 2, 2006, the Petitioners filed a complaint for injunctive and declaratory relief in the United States District Court for the District of Columbia. On June 2, 2006, the parties reached a settlement that required the Service to make a 90-day finding on the February 3, 2003, petition on or before February 17, 2007. The 90-day finding published on February 21, 2007 (72 FR 7843), constituted our compliance with the settlement agreement. We found that the petition did not provide substantial scientific or commercial information indicating that reclassification may be warranted. This decision was challenged by WildEarth Guardians in litigation.
On September 28, 2010, the United States District Court for the District of Columbia vacated and remanded our February 21, 2007, not-substantial 90-day finding (72 FR 7843) back to us for further consideration (
We listed the Utah prairie dog as an endangered species on June 4, 1973 (38 FR 14678), pursuant to the Endangered Species Conservation Act of 1969 (the predecessor to the 1973 Act). On November 5, 1979, the Utah Division of Wildlife Resources (UDWR) petitioned the Service to remove the Utah prairie dog from the List of Endangered and Threatened Wildlife. Based on information provided in the petition, the species was reclassified from endangered to threatened on May 29, 1984 (49 FR 22330).
We have updated this information since our February 21, 2007, 90-day finding, based on the best information currently available in our files. We determined that updating the basic biological information for the species with information contained in our files has no effect on our decision as to whether or not the petition contains substantial information.
Prairie dogs belong to the Sciuridae family of rodents, which also includes squirrels, chipmunks, and marmots. There are five species of prairie dogs, all of which are native to North America, and all of which have non-overlapping geographic ranges (Hoogland 2003, p. 232). Taxonomically, prairie dogs (
The Utah prairie dog is recognized as a distinct species (Zeveloff 1988, p. 148; Hoogland 1995, p. 10), but is most closely related to the white-tailed prairie dog. These two species may have once belonged to a single interbreeding species (Pizzimenti 1975, p. 16), but are now separated by ecological and physiographic barriers. We accept the characterization of the Utah prairie dog as a distinct species because of these ecological and physiographic barriers from other prairie dog species (Zeveloff 1988, p. 148).
The Utah prairie dog is the smallest species of prairie dog; individuals are typically 250 to 400 millimeters (mm) (10 to 16 inches (in.)) long (Hoogland 1995, p. 8)). Weight ranges from 300 to 900 grams (g) (0.66 to 2.0 pounds (lb)) in the spring and 500 to 1,500 g (1.1 to 3.3 lb) in the late summer and early fall (Hoogland 1995, p. 8). Utah prairie dogs range in color from cinnamon to clay. The Utah prairie dog is distinguishable from other prairie dog species by a relatively short (30 to 70 mm (1.2 to 2.8 in.)) white- or gray-tipped tail and a black “eyebrow” above each eye (Pizzimenti and Collier 1975, p. 1; Hoogland 2003, p. 232).
Utah prairie dogs hibernate for 4 to 6 months underground each year during the harsh winter months, although they are occasionally seen above ground during mild weather (Hoogland 2001, p. 918). Adult males cease surface activity during August and September, and females follow suit several weeks later (Hoogland 2003, p. 235). Juvenile prairie dogs remain above ground 1 to 2 months longer than adults and usually hibernate by late November. Emergence from hibernation usually occurs in late February or early March (Hoogland 2003, p. 235).
Mating begins 2 to 5 days after females emerge from hibernation, and can continue through early April (Hoogland 2003, p. 236). Approximately 97 percent of female Utah prairie dogs breed in any given year. They come into estrus (period of greatest female reproductive responsiveness usually coinciding with ovulation) and are sexually receptive for a few hours for only 1 day during the breeding season (Hoogland 2001, p. 919). Females give birth to only one litter per year, in April or May (Hoogland 2001, pp. 919-920; Hoogland 2003, p. 236). Only 67 percent of female prairie dogs successfully wean a litter, which ranges from one to seven pups, with an average of four pups (Pizzimenti and Collier 1975, p. 2; Wright-Smith 1978, p. 10; Hoogland 2001, pp. 919-920, 923). The young emerge from their nursery burrow by early to mid-June and primarily forage on their own (Hoogland 2003, p. 236).
Prairie dog pups attain adult size by October and reach sexual maturity at the age of 1 year (Wright-Smith 1978, p. 9). Less than 50 percent of Utah prairie dogs survive to breeding age (Hoogland 2001, p. 919). Male Utah prairie dogs frequently cannibalize juveniles, which may eliminate 20 percent of the litter (Hoogland 2003, p. 238). Only about 20 percent of females and less than 10 percent of males survive to age 4 (Hoogland 2001, Figures 1 and 2, pp. 919-920). Utah prairie dogs rarely live beyond 5 years of age (Hoogland 2001, p. 919).
Natal dispersal (movement of first-year individuals away from their area of
Utah prairie dogs are organized into social groups called clans, consisting of an adult male, several adult females, and their offspring (Wright-Smith 1978, p. 38; Hoogland 2001, p. 918). Clans maintain geographic territorial boundaries, which only the young regularly cross, although all animals use common feeding grounds.
Utah prairie dogs occur in semiarid shrub-steppe and grassland habitats (McDonald 1993, p. 4; Roberts
Utah prairie dogs are predominantly herbivores, though they also eat insects (primarily cicadas (
Soil characteristics are an important factor in the location of Utah prairie dog colonies (Collier 1975, pp. 52-53; Turner 1979, p. 51; McDonald 1993, p. 9). Well-drained soils are necessary for Utah prairie dogs' burrows. Soils should be deep enough (at least 1 meter (m) (3.3 feet (ft)) to allow burrowing to depths sufficient to provide protection from predators and insulation from environmental and temperature extremes (McDonald 1993, p. 9). Soil color may aid in disguising prairie dogs from surface predators (Collier 1975, p. 53).
The Utah prairie dog is the westernmost member of the
Utah prairie dog populations began to decline when control programs were initiated in the 1920s, and by the 1960s, the species' distribution was greatly reduced as a result of poisoning and unregulated shooting (see
The Utah prairie dog's current range is limited to the southwestern quarter of Utah in Beaver, Garfield, Iron, Kane, Piute, Sevier, and Wayne Counties. The species occurs in three geographically identifiable areas within southwestern Utah, which are designated as recovery areas in our 1991 Recovery Plan (Service 1991, pp. 5-6) and in the petition, and as recovery units in our Draft Revised Recovery Plan (Service 2010, pp. 1.3-3, 3.2-7 to 3.2-8). These three recovery units are: (1) The Awapa Plateau in portions of Piute, Garfield, Wayne, and Sevier Counties; (2) the Paunsaugunt in western Garfield County, extending into small areas of Iron and Kane Counties; and (3) the West Desert in Iron County, extending into southern Beaver and northern Washington Counties.
The best available information concerning Utah prairie dog habitat and population trends comes from surveying and mapping efforts conducted by the UDWR annually since 1976. These surveys (hereafter referred to as “spring counts”) count adult Utah prairie dogs every year on all known and accessible colonies in April and May, after the adults have emerged, but before the young are above ground in June (see “Life History”).
Prairie dog spring counts typically underestimate the actual number of adult animals, because only 40 to 60 percent of individual prairie dogs are above ground at any one time (Crocker-Bedford 1975, p. 6). Therefore, we assume that spring counts represent approximately 50 percent of the adult population. We calculate total population estimates from the spring counts by taking into account the proportion of animals we expect to see (roughly 50 percent as just discussed), the proportion of successfully breeding adult females (67 percent of the 97 percent), and average litter size (four pups) (see “Life History” section above). Taking these factors into consideration, the total population estimate, accounting for reproduction and juveniles, is the spring count multiplied by 7.2. It should be noted that spring count surveys and population estimates are not censuses. Rather, they are designed to monitor population trends over time.
In our 2007 finding, we reported information on the spring counts conducted from 1976 to 2005 in each recovery unit: Awapa Plateau varied from 201 to 1,145 adult prairie dogs; Paunsaugunt varied from 652 to 2,205 adult prairie dogs; and the West Desert varied from 610 to 4,778 adult Utah prairie dogs (see Figure 1 below) (UDWR 2005, entire; 72 FR 7843). As of 2010, the Awapa Plateau recovery unit had a spring count of 614 adult prairie dogs, the Paunsaugunt recovery unit had 835 adult prairie dogs, and the West Desert recovery unit had 4,199 adult prairie dogs (see Figure 1 below) (UDWR 2010a, entire). Overall, spring counts from the past 34 years show considerable annual fluctuations, but stable-to-increasing long-term trends (Figure 1) (UDWR 2005, entire; UDWR 2010a, entire).
In addition to population trend information, the UDWR surveys provide information on the amount of mapped and occupied habitat across the species' range. We define mapped habitat as all areas within the species' range that were identified and delineated as being occupied by Utah prairie dogs at any time since 1976. Occupied habitats are defined as areas that currently support Utah prairie dogs (
Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR 424 set forth the procedures for adding a species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act:
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
In considering what factors might constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the species responds to the factor in a way that causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat and we then attempt to determine how significant a threat it is. If the threat is significant, it may contribute to the risk of extinction of the species such that the species may warrant listing as threatened or endangered as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively may not be sufficient to compel a finding that listing or reclassification may be warranted. In our finding for this petition to reclassify a species from threatened to endangered, the information should contain evidence sufficient to suggest that threats that may be acting on the species could result in the species being currently in danger of extinction versus being likely to become so in the foreseeable future.
In making this 90-day finding, we evaluated whether information regarding the threats to the Utah prairie dog, as presented in the petition and other information available in our files, is substantial, thereby indicating that the petitioned action may be warranted. Our evaluation of this information is presented below.
The Petitioners state that threats to the species' habitat include the following: (1) Habitat loss from agricultural and urban land conversions; (2) livestock grazing; (3) road construction, off-highway vehicle (OHV) use, and recreation; (4) oil, gas, and mineral development and seismic exploration; and (5) impacts of isolation and fragmentation.
The Petitioners provide two citations (McDonald 1996, pp. 1-2; O'Neill
The Petitioners state that much of the historical, high-quality Utah prairie dog habitat was in valleys, where crop agriculture and urban activities and expansion historically occurred and are ongoing (Forest Guardians
The Petitioners discuss various urban development projects that resulted in translocation of Utah prairie dogs and loss of their habitat, both legally (Bonzo and Day 2003, pp. 22-23) (
The petition states that livestock grazing, particularly overgrazing, can degrade Utah prairie dog habitat by causing shrub encroachment (McDonald 1993, pp. 6, 16). The Petitioners provide numerous general references that characterize the effects of overgrazing to grassland habitats, including reducing grass cover and vegetative biomass, degrading riparian areas, damaging cryptobiotic crusts (communities of cyanobacteria, green algae, lichens, mosses, liverworts, and microorganisms that colonize the surface of bare soil), degrading soil conditions, and increasing invasive weeds and wildfires (Forest Guardians
With respect to livestock grazing impacts to Utah prairie dogs specifically, the Petitioners cite the 1991 Utah Prairie Dog Recovery Plan (Service 1991, p. 11), a 1993 analysis of 20 years of Utah prairie dog recovery efforts (McDonald 1993, pp. 16-17, 55), and the Utah Prairie Dog Interim Conservation Strategy (Utah Prairie Dog Recovery Implementation Team (UPDRIT) 1997, p. 5) as acknowledging the potential for livestock grazing to degrade Utah prairie dog habitat. The Petitioners conclude that livestock grazing must be recognized as a threat to Utah prairie dogs and curtailed in a manner that promotes Utah prairie dog conservation (Forest Guardians
The Petitioners state that roads have a negative impact on Utah prairie dogs by increasing direct mortalities from motor vehicle strikes, through loss of habitat due to new road construction and upgrades of existing roads, and through degradation of habitat and increased disturbance due to increased OHV use (Noriega 2000, entire; Forest Guardians
The Petitioners cite numerous references stating that oil and gas exploration and extraction results in the degradation and loss of vegetation and habitats through crushing vegetation, introducing weed species, and increasing soil erosion or soil compaction (Forest Guardians
The petition states that oil and gas leases are being offered in Millard and Sevier Counties within the range of the Utah prairie dog (Forest Guardians
The petition states that the remaining prairie dog colonies tend to be isolated and fragmented due to loss and degradation of Utah prairie dog habitat, and the effects of extermination campaigns and plague. Factors such as low reproductive rate, genetic drift, and inbreeding may increase the potential for local extinctions in small populations (Brussard and Gilpin 1989, p. 37). The Petitioners cite several references on black-tailed prairie dogs to conclude that these small, isolated colonies are then more susceptible to local extirpation from factors such as sylvatic plague (Miller
The Petitioners conclude that the factors responsible for the loss of Utah prairie dog habitat include habitat loss from agricultural and urban land conversions; livestock grazing; road construction, OHV use, and recreation; oil, gas, and mineral development and seismic exploration; and the impacts of isolation and fragmentation (Forest Guardians
We agree with the Petitioners' conclusion that historical Utah prairie dog habitat and populations were lost to agricultural conversion and urban development. However, we believe that the Petitioners' assessment of the extent of historical habitat loss and population decline is inaccurate. The Petitioners' assessment is based largely on the assumption that Utah prairie dogs historically occurred within 713 sections of land (Collier 1975, p. 15), and that mapped habitat was reduced to 2,824 ha (6, 977 ac) by 1995 (McDonald 1997, p. 11). However, much of the area within the 713 sections of land contains unsuitable habitat and was never occupied by prairie dogs (see “Historical Distribution and Abundance” section above). Therefore, it is inaccurate to calculate historical habitat loss based on the total area within those 713 sections (184,666 ha (456,320 ac)).
Our current data show that there are 24,142 ha (59,656 ac) of mapped habitat rangewide, of which 13,365 ha (33,025 ac) were occupied in 2009 (UDWR 2010b, entire). This is almost five times the amount of occupied habitat reported by the Petitioners. Furthermore, our data show that Utah prairie dog habitat occupancy and population trends (see Figure 1) have been stable to increasing since 1995 (McDonald 1997, p. 11; Bonzo and Day 2000, p. 13; UDWR 2010b, entire). Overall, we believe that the Petitioners overestimated the amount of occupied historical habitat, and used outdated information that does not reflect the current amount of occupied habitat and more recent population trends. Given that our data show larger areas of occupied habitat than reported by the Petitioners, and stable-to-increasing long-term population trends, we conclude that we have no substantial scientific or commercial information to indicate that threats from habitat loss may warrant reclassification of the Utah prairie dog from threatened to endangered. We further discuss the consequences of the loss of historical habitat in the Significant Portion of the Range section (see Finding below).
We acknowledge that historical Utah prairie dog habitat was lost in large part due to agricultural conversion, a factor considered in our May 29, 1984, reclassification of the species from endangered to threatened (49 FR 22330). However, the Petitioners do not provide any information on current losses from new agricultural developments. We do not have any information in our files indicating that there are any recent conversions of Utah prairie dog habitat to agricultural use.
We agree that habitat loss due to urbanization is a threat to the species, particularly in the West Desert recovery unit (primarily Iron County); we identified this threat in our May 29, 1984, reclassification of the species from endangered to threatened (49 FR 22330), the 1991 Utah Prairie Dog Recovery Plan (Service 1991, pp. iv, 11), and the 2010 Draft Revised Recovery Plan (Service 2010, pp. 1.7-1 to 1.7-2). Loss of habitat due to urbanization remains one of the primary threats to the species, and is one of the primary reasons that the species remains listed as threatened. However, the Petitioners do not present information that indicates that threats from urbanization may warrant reclassification of the Utah prairie dog from threatened to endangered.
Since our 2007 finding, and primarily during development of our Draft Revised Recovery Plan (Service 2010, entire), we assessed the most currently available information regarding impacts to Utah prairie dog habitat from urbanization. We summarize this evaluation below to ensure that our current information remains consistent with our 2007 finding.
The threatened status of the Utah prairie dog results in the need to develop and implement habitat conservation plans (HCPs) to minimize and mitigate impacts to the species from urban development on non-Federal lands. Ongoing development and the resulting incidental take of Utah prairie dogs in Iron County is authorized through 2018 under a permit issued under section 10(a)(1)(B) of the Act and the Iron County HCP (Iron County 2006, entire). The Iron County HCP process includes an annual assessment of the amount of incidental take allowed each year. The allowed annual incidental take is calculated as 10 percent of the running 5-year average of prairie dogs counted on Federal or otherwise-protected lands in the West Desert recovery unit.
As of 2009, following 11 years of implementation, the Iron County HCP has permitted a total of 154 ha (381 ac) of habitat and 937 Utah prairie dogs to be incidentally taken since 1998. This is an average of 78 prairie dogs and 12.9 ha (32 ac) of habitat taken annually. The Iron County HCP expires in 2018. We believe these past levels of take are reflective of the average levels of take that are likely to occur in the future, given recent stable population trends for the species. Using the average annual take, we estimate that an additional 702 prairie dogs and 116.5 ha (288 ac) of habitat may be taken through 2018, for a total of 271 ha (669 ac) of occupied habitat and 1,639 prairie dogs over the life of the permit. If the estimated level of take occurs, approximately 6.5 percent of occupied habitat and 5.6 percent of the Utah prairie dog population (see “Current Distribution and Abundance” above) in the West Desert recovery unit will be lost to urbanization. While this amount of take is not to be dismissed, we concluded that this level of take over the life of the 20-year permit was not likely to jeopardize the continued existence of the species (Service 1998, p. 15). Over the last ten years of implementing this HCP, the Utah prairie dog population has been stable to increasing (UDWR 2005, entire; UDWR 2010a, entire). Based on these population trends while implementing the HCP, we anticipate the additional take estimated over the remaining life of the permit does not threaten the species to the extent that reclassification, or “uplisting,” to endangered status may be warranted. In addition, the take authorized under the Iron County HCP is mitigated through restoration of habitat on Federal lands and the translocation of animals from impacted private lands to approved translocation sites on Federal lands.
There is no current mechanism (
We do not dispute that human activities (
In summary, we do not have information, and the Petitioners do not present information, indicating that agricultural conversions are still occurring at high levels or that they threaten the Utah prairie dog to the extent that it may be in current danger of extinction. Habitat loss due to urbanization is a threat to the species, and one of the primary reasons that the species remains listed as threatened. Because of the species' threatened status (see
We concur that improper livestock grazing can affect various attributes of prairie dog habitat and food supply. However, most of the citations provided by the Petitioners speak generally to the impacts of improper grazing to grassland habitats. The citations provided by the Petitioners that are specific to Utah prairie dogs indicate that there was historical loss of Utah prairie dog habitats due to improper grazing, and some site-specific reductions in habitat quality, particularly at translocation sites (McDonald 1993, pp. 16-17). However, information in the petition and in our files fails to indicate that grazing negatively impacts Utah prairie dogs to the extent that uplisting to endangered status may be warranted.
We agree that improperly managed grazing regimes can have negative effects on Utah prairie dogs and their habitat, including decreased habitat quality and decreased vegetation diversity (Collier and Spillett 1973, p. 86; McDonald 1993, p. 16). Overgrazing can decrease forage availability, potentially increase Utah prairie dog foraging time, and consequently decrease vigilance and survivorship (Ritchie 1998, p. 9; Cheng and Ritchie 2006, pp. 550-551). Improperly grazed lands resulting in lowered plant diversity can be vulnerable to greater amounts of invasive plant species. Invasive plant species, such as cheatgrass, create an altered fire regime, increasing the amount of fire and further reducing native grasses and shrubs (Masters and Sheley 2001, p. 503). The resultant decreased plant diversity can impact Utah prairie dog weight gain and survival, particularly during drought conditions (Ritchie 1998, p. 9). Invasive species, cheatgrass in particular, occur throughout the range of the Utah prairie dog. However, since our 2007 finding, the Bureau of Land Management (BLM) has released revised Resource Management Plans concluding cheatgrass monocultures are generally localized as a result of habitat perturbations (BLM 2008a, pp. 3-34). We conclude that while invasive species may impact Utah prairie dog habitat on a site-specific basis, information provided by the Petitioners and in our files does not indicate that invasive species may threaten the Utah prairie dog across the species' range to the point that uplisting to endangered status may be warranted.
We further agree that overgrazing in swale habitats historically led to erosion and reduced the amount of moisture available for grasses and forbs (Crocker-Bedford and Spillett 1981, p. 22). However, the Petitioners provided no information regarding the current level of swale and riparian habitat degradation from livestock grazing in Utah prairie dog habitats, and we have no information in our files showing that this is a long-term or rangewide concern.
We agree that soil characteristics are an important factor in the location of Utah prairie dog colonies (Collier 1975, pp. 52-53; Turner 1979, p. 51; McDonald 1993, p. 9). The petitioners provided ample information on how livestock grazing reduces soil crusts. However, information provided by the Petitioners and in our files does not indicate that the loss of soil crusts has had any impact on the Utah prairie dog.
We have information in our files that demonstrates that livestock grazing also can have beneficial effects on Utah prairie dogs. For example, in properly managed, grazed habitats, there is higher quality vegetation and a greater amount of nutrient-rich young shoots (Cheng and Ritchie 2006, p. 554). Livestock grazing in early spring, fall, and winter is generally beneficial to Utah prairie dogs because it reduces horizontal cover, which allows animals to spend less time looking for predators (Ritchie and Brown 2005, p. 15). Prescribed rotational grazing may help to maintain suitable vegetation height for Utah prairie dogs, especially in highly productive sites like irrigated pastures or where shrub invasion has occurred (Ritchie and Cheng 2001, p. 2). Other studies suggest that prairie dog density is positively correlated with heavy grazing, which simulates the shortgrass environment preferred by prairie dogs (Coppock
In summary, we agree with the Petitioners that livestock grazing can be a threat to the Utah prairie dog, particularly in site-specific areas where improper grazing negatively affects habitat conditions. We have previously acknowledged this threat, most recently in our Draft Revised Recovery Plan (Service 2010, pp. 1.7-3 to 1.7-4). However, neither the Petitioners' information nor information in our files supports the assertion that grazing is endangering the Utah prairie dog with extinction, especially given that Utah prairie dog populations are stable to increasing rangewide (see Figure 1 above) (UDWR 2005, entire; UDWR 2010a, entire).
We acknowledge that direct mortality of prairie dogs occurs on roads. We also acknowledge that OHV use and other types of recreational use, including recreational infrastructure development,
In our 90-day finding in 2007, we concluded that the impacts of roads and OHV use were limited to localized areas and did not result in population-level effects (72 FR 7843). Since 2007, we have evaluated additional information regarding OHV use across the species' range. We find that there is an increased planning effort on Federal lands toward directing OHV use to designated trails or play areas, and consequently away from Utah prairie dog habitats (Service 2010, p. 1.7-4). Currently, all of the USFS districts and two of the three BLM field offices within the range of the species include off-road travel restrictions in their land use plans. For example, the Dixie and Fishlake National Forests prohibit cross-country vehicle travel forest wide (U.S. Department of Agriculture (USDA) 2006, p. 16; USDA 2009, p. 2). Almost the entire Richfield BLM district is either closed to OHV use or limited to designated routes (BLM 2008b, pp. 52-55). The Kanab BLM Resource Management Plan includes a conservation measure to preclude cross-country motorized use in occupied or inactive Utah prairie dog colonies (BLM 2008c, p. 62).
In summary, we do not have substantial information suggesting that the localized impacts of roads and OHV recreational use result in population-level effects. In addition, the majority of existing land use plans across the range of the Utah prairie dog restrict off-road recreational use in order to avoid or minimize impacts to prairie dog habitat. Therefore, we conclude that the Petitioners do not provide substantial information—and we do not have information in our files—that indicates that threats from roads and OHV recreational use may warrant reclassification of the Utah prairie dog from threatened to endangered.
We are aware that oil and gas leasing is occurring within the range of the Utah prairie dog. In our 2007 90-day finding, we stated that there was no scientific or commercial information either in the petition or in our files that quantified the extent of these activities in occupied Utah prairie dog habitat. Since our 2007 90-day finding, the USFS completed a biological assessment for their Oil and Gas Leasing Environmental Impact Statement and determined that no Utah prairie dog habitat will be impacted by development or production activities due to a no-surface-occupancy stipulation (USFS 2010, p. 22). This stipulation prohibits occupancy or disturbance on the lease parcel ground surface and, therefore, oil and gas resources may only be accessed through use of directional drilling from sites outside the no-surface-occupancy area. Furthermore, using a geographic information system to analyze the overlap between Utah prairie dog recovery units and energy resources, we found there are very little coal bed methane and geothermal reserves within the range of the species (Idaho National Engineering and Environmental Laboratory 2003, p. 1; Energy Information Administration 2007, p. 1). In addition, there are no producing oil or gas wells within any of the three recovery units (Utah Division of Oil, Gas, and Mining 2009, p. 1). Based on the location of known reserves and the lack of producing oil and gas wells, we expect direct and indirect impacts from oil and gas development on Utah prairie dogs will be minor and localized.
Since publishing our 2007 90-day finding, we have completed programmatic consultations with the BLM and USFS regarding oil and gas development on lands they manage (BLM 2008b, pp. A11-18; USFS 2010, pp. 10-11). Through the consultation process, we worked with both agencies to develop a set of avoidance and minimization measures for Federal oil and gas leases within the range of the Utah prairie dog (BLM 2005, p. 8; BLM 2008b, pp. A11-18; BLM 2008c, pp. A3-9, A9-13 to A9-14; USFS 2010, pp. 10-11). These measures include prohibitions against surface disturbance within 0.8 km (0.5 mi)) of active Utah prairie dog colonies, and prohibitions against permanent disturbance within 0.8 km (0.5 mi) of potentially suitable, unoccupied Utah prairie dog habitat, as identified by UDWR (BLM 2005, p. 8; BLM 2008b, pp. A11-18; BLM 2008c, pp. A3-9, A0-13 to A9-14; USFS 2010, pp. 10-11). These measures are currently attached to all BLM and USFS leases within the Utah prairie dog's range. We conclude that these measures avoid and minimize threats to the Utah prairie dog from oil and gas development.
We are aware that seismic exploration is occurring within the range of the Utah prairie dog. The USFS estimates that up to 48.6 ha (120 ac) of Utah prairie dog habitat on USFS land (less than 1 percent of the total available suitable habitat on USFS lands) may be affected by seismic surveys (USFS 2010, p. 22). We do not have similar estimates for BLM lands within Utah prairie dog habitat. However, given the lack of proven reserves and producing wells within any of the recovery units, we anticipate low levels of future seismic exploration on BLM lands. Furthermore, although the Petitioners cited studies that identified potential effects of seismic testing on Utah prairie dogs, these same studies concluded that any impact from seismic testing on Utah prairie dogs is negligible (Young and Sawyer 1981, p. 2; Menkens and Anderson 1985, p. 13). After evaluating the information provided by Petitioners and in our files, we conclude that threats from seismic exploration are localized and temporary.
In summary, we are aware that oil, gas, and mineral development and seismic exploration are occurring within the range of the Utah prairie dog. We agree that oil, gas, and mineral development can impact the species where it occurs—the Utah prairie dog is listed as a threatened species due to threats from a variety of human land use activities. However, there has been a low level of exploration and development to date, and projections for future exploration and development remain low for the majority of the species' range (Service 2010, p. 1.7-6). In addition, the Federal land management agencies have committed to conservation measures that effectively avoid impacts in occupied or historically occupied Utah prairie dog habitats and minimize impacts in suitable habitats. Thus, we conclude that the Petitioners do not provide substantial information—and we do not have information in our files—that indicates that threats from oil, gas, and mineral development, and seismic exploration may threaten the Utah prairie dog to the point that uplisting it from threatened to endangered under the Act may be warranted.
We concur that the majority of existing Utah prairie dog colonies are small, numbering fewer than 200 individuals (UDWR 2005, entire), and that habitat loss from a variety of land use activities can result in increased isolation and fragmentation of prairie dog habitats. However, the studies presented by the Petitioners for black-tailed prairie dogs may not be directly applicable to the small size and isolation of Utah prairie dog colonies, particularly with respect to the species' response to plague (see
In summary, we find that the information provided in the petition, as well as other information in our files, does not constitute substantial scientific or commercial information indicating that uplisting the Utah prairie dog from threatened to endangered under the Act may be warranted due to present or threatened destruction, modification, or curtailment of habitat. We agree that there are numerous human land-use threats to the species, including those presented in the Petition, such as urbanization; agricultural uses; livestock grazing; roads; OHV and other recreational uses; and oil, gas, and mineral development and seismic exploration. These threats may result in the loss, fragmentation, and isolation of prairie dog populations. These threats are the reason the Utah prairie dog remains listed as a threatened species. As stated in the Background section, a threatened species is defined as a species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range, whereas an endangered species is a species which is currently in danger of extinction throughout all or a significant portion of its range. The information on threats discussed in Factor A indicates that the Utah prairie dog should continue to be listed as threatened. Many of the claims cited by the Petitioners, and information in our files, indicate that most of the threats have largely localized impacts on specific Utah prairie dog colonies or complexes, particularly those impacts from livestock grazing; roads; OHV use; and oil, gas, and mineral development and seismic exploration. Therefore, we do not have substantial information indicating that the threats rise to the level at which they may put the species in current danger of extinction throughout all or a significant portion of its range.
Urbanization is one of the largest of the identified threats to the species (Service 2010, p. 1.8-4). For development to proceed, a section 10(a)(1)(B) permit and HCP with meaningful mitigation and compensation are required. In addition, the rangewide population of the Utah prairie dog is stable to increasing, indicating that ongoing threats are not having a negative effect on the recoverability of the species (see Figure 1 above). Thus, we have determined that the petition, as well as other information in our files, does not present substantial scientific or commercial information indicating that the present or threatened destruction, modification, or curtailment of habitat or range is a threat to the Utah prairie dog to the extent that uplisting from threatened to endangered under the Act may be warranted.
The petition states that illegal shooting of Utah prairie dogs still occurs (Forest Guardians
Because the Utah prairie dog is already a listed species, shooting is prohibited by the Act, except as provided for by the special 4(d) rule (see 50 CFR 17.40(g) and
No information is available in the petition or in our files to indicate that illegal shooting occurs on a broad-scale, rangewide basis such that it may significantly affect the species at the population level. Therefore, we conclude that the information provided in the petition, as well as other information in our files, does not present substantial scientific or commercial information indicating that uplisting from threatened to endangered under the Act may be warranted due to overutilization for commercial, recreational, scientific, or educational purposes.
The Petitioners do not specifically identify predation as a threat to the Utah prairie dog. Predation is briefly mentioned by the petitioners as a component of the species ecology (Service 1991, p. 10); as a factor that results in mortality of translocated Utah prairie dogs (Service 1991, p. 13; UPDRIT 1997, p. 5); and as a factor that may increase due to overgrazing, road construction, and energy development (McDonald 1993, p. 6; Forest Guardians
The Petitioners assert that sylvatic plague (
The Petitioners cite numerous instances of documented and suspected plague events occurring throughout the Utah prairie dog range (Service 1991, p. 12; McDonald 1996, pp. 8-10; Bonzo and Day 2000, pp. 11-14). They also cite
In the 2007 90-day finding, we concluded that the Petitioners did not identify predation as a threat to the Utah prairie dog. We agree that predation can have adverse impacts on Utah prairie dogs in unnaturally fragmented colonies or at new translocation sites (Service 2010, p. 1.7-9). For example, badgers can disrupt a translocation site by digging up Utah prairie dogs that have not had a chance to fully develop a burrow system. However, predation is a natural component of healthy prairie dog populations (Collier and Spillett 1972, p. 36; Service 2010, p. 1.7-9). Thus, we conclude that predation can be a localized threat to some Utah prairie dog colonies, but we have no information to indicate that predation places the species in danger of extinction.
We agree with the petitioners that plague is a threat to the Utah prairie dog; this threat is one of the primary reasons that the species is listed as threatened. Plague was identified as a threat to the species in the 1984 reclassification (49 FR 22330) rule and the 1991 Recovery Plan. In the Draft Revised Recovery Plan, plague is in the top tier of threats to the species and is considered to be a primary threat to the species' survival and conservation (Service 2010, p. 1.7-7). We discussed plague in our 2007 finding, and present updated information to consider in this finding.
We acknowledge that plague exists within all three Utah prairie dog recovery units; individual Utah prairie dog colonies are affected by the disease; and there is currently no mechanism available to prevent periodic plague events from reoccurring. However, we conclude that the Petitioners mischaracterized how plague spreads through Utah prairie dog colonies and, therefore, its effects on the species, by primarily relying on results from studies of Gunnison's and black-tailed prairie dogs. For example, as discussed under A. Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range, white-tailed and Utah prairie dog colonies are less dense and more widely dispersed than black-tailed or Gunnison prairie dog colonies. Studies of Gunnison's and black-tailed prairie dogs have shown that the higher density of their colonies contributes to plague transmission and subsequent mortality (Cully 1993, p. 40; Cully and Williams 2001, p. 901). Therefore, the lower density of white-tailed and Utah prairie dog colonies may slow plague transmission rates and reduce the overall long-term impact of the disease (Cully 1993, p. 40; Cully and Williams 2001, p. 901).
Social and behavioral traits of the Utah prairie dogs also may reduce the transmission of plague. Utah prairie dogs are more behaviorally similar to white-tailed prairie dogs than black-tailed prairie dogs. White-tailed prairie dogs (and similarly, Utah prairie dogs) spend less time socializing than black-tailed or Gunnison prairie dogs; this characteristic appears to favor their long-term persistence in a plague environment (Biggins and Kosoy 2001, p. 64; 75 FR 30338). Hibernation by Utah and white-tailed prairie dogs also may reduce or delay plague transmission among individual animals (Barnes 1993, p. 34).
Since our 2007 finding, we have learned more about potential methods to minimize the impacts of plague. Deltamethrin and Pyraperm are two insecticides (“dust”) used to successfully control fleas on colonies of different prairie dog species, resulting in higher prairie dog survival rates (Seery
In summary, we acknowledge that plague is a threat to the Utah prairie dog. In fact, plague is one of the primary reasons the Utah prairie dog remains listed as a threatened species. However, as previously noted, Utah prairie dog population trends remain stable to increasing (see Figure 1 above) despite the long-term presence of plague in the environment. Thus, we find that the information provided in the petition, as well as other information in our files, does not present substantial scientific or commercial information indicating that uplisting from threatened to endangered under the Act may be warranted due to the effects of disease and predation.
The Petitioners make several assertions regarding the inadequacy of existing regulatory mechanisms, specifically discussing: (1) Downlisting; (2) the special 4(d) rule; (3) the Recovery Plan and Interim Conservation Strategy; (4) Federal land management policies; and (5) section 10 HCPs.
The Petitioners state that there was little basis for UDWR to request that the species be delisted in 1984 and little basis for the Service to partially grant the request by downlisting the Utah prairie dog to threatened. The Petitioners base their conclusion largely on Utah prairie dog population trend data from 1976 to 1983. They conclude that the Service originally downlisted the Utah prairie dog in 1984 for political reasons, and that the species has suffered since that downlisting (Forest Guardians
In those circumstances where the standard regulatory provisions under the Act may not be necessary or appropriate for a threatened species, the Secretary of the Department of the Interior has the discretion under section 4(d) of the Act to determine in a special rule those measures and prohibitions that are necessary and advisable for the conservation of that species. The Petitioners evaluated the 1984 (49 FR 22330) and 1991 (56 FR 27438) special 4(d) rules for the Utah prairie dog. These special rules, as implemented by UDWR, authorize take of prairie dogs on agricultural lands. The Petitioners claim that, when considered cumulatively with threats such as translocation, habitat loss, and plague, the special 4(d) rule is likely harming the Utah prairie dog because of the species' low rate of reproduction (Hoogland 2001, pp. 918-924; Forest Guardians
The Petitioners assert that the Utah Prairie Dog Recovery Plan contributes to declines of the Utah prairie dog. They
The Petitioners state that Federal land management policies contribute to the imperiled status of the Utah prairie dog (Forest Guardians
The Petitioners assert that existing HCPs undermine Utah prairie dog conservation efforts. They specifically discuss several small and large-scale (countywide) HCPs and associated permits, most of which were issued in the 1990s (Forest Guardians
The inadequacy of existing regulatory mechanisms was not evaluated as a threat to the species in the 1973 listing (38 FR 14678, June 4, 1973), 1984 downlisting (49 FR 22330, May 29, 1984), or 1991 Recovery Plan. The Draft Revised Recovery Plan concludes that regulatory mechanisms are adequate to address the threats facing the Utah prairie dog with the species' threatened status under the Act (Service 2010, pp. 1.7-9 to 1.7-12).
In 1984, following a petition from UDWR to delist the Utah prairie dog, we analyzed the best available information regarding the species' population and threat factors, and determined that the species should be downlisted to threatened status (49 FR 22330). In our 2007 finding, we determined that there was not substantial information indicating that uplisting the Utah prairie dog to endangered may be warranted. Since our 2007 finding, we have reevaluated the population status and threats to the species. As previously described (see “Current Distribution and Abundance” section above), the Utah prairie dog population is considered to be stable to increasing on a rangewide basis and, therefore, we believe that the current status of the species as threatened, as opposed to being uplisted to endangered, is not placing the species in danger of extinction. Thus, we conclude that information regarding the effects of the species' regulatory status as threatened under the Act does not indicate that uplisting to endangered may be warranted.
The special 4(d) rule (56 FR 27438, June 14, 1991) for Utah prairie dogs allows regulated take of Utah prairie dogs on private agricultural lands where damage from prairie dogs is observed (see
We agree that the 1991 Recovery Plan is in need of an update. In our 2007 90-day finding we indicated that efforts to revise the 1991 Recovery Plan were underway. Since the 2007 finding, we published a notice of availability for the Draft Revised Recovery Plan on September 17, 2010 (75 FR 57055); we expect to complete the revised Recovery Plan in 2011. This new plan updates and replaces both the 1991 Recovery Plan and Interim Conservation Strategy.
With respect to the Petitioners' concerns, the Draft Revised Recovery Plan's population recovery criteria are to achieve counts of 1,000 adult Utah prairie dogs in each recovery unit—this is a higher number than envisioned by the 1991 Recovery Plan and is based on current biological information regarding Utah prairie dog densities and reproductive rates (Service 2010, p. 3.1-7). The Draft Revised Recovery Plan still envisions the use of translocations, enhanced by improved techniques, as an important component of Utah prairie dog recovery efforts (Service 2010, p. 2.3-4). However, the 2010 Draft Revised Recovery Plan places increased emphasis on protecting Utah prairie dogs on private lands where willing landowners may be interested (Service 2010, pp. 2.3-2 to 2.3-3). Although the Petitioners claim there was a lack of recovery efforts on private land, we have taken significant steps to conserve prairie dogs on private lands, including the use of the Safe Harbor Agreement (SHA) program, conservation easements, conservation banks, and the habitat credit and exchange program. We will briefly discuss each of these tools in the next several paragraphs.
The SHA program promotes voluntary agreements between the Service and private or other non-Federal property owners whose actions contribute to the recovery of Utah prairie dogs. Prior to our 2007 90-day finding, we entered into three SHAs covering 97 ha (240 ac) of occupied and unoccupied habitat within the Paunsaugunt and Awapa Plateau recovery units (Service 2005b, entire; Service 2005c, entire; Service 2006, entire). As of 2010, two more SHAs are in place with private landowners, covering an additional 400 ha (990 ac) of Utah prairie dog habitat. In addition, a rangewide programmatic SHA was completed in 2009,
Conservation banks, another recovery effort on private lands, are a means to collectively provide mitigation in an effective manner to offset the impacts of habitat loss. In our 2007 90-day finding, we discussed one approved conservation bank: The 2005 SITLA conservation bank located on Parker Mountain within the Awapa Plateau recovery unit and totaling approximately 307 ha (758 ac). Since then, a second conservation bank was approved in 2009 in the West Desert recovery unit: The Little Horse Valley conservation bank is an 89-ha (220-ac) parcel owned by Iron County (Service 2010, p. 1.9-5). Other conservation banks are in the initial stages of development (Service 2010, p. 1.9-5). Our Draft Revised Recovery Plan sets a goal of protecting 2,023 ha (5,000 ac) of occupied habitat in conservation banks within each recovery unit (Service 2010, p. 3.1-6). The SITLA and Little Horse Valley conservation banks alone represent 15 percent and 4 percent, respectively, of the protected habitat acreage goal in the Awapa and West Desert recovery units.
The Petitioners assert there is a lack of agency personnel and resources to implement the (1991) Recovery Plan and the Interim Conservation Strategy (Forest Guardians
Overall, the Utah Prairie Dog Recovery Plan, and actions within the plan, are not contributing to declines of the Utah prairie dog. If anything, the 1991 Recovery Plan, Interim Conservation Strategy, and 2010 Draft Revised Recovery Plan show a clear progression in our understanding of Utah prairie dog ecology and our ability to address threats to the species. For example, we have improved in our understanding and ability to manage plague outbreaks. We continue to improve translocation techniques and success rates. In addition, we have increased our efforts to work with private landowners to conserve Utah prairie dog habitats. The species' long-term population trend is stable to increasing, indicating that recovery efforts by all of our partners are working to achieve the criteria set forth in the recovery plans.
The Petitioners contend that Federal land management policies facilitate Utah prairie dog habitat loss and degradation (Forest Guardians
Because the Utah prairie dog is already listed as threatened, the Federal land management agencies (
Similarly, we completed a programmatic consultation with APHIS-Wildlife Services under section 7 of the Act, to ensure that grasshopper control actions will not have adverse effects on listed species, including Utah prairie dogs. The consultation contains required conservation measures to protect the species, including a 1.0-mi (1.6-km) buffer zone around occupied Utah prairie dog habitat (USDA 2005, p. 12).
While the Petitioners also are concerned with APHIS-Wildlife Services' prairie dog control activities (Forest Guardians
The Petitioners are concerned that the Environmental Protection Agency's labeling for toxicants and fumigants is not adequate for Utah prairie dog protection (Forest Guardians
All Federal agencies are obligated by section 7(a)(1) of the Act to use their authorities to conserve and recover listed species. Because the Utah prairie dog is a threatened species, section 7(a)(1) of the Act is applicable. The BLM, USFS, and NPS are part of the Utah Prairie Dog Recovery Team and routinely conduct Utah prairie dog recovery efforts (see the “Recovery Plan and Interim Conservation Strategy” section above).
In summary, we agree that the Utah prairie dog is impacted by a variety of Federal land use activities, and that these are in part why the species is listed as threatened; however, as discussed in A. Present or Threatened Destruction, Modification, or
In our 2007 90-day finding, we discussed the Iron County HCP, the Garfield County HCP (never finalized), and an additional HCP (now called the Golf Course HCP) (finalized in 2007). In the section of this finding entitled A. Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range, we again conclude that the information regarding the effects of urban development and the associated HCPs does not indicate that uplisting to endangered may be warranted.
Federal regulatory mechanisms apply in whole or in part to threats described in the sections discussing Factors A, B, C, and E. We conclude in this finding that we do not have substantial information from the Petitioners or in our files that indicates that those threats, as managed under current regulatory mechanisms, rise to the level that places the species in current danger of extinction. We have supplemented this section with new information since our 2007 90-day finding, and our evaluation continues to support our conclusion. Therefore, we find that the information provided in the petition, as well as other information in our files, does not present substantial scientific or commercial information indicating that uplisting from threatened to endangered under the Act may be warranted due to inadequate regulatory mechanisms.
The Petitioners state that rodent control efforts, the Utah prairie dog translocation program, and drought present significant threats to Utah prairie dogs. The petition cites legal take under the special 4(d) rule (50 CFR 17.40(g)) and ongoing illegal poisoning and shooting as endangering the species (Forest Guardians
The threat addressed in the petition regarding the relationship of drought and livestock grazing regimes on Utah prairie dog habitat is discussed under A. Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range. We acknowledged that improper grazing can impact the species during drought conditions in site-specific areas, but the information presented by the Petitioners and in our files does not indicate that this warrants uplisting to endangered status. Illegal shooting is discussed under B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes. Legal take occurring in compliance with the special 4(d) rule (50 CFR 17.40(g)) is discussed under D. Inadequacy of Existing Regulatory Mechanisms. We concluded that these threats are all part of the reason that the species remains listed as threatened; however, none of these factors rise to the level that places the Utah prairie dog currently in danger of extinction (see “Livestock Grazing” under “A., Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range”; see “Illegal shooting” under “B., Overutilization for Commercial, Recreational, Scientific, or Educational Purposes”; and see “Special 4(d) Rule” under “D., Inadequacy of Existing Regulatory Mechanisms”).
The translocation program is discussed in the next several paragraphs, including additional information evaluated since our 2007 90-day finding. Translocation of Utah prairie dogs is used to increase the numbers of prairie dog colonies in new locations across the species' range. Translocation of Utah prairie dogs occurs within and between recovery units in part to address the species' limited levels of genetic diversity (Service 1991, p. 19; Roberts
We acknowledge that the translocation program was historically not as successful as predicted. As translocation methodology has improved (Jacquart
The Service's 2006 Recommended Translocation Procedures define specific procedures for locating translocation sites, preparing the sites, live trapping, handling, transporting, releasing, monitoring, and managing animals (Service 2010, Appendix D). For example, current translocation procedures include restrictions on the timing of movements for certain age and sex categories (
We conclude, based on the long-term stable-to-increasing Utah prairie dog rangewide population trends, that there is no indication that translocations have moved the species' trajectory toward endangerment, despite the mortality of individual animals. Overall, translocations have resulted in the establishment of new Utah prairie dog colonies on Federal lands. Translocations will continue to play an important role in recovery of the Utah prairie dog (Service 2010, p. 2.3-4). Thus, we find that the information provided in the petition, as well as other information in our files, does not present substantial scientific or commercial information indicating that uplisting from threatened to endangered under the Act may be warranted due to other natural or manmade factors affecting the species' continued existence.
In summary, we agree with the Petitioners' overall identification of threats to the Utah prairie dog. Our 2010 Draft Revised Recovery Plan identifies all of the threats raised by the petitioners, concluding that urbanization and plague remain the top-tier threats to the species (Service 2010, pp. 2.3-1 to 2.3-2). However, the petition does not present substantial information indicating that the level of threats to the species may place the Utah prairie dog in current danger of extinction. Long-term population trends since the downlisting of Utah prairie dog in 1984 remain stable to increasing, indicating that the threats, while they still exist, are not negatively changing the population trends. In addition, the species is already listed as threatened under the Act, and is already subject to, and receives protection from, the regulatory mechanisms of the Act. As stated in the “Background” section, a threatened species is defined as a species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The level of threats facing Utah prairie dogs indicates that the species should continue to be listed as threatened. This decision is consistent with our original “not substantial” determination when we first evaluated and presented our findings in 2007 (72 FR 7843).
On September 28, 2010, the U.S. District Court for the District of Columbia ordered the 2007 90-day finding to be vacated and remanded to the Service for two reasons:
(1) The Service failed to explain how the reduction in the Utah prairie dog's historical range did not indicate that reclassifying the species as endangered may be warranted, and failed to explain how the reduction in the Utah prairie dog's historical range does not constitute a “significant portion of the species' range.”
(2) The Service failed to explain whether the listing factors' cumulative effect indicates that reclassifying the Utah prairie dog as endangered may be warranted.
The following sections are incorporated into this 90-day finding in order to comply with the Court's order. Below we explain our listing process, outline the information provided in the petition, evaluate the information in the petition and available in our files, discuss our interpretation of both “significant portion of the range” and “cumulative effect,” and summarize our findings on these topics.
Section 4(b)(3)(A) of the Act (16 U.S.C. 1531
Section 4(b)(3)(B) of the Act requires that, for any petition that is found to contain substantial scientific or commercial information that listing or reclassifying the species may be warranted, we conduct a status review and make a finding within 12 months of the date of receipt of the petition. In the 12-month finding, we determine whether the petitioned action is: (1) Not warranted, (2) warranted, or (3) warranted but precluded by other pending proposals to determine whether species are threatened or endangered, and expeditious progress is being made to add or remove qualified species from the Federal Lists of Endangered and Threatened Wildlife and Plants. We must publish these 12-month findings in the
At the 12-month finding stage, we consider the five factors in assessing whether a petitioned entity is threatened or endangered throughout all of its range. If we determine that the petitioned entity does not meet the definition of a threatened or endangered species throughout all of its range, we must next consider in the 12-month finding whether there are any significant portions of the range where the petitioned entity is in danger of extinction or is likely to become endangered in the foreseeable future.
A portion of a species' range is significant if it is part of the current range of the species and it contributes substantially to the representation, resiliency, or redundancy of the species. The contribution must be at a level such that its loss would result in a decrease in the ability to conserve the species.
In determining whether a species is threatened or endangered in a significant portion of its range, we first identify any portions of the current range of the species that warrant further consideration. The range of a species can theoretically be divided into portions an infinite number of ways. However, there is no purpose to analyzing portions of the range that are not reasonably likely to be significant and threatened or endangered. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that: (1) The portions may be significant and (2) the species may be currently in danger of extinction. In practice, a key part of this analysis is whether the threats are geographically concentrated in some way. If the threats to the species are essentially uniform throughout its range, no portion is likely to warrant further consideration.
If we identify portions that warrant further consideration, we then determine whether the species is threatened or endangered in these portions of its range. Depending on the biology of the species, its range, and the threats it faces, the Service may address either the significance question or the status question first. Thus, if the Service considers significance first and determines that a portion of the range is not significant, the Service need not determine whether the species is threatened or endangered there. Likewise, if the Service considers status first and determines that the species is not threatened or endangered in a portion of its range, the Service need not determine if that portion is significant.
The above description outlines our usual process for considering significant portions of the range in 12-month findings. To comply with the Court's order to explain both how the reduction in the Utah prairie dog's historical range does not constitute a “significant portion of the species” range, and how the reduction in the Utah prairie dog's historical range does not indicate that reclassifying the species as endangered may be warranted, we include the following evaluation.
The Petitioners assert that the Utah prairie dog should be reclassified as endangered within its historical range (Forest Guardians
When analyzing whether a portion of a species' range is significant, we examine the current status of a species, which necessitates examining the species in its current range. Lost historical range, by itself, cannot comprise a significant portion of a species' range as we define it (above) based on our current practice, but is relevant to the analysis of the current and future viability of the species. Therefore, we cannot list a species based merely on the fact that it has lost historical range (however large that loss might be). However, the effect of lost historical range on the viability of the species could potentially prompt us to list a species because the loss of historical range has made the species vulnerable to the point that the entire species is at risk of extinction. In this case, we are not considering listing (or reclassifying) a species based on whether or not it is “endangered” or “threatened” in its lost historical range, but based on whether it is “endangered” or “threatened” throughout its current range because that loss of historical range is so substantial that it undermines the viability of the species as it exists today.
We acknowledge that historical Utah prairie dog habitat was lost; this factor was considered in our May 29, 1984, reclassification of the species from endangered to threatened (49 FR 22330) and in the Draft Revised Recovery Plan (Service 2010, p. 1.3-1). The primary reason for the reduction in historical range was widespread Utah prairie dog poisoning and shooting campaigns (Service 2010, p. 1.3-1); however, these poisoning campaigns are no longer active.
Today, although the species' range is reduced from historical times, the species' long-term (since 1976) population trend is considered stable to increasing (Figure 1) (UDWR 2010a, entire). Thus, we conclude that the viability of the remaining population is not compromised to the point that the species is currently in danger of extinction.
Both the 1991 Recovery Plan and the Draft Revised Recovery Plan for Utah prairie dog support this justification (Service 2010, pp. 3.2-7 to 3.2-8). In the Draft Revised Recovery Plan, we considered the species' historical range, current range, and recovery needs. Our designation of three recovery units within the species' current range is based on the conservation concepts of representation, redundancy, and resiliency (Service 2010, pp. 3.2-7 to 3.2-8). These recovery units are individually necessary to conserve the genetic, demographic, and ecological diversity necessary for the long-term sustainability of Utah prairie dogs.
However, neither the 1991 Recovery Plan nor the Draft Revised Recovery Plan indicates that achieving Utah prairie dog recovery will require their lost historical range (
In summary, the U.S. District Court for the District of Columbia asked us to explain how the reduction in the Utah prairie dog's historical range does not constitute a “significant portion of the species' range,” and how the reduction in the Utah prairie dog's historical range does not indicate that reclassifying the species as endangered may be warranted. As discussed above, for the purpose of giving meaning to “significant portion of the range” in the context of a listing determination, we consider a portion of the species range to be significant if it is part of the current range of the species and it contributes substantially to the representation, resiliency, or redundancy of the species. The Utah prairie dog's lost historical range is not a portion of the species' current range, does not describe the status of the species where and as it exists at the time of our listing determination, and, as such, does not contribute to the representation, resiliency, and redundancy of the species that we consider when making a listing determination. Therefore, the Utah prairie dog's lost historical range does not constitute a “significant portion of the range.” Further, as previously explained, we have determined that the reduction in the Utah prairie dog's historical range does not indicate that reclassifying the species as endangered may be warranted, because we believe that the effects of the loss of historical range of the species does not place it in danger of extinction such that reclassifying the Utah prairie dog from threatened to endangered may be warranted.
The Petitioners assert that Utah prairie dog viability is cumulatively impacted by all five of the listing factors. They state that activities such as destruction and degradation of private and public lands, inadequate habitat conservation planning, illegal shooting and poisoning, an ineffective translocation program, and plague cumulatively impact Utah prairie dog persistence and, therefore, necessitate the reclassification of the species from threatened to endangered (Forest Guardians
We acknowledge that the Utah prairie dog is threatened by several factors, most notably habitat loss and degradation from urbanization, and plague (Service 2010, p. 1.8-3). Ongoing threats, as described in the discussion of Factors A through E, include livestock grazing, road construction, OHV and recreational use, habitat loss from agricultural and urban land conversions, illegal shooting, and plague. The species is listed as threatened because of these factors.
Throughout this finding, we clearly identified the effects of each of these factors to the Utah prairie dog. In many cases, we identified that the effects are often localized to specific areas within the species' range. For example, the threat of urbanization is greatest in the West Desert recovery unit (see “Habitat Loss from Agricultural and Urban Land Conversion” under “A., Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range”); albeit it is one of the largest overall threats to the species. Livestock grazing can be a threat to the species in site-specific areas where improper grazing negatively affects habitat conditions (see “Livestock Grazing” under “A., Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range”). Road construction, OHV use, and recreation may have effects to individuals or colonies that occur adjacent to the roadways, trails, or play areas; however, these are localized areas and do not result in population-level effects (see “Road Construction, Off-Highway Vehicle Use, and Recreation” under “A., Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range”). Furthermore, there is an increased planning effort on Federal lands toward directing these activities away from Utah prairie dog habitats (Service 2010, p. 1.7-4). Existing and anticipated oil and gas development occurs on only a small percentage of the species habitat, and even then effects are minimized by Federal minimization and mitigation requirements that avoid impacts to suitable prairie dog habitats (see “Oil, Gas, and Mineral Development” under “A., Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range”). Illegal shooting occurs in some instances, but we have only documented isolated incidents. Illegal shooting is not widespread across the species' range (see “B., Overutilization for Commercial, Recreational, Scientific, or Educational Purposes”). Similarly, predation is a natural occurrence in Utah prairie dog colonies. Effects are normally realized in only isolated instances at highly fragmented colonies or at new translocation sites (see “C., Disease or Predation”).
We determined that none of these threats, by themselves, act to place the species in current danger of extinction. Although most of the threats we analyzed have localized distributions, it is possible that more than one threat may act together to cause the local reduction or extirpation of a colony. However, at a rangewide level, Utah prairie dog population trends are stable to increasing, indicating that the factors identified above, both individually and cumulatively, have no broad-scale effects that threaten the species to the extent that it is currently in danger of extinction.
Plague occurs across the species' entire range, and could certainly act cumulatively with other threat factors to cause individual colonies to be reduced in size or extirpated (see “C., Disease or Predation”). For example, if habitat is degraded from overgrazing or wildfire, it may hinder the ability of prairie dogs to reestablish a colony that is reduced or eliminated by plague.
However, despite the fact that plague and the other threats to the species have occurred for decades, and sometimes act cumulatively to affect individual colonies or complexes, the population trend of the Utah prairie dog remains stable to increasing across the species' range. Therefore, we conclude that the cumulative effects of these factors do not threaten the species to the extent that reclassifying the species from threatened to endangered may be warranted.
On the basis of our determination under section 4(b)(3)(A) of the Act, we conclude that the petition does not present substantial scientific or commercial information to indicate that reclassifying the Utah prairie dog (
A complete list of references cited is available on the Internet at
The primary authors of this document are the staff members of the Utah Ecological Services Field Office (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Proposed rule; revision and reopening of comment period.
We, the U.S. Fish and Wildlife Service, announce the
We will consider public comments received on or before July 5, 2011. Comments must be received by 11:59 p.m. Eastern Time on the closing date. Any comments that we receive after the closing date may not be considered in the final decision on this action.
You may submit comments by one of the following methods:
•
•
We will post all comments on
Susan Moore, Field Supervisor, or Karen Leyse, Listing Coordinator, U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room W-2605, Sacramento, CA 95825; telephone 916-414-6600; facsimile 916-414-6713. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.
We intend that any final action resulting from this revised proposed rule will be based on the best scientific data available and will be as accurate and as effective as possible. We will accept written comments and information during this reopened comment period on our amended proposed designation of critical habitat for the Sonoma County Distinct Population Segment (Sonoma DPS) of the California tiger salamander that was published in the
If you submitted comments or information on the proposed rule or revised proposed rule (74 FR 41662; August 18, 2009, or 76 FR 2863; January 18, 2011) during any of the previous comment periods, please do not resubmit them. These comments are included in the public record for this rulemaking, and we will fully consider them in the preparation of our final determination. You may submit your comments and materials concerning this revised proposed rule, the DEA associated with the revised proposed critical habitat designation, and the amended required determinations by one of the methods listed in
If you submit a comment via
Comments and materials we receive, as well as supporting documentation used to prepare this notice, will be available for public inspection at
It is our intent to discuss only those topics directly relevant to the designation of critical habitat in this revised proposed rule. Additional background information can be found in the previously proposed revised critical habitat notice (76 FR 2863; January 18, 2011). Based on peer review information, we now propose a revision to the proposed critical habitat unit for the Sonoma County DPS of the California tiger salamander; accordingly, approximately 55,800 acres (ac) (22,580 hectares (ha)) in Sonoma County, California, meet the definition of critical habitat. The proposed revision adds approximately 4,945 ac (2,001 ha) to the proposed designation.
In this notice, we are revising the proposed unit (Santa Rosa Plain Unit), as described in the January 18, 2011 (76 FR 2863), proposed rule based on peer review and other information submitted in the previous public comment period. The information noted that there are three known breeding sites for the Sonoma County DPS of the California tiger salamander in the Roblar Road area. The peer reviewer stated that aerial photographs were reviewed and reconnaissance visits to the area were performed. The peer reviewer commented that the Roblar Road area likely consists of a California tiger salamander metapopulation with multiple known breeding sites. The peer reviewer recommended that we include the area within a minimum of 1.3 miles (mi) (2 kilometers (km)) from each of the three Roblar breeding sites as critical habitat. The 1.3-mi (2-km) distance is based on observations of California tiger salamanders from the nearest breeding ponds (Sweet 1998).
The Roblar Road area contains the physical and biological features essential to the conservation of the species, and these features may require special management considerations or
The proposed addition totals approximately 4,945 ac (2,001 ha). Table 1 below shows the approximate area and landownership within the unit. We are revising the final economic analysis (FEA) to include this additional area in the analysis, utilizing the same methodology to estimate economic impacts employed in the DEA. The FEA will contain an addendum explaining these anticipated economic costs and impacts.
In summary, the purpose of this revision to the proposed critical habitat is to better delineate the areas that contain the physical or biological features essential to the conservation of the species and that meet the definition of critical habitat for the California tiger salamander in Sonoma County. This revision is based on recent documentation of adult California tiger salamanders and known breeding ponds in the vicinity of Roblar Road.
The primary authors of this notice are the staff members of the Sacramento Fish and Wildlife Office (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to further amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as proposed to be amended at 74 FR 41662, August 18, 2009, as follows:
1. The authority citation for part 17 continues to read as follows:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Critical habitat for the California tiger salamander
(d)
(53) * * *
(i) Standing bodies of fresh water (including natural and manmade (e.g., stock) ponds, vernal pools, and other ephemeral or permanent water bodies) that typically support inundation during winter and early spring and hold water for a minimum of 12 consecutive weeks in a year of average rainfall.
(56) Santa Rosa Plain Unit, Sonoma County, California.
(i) [Reserved for textual description of the Santa Rosa Plain Unit, Sonoma County, California.]
(ii)
National Marine Fisheries Service (NMFS), National Oceanic and AtmosphericAdministration (NOAA), Commerce.
Proposed rule; request for comments.
The National Marine Fisheries Service (NMFS) proposes to require replacement of currently required Mobile Transmitting Unit (MTU) Vessel Monitoring System (VMS) units with Enhanced Mobile Transmitting Unit (E-MTU) VMS units in Atlantic HMS fisheries; implement a declaration system that requires vessels to declare target fishery and gear type(s) possessed on board; and require that a qualified marine electrician install all E-MTU VMS units. This proposed rulemaking would remove dated MTU VMS units from service in Atlantic HMS fisheries, make Atlantic HMS VMS requirements consistent with other VMS-monitored Atlantic fisheries, provide the National Marine Fisheries Service Office of Law Enforcement (NMFS Enforcement) with enhanced communication with HMS vessels at sea. This rule would affect all HMS pelagic longline (PLL), bottom longline (BLL), and shark gillnet fishermen who
Comments on this proposed rule must be submitted by August 1, 2011. NMFS will hold three public hearings for this proposed rule in July 2011. For specific dates and times, see the
The public hearings will be held in Florida, Louisiana, and New Jersey. For specific locations see the
You may submit comments, identified by 0648-BA64, by any one of the following methods:
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•
•
Instructions: All comments received are part of the public record and will generally be posted to
NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to the Atlantic Highly Migratory Species Management Division and by e-mail to
Greg Fairclough, (phone: 727-824-5399, fax: 727-824-5398) or Michael Clark (phone: 301-713-2347, fax: 301-713-1917).
Copies of this proposed rule and related documents, including the Regulatory Impact Review and Initial Regulatory Flexibility Analysis, can be obtained by writing to the HMS Management Division, 1315 East-West Highway, Silver Spring, MD 20910, visiting the HMS Web site at
Atlantic HMS are managed under the dual authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) and the Atlantic Tunas Conservation Act (ATCA). Under the MSA, NMFS must ensure consistency with the National Standards and manage fisheries to maintain optimum yield, rebuild overfished fisheries, and prevent overfishing. Under ATCA, the Secretary of Commerce is required to promulgate regulations, as necessary and appropriate, to implement measures adopted by the International Commission for the Conservation of Atlantic Tunas (ICCAT). The implementing regulations for Atlantic HMS are at 50 CFR part 635.
Maintaining NMFS's VMS monitoring program ensures compliance with both international and domestic requirements while facilitating enforcement of Atlantic HMS fisheries regulations. As a Contracting Party of ICCAT, the United States is required to collect biological statistics for research purposes (fishing effort and catch) and to implement, maintain, and monitor a viable VMS program for vessels in certain Atlantic HMS fisheries. Requirements to use VMS in the PLL fishery were implemented (June 25, 2003, 68 FR 37772) prior to ICCAT Recommendation's (03-14 and 04-11) that concern VMS usage in the convention area.
In addition, NMFS issued a rule on December 24, 2003 (68 FR 74746), which required VMS operation for vessels with BLL gear onboard between 33°00′ N. latitude and 36°30′ N. latitude to ensure compliance with the mid-Atlantic shark closed area. This same rule extended VMS requirements for shark gillnet vessels operating during the right whale calving season. This rule was implemented in December 2003 for purposes of domestic Atlantic shark management.
Properly functioning MTU VMS units aid NMFS enforcement agents in monitoring and enforcing closed or restricted areas implemented to reduce bycatch of undersized swordfish, sharks, sea turtles, and other species necessary to comply with the Marine Mammal Protection Act (MMPA), Endangered Species Act (ESA), and National Standard 9 (bycatch and bycatch mortality reduction) of the MSA. There are numerous areas closed to fishing with PLL and BLL gear. Additionally, the location of all shark gillnet vessels is monitored using VMS between November 15 and April 15 to protect right whales consistent with legal requirements. NMFS has implemented complementary regulations enforcing closed areas that were created by the Gulf of Mexico, Caribbean, and South Atlantic Fishery Management Councils. The effectiveness of traditional methods of monitoring and surveillance, such as vessel and aerial patrols, is increased tremendously through the addition of VMS—particularly where large geographic areas are involved. VMS has been required in various HMS fisheries since 2003.
The MTU VMS unit is currently required to report positions on an hourly basis when HMS fishing vessels carrying PLL, BLL, or shark gillnet gear are away from port. The MTU VMS units report vessel position only, and, in some instances, do not even indicate whether the unit is on and functioning properly. The MTU VMS unit technology is dated, and NMFS enforcement has reported that these units have failed to report while vessels are at sea. NMFS enforcement agents have also reported difficulty communicating with vessels when needed, such as when closed areas change due to an emergency rule. The newer E-MTU VMS units use more recent technology that, in addition to reporting vessel position, allows for two-way communication. By requiring that E-MTU VMS units be professionally installed and used to replace the dated MTU VMS units, NMFS will ensure that newer, more reliable, technology is in use, improve fisheries monitoring and enforcement of regulations, and provide NMFS enforcement agents with the ability to communicate directly with vessels at sea via electronic messaging and other means. With this newer technology, NMFS enforcement agents could: notify vessel operators of emergency changes to closed areas; provide notice of fishery closures in real time; inform operators of environmental disasters (oil rig fires/oil spills); send notice of dangerous weather; and receive distress or emergency transmissions.
NMFS is also proposing that, two hours prior to leaving port, fishermen provide NMFS enforcement with notice of the beginning of a fishing trip and a declaration of the target fishery and gear onboard. In addition, this proposed rule would require vessel operators to provide a minimum of three hours' advance notice of landing. Currently, vessel operators are required to turn on the VMS unit two hours before leaving port. Under this proposed rule, vessel
Any new declaration system would be compatible with the capabilities of newly required E-MTU VMS units and consistent with declaration protocols currently employed in Council-managed fisheries. Additionally, the requirement to notify NMFS enforcement at least three hours prior to returning to port provides notification that fishing activities are being completed, gear is no longer being deployed, and the vessel is transiting back to port.
Additionally, vessels with E-MTU VMS units would be able to communicate through electronic messages with shore-based fishery personnel, which could allow fishery participants to: Communicate directly with NMFS enforcement in the case of a power disruption; download updated E-MTU software without removal of the device; communicate with manufacturers to remedy malfunctions; receive required software upgrades with little interference; communicate with vessel owners and fish houses; and send distress calls to monitoring companies in the event of an emergency. Although some of these features are potentially useful functions, they are not the primary purpose of VMS and, it is important that fishermen not see them as a substitute for required safety equipment such as a properly installed and functioning Emergency Position Indicating Radio Beacon (EPIRB).
Currently, an installation and activation checklist must be submitted by the vessel owner to NMFS enforcement after installation of a VMS unit. This proposed rulemaking would require that this checklist be filled out and signed by a qualified marine electrician and returned to NMFS enforcement by the vessel owner in order to demonstrate that the unit was installed properly. The installation and activation checklist is available from NMFS.
On January 31, 2008, NMFS published in the
Reimbursement funds are available for participants upgrading to E-MTU VMS units in HMS fisheries, subject to limitations. Reimbursement funds will be distributed on a first come, first served basis. Furthermore, individuals that have previously received reimbursement funds for an E-MTU VMS unit required in another fishery would not be eligible for additional funds.
NMFS is requesting comments on any of the measures or analyses described in this proposed rule. Furthermore, NMFS also requests comments related to the potential economic impacts of this proposed action, including:
1. A delayed implementation date or date by which vessel owners would be required to start using E-MTU VMS units to provide participants with ample opportunity to procure a unit and have it installed while still having the opportunity to take advantage of reimbursement funds. Currently, NMFS is considering requiring that vessel owners have an E-MTU VMS unit installed and operational within 90 days of publication of the final rule.
2. The time and costs associated with having the E-MTU VMS units installed by a qualified marine electrician.
3. The advance notice timeframes associated with the proposed hail-out and hail-in requirements (
Comments on this proposed rule may be submitted via
The NMFS Assistant Administrator has determined that this proposed rule is consistent with the 2006 Consolidated HMS Fishery Management Plan and its amendments, the MSA and National Standards, and other applicable law, subject to further consideration after public comment.
This proposed rule would modify a collection-of-information requirement associated with VMS use in Atlantic HMS fisheries subject to the Paperwork Reduction Act (PRA), and that has been approved by the Office of Management and Budget (OMB) under control number (0648-0372). The proposed modifications are subject to review and
Public comment is sought regarding the estimated burden hours associated with installation of the new E-MTU VMS units (4 hours per vessel). Furthermore, comments are also sought concerning whether this proposed collection of information is necessary for the proper performance of the functions of NMFS, including whether the information would have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to Greg Fairclough, the Highly Migratory Species Management Division, at the
Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
Environmental impacts are not expected and the action is within the scope of that previously analyzed when existing VMS requirements were implemented. This action would not directly affect fishing effort, quotas, fishing gear, authorized species, interactions with threatened or endangered species, or other relevant parameters.
NMFS has prepared an Initial Regulatory Flexibility Analysis (IRFA), as required by 5 U.S.C. 603 of the Regulatory Flexibility Act, to analyze the economic impacts that this proposed rule could have on small entities. A description of the proposed action, why it is being considered, and the legal basis for this proposed action are contained in the preamble to this proposed rule. A summary of the analysis follows. A copy of the complete analysis is available from NMFS (see
Section 603(b)(1) of the Regulatory Flexibility Act requires that the Agency describe the reasons the action is being considered. The purpose of this proposed rulemaking is, consistent with the Magnuson-Stevens Act and the 2006 Consolidated HMS FMP and its amendments, to aid NMFS in monitoring and enforcing fisheries regulations, including those implemented at 50 CFR part 635 pertaining to HMS. Requiring that an E-MTU VMS unit be installed by a qualified marine electrician and implementing a declaration system would provide NMFS enforcement with improved communication capabilities with vessels at sea and fishing for HMS. The declaration system would also provide valuable information concerning target species and gear possessed onboard vessels to ensure enforcement of closed or restricted areas and other regulations.
Section 603(b)(2) of the Regulatory Flexibility Act requires a succinct statement of the objectives of, and legal basis for, the proposed rule. The objectives of this proposed rulemaking are to consider changes to the HMS regulations at 50 CFR part 635 requiring the use of VMS in Atlantic HMS fisheries. Requiring E-MTU VMS units in Atlantic HMS fisheries would represent a technological improvement over the MTU VMS units currently in use. By removing dated MTU VMS units from HMS fishing vessels and requiring that E-MTU VMS units be professionally installed, NMFS would improve fisheries monitoring and enforcement of regulations and provide NMFS the ability to communicate directly with individual vessels at sea via electronic messaging and other means.
Under 5 U.S.C. 603 (b)(3), Federal agencies must provide an estimate of the number of small entities to which the rule would apply. The Small Business Administration (SBA) standards for a “small” versus “large” business entity are entities that have average annual receipts less than $4.0 million for fish-harvesting; average annual receipts less than $6.5 million for charter/party boats; 100 or fewer employees for wholesale dealers; or 500 or fewer employees for seafood processors. Under these standards, NMFS considers all HMS permit holders subject to this rulemaking to be small entities. NMFS estimates that this proposed rule would require 329 vessel owners deploying either PLL, BLL, or gillnet gear in HMS fisheries to have an E-MTU VMS unit installed by a qualified marine electrician. All of these vessel owners are considered small entities and are already required to have MTU VMS units. Depending on the fishing gear possessed on board, vessels would continue to use VMS units when away from port to provide location reports consistent with existing regulations. These vessels would also be required to declare target species and gear types possessed on board to NMFS enforcement prior to leaving port and then provide NMFS enforcement advanced notice of landing. The fishery declaration and return reports must be sent via an E-MTU VMS unit.
This proposed rule contains some modifications to existing reporting, recordkeeping, or other compliance requirements (5 U.S.C. 603 (b)(4)). This proposed rule would not conflict, duplicate, or overlap with other relevant Federal rules (5 U.S.C. 603(b)(5)). Fishermen, dealers, and managers in these fisheries must comply with a number of international agreements, domestic laws, and other FMPs. These include, but are not limited to, the MSA, ATCA, the High Seas Fishing Compliance Act, the Marine Mammal Protection Act, the Endangered Species Act, the National Environmental Policy Act, and the Coastal Zone Management Act. NMFS does not believe that the new regulations proposed to be implemented would duplicate, overlap, or conflict with any relevant regulations, Federal or otherwise.
One of the requirements of an IRFA is to describe any alternatives to the proposed rule which accomplish the stated objectives and which minimize any significant economic impacts. The Regulatory Flexibility Act (5 U.S.C. 603
1. Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;
2. Clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities;
3. Use of performance rather than design standards; and
4. Exemptions from coverage of the rule for small entities.
In order to meet the objectives of this proposed rule, consistent with the Magnuson-Stevens Act, NMFS cannot exempt small entities or change the reporting requirements only for small entities because all of the participants in Atlantic HMS fisheries are considered small entities. The new proposed requirements to have an updated E-MTU VMS unit installed by a qualified marine technician and expand reporting requirements to include a declaration system is expected to improve the reliability of VMS transmissions and provide NMFS enforcement with additional information to accurately monitor fishing activities. NMFS does not specify a particular manufacturer or model of VMS unit that vessel owners would need to procure to comply with the proposed action. There are several models available that meet the specifications described in the latest type approval notice (January 31, 2008; 73 FR 5813). NMFS performance standards are outlined in type approval notices published periodically by NMFS.
NMFS is considering two alternatives in compliance with the Initial Regulatory Flexibility Act. Alternative one, the no action alternative, would maintain the existing VMS requirements in Atlantic HMS fisheries. Alternative two would mandate that Atlantic HMS vessels that are required to use VMS replace their MTU VMS unit with an E-MTU VMS and have the new unit installed by a qualified marine electrician. This alternative would also implement a fishery declaration system where vessels would declare their target species and gear type (s) possessed onboard, as well as require vessels to provide advanced notice of departure and landing. Alternative two is the preferred alternative.
Under the no action alternative, vessels that are required to use VMS would be able to continue to use the MTU VMS units currently being employed in the PLL, BLL, and gillnet fisheries or access reimbursement funds ($3,100 per VMS unit) to replace these units with E-MTU VMS units. The decision to replace existing units with E-MTU VMS units would be at the discretion of individual vessel owners. Costs for individual E-MTU VMS units that meet the type approval specifications start at approximately $3,100 per unit depending on the manufacturer, model, and additional features of the unit. In the event that existing units failed beyond repair, E-MTU VMS units would need to be installed, and owners would be eligible for reimbursement funds ($3,100 per VMS unit) to offset the initial costs of the unit. NMFS expects that any vessel owner who applies for reimbursement funds will receive those funds, however reimbursement funds are not guaranteed and are subject to limitations and distributed on a first come, first served basis. In the event of necessary replacement, the E-MTU VMS units would need to be procured by vessel owners before returning to fishing activities, consistent with existing regulations, depending on the gear possessed onboard the vessel, timing, and location of the fishing activity. This alternative would not require that the new units be installed by a qualified marine electrician, rather, the new units could be installed by vessel owners/operators and an installation checklist would need to be completed and sent to NMFS enforcement per existing requirements.
Existing units are not capable of sending or receiving electronic messages, therefore, vessel owners or operators would not be required to provide NMFS enforcement with information concerning target species and gear possessed on board prior to leaving port to engage in fishing activities. Furthermore, vessel owners or operators would not be required to provide NMFS enforcement with advanced notice of departure and landing. Vessels would still be required to provide hourly position reports, starting two hours before leaving port, when away from port. It is estimated that these reports would continue to cost $1.00 per day assuming 24 reports are sent. Maintenance costs for these units are estimated at $500 per vessel per year. Some vessels may be committed to long-term service contracts with communication service providers and maintaining the status quo would not require vessels to break these contracts, avoiding any early termination fees.
Under the preferred alternative, participants would be required to install E-MTU VMS units, but they would be able to access reimbursement funds ($3,100 per VMS unit) to offset the initial costs of the units. Reimbursement funds would be subject to limitations and distributed on a first come, first served basis. Furthermore, individuals that have previously received reimbursement funds for an E-MTU VMS unit required in another fishery would not be eligible for additional funds. The proposed action would also require that the units are installed by a qualified marine electrician ($200 per installation) to ensure that units are installed and operating properly to avoid transmission failures that may occur when vessels are away from port and subject to VMS requirements. Marine electricians are capable of providing information on E-MTU VMS use and troubleshooting during the installation process. NMFS is also considering a delayed implementation date of 90 days after the final rule publishes to allow vessel owners time to procure and have an E-MTU VMS unit installed by a qualified marine electrician and operational on their vessels, thereby avoiding any early termination fees that may incur. The exact cost of termination fees are difficult to calculate as the terms of service contracts vary according to service providers and are likely to be vessel specific. Finally, unlike the MTU VMS units, which could have maintenance costs of approximately $500 per year, E-MTU VMS units have very low to no maintenance costs.
Costs of compliance with the preferred alternative for vessel owners are estimated to be $3,771; $3,630; $3,537 per vessel for PLL, BLL, and shark gillnet vessels, respectively, in the first year (Table 1). These are the costs of compliance, pre-reimbursement. Reimbursement funds of $3,100 per VMS unit would reduce the costs to $546 per vessel, on average, across all fisheries. Costs in year two (and beyond) would be limited to the costs of sending/receiving declaration reports ($0.06 per report) and providing vessel location information on an hourly basis ($1.56 per vessel per day) and is estimated to be $471; $331; and $237 per vessel for PLL, BLL, and shark gillnet vessels respectively.
Table 1 summarizes some of the costs associated with the proposed rule. A description of the figures and calculations used in Table 1 is provided below the table.
There are benefits associated with the proposed action relative to the no-action alternative. Requiring that an E-MTU VMS unit be installed by a qualified marine electrician would improve the reliability of VMS data transmitted from HMS vessels. Implementing a declaration system would enhance NMFS communication with HMS vessels at sea and provide valuable information concerning target species and gear type(s) possessed onboard vessels to ensure sound enforcement of closed areas and other regulations. Furthermore, the delayed implementation date associated with the preferred alternative would allow more time for fishermen to make the transition to the new VMS units and a declaration system. NMFS is seeking comment from the public regarding the implementation date and costs for installation to ensure that economic impacts are accurate. One of the objectives of this proposed action is to modify the requirements in order to ensure that small entities affected can access the reimbursement funds and make the transition to E-MTU VMS gradually.
This proposed action does not contain regulatory provisions with federalism implications sufficient to warrant preparation of a Federalism Assessment under E.O. 13132.
Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties.
For the reasons set out in the preamble, 50 CFR part 635 is proposed to be amended as follows:
1. The authority citation for part 635 continues to read as follows:
16 U.S.C. 971
2. In § 635.69, paragraphs (a) introductory text, (d), (e), and (g) are revised to read as follows:
(a)
(d)
(1) Follow procedures indicated on a NMFS-approved installation and activation checklist for the applicable fishery, which is available from NMFS, Office of Enforcement, Southeast Region; and,
(2) Submit to NMFS, Office of Enforcement, Southeast Region, a
(3) Submit to NMFS, Office of Enforcement, Southeast Region, the checklist, completed by a qualified marine electrician, which is available from NMFS, Office of Enforcement, Southeast Region. Vessels fishing prior to NMFS' receipt of the completed checklist and compliance certification statement will be in violation of the VMS requirement.
(e)
(2) At least 2 hours prior to departure for each trip, a vessel owner or operator must report to NMFS any HMS fishery in which the vessel will participate on that trip and the specific type(s) of fishing gear, using NMFS-defined gear codes, that will be on board the vessel. If the vessel will be participating in multiple HMS fisheries, or multiple gears will be possessed on board the vessel, the vessel owner or operator must submit multiple electronic reports to NMFS. This information must be reported to NMFS using an attached VMS terminal.
(3) A vessel owner or operator must report advance notice of landing to NMFS. For the purposes of this paragraph, landing means to arrive at a dock, berth, beach, seawall, or ramp. The vessel owner or operator is responsible for ensuring that NMFS is contacted at least 3 hours in advance of landing. This information must be reported to NMFS using an attached VMS terminal.
(g)
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The potential benefit to the industry from these surveys is feedback to improve the program, laboratory services and informational products by gathering relevant and timely information and opinion on the content and method of program or service delivery.
Agricultural Marketing Service, USDA.
Notice.
This document amends the recommended manufacturing milk requirements (Recommended Requirements) by raising the maximum allowable somatic cell count in producer herd goat milk from 1,000,000 cells per milliliter to 1,500,000 cells per milliliter. This action was initiated at the request of the National Association of Dairy Regulatory Officials (NADRO) and was developed in cooperation with NADRO, dairy trade associations, and producer groups. This will ensure that goat milk can continue to be shipped and recognizes that goats have a need for different regulatory limits for somatic cells than cows.
Susan Sausville, Chief, Standardization Branch, Dairy Programs, AMS, USDA, telephone (202) 720-7473 or e-mail
Under the authority of the Agricultural Marketing Act of 1946, as amended (7 U.S.C. 1621-1627), the United States Department of Agriculture maintains a set of model regulations relating to quality and sanitation requirements for the production and processing of manufacturing grade milk. These Recommended Requirements are developed by AMS and recommended for adoption and enforcement by the various States that regulate manufacturing grade milk. The purpose of the model requirements is to promote
In consultation with representatives from NADRO, State regulatory agencies, FDA, and dairy industry trade associations, the Department prepared the Recommended Requirements to promote uniformity in State dairy laws and regulations for manufacturing grade milk. To accommodate changes that have occurred in the dairy industry, NADRO and various State officials have from time to time requested USDA to update the Recommended Requirements.
During its July 2009 annual meeting, NADRO passed a resolution requesting USDA to raise the maximum allowable somatic cell count for producer herd goat from 1,000,000 cells per milliliter to 1,500,000 cells per milliliter to provide consistency with the current requirements in place for Grade A producer herd goat milk. Due to inherent differences between cows and goats, goat milk with a somatic cell count of 1,500,000 million cells per milliliter can be produced from a healthy, non-mastitic udder and therefore, is quality milk. The need for a separate standard for goat milk was recognized by the National Conference on Interstate Milk Shipments (NCIMS) and was raised to 1,500,000 million cells per milliliter at their 2009 conference. This change will align the Recommended Requirements with the Grade A requirements for goat's milk. AMS reviewed this resolution and developed a draft that identified the changes associated with this request. This draft was provided to State regulatory officials and dairy trade association representatives for informal discussion prior to publication in the
The requirements of Executive Order 13132, Federalism, were considered in developing this notice, and it has been determined that this action does not have substantial effects on the States (the relationship between the National Government and the States or on the distribution of power and responsibilities among the various levels of government).
A Notice of Proposal to Change the document, “Milk for Manufacturing Purposes and Its Production and Processing; Recommended Requirements for Adoption by State Regulatory Agencies,” was published in the
Accordingly, the changes proposed in the Milk for Manufacturing Purposes and its Production and Processing; Recommended Requirements for Adoption by State Regulatory Agencies are incorporated in the revised Recommended Requirements.
The Recommended Requirements are available either from the above address or by accessing the information on the Internet at the following address:
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via e-mail at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Nicholas Fraser, OMB Desk Officer, fax number (202) 395-7258 or via e-mail at
A request has been submitted to the Foreign-Trade Zones Board (the Board) by the South Carolina State Ports Authority, grantee of FTZ 38, on behalf of BMW Manufacturing Co., LLC, (BMWMC), operator of Subzone 38A, BMWMC plant, Greer, South Carolina, requesting authority to expand BMWMC's existing scope of FTZ manufacturing authority to include additional production capacity. 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 15, 2011.
Subzone 38A was approved by the Board in 1994 with authority granted for
The applicant now requests that the production capacity under its existing scope of FTZ manufacturing authority be expanded to include up to an additional production of 131,000 vehicles per year, which would bring its total authorized output to 350,000 vehicles per year. The expanded operations will involve similar finished products and utilization of both foreign-sourced and domestic materials and components as under BMWMC's existing scope of FTZ authority.
Expanded FTZ procedures could continue to exempt BMWMC from customs duty payments on the foreign-origin components used in production for export (between 60 and 70% of shipments). On its domestic shipments, the company would be able to elect the duty rate that applies to finished passenger motor vehicles (2.5%) for the foreign-origin inputs noted above. Subzone status would further allow BMWMC to realize logistical benefits through the use of weekly customs entry procedures. Customs duties also could possibly be deferred or reduced on foreign status production equipment. BMWMC 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 22, 2011. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to September 6, 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
An application has been submitted to the Foreign-Trade Zones (FTZ) Board (the Board) by the County of Orange, New York, grantee of FTZ 37, requesting authority to reorganize its zone to expand its service area under the alternative site framework (ASF) adopted by the Board (74 FR 1170, 01/12/09 (correction 74 FR 3987, 01/22/09); 75 FR 71069-71070, 11/22/10). The ASF is an option for grantees for the establishment or reorganization of general-purpose zones and can permit significantly greater flexibility in the designation of new “usage-driven” FTZ sites for operators/users located within a grantee's “service area” in the context of the Board's standard 2,000-acre activation limit for a general-purpose zone project. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on June 15, 2011.
FTZ 37 was approved by the Board on May 4, 1978 (Board Order 130, 43 FR 20526, 05/12/78) and expanded on July 9, 1999 (Board Order 1044, 64 FR 38887, 07/20/99). FTZ 37 was reorganized under the ASF on May 13, 2010 (Board Order 1680, 75 FR 29727, 5/27/10).
The zone project currently has a service area that includes Orange County. The applicant is requesting authority to expand the service area of the zone to include Duchess County, as described in the application. If approved, the grantee would be able to serve sites throughout the expanded service area based on companies' needs for FTZ designation. The proposed expanded service area is adjacent to the New York/Newark Customs and Border Protection port of entry.
In accordance with the Board's regulations, Kathleen Boyce of the FTZ staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address listed below. The closing period for their receipt is August 22, 2011. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period (to September 6, 2011).
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
International Trade Administration, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general
Written comments must be submitted on or before August 22, 2011.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Christopher J. Kemp, Office of Foreign-Trade Zones, (202) 482-0862, or e-mail,
The Foreign-Trade Zone Application is the vehicle by which individual firms or organizations apply for foreign-trade zone (FTZ) status, for subzone status, manufacturing authority or for expansions and reorganizations of existing zones. The FTZ Act and Regulations require that an application with a description of the proposed project be made to the FTZ Board (19 U.S.C. 81b and 81f; 15 CFR 400.24-26) before a license can be issued or a zone can be expanded. The Act and Regulations require that applications contain detailed information on facilities, financing, operational plans, proposed manufacturing operations, need, and economic impact. Manufacturing activity in zones and subzones can involve issues related to domestic industry and trade policy impact. Such applications must include specific information on the customs-tariff related savings that result from zone procedures and the economic consequences of permitting such savings. The FTZ Board needs complete and accurate information on the proposed operation and its economic effects because the Act and Regulations authorize the Board to restrict or prohibit operations that are detrimental to the public interest.
U.S. firms or organizations submit applications in paper format along with an electronic copy to the Office of Foreign-Trade Zones.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Import Administration, International Trade Administration, Department of Commerce.
On August 6, 2010, the Department of Commerce (“the Department”) published the final results of the sunset reviews of the antidumping duty (“AD”) orders on certain hot-rolled flat-rolled carbon-quality steel products (“hot-rolled steel”) from Brazil and Japan, and on December 3, 2010, the final results of the sunset review of the countervailing duty (“CVD”) order on hot-rolled steel from Brazil. In the final results, the Department determined that revocation of these orders would be likely to lead to continuation or recurrence of dumping and subsidization, respectively. On June 6, 2011, the International Trade Commission (“ITC”) determined that revocation of these orders would not be likely to lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time. Therefore, the Department is revoking the AD orders on hot-rolled steel from Brazil and Japan and the CVD order on hot-rolled steel from Brazil.
Milton Koch or Dana Mermelstein, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-2584 or (202) 482-1391.
On April 1, 2010, the Department initiated the second sunset reviews of the AD orders on hot-rolled steel from Brazil and Japan and the CVD order on hot-rolled steel from Brazil in accordance with section 751(c) of the Tariff Act of 1930, as amended (“the Act”).
After receiving adequate responses from domestic and respondent interested parties, in accordance with 19 CFR 351.218(e)(1)(ii)(A), the Department conducted a full sunset review of the CVD order on hot-rolled steel from Brazil. The Department found that revocation of the CVD order would be likely to lead to a continuation or recurrence of subsidization, and notified the ITC of the net subsidy rates likely to prevail should the order be revoked.
On June 10, 2011, the ITC determined, pursuant to section 751(c) of the Act, that revocation of the AD orders on hot-rolled steel from Brazil and Japan and the CVD order on hot-rolled steel from Brazil would not be likely to lead to a continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time.
The products covered by the antidumping and countervailing duty orders are certain hot-rolled flat-rolled carbon-quality steel products of a rectangular shape, of a width of 0.5 inch or greater, neither clad, plated, nor coated with metal and whether or not painted, varnished, or coated with plastics or other non-metallic substances, in coils (whether or not in successively superimposed layers) regardless of thickness, and in straight lengths, of a thickness less than 4.75 mm and of a width measuring at least 10 times the thickness. Universal mill plate (
Specifically included in the scope are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (“IF”)) steels, high strength low alloy (“HSLA”) steels, and the substrate for motor lamination steels. IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum. The substrate for motor lamination steels contains micro-alloying levels of elements such as silicon and aluminum.
Steel products to be included in the scope of the orders, regardless of Harmonized Tariff Schedule of the United States (“HTSUS”) definitions, are products in which: (1) Iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent or less, by weight; and (3) none of the elements listed below exceeds the quantity, by weight, respectively indicated: 1.80 percent of manganese, or 1.50 percent of silicon, or 1.00 percent of copper, or 0.50 percent of aluminum, or 1.25 percent of chromium, or 0.30 percent of cobalt, or 0.40 percent of lead, or 1.25 percent of nickel, or 0.30 percent of tungsten, or 0.012 percent of boron, or 0.10 percent of molybdenum, or 0.10 percent of niobium, or 0.41 percent of titanium, or 0.15 percent of vanadium, or 0.15 percent of zirconium.
All products that meet the physical and chemical description provided above are within the scope of the orders unless otherwise excluded. The following products, by way of example, are outside and/or specifically excluded from the scope of the orders:
• Alloy hot-rolled steel products in which at least one of the chemical elements exceeds those listed above (including
• SAE/AISI grades of series 2300 and higher.
• Ball bearing steels, as defined in the HTSUS.
• Tool steels, as defined in the HTSUS.
• Silico-manganese (as defined in the HTSUS) or silicon electrical steel with a silicon level exceeding 1.50 percent.
• ASTM specifications A710 and A736.
• USS Abrasion-resistant steels (USS AR 400, USS AR 500).
• Hot-rolled steel coil which meets the following chemical, physical and mechanical specifications:
• Hot-rolled steel coil which meets the following chemical, physical and mechanical specifications:
• Hot-rolled steel coil which meets the following chemical, physical and mechanical specifications:
• Hot-rolled steel coil which meets the following chemical, physical and mechanical specifications:
• Hot-rolled dual phase steel, phase-hardened, primarily with a ferritic-martensitic microstructure, contains 0.9 percent up to and including 1.5 percent silicon by weight, further characterized by either (i) Tensile strength between 540 N/mm
• Hot-rolled bearing quality steel, SAE grade 1050, in coils, with an inclusion rating of 1.0 maximum per ASTM E 45, Method A, with excellent surface quality and chemistry restrictions as follows: 0.012 percent maximum phosphorus, 0.015 percent maximum sulfur, and 0.20 percent maximum residuals including 0.15 percent maximum chromium.
• Grade ASTM A570-50 hot-rolled steel sheet in coils or cut lengths, width of 74 inches (nominal, within ASTM tolerances), thickness of 11 gauge (0.119 inch nominal), mill edge and skin passed, with a minimum copper content of 0.20%.
The merchandise subject to the orders is classified in the HTSUS at subheadings: 7208.10.15.00, 7208.10.30.00, 7208.10.60.00, 7208.25.30.00, 7208.25.60.00, 7208.26.00.30, 7208.26.00.60, 7208.27.00.30, 7208.27.00.60, 7208.36.00.30, 7208.36.00.60, 7208.37.00.30, 7208.37.00.60, 7208.38.00.15, 7208.38.00.30, 7208.38.00.90, 7208.39.00.15, 7208.39.00.30, 7208.39.00.90, 7208.40.60.30, 7208.40.60.60, 7208.53.00.00, 7208.54.00.00, 7208.90.00.00, 7210.70.30.00, 7210.90.90.00, 7211.14.00.30, 7211.14.00.90, 7211.19.15.00, 7211.19.20.00, 7211.19.30.00, 7211.19.45.00, 7211.19.60.00, 7211.19.75.30, 7211.19.75.60, 7211.19.75.90, 7212.40.10.00, 7212.40.50.00, 7212.50.00.00.
Certain hot-rolled flat-rolled carbon-quality steel products are covered by the orders, including: vacuum degassed, fully stabilized; high strength low alloy; and the substrate for motor lamination steel may also enter under the following tariff numbers: 7225.11.00.00, 7225.19.00.00, 7225.30.30.50, 7225.30.70.00, 7225.40.70.00, 7225.99.00.90, 7226.11.10.00, 7226.11.90.30, 7226.11.90.60, 7226.19.10.00, 7226.19.90.00, 7226.91.50.00, 7226.91.70.00, 7226.91.80.00, and 7226.99.00.00. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise covered by the orders is dispositive.
As a result of the determination by the ITC that revocation of these AD and CVD orders is not likely to lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time, the Department is now revoking the AD orders on hot-rolled steel from Brazil and Japan and the CVD order on hot-rolled steel from Brazil, pursuant to section 751(d) of the Act.
The effective date of revocation is May 26, 2010, the fifth anniversary of the date of publication in the
Entries of subject merchandise prior to the effective date of revocation will continue to be subject to suspension of liquidation and AD and CVD deposit requirements. The Department will complete any pending administrative reviews of the orders and will conduct administrative reviews of subject merchandise entered prior to the effective date of revocation in response to appropriately filed requests for review.
This notice serves as a reminder to parties subject to the administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under the APO in accordance with 19 CFR 351.305. Timely written notification of return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply is a violation of the APO, which may be subject to sanctions.
This revocation pursuant to five-year (sunset) reviews and this notice are issued and published in accordance with sections 751(c), 751(d)(2), and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
On January 14, 2011, the Department of Commerce (the Department) published in the
Fred Baker, Scott Hoefke, or Robert James, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230;
On January 14, 2011, the Department published the preliminary results of administrative review of the antidumping duty order on hand trucks and certain parts thereof from the PRC. On February 3, 2011, Gleason Industrial Products, Inc., and Precision Products, Inc. (petitioners) and New-Tec Integration (Xiamen) Co., Ltd. (New-Tec) submitted additional surrogate value (SV) information. On February 14, 2011, New-Tec submitted rebuttal comments on the surrogate value information petitioners submitted on February 3. On February 17, 2011, petitioners submitted rebuttal comments on the surrogate value information New-Tec submitted on February 3, 2011. On February 28, 2011, New-Tec submitted factual information to rebut, clarify, or correct the factual information submitted by the petitioners on February 17, 2011.
In the preliminary results, the Department invited interested parties to submit case briefs within 30 days of publication of the preliminary results and rebuttal briefs within five days after the due date for filing case briefs.
On February 14, 2011, petitioners also submitted comments on the Department's preliminary intent to rescind the review with respect to Yangjiang Shunhe Industrial Co. (Yangjiang Shunhe). Also on February 14, 2011, petitioners requested the Department hold a public hearing to discuss the preliminary results. Petitioners withdrew their request for a hearing on March 9, 2011. Therefore, we did not hold a hearing.
All issues raised in the case and rebuttal briefs by parties to this review are addressed in the memorandum entitled, “Hand Trucks and Certain Parts Thereof From the People's Republic of China: Issues and Decision Memorandum for the Final Results of 2008-2009 Administrative Review,” which is dated concurrently with and adopted by this notice (Decision Memorandum). A list of the issues which parties raised, and to which we respond in the Decision Memorandum is attached to this notice as an Appendix. The Decision Memorandum is a public document, and is on file in the Central Records Unit (CRU), Main Commerce Building, Room 7046, and is accessible on the Department's Web site at
The period of review (POR) is December 31, 2008, through November 30, 2009.
The merchandise subject to this antidumping duty order consists of hand trucks manufactured from any material, whether assembled or unassembled, complete or incomplete, suitable for any use, and certain parts thereof, namely the vertical frame, the handling area and the projecting edges or toe plate, and any combination thereof. A complete or fully assembled hand truck is a hand-propelled barrow consisting of a vertically disposed frame having a handle or more than one handle at or near the upper section of the vertical frame; at least two wheels at or near the lower section of the vertical frame; and a horizontal projecting edge or edges, or toe plate, perpendicular or angled to the vertical frame, at or near the lower section of the vertical frame. The projecting edge or edges, or toe plate, slides under a load for purposes of lifting and/or moving the load.
That the vertical frame can be converted from a vertical setting to a horizontal setting, then operated in that horizontal setting as a platform, is not a basis for exclusion of the hand truck from the scope of this petition. That the vertical frame, handling area, wheels, projecting edges or other parts of the hand truck can be collapsed or folded is not a basis for exclusion of the hand truck from the scope of the petition. That other wheels may be connected to the vertical frame, handling area, projecting edges, or other parts of the hand truck, in addition to the two or more wheels located at or near the lower section of the vertical frame, is not a basis for exclusion of the hand truck from the scope of the petition. Finally, that the hand truck may exhibit physical characteristics in addition to the vertical frame, the handling area, the projecting edges or toe plate, and the two wheels at or near the lower section of the vertical frame, is not a basis for exclusion of the hand truck from the scope of the petition.
Examples of names commonly used to reference hand trucks are hand truck, convertible hand truck, appliance hand truck, cylinder hand truck, bag truck, dolly, or hand trolley. They are typically imported under heading 8716.80.50.10 of the Harmonized Tariff Schedule of the United States (HTSUS), although they may also be imported under heading 8716.80.50.90. Specific parts of a hand truck, namely the vertical frame, the handling area and the projecting edges or toe plate, or any combination thereof, are typically imported under heading 8716.90.50.60 of the HTSUS. Although the HTSUS subheadings are provided for convenience and customs purposes, the Department's written description of the scope is dispositive.
Excluded from the scope are small two-wheel or four-wheel utility carts specifically designed for carrying loads like personal bags or luggage in which the frame is made from telescoping tubular materials measuring less than
Based on a review of the record and comments received from parties regarding our
• We used the 2009-10 financial statement of Rexello Castors Private, Ltd., for calculating financial ratios;
• We revised our calculation of brokerage and handling to take into account the weight of the hand truck.
In our
In the
In accordance with section 776(b) of the Act, we determine that the use of AFA as the basis for the weighted-average dumping margin is appropriate for the PRC-wide entity. As explained in the
Because we have determined that Sunshine International, Zhejiang Yinmao, and Qingdao Huazhan are part of the PRC-wide entity, the PRC-wide entity is under review. Pursuant to section 776(a)(2)(A) and (C) of the Act, we find that Sunshine International, Zhejiang Yinmao, and Qingdao Huazhan failed to respond to the Department's questionnaires, withheld information requested by the Department, and impeded the conduct of this review. Accordingly, the Department continues to find that it is appropriate to base the dumping margin of the PRC-wide entity on the facts otherwise available on the record. Further, because the failure of Sunshine International, Zhejiang Yinmao, and Qingdao Huazhan to provide requested information constitutes circumstances under which it is reasonable to conclude that less than full cooperation has been shown, pursuant to section 776(b) of the Act, the Department has determined that, when selecting from among the facts otherwise available, an adverse inference is warranted with respect to the PRC-wide entity.
As AFA, we have assigned 383.60 percent to the PRC-wide entity. This rate was assigned in the less-than-fair-value investigation of this proceeding, and is the highest rate determined for any party in any segment of this proceeding. Furthermore, as required by section 776(c) of the Act, we corroborated this margin with respect to the PRC-wide entity, to the extent practicable. For a detailed explanation of how we corroborated this margin,
The Department has determined that the following margin exists for the period December 1, 2008, through November 30, 2009:
Consistent with these final results, and pursuant to section 751(a)(2)(B) of the Act and 19 CFR 351.212(b)(1), the Department will direct CBP to assess antidumping duties on all appropriate entries. The Department will issue appropriate assessment instructions to CBP 15 days after the date of publication of the final results of this review. Pursuant to 19 CFR 351.212(b)(1), we calculated importer-specific
The following cash deposit requirements, when imposed, will be effective upon publication of the final results of this review for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) The cash-deposit rate for each of the reviewed companies that received a separate rate in this review will be the rate listed in the final results of this review (except that if the rate for a particular company is
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. 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 also serves as a reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing this administrative review and notice in accordance with sections 751(a)(1) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
On December 15, 2010, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty order on certain circular welded non-alloy steel pipe from Mexico.
We determine that sales of subject merchandise have been made at less than normal value (NV). One of the companies, Ternium, refused to cooperate with the Department in this administrative review. We have calculated a dumping margin for Mueller. We determine that TUNA had no reviewable sales, shipments, or entries during the POR. The Department's review of import data supported TUNA's claim of no shipments during the POR (see “TUNA's No-Shipment Claim” section of this notice for further explanation).
As a result of our analysis of the comments received, these final results differ from the
Mark Flessner or Robert James, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-6312 and (202) 482-0649, respectively.
On December 15, 2010, the Department published in the
As noted in the
On December 7, 2010, the Department issued second supplemental section D questionnaires to Mueller, TUNA, and Ternium. On December 21, 2010, Ternium submitted its response to our second supplemental section D questionnaire (but we are not using a Ternium database for this final results calculation, nor did we use one for the post-preliminary margin calculation). On January 4, 2011, Mueller submitted its response to our second supplemental section D questionnaire (which contained its latest cost database). On January 4, 2011, TUNA submitted its response to our second supplemental section D questionnaire (but did not need to revise its database). Therefore, these final results are based on the same databases used for the post-preliminary calculation. (Note: Ternium is the successor-in-interest to HYLSA; it is referenced alternately by “Ternium,” by “HYLSA,” and by “Termex” in the body of the program.
On February 10, 2011, the Department released a post-preliminary calculation.
In response to the Department's invitation to comment on the preliminary results of this review, parties filed multiple case and rebuttal briefs. Respondent Mueller filed its case brief on February 25, 2011 (Mueller case brief). Petitioner United States Steel Coporation (U.S. Steel) also filed its case brief regarding TUNA on February 25, 2011 (U.S. Steel's TUNA case brief). In
In response to Mueller's case brief, the Department issued a letter to Mueller Comercial de Mexico, S. de R.L. de C.V. (Yohai Baisburd) entitled “Administrative Review of Certain Circular Welded Non-Alloy Steel Pipe from Mexico,” dated May 12, 2011, in which the Department invited Mueller to propose programming language with regard to weight-averaging certain costs of TUNA and TERNIUM. On May 13, 2011, Mueller submitted its proposed programming language.
The products covered by this order are circular welded non-alloy steel pipes and tubes, of circular cross-section, not more than 406.4 millimeters (16 inches) in outside diameter, regardless of wall thickness, surface finish (black, galvanized, or painted), or end finish (plain end, beveled end, threaded, or threaded and coupled). These pipes and tubes are generally known as standard pipes and tubes and are intended for the low pressure conveyance of water, steam, natural gas, and other liquids and gases in plumbing and heating systems, air conditioning units, automatic sprinkler systems, and other related uses, and generally meet ASTM A-53 specifications. Standard pipe may also be used for light load-bearing applications, such as for fence tubing, and as structural pipe tubing used for framing and support members for reconstruction or load-bearing purposes in the construction, shipbuilding, trucking, farm equipment, and related industries. Unfinished conduit pipe is also included in these orders. All carbon steel pipes and tubes within the physical description outlined above are included within the scope of this order, except line pipe, oil country tubular goods, boiler tubing, mechanical tubing, pipe and tube hollows for redraws, finished scaffolding, and finished conduit. Standard pipe that is dual or triple certified/stenciled that enters the U.S. as line pipe of a kind used for oil or gas pipelines is also not included in this order.
The merchandise covered by the order and subject to this review are currently classified in the
All issues raised in the case and rebuttal briefs by interested parties in this administrative review are addressed in the Issues and Decision Memorandum (Decision Memorandum) from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration, dated June 13, 2011, which is hereby adopted by this notice. A list of the issues which parties have raised and to which we have responded, all of which are in the Decision Memorandum, is attached to this notice as an appendix. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum, which is on file in the Central Records Unit in room 7046 of the main Department building. In addition, a complete version of the Decision Memorandum can be accessed directly via the Internet at
The Department found in the
First, consistent with our decision in the post-preliminary calculation (but different from our position in the
Second, as a reasonable alternative in the absence of manufacturer-specific information, we have revised the final calculations to weight-average the control-number-specific costs of Mueller's suppliers based on Mueller's reported resold and processed quantities so as to better reflect Mueller's purchases from its suppliers.
Third, because we do not find that the record evidence supports any contention that the intangible assets were impaired prior to the POR or that expenses would be double-counted and the costs would be distorted, we have included the amount related to other intangible assets in the reported costs for the final results. However, we continue to exclude the impairment loss related to goodwill, consistent with the
Fourth, because (a) The total G&A expenses from the reported calculation worksheets can be reconciled to the total reported in the 2009 financial statements by adding back other income, and (b) the reported G&A expenses already include the payments made to its parent company for corporate expenses, we have adjusted the reported G&A expense ratio calculation for the final results to exclude the other income amount so as to avoid double-counting.
Finally, because the constructed export price (CEP) level of trade (LOT) involves a much more advanced stage of distribution than the NV LOT, it is not possible to make a CEP offset to NV.
In accordance with section 773(a)(1)(B)(i) of the Act, to the extent practicable, we base NV on sales made in the comparison market at the same LOT as the export transaction. The NV LOT is based on the starting price of
To determine whether NV sales are at a different LOT than EP or CEP sales, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the customer.
Mueller reported it sold circular welded non-alloy steel pipe and tube to end-users and distributors in the home market and to end-users in the United States. For the home market, Mueller identified two channels of distribution: Direct shipments (channel 1) and warehouse shipments (channel 2).
We obtained information from Mueller regarding the marketing stages involved in making its reported home market and U.S. sales.
We compared Mueller's EP level of trade to the single NV level of trade found in the home market. While we find differences in the levels of intensity performed for some of these functions between the home market NV level of trade and the EP level of trade, such differences are minor and do not establish distinct levels of trade between the home market and the U.S. market. Based on our analysis of all of Mueller's home market and EP selling functions, we find these sales were made at the same level of trade.
For CEP sales, Mueller claims that the number and intensity of selling functions performed by Mueller in making its sales to Streamline are lower than the number and intensity of selling functions Mueller performed for its EP sales, and further claims that CEP sales are at a less advanced stage than home market sales.
We compared the NV LOT (based on the selling activities associated with the transactions between Mueller and its customers in the home market) to the CEP LOT (which is based on the selling activities associated with the transaction between Mueller and its affiliated importer, Streamline). Mueller's reported data would indicate that the selling functions performed for home market customers are either performed at a higher degree of intensity or are greater in number than the selling functions performed for Streamline.
Because we found the home market and U.S. CEP sales were made at different LOTs, we examined whether a LOT adjustment or a CEP offset may be appropriate in this review. As we found only one LOT in the home market, it was not possible to make a LOT adjustment to home market sales prices, because such an adjustment is dependent on our ability to identify a pattern of consistent price differences between the home market sales on which NV is based and home market sales at the CEP LOT.
On account of these changes, the final dumping margin for Mueller has changed. For a more detailed description of these changes,
We determine the following percentage margin exists for the period November 1, 2008 to October 31, 2009:
The Department will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries, pursuant to section 751(a)(1) of the Act and 19 CFR 351.212(b). We will issue appraisement instructions directly to CBP to assess antidumping duties on appropriate entries by applying the assessment rate to the entered value of the merchandise. Pursuant to 19 CFR 356.8(a), the Department intends to issue assessment instructions to CBP 41 days after the date of publication of these final results of review.
The following cash deposit requirements will be effective upon publication of these final results for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of these final results of administrative review, consistent with section 751(a)(1) of the Act: (1) The cash deposit rate for the reviewed companies will be the rate listed above; (2) if the exporter is not a firm covered in this review, but was covered in a previous review or the original less-than-fair-value (LTFV) investigation, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the original LTFV investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 32.62 percent, the all-others rate established in the LTFV investigation.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective orders (APOs) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
On December 14, 2010, the Department of Commerce (the “Department”) published the preliminary results of the administrative review of the antidumping duty order on circular welded non-alloy steel pipe (“CWP”) from the Republic of Korea (“Korea”), covering the period November 1, 2008, through October 31, 2009. This review covers six producers/exporters of the subject merchandise to the United States: SeAH Steel Corporation (“SeAH”); Husteel Co., Ltd. (“Husteel”); Nexteel Co. Ltd. (“Nexteel”); Hyundai HYSCO; Kumkang Industrial Co., Ltd.; and A-JU Besteel Co., Ltd. SeAH, Husteel, and Nexteel were the three mandatory respondents. We gave the interested parties an opportunity to comment on the preliminary results. Based on our analysis of the comments received, we have made changes to the margin calculations. The final weighted-average dumping margins for the reviewed firms are listed below in the section entitled “Final Results of Review.”
Joshua Morris or Matthew Jordan, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-1779 or (202) 482-1540, respectively.
Following publication of
On March 1, 2011, the Department sought further information from all interested parties regarding grade classification, particularly with respect to ASTM A-53 Grade A and ASTM A-53 Grade B pipe. We received information from SeAH; Nexteel; Nexteel's U.S. customer; U.S. Steel; Allied Tube Group; and Hyundai HYSCO. The Department allowed for further briefing regarding this grade issue, and we received submissions from SeAH; Nexteel; U.S. Steel; Allied Tube Group; and Hyundai HYSCO. None of the parties requested a hearing.
On March 22, 2011, the Department published in the
The merchandise subject to this review is circular welded non-alloy steel pipe and tube, of circular cross-section, not more than 406.4mm (16 inches) in outside diameter, regardless of wall thickness, surface finish (black, galvanized, or painted), or end finish (plain end, beveled end, threaded, or threaded and coupled). These pipes and tubes are generally known as standard pipes and tubes and are intended for the low-pressure conveyance of water, steam, natural gas, air, and other liquids and gases in plumbing and heating systems, air-conditioning units, automatic sprinkler systems, and other related uses. Standard pipe may also be used for light load-bearing applications, such as for fence tubing, and as structural pipe tubing used for framing and as support members for reconstruction or load-bearing purposes in the construction, shipbuilding, trucking, farm equipment, and other related industries. Unfinished conduit pipe is also included in this review.
All carbon-steel pipes and tubes within the physical description outlined above are included within the scope of this review except line pipe, oil-country tubular goods, boiler tubing, mechanical tubing, pipe and tube hollows for redraws, finished scaffolding, and finished conduit. In accordance with the Department's
Imports of these products are currently classifiable under the following Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings: 7306.30.10.00, 7306.30.50.25, 7306.30.50.32, 7306.30.50.40, 7306.30.50.55, 7306.30.50.85, and 7306.30.50.90. Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this proceeding is dispositive.
All issues raised in the case briefs are addressed in the “Issues and Decision Memorandum for the 2008-2009 Administrative Review of Circular Welded Non-Alloy Steel Pipe from the Republic of Korea” (“Issues and Decision Memorandum”), which is dated concurrently with and hereby adopted by this notice. A list of the issues which parties raised and to which we responded in the Issues and Decision Memorandum is attached to this notice as an Appendix. The Issues and Decision Memorandum is a public document which is on file in the Central Records Unit in room 7046 in the main Department building, and is accessible on the web at
Based on our analysis of the comments received, we made the following changes in calculating dumping margins: (1) Eliminated the inadvertent double counting of the major input adjustment for SeAH; (2) changed the universe of sales to be used for margin calculation purposes for SeAH and Husteel to all U.S. sales entered for consumption during the period of review; (3) adjusted the costs for ASTM A-53 Grade B control numbers (“CONNUMs”); specifically, for ASTM A-53 Grade B CONNUMs for which there is an otherwise identical ASTM A-53 Grade A CONNUM, we have weight averaged together the costs of the ASTM A-53 Grade A and Grade B CONNUMs (a) for SeAH, all costs by quarter, using production quantity for weighting purposes, and (b) for Nexteel, the variable costs and total costs (where available) using sales quantity for weighting; however, for ASTM A-53 Grade B CONNUMs for which there is no identical ASTM A-53 Grade A CONNUM, we continue to use the cost as reported for ASTM A-53 Grade B, including where other specifications were reported in the same CONNUM as ASTM A-53 Grade B; 4) for Nexteel, changed the CONNUM of ASTM A-53 Grade B sales to reflect the change in classification of ASTM A-53 Grade B from “pressure” to “ordinary” for product comparison purposes.
Consistent with the
We determine that a weighted-average dumping margin exists for the three mandatory respondents, SeAH, Husteel, and Nexteel, for the period November 1, 2008, through October 31, 2009. Respondents other than mandatory respondents received the weighted-average of the margins calculated for SeAH, Husteel, and Nexteel.
The Department will disclose calculations performed within five days
The Department shall determine, and U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries, in accordance with 19 CFR 351.212(b)(1). The Department will issue appropriate appraisement instructions for the companies subject to this review directly to CBP 15 days after the date of publication of these final results of review.
For SeAH and Husteel, we will calculate importer-specific
Nexteel reported the importer of record for certain of its U.S. sales. Pursuant to 19 CFR 351.212(b)(1), for all sales where Nexteel reported the importer of record, Nexteel submitted the reported entered value of the U.S. sales and the Department has calculated importer-specific assessment rates based on the ratio of the total amount of antidumping duties calculated for the examined sales to the total entered value of those sales.
For certain U.S. sales, Nexteel did not report the importer or the entered value. For purposes of calculating importer-specific assessment rates, calculated per-unit duty assessment rates for the merchandise in question by aggregating the dumping margins calculated for all U.S. sales to each importer and dividing this amount by the total quantity of those sales.
To determine whether the duty assessment rates were
For the companies that were not selected for individual review, we calculated an assessment rate based on the weighted-average of the cash deposit rates calculated for companies selected for individual review, where those rates were not
Pursuant to 19 CFR 351.106(c)(2), we will instruct CBP to liquidate without regard to antidumping duties any entries for which the assessment rate is
The Department clarified its “automatic assessment” regulation on May 6, 2003.
The following deposit rates will be effective upon publication of the final results of this administrative review for all shipments of CWP from Korea entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rates for the companies listed above will be the rates established in the final results of this review, except if the rate is less than 0.5 percent and, therefore,
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice serves as the only reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
These final results of review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Frances Veith or Lindsey Novom, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230,
On March 30, 2010, the Department of Commerce (“the Department”) initiated the administrative review of the antidumping duty order on small diameter graphite electrodes from the People's Republic of China (“PRC”) for the period August 21, 2008, through January 31, 2010.
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“the Act”), requires the Department to make a final determination in an administrative review within 120 days after the date on which the preliminary results are published. However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act allows the Department to extend the 120-day period to 180 days for the final results.
We determine that it is not practicable to complete the final results of this review within the original time limit because the Department requires additional time to analyze issues raised in post-preliminary factual submissions concerning respondents' U.S. sales databases, case briefs, and rebuttal briefs. Therefore, the Department is extending the time limit for completion of the final results by 60 days. An extension of 60 days from the current deadline of July 5, 2011, would result in a new deadline of September 3, 2011. However, since September 3, 2011, falls on a Saturday, a non-business day, the final results will now be due no later than September 6, 2011, the next business day.
We are issuing and publishing this notice in accordance with sections 751(a)(3)(A) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Announcement for change in methodology.
This notice addresses the methodology used by the Department of Commerce (“the Department”) to value the cost of labor in non-market economy (“NME”) countries. After reviewing all comments received on the Department's interim, industry-specific wage calculation methodology that is currently applied in NME antidumping proceedings, the Department has determined that the
Christopher Mutz, (202) 482-0235, Office of Policy, Import Administration, Julia Hancock, (202) 482-1394, Office of Antidumping and Countervailing Duty Operations, Import Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
Section 733(c) of the Tariff Act of 1930, as amended (“the Act”), provides that the Department will value the factors of production (“FOP”) in NME cases using the best available information regarding the value of such factors in a market economy (“ME”) country or countries considered to be appropriate by the administering authority. The Act requires that when valuing FOP, the Department utilize, to the extent possible, the prices or costs of factors of production in one or more ME countries that are (1) At a comparable level of economic development, and (2) significant producers of comparable merchandise.
Previously, the Department used regression-based wages that captured the worldwide relationship between
In July 2010, the Department adopted an interim wage calculation methodology that averages wages across countries that are both economically comparable and significant producers of merchandise comparable to the subject merchandise.
On February 18, 2011, the Department published a notice in the
The Department subsequently received comment from the following parties: (1) Armstrong World Industries (“Armstrong”);
Based on the submissions the Department received in response to its request for comment, the Department has revised its labor cost calculation methodology in NME antidumping proceedings. In NME antidumping proceedings initiated on or after the date of publication of this
Due to the variability in wage rates among economically comparable MEs, the Department has tried to include wage data from as many countries as possible that were also economically comparable to the NME and significant producers of comparable merchandise, within the meaning of section 773(c)(4) of the Act. Following the Federal Circuit's decision in
The Department has carefully considered the “significant producer” prong of the statute (section 773(c)(4)(B) of the Act) in light of the CIT's decision in
Accordingly, the Department finds that using the data on industry-specific wages from the primary surrogate country is the best approach for valuing the labor input in NME antidumping duty proceedings. It is fully consistent with how the Department values all other FOPs, and it results in the use of a uniform basis for FOP valuation—a single surrogate.
The Department currently uses ILO Chapter 5B data in its NME labor input cost calculations. Unlike Chapter 6A data that reflects all costs related to labor including wages, benefits, housing, training,
When indirect labor costs items are not itemized and not (by definition) reflected in Chapter 5B data, a concern with under-counting arises. While there are some cases in which available information permits the Department to make adjustments that ensure a full and complete accounting of all direct and indirect labor costs, there are many other cases in which data constraints preclude such adjustments. For this reason, the Department has decided to change to the use of Chapter 6A data, on the rebuttable presumption that Chapter 6A data better accounts for all direct and indirect labor costs. In their comments, MOFCOM and VASEP argue that use of ILO Chapter 6A would result in overstating labor costs. To address this concern, the Department will adjust
Pursuant to the comments received and the Department's analysis thereof, the Department will value the NME respondent's labor input using industry-specific labor costs prevailing in the primary surrogate country, as reported in Chapter 6A of the ILO Yearbook of Labor Statistics. The following explains this single country wage rate methodology in more detail.
The ILO collects labor cost data by country and industry, which is reported on the basis of the United Nations' International Standard Classification of All Economic Activities (“ISIC”).
1. “Sub-classification,”
2. “Type of Data,”
3. “Contemporaneity,”
4. The unit of time for which the wage is reported. The Department selects from the following categories in the following hierarchy: (1) per hour; (2) per day; (3) per week; or (4) per month. Where data is not available on a per-hour basis, the Department converts that data to an hourly basis based on the premise that there are 8 working hours per day, 5.5 working days a week and 24 working days per month.
Finally, the Department will determine whether the facts and information available on the record warrant and permit an adjustment to the surrogate financial statements on a case-by-case basis. If there is evidence submitted on the record by interested parties demonstrating that the NME respondent's cost of labor is overstated, the Department will make the appropriate adjustments to the surrogate financial statements subject to the available information on the record. Specifically, when the surrogate financial statements include disaggregated overhead and selling, general and administrative expense items that are already included in the ILO's definition of Chapter 6A data, the Department will remove these identifiable costs items.
The approach detailed above will be applied to ongoing administrative NME proceedings where the statutory deadlines permit.
Office of Oceanic and Atmospheric Research (OAR) National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Draft NOAA Scientific Integrity Policy and Handbook for Public Review.
NOAA's draft scientific integrity policy is available for public review and comment until August 20, 2011. The draft incorporates the principles of scientific integrity contained in the President's March 9, 2009, memorandum and Office of Science and Technology Policy (OSTP) director, John Holdren's December 17, 2010, memorandum on scientific integrity, and addresses how NOAA ensures quality science in its methods, review, and other aspects. NOAA also seeks comments on the accompanying handbook that outlines procedures to respond to allegations of misconduct.
Both draft documents can be found electronically at:
The NOAA Scientific Integrity team at
The Presidential Memorandum on Scientific Integrity dated March 9, 2009, and the Office of Science and Technology Policy 2010 guidance memorandum on scientific integrity call for ensuring the highest level of integrity in all aspects of the executive branch's involvement with scientific and technological processes.
The draft NOAA policy:
• Lays out formal guidance with a “Code of Conduct”;
• Creates the conditions for enabling first-rate science and guarding against attempts to undermine or discredit it;
• States the key role of science in informing policy;
• Encourages scientists to publish data and findings to advance science, their careers, and NOAA's reputation for reliable science;
• Encourages NOAA scientists to be leaders in the scientific community;
• Provides whistle-blower protection;
• Applies to all NOAA employees and provides applicable policies for contractors and grantees who are engaged in, supervise, or manage scientific activities, analyze and/or publicly communicate information resulting from scientific activities, or use scientific information or analyses in making bureau or office policy, management, or regulatory decisions;
• Includes a training component.
United States Transportation Command (USTRANSCOM), DoD.
Announcement.
Reference
Mr. Jim Teague, United States Transportation Command, TCJ5/4-PI, 508 Scott Drive, Scott Air Force Base, IL 62225-5357; (618) 256-9605.
Any subsequent modification(s) to the business rules beyond the above stated changes will be published in the
A complete version of the DTR is available via the internet on the USTRANSCOM homepage at
Delaware River Basin Commission (“DRBC”).
Public meeting.
The DRBC will hold a public meeting via teleconference for the purposes of adopting its annual Capital and Current Expense Budgets for the fiscal year ending June 30, 2012 and establishing a budget and finance committee. A public hearing on the fiscal year 2012 budgets was held previously, on March 2, 2011.
The public meeting via teleconference will take place on Tuesday, June 28, 2011 at 1 p.m. and is expected to last for less than one hour.
The DRBC will provide public access to the teleconference from the Goddard Room of the Commission's office building at 25 State Police Drive in West Trenton, New Jersey. Directions can be found on the Commission's Web site at
Section 13.3 of the
The Commission also will establish a budget and finance committee consisting of representatives of each of the Commission's five signatories, to provide closer oversight of budget development at a time when the fiscal challenges facing the Commission and state agencies are particularly severe.
The meeting via teleconference is open to the public but will not include a public hearing, since such a hearing already was conducted. At the discretion of the Chair (currently Governor Jack Markell of Delaware, or his alternate), the Commission may entertain questions from the public before or after the business at hand is completed.
The proposed budget resolution and accompanying budget document are available on the Commission's Web site at
Pamela M. Bush, Commission Secretary and Assistant General Counsel, DRBC, at
Department of Education.
Comment request.
The Acting Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13).
Interested persons are invited to submit comments on or before July 21, 2011.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street, NW., Room 10222, New Executive Office Building, Washington, DC 20503, be faxed to (202) 395-5806 or e-mailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. The OMB is particularly interested in comments which: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the
Copies of the information collection submission for OMB review may be accessed from the RegInfo.gov Web site at
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Department of Education.
Comment request.
The Acting Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13).
Interested persons are invited to submit comments on or before July 21, 2011.
Written comments should be addressed to the Office of Information and Regulatory Affairs,
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. The OMB is particularly interested in comments which: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) enhance the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Copies of the information collection submission for OMB review may be accessed from the RegInfo.gov Web site at
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Department of Energy (DOE).
Notice of intent to prepare a programmatic environmental impact statement for the DOE Uranium Leasing Program.
DOE announces its intent to prepare a Programmatic Environmental Impact Statement (PEIS), pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321,
DOE has determined that, in light of the site-specific information that DOE has gathered as a result of the site-specific agency actions proposed and approved pursuant to the July 2007 PEA/FONSI, it is now appropriate for DOE to prepare a PEIS in order to analyze the reasonably foreseeable environmental impacts, including the site-specific impacts, of a range of alternatives for the management of the ULP for the remainder of the ten-year period that was covered by the July 2007 PEA.
DOE is issuing this Notice of Intent (NOI) to inform interested parties of this PEIS and to invite public comments on its proposed scope, including the preliminary range of alternatives and environmental issues to be considered. DOE plans to invite Federal, state, and local governmental agencies with jurisdiction by law or special expertise to participate as cooperating agencies in preparing the PEIS.
DOE invites comments on the proposed scope of the PEIS. To ensure consideration, comments must be submitted by August 22, 2011. DOE will consider comments e-mailed or postmarked after that date to the extent practicable. In addition to receiving written comments (
Written comments on the scope of the PEIS and requests to be included in future communications should be addressed to the ULP Program Manager, Ms. Laura Kilpatrick, Esq., Realty Officer, Asset Management Team, Office of Legacy Management, U.S. Department of Energy, 11025 Dover Street, Suite 1000, Westminster, CO 80021, 720-880-4338,
For further information about this PEIS, please contact the ULP Program Manager, Ms. Laura Kilpatrick, at the addresses listed above.
For general information on the DOE NEPA process, please contact Ms. Carol M. Borgstrom, Director, Office of NEPA Policy and Compliance (GC-54), U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585; telephone (202-586-4600); fax (202-586-7031); or leave a toll-free message (1-800-472-2756).
Congress directed DOE's predecessor agency, the U.S. Atomic Energy Commission (AEC), to develop a supply of domestic uranium that would adequately meet the Nation's defense needs (42 U.S.C. 2096-2097). Congress gave to AEC the authority to withdraw Federal lands for the exploration and development of a viable domestic uranium source under a variety of programs that were carried forward in the Atomic Energy Act of 1954. Around the same time, the U.S. Bureau of Land Management (BLM) issued Public Land Order (PLO) 459 that stated, “Subject to valid existing rights and existing withdrawals, the public lands and the minerals reserved to the United States in the patented lands in the following areas in Colorado are hereby withdrawn from all forms of appropriation under the public-land laws, including the mining laws but not the mineral-leasing laws, and reserved for the use of the United States Atomic Energy Commission.” The areas under consideration are located in western Colorado in Mesa, Montrose, and San Miguel counties. Subsequently, other PLOs increased or decreased the total acreage in withdrawn status.
In addition, the Federal Government, through the Union Mines Development Corporation, acquired a substantial
The Mineral Leasing Program, which was in operation from approximately 1949 to 1962, produced more than 1.2 million pounds of uranium and 6.8 million pounds of vanadium, and generated $5.9 million in royalties to the Federal Government. When the program ended in 1962, AEC directed the lessees to close the mines, but little was done to reclaim the mine sites.
AEC initiated a second leasing program in 1974 under the Domestic Uranium Program regulations (10 CFR 760.1) that was called the Uranium Lease Management Program (ULMP). This program was designed to address the lack of production capacity of uranium—and vanadium—bearing ores for the U.S. Government defense needs, and emphasized the need for uranium in the expanding commercial nuclear energy market. The two main goals of the ULMP were to recover the resources that had been developed initially by AEC and to improve the prospects for continued mill operations, thereby encouraging further exploration and development on privately-held land. In preparation for the ULMP in 1972, AEC evaluated potential environmental and economic impacts related to the ULMP in the
During the ULMP, DOE and BLM acknowledged that each agency had defined jurisdictional authority over the various activities that could be conducted on the lease tracts. DOE maintained jurisdiction and authority over all activities on withdrawn lands associated with uranium and vanadium mining, including exploration, development, extraction (mining), and transportation. BLM maintained jurisdiction and authority over all other surface uses. This acknowledgment of the agencies' jurisdiction continues today.
In July 1995, DOE prepared a programmatic environmental assessment (PEA) to inform DOE's determination whether the leasing program should continue. DOE then issued a FONSI in August 1995, in which it determined to continue the ULP. DOE subsequently entered into negotiations with the previous lessees. Seven of the lessees informed DOE that they did not wish to continue with the program and began reclamation of their lease tracts. DOE then entered into 13 new lease agreements with the remaining lessees.
In 2005, DOE initiated a review of its 1995 PEA, and began to prepare a new PEA to evaluate the continuation of the ULP. In the July 2007 PEA, DOE examined three alternatives for the management of the ULP for the next ten years, including DOE's preferred “Expanded Program Alternative,” under which DOE would continue and expand the existing ULP. Under that alternative, DOE would extend the 13 existing leases for a ten-year period, and then expand the ULP to include the competitive offering of up to 25 additional lease tracts to the domestic uranium industry. In the July 2007 FONSI, DOE announced its decision to proceed with the Expanded Program Alternative. DOE determined that the Expanded Program Alternative would not constitute a major Federal action significantly affecting the quality of the human environment, within the meaning of NEPA; and, therefore, that preparation of an EIS was not required.
After the issuance of the July 2007 PEA and FONSI, DOE took a series of site-specific agency actions to implement the ULP. These actions included: Entering into new lease agreements for 31 lease tracts after reconfiguring the expanded number of tracts from 38 to 31 (currently, 29 tracts are actively held under lease, and the remaining two tracts are not leased), approval of exploration plans on some leases, and approval of reclamation-in-lieu-of-royalties (RILOR) plans on some leases (under which a lessee agreed to perform necessary reclamation services on its lease, and in return DOE agreed to reduce the amount of royalties that the lessee must pay to the U.S. Government). DOE reviewed each of the exploration plans and RILOR plans in accordance with DOE's NEPA regulations, and determined that each of the plans was categorically excluded from further environmental evaluation under categorical exclusions set forth in DOE's NEPA regulations. DOE has not received any mining plans from any of its ULP lessees; and no mining activities are currently being performed on any of the ULP leases.
DOE believes that in light of the site-specific information that it has gathered as a result of the site-specific agency actions proposed and approved pursuant to the July 2007 PEA and FONSI, it is now appropriate to prepare a PEIS in order to analyze the reasonably foreseeable environmental impacts, including the site-specific impacts, of a range of alternatives for the management of the ULP for the remainder of the ten-year period that was covered by the July 2007 PEA. DOE's preparation of this PEIS is in accordance with DOE's NEPA regulation at 10 CFR 1021.300(b), which provides that DOE may prepare a NEPA document for any DOE action at any time in order to further the purposes of NEPA, and may do so “to analyze the consequences of ongoing activities, support DOE planning, assess the need for mitigation, fully disclose the potential environmental consequences of DOE actions, or for any other reason.”
DOE is separately preparing to enter into consultation with the U.S. Fish and Wildlife Service, in compliance with Section 7 of the Endangered Species Act, concerning DOE's management of the ULP.
The ULP lease tracts are located in the western portions of Mesa, Montrose, and San Miguel Counties, in western Colorado. Elevations of the mesas and valleys throughout this semiarid area vary from 5,500 feet above sea level in the valleys to approximately 8,000 feet above sea level on top of the higher mesas. Except for the cities of Montrose and Grand Junction, which are each more than 50 miles from the nearest lease tract, the region is sparsely populated and has few towns.
The lease tracts are located in four geographical areas referred to as the Gateway, Uravan, Paradox Valley, and Slick Rock lease tracts. The Gateway lease tracts are remotely located on the tops and side slopes of Outlaw and Calamity Mesas; surface runoff from these areas travels through Maverick and Calamity Creeks, which are tributaries of the Dolores River. The Uravan lease tracts in Montrose County are located on the tops and side slopes of Spring Creek, Atkinson, and Club Mesas, near the historical community of Uravan, which has only two remaining buildings. The Dolores River and its main tributary, the San Miguel River, flow in the valley bottoms below the lease tracts. The Paradox Valley lease tracts are in Montrose and San Miguel Counties in a broad valley flanked by the high plateaus of Monogram Mesa and Long Park. The Slick Rock lease tracts are located near the historical community of Slick Rock in San Miguel County. In this area the land surface is deeply incised by the Dolores River and its tributaries; the Dolores River Canyon in this area is approximately 500 feet wide at the bottom and is characterized by steep slopes and sheer cliffs.
Land use on and around the ULP lease tracts include mining, oil and gas exploration and production, timber
In light of the site-specific information that DOE has gathered as a result of the site-specific agency actions proposed and approved pursuant to the July 2007 ULP PEA/FONSI, it is now appropriate for DOE to prepare a PEIS in order to analyze the reasonably foreseeable environmental impacts, including the site-specific impacts, of the range of reasonable alternatives for the management of the ULP for the remainder of the ten-year period that was covered by the July 2007 PEA.
The underlying purpose and need for agency action is that, in support of the Energy Policy Act of 2005 (Pub. L. 109-58), which emphasized the reestablishment of nuclear power (Sections 601 through 657), DOE needs to determine the future course of the ULP, including whether to continue leasing some or all of DOE's withdrawn lands and government-owned patented claims (referred to as “DOE-managed lands”) for the exploration and production of uranium and vanadium ores for the remainder of the ten-year period that was covered by the July 2007 PEA. The Domestic Uranium Program regulation (10 CFR 760.1) gives DOE the flexibility to continue leasing these DOE-managed lands via a competitive bidding process to achieve the highest returns for the government. A key element in this determination is the analysis of environmental impacts attributable to lease tract operations and associated activities. Therefore, DOE will prepare this PEIS to provide such information to decision-makers, as well as to the public.
DOE's proposed action is to decide whether to continue the ULP for the remainder of the ten-year period covered by the July 2007 PEA; and, if it decides to continue the ULP, to determine which alternative to adopt in order to manage the ULP during that period.
As required by the CEQ and DOE NEPA implementing procedures, at 40 CFR parts 1500-1508 and 10 CFR part 1021, respectively, DOE will analyze the range of reasonable alternatives for continuation of the ULP. In accordance with CEQ's NEPA implementing procedures at 40 CFR 1508.25(b), DOE will also analyze the “no action” alternative. DOE proposes that the alternatives to be analyzed in the PEIS include the following:
(1) DOE would terminate the leases for the ULP; lessees would be required to reclaim their operations on their respective leases; and, once final reclamation activities were completed, DOE would continue its management of the withdrawn lands, without leasing, in accordance with applicable requirements.
(2) DOE would terminate the leases for the ULP; lessees would be required to reclaim their operations on their respective leases; and, once final reclamation activities were completed, all lands would be restored to the public domain with the approval of BLM and under BLM's administrative control, and DOE's leasing program would end.
(3) DOE would continue the ULP as it existed before the issuance of the July 2007 PEA/FONSI; the 13 then-active leases would be continued for the ten-year period covered by the July 2007 PEA/FONSI, or for another reasonable period; and DOE would terminate the leases for the remaining leases tracts. Regarding the leases that would be terminated, DOE would follow the procedures proposed either in alternative (1) above, or in alternative (2) above. Regarding the 13 leases that would be continued, the lessees would be allowed to file plans to explore for and mine uranium and vanadium ore reserves on their respective tracts, and to engage in reclamation activities on those tracts. For those 13 leases, DOE would analyze, among other things, the reasonably foreseeable environmental impacts, including the site-specific impacts, of leasing, exploration, mining activities (including any resumption of mining activities that were previously approved), transportation, and reclamation, as well as cumulative impacts resulting from the incremental impacts of those actions when added to other past, present, and reasonably foreseeable future actions. DOE would explore reasonable mitigation measures to avoid or minimize potential environmental impacts.
(4) DOE would continue the ULP for the expanded number of leases in the July 2007 PEA/FONSI; the expanded number of leases would be continued for the ten-year period covered by the July 2007 PEA/FONSI, or for another reasonable period. For all of those ULP leases, the lessees would be allowed to file plans to explore for and mine uranium and vanadium ore reserves on their respective tracts, and to engage in reclamation activities on those tracts. DOE would analyze, among other things, the reasonably foreseeable environmental impacts, including the site-specific impacts, of leasing, exploration, mining activities (including any resumption of mining activities that were previously approved), transportation, and reclamation, as well as cumulative impacts resulting from the incremental impacts of those actions when added to other past, present, and reasonably foreseeable future actions. DOE would explore reasonable mitigation measures to avoid or minimize potential environmental impacts.
(5) DOE would continue the ULP exactly as it was approved in the July 2007 PEA/FONSI, and would continue to approve plans by lessees as it has done since the issuance of the July 2007 PEA/FONSI.
DOE proposes to address the environmental issues listed below. This list is neither intended to be all-inclusive, nor a predetermined set of potential impacts. DOE invites comments on whether this is an appropriate list of issues that should be considered in the PEIS. The preliminary list of potentially affected resources or activities and their related environmental issues includes:
Cultural and historic resources;
Accidents and intentional destructive acts;
This NOI initiates the scoping process under NEPA, which will guide the development of the Draft PEIS. To ensure that all issues related to DOE's proposed action are addressed, DOE invites public comments on the scope of the PEIS. Interested government agencies, Native American tribes, private-sector organizations, and the general public are encouraged to submit comments or suggestions on the scope of the PEIS, including potential issues and environmental impacts that should be addressed and the alternatives that should be considered. The scoping period will end August 22, 2011. Comments should be submitted by that date to ensure consideration (
DOE will conduct public scoping meetings in the vicinity of the ULP lease tracts at dates, times, and locations to be announced in a separate
Those who do not arrange in advance to speak may register at the meeting (preferably at the beginning of the meeting) and would be given an opportunity to speak after previously scheduled speakers. Speakers will be given approximately five minutes to present their comments. Those speakers who want more than five minutes should indicate the length of time desired in their request. Depending on the number of speakers, DOE may need to limit all speakers to five minutes initially and provide additional opportunity as time permits. Individuals may also provide written materials in lieu of, or supplemental to, their presentations. DOE will give equal consideration to oral and written comments.
DOE will consider public scoping comments in preparing the Draft PEIS. DOE will issue the Draft PEIS for public review and conduct public hearings. DOE will consider public comments on the Draft PEIS and respond as appropriate in the Final PEIS. No sooner than 30 days following completion of the Final PEIS, DOE will issue a Record of Decision regarding the proposed action.
Department of Energy. DOE.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Portsmouth. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Thursday, July 7, 2011; 6 p.m.
Ohio State University, Endeavor Center, 1862 Shyville Road, Piketon, Ohio 45661.
Joel Bradburne, Deputy Designated Federal Officer, Department of Energy, Portsmouth/Paducah Project Office, Post Office Box 700, Piketon, Ohio 45661, (740) 897-3822,
• Call to Order, Introductions, Review of Agenda.
• Approval of May Minutes.
• Deputy Designated Federal Officer's Comments.
• Federal Coordinator's Comments.
• Liaisons' Comments.
• Visioning Team Update, Ohio University.
• FLUOR B&W Community Commitment Plan Update, Jerry Schneider.
• Administrative Issues:
○ Subcommittee Updates.
• Motions:
○ First Reading of the amendment to the Operating Procedures: Section VI. Board Structure C 3a.
○ Recommendation 11.02—Construction of a multi-purpose facility for DOE and community needs.
○ Recommendation 11.05—Defined Future Use at the Portsmouth Site.
• Public Comments.
• Final Comments.
• Adjourn.
Minutes: Minutes will be available by writing or calling Joel Bradburne at the address and phone number listed above. Minutes will also be available at the following Web site:
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Northern New Mexico. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Wednesday, July 27, 2011 from 1 p.m.-7 p.m.
Holiday Inn and Suites, 60 Entrada Drive, Los Alamos, New Mexico.
Menice Santistevan, Northern New Mexico Citizens' Advisory Board (NNMCAB), 1660 Old Pecos Trail, Suite B, Santa Fe, NM 87505. Phone (505) 995-0393; Fax (505) 989-1752 or E-mail:
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Oak Ridge Reservation. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Wednesday, July 13, 2011 at 6 p.m.
DOE Information Center, 475 Oak Ridge Turnpike, Oak Ridge, Tennessee 37830.
Patricia J. Halsey, Federal Coordinator, Department of Energy Oak Ridge Operations Office, P.O. Box 2001, EM-90, Oak Ridge, TN 37831. Phone (865) 576-4025; Fax (865) 576-2347 or e-mail:
Energy Efficiency and Renewable Energy, Department of Energy.
Notice of solicitation of nominations.
In accordance with the Federal Advisory Committee Act, 5 U.S.C., App. 2, the U.S. Department of Energy is soliciting nominations for candidates to fill vacancies on the Biomass Research and Development Technical Advisory Committee (Technical Advisory Committee).
The deadline for Technical Advisory Committee member nominations is July 15, 2011.
The nominee's name, resume, biography, and any letters of support must be submitted via one of the following methods:
(1) E-mail to
(2) Facsimile to 202-586-1640,
(3) Overnight delivery service to Laura McCann, Designated Federal Officer, Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy, Mail Stop EE-2E, 1000 Independence Avenue, SW., Washington, DC 20585.
Laura McCann, Designated Federal Officer, Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585; (202) 586-7766;
The Biomass Research and Development Act of 2000 (Biomass Act) [Pub. L. 106-224] requires cooperation and coordination in biomass research and development (R&D) between the U.S. Department of Agriculture (USDA) and U.S. Department of Energy (DOE). The Biomass Act was repealed and replaced in June 2008 by Section 9008 of the Food, Conservation and Energy Act of 2008 (FCEA) [Pub. L. 110-246, 122 Stat. 1651, enacted June 18, 2008, H.R. 6124].
FCEA section 9008(d) establishes the Biomass Research and Development Technical Advisory Committee (Committee) and lays forth its meetings, coordination, duties, terms, and membership types. The Committee must meet quarterly and should not duplicate the efforts of other Federal advisory committees. The Committee advises the DOE and USDA points of contact with respect to the Biomass R&D Initiative (Initiative) and also makes written recommendations to the Biomass R&D Initiative (Initiative) and also makes written recommendations to the Biomass R&D Board (Board). Those recommendations regard whether: (A) Initiative funds are distributed and used consistent with Initiative objectives; (B) solicitations are open and competitive with awards made annually; (C) objectives and evaluation criteria of the solicitations are clear; and (D) the points of contact are funding proposals selected on the basis of merit, as determined by an independent panel of qualified peers.
The Committee members may serve up to two, three-year terms and must include: (A) An individual affiliated with the biofuels industry; (B) an individual affiliated with the biobased industrial and commercial products industry; (C) an individual affiliated with an institution of higher education who has expertise in biofuels and biobased products; (D) 2 prominent engineers or scientists from government or academia that have expertise in biofuels and biobased products; (E) an individual affiliated with a commodity trade association; (F) 2 individuals affiliated with environmental or conservation organizations; (G) an individual associated with State government who has expertise in biofuels and biobased products; (H) an individual with expertise in energy and environmental analysis; (I) an individual with expertise in the economics of biofuels and biobased products; (J) an individual with expertise in agricultural economics; (K) an individual with expertise in plant biology and biomass feedstock development; (L) an individual with expertise in agronomy, crop science, or soil science; and (M) at the option of the points of contact, other members (REF: FCEA 2008 section 9008(d)(2)(A)). All nominees will be carefully reviewed for their expertise, leadership, and relevance to an expertise. Appointments will be made for three-year terms as dictated by the legislation.
Nominations this year are being accepted only for the following categories in order to address the Committee's needs: (E) An individual affiliated with a commodity trade association; (F) 2 individuals affiliated with environmental or conservation organizations; and (J) an individual with expertise in agricultural economics.
Nominations are solicited from organizations, associations, societies, councils, federations, groups, universities, and companies that represent a wide variety of biomass research and development interests throughout the country. Nominations for one individual who fits several of the categories listed above or for more than one person that fits one category will be accepted. In your nomination letter, please indicate the specific membership category for each nominee. Each nominee must submit their resume and biography along with any letters of support by the deadline above. If you were nominated in previous years, but were not appointed to the committee and would still like to be considered, all individuals must submit their nominations again during this notice and with all required materials. All nominees will be vetted before selection.
Nominations are open to all individuals without regard to race, color, religion, sex, national origin, age, mental or physical handicap, marital status, or sexual orientation. To ensure that recommendations of the Technical Advisory Committee take into account the needs of the diverse groups served by DOE, membership shall include, to the extent practicable, individuals with demonstrated ability to represent minorities, women, and persons with disabilities. Please note, however, that Federally-registered lobbyists and individuals already serving on another Federal advisory committee are ineligible for nomination.
Appointments to the Biomass Research and Development Technical Advisory Committee will be made by the Secretary of Energy and the Secretary of Agriculture.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of Open Teleconference.
This notice announces an open teleconference call of the State Energy Advisory Board (STEAB). The Federal Advisory Committee Act (Pub. L. 92-463; 86 Stat. 770) requires that public notice of these meetings be announced in the
Thursday, July 21, 2011, 3:30 p.m.-4:30 p.m. EST.
The call in number is 877-445-5075 and the passcode is 2402235515.
Gil Sperling, STEAB Designated Federal Officer, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, 1000 Independence Ave, SW., Washington DC, 20585 or
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
Take notice that the Commission received the following qualifying facility 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 protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Such protests must be filed on or before 5 p.m. Eastern time on the specified comment date. Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that the Commission 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 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 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 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 5:00 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 electric rate filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
As it relates to any qualifying facility filings, the notices of self-certification [or self-recertification] listed above, do not institute a proceeding regarding qualifying facility status. A notice of self-certification [or self-recertification] simply provides notification that the entity making the filing has determined the facility named in the notice meets the applicable criteria to be a qualifying facility. Intervention and/or protest do not lie in dockets that are qualifying facility self-certifications or self-recertifications. Any person seeking to challenge such qualifying facility status may do so by filing a motion pursuant 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 protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing will be considered by the Commission in determining the appropriate action to be
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Environmental Protection Agency (EPA).
Notice.
Section 5 of the Toxic Substances Control Act (TSCA) requires any person who intends to manufacture (defined by statute to include import) a new chemical (
Comments identified by the specific PMN number or TME number, must be received on or before July 21, 2011.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2011-0496, and the specific PMN number or TME number for the chemical related to your comment, by one of the following methods:
•
•
•
This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply to.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. 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.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
EPA classifies a chemical substance as either an “existing” chemical or a “new” chemical. Any chemical substance that is not on EPA's TSCA Inventory is classified as a “new chemical,” while those that are on the TSCA Inventory are classified as an “existing chemical.” For more information about the TSCA Inventory go to:
Under TSCA sections 5(d)(2) and 5(d)(3), EPA is required to publish in the
In Table I. of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the PMNs received by EPA during this period: The EPA case number assigned to the PMN, the date the PMN was received by EPA, the projected end date for EPA's review of the PMN, the submitting manufacturer/importer, the potential uses identified by the manufacturer/importer in the PMN, and the chemical identity.
In Table II. of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the TMEs received by EPA during this period: The EPA case number assigned to the TME, the date the TME was received by EPA, the projected end date for EPA's review of the TME, the submitting manufacturer/importer, the potential uses identified by the manufacturer/importer in the TME, and the chemical identity.
In Table III. of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the NOCs received by EPA during this period: The EPA case number assigned to the NOC, the date the NOC was received by EPA, the projected end date for EPA's review of the NOC, and chemical identity.
If you are interested in information that is not included in these tables, you may contact EPA as described in Unit II. to access additional non-CBI information that may be available.
Environmental protection, Chemicals, Hazardous substances, Imports, Notice of commencement, Premanufacturer,
Environmental Protection Agency (EPA).
Notice.
The EPA Science Advisory Board (SAB) Staff Office announces a public meeting of the CASAC Lead Review Panel to conduct a peer review of EPA's
The CASAC Lead Review Panel meeting will be held on Wednesday, July 20, 2011, from 9 a.m. to 5:30 p.m. (Eastern Time) and on Thursday, July 21, 2011, from 8:30 a.m. to 12:30 p.m. (Eastern Time).
The public meeting will be held at the Marriott at Research Triangle Park hotel, 4700 Guardian Drive, Durham, North Carolina 27703 (919) 941-6200.
Any member of the public wishing to obtain general information concerning the public meeting may contact Mr. Aaron Yeow, Designated Federal Officer (DFO), via telephone at (202) 564-2050 or e-mail at
The CASAC was established pursuant to the Clean Air Act (CAA) Amendments of 1977, codified at 42 U.S.C. 7409D(d)(2), to provide advice, information, and recommendations to the Administrator on the scientific and technical aspects of issues related to the criteria for air quality standards, research related to air quality, sources of air pollution, and the strategies to attain and maintain air quality standards and to prevent significant deterioration of air quality. The CASAC is a Federal Advisory Committee chartered under the Federal Advisory Committee Act (FACA), 5 U.S.C., App. 2. Pursuant to FACA and EPA policy, notice is hereby given that the CASAC Lead Review Panel will hold a public meeting to peer review EPA's
Section 109(d)(1) of the CAA requires that the Agency periodically review and revise, as appropriate, the air quality criteria and the NAAQS for the six “criteria” air pollutants, including lead. EPA is currently reviewing the primary (health-based) and secondary (welfare-based) NAAQS for lead. The CASAC Lead Review Panel previously provided consultative advice on
The Integrated Science Assessment (ISA) provides a concise review, synthesis and evaluation of the most policy-relevant science, including key science judgments that are important to the design and scope of exposure and risk assessments, as well as other aspects of the NAAQS review. The risk/exposure assessment planning document considers the extent to which information and conclusions presented in the ISA provide support for the development of quantitative assessments of risk and exposure for health and/or welfare effects.
Federal advisory committees and panels, including scientific advisory committees, provide independent advice to EPA. Members of the public can submit comments for a federal advisory committee to consider as it develops advice for EPA. Input from the public to the CASAC will have the most impact if it provides specific scientific or technical information or analysis for CASAC panels to consider or if it relates to the clarity or accuracy of the technical information. Members of the public wishing to provide comment should contact the Designated Federal Officer directly.
Environmental Protection Agency (EPA).
Notice of Availability.
This notice announces applicability determinations, alternative monitoring decisions, and regulatory interpretations that EPA has made under the New Source Performance Standards (NSPS); the National Emission Standards for Hazardous Air Pollutants (NESHAP); and the Stratospheric Ozone Protection Program.
An electronic copy of each complete document posted on the Applicability Determination Index (ADI) database system is available on the Internet through the Office of Enforcement and Compliance Assurance (OECA) Web site at:
The General Provisions to the NSPS in 40 Code of Federal Regulations (CFR) Part 60 and the General Provisions to the NESHAP in 40 CFR part 61 provide that a source owner or operator may request a determination of whether certain intended actions constitute the commencement of construction, reconstruction, or modification. EPA's written responses to these inquiries are commonly referred to as applicability determinations. See 40 CFR 60.5 and 61.06. Although the part 63 NESHAP [which includes Maximum Achievable Control Technology (MACT) standards] and section 111(d) of the Clean Air Act (CAA) regulations contain no specific regulatory provision that sources may request applicability determinations, EPA responds to written inquiries regarding applicability for the part 63 and section 111(d) programs as well. The NSPS and NESHAP also allow sources to seek permission to use monitoring or recordkeeping that are different from the promulgated requirements. See 40 CFR 60.13(i), 61.14(g), 63.8(b)(1), 63.8(f), and 63.10(f). EPA's written responses to these inquiries are commonly referred to as alternative monitoring decisions. Furthermore, EPA responds to written inquiries about the broad range of NSPS and NESHAP regulatory requirements as they pertain to a whole source category. These inquiries may pertain, for example, to the type of sources to which the regulation applies, or to the testing, monitoring, recordkeeping, or reporting requirements contained in the regulation. EPA's written responses to these inquiries are commonly referred to as regulatory interpretations.
EPA currently compiles EPA-issued NSPS and NESHAP applicability determinations, alternative monitoring decisions, and regulatory interpretations, and posts them on the ADI on a quarterly basis. In addition, the ADI contains EPA-issued responses to requests pursuant to the stratospheric ozone regulations, contained in 40 CFR part 82. The ADI is an electronic index on the Internet with over one thousand EPA letters and memoranda pertaining to the applicability, monitoring, recordkeeping, and reporting requirements of the NSPS, NESHAP, and stratospheric ozone regulations. The letters and memoranda may be searched by date, office of issuance, subpart, citation, control number, or by string word searches.
Today's notice comprises a summary of 47 such documents added to the ADI on May 25, 2011. The subject and header of each letter and memorandum are listed in this notice, as well as a brief abstract of the letter or memorandum. Complete copies of these documents may be obtained from the ADI through the OECA Web site at:
The following table identifies the database control number for each document posted on the ADI database system on May 25, 2011; the applicable category; the subpart(s) of 40 CFR part 60, 61, or 63 (as applicable) covered by the document; and the title of the document, which provides a brief description of the subject matter. We have also included an abstract of each document identified with its control number after the table. These abstracts are provided solely to alert the public to possible items of interest and are not intended as substitutes for the full text of the documents. This notice does not change the status of any document with respect to whether it is “of nationwide scope or effect” for purposes of section 307(b)(1) of the Clean Air Act. For example, this notice does not make an applicability determination for a particular source into a nationwide rule. Neither does it purport to make any document that was previously non-binding into a binding document.
Q1: Does 40 CFR part 63, subpart RRR, allow Kaiser Aluminum Fabricated Products, Inc., the owner/operator of a secondary aluminum production furnace, to switch back and forth between group 1 and group 2 furnace operation at a regular or even infrequent basis, depending on what its being fed to the furnace at any given time, and turn the control device on and off depending on the operating scenario?
A1: No. MACT subpart RRR does not allow for the furnace to be designated group 1 and 2 at the same time, depending on what it's being feed to the furnace. However, the owner/operator may choose to re-designate a furnace on a very infrequent basis along with a permit modification.
Q2: Does 40 CFR part 63, subpart RRR, allow an owner/operator to operate the furnace as a group 1 furnace, accepting an undefined mix of clean and purchased scrap and a fluxing agent, with the baghouse not operating?
A2: No. A group 1 furnace cannot be authorized to operate under more than one set of operating parameters depending on what is being fed to the furnace at any given time and the use of a control device or not. MACT subpart RRR addresses a single worst-case scenario when conducting a performance test to establish operating parameters, and does not address alternate operating scenarios.
Q1: Are two mixing vessels and two milling machines being installed at the Majilite facility in Dracut, Massachusetts, considered coating mix preparation equipment under 40 CFR part 60, subpart VVV?
A1: Because Majilite's mixing vessels will be blending solvent with other materials to prepare pigments that are used to prepare polymeric coatings, the pigment mixing vessels are coating mix preparation equipment subject to NSPS subpart VVV. The milling machines, however, do not fit within the rule definition of coating mix preparation equipment.
Q2: Majilite operates one coating line subject to NSPS, subpart VVV, and that this coating line and coating mix
A2: EPA has determined that because Majilite's subpart VVV coating operation and associated coating mix preparation equipment use at least 130 Mg of VOC per 12-month period and the pigment mixing vessels are being installed without concurrent construction of a control device, Majilite must meet the requirements of 60.742(c)(2) for its pigment mixing vessels, among other requirements.
Q: Do the processes which occur in the preliminary treatment system at Waste Management of New Hampshire's (WMNH) Turnkey Recycling and Environmental Enterprise (TREE) facility in Rochester, New Hampshire, meet the requirements for a “treatment system” under 40 CFR 60.752(b)(2)(iii)(C)?
A: Yes. EPA has determined that the preliminary treatment system located at WMNH in which the gas has been compressed, dewatered, and filtered down to 10 microns meets the criteria of a treatment system under 40 CFR 60.752(b)(2)(iii)(C), and is not subject to the monitoring and recordkeeping requirements of 40 CFR 60.756(b) and 40 CFR 60.758(b) and (c).
Q: Does EPA approve the request of Allied Imperial Landfill in Imperial, Pennsylvania to monitor some landfill gas well sump structure lids as though they were the “surface” of the landfill, in accordance with 40 CFR part 60, subpart WWW?
A: Yes. EPA finds that monitoring the sump lids is adequate to fulfill the requirements of NSPS subpart WWWW based on the intent of NSPS subpart WWW and the sump structure construction. Monitoring inside the sump structure could create an artificially elevated value for the landfill gas well(s). If a landfill gas extraction well (LGFW) monitoring event indicates readings above 500 ppm around the circumference of the fiberglass structure, and/or lid of the structure, then corrective actions must be completed, as required by NSPS subpart WWW.
Q: The Pactiv facility located in Winchester, Virginia, must comply with 40 CFR part 63, subpart EEEE, the organic liquid distribution (OLD) MACT, due to a hazardous air pollutant (HAP) in a foaming agent used at the facility. Were the facility to switch the foaming agent to one that uses less than 5 percent HAPS would the OLD MACT apply?
A: Yes. The new foaming agent still contains HAPs, and according to the “Once in Always In” Policy, the OLD MACT still applies.
Q: Does EPA approve the use of a non-regenerative carbon adsorption system as the control technology under 40 CFR part 63, subpart MMMM, for the metal parts coating operations of East Penn Manufacturing in Lyon Station, Pennsylvania?
A: Yes. EPA approves this request based on the conditions set forth in this letter, and provided that the request does not relieve East Penn of any other requirements of MACT subpart MMMM.
Q: Does EPA approve alternative operating parameters under 40 CFR part 63, subpart NNNNN, for the Irgafos V-47 caustic scrubber at the Ciba Corporation facility in McIntosh, Alabama?
A: No. EPA cannot approve the requested alternatives without evaluating the performance test data that is collected using these proposed alternative parameters which needs to be submitted by Ciba Corporation to demonstrate compliance with the applicable emission limit set out in Table 1 of MACT subpart NNNNN.
Q: Is the polyethylene terephthalate (PET) solid state polymerization (SSP) process at the DAK Americas facility in Cooper River, South Carolina, subject to 40 CFR part 63, subpart FFFF?
A: Yes. The SSP process is a miscellaneous organic chemical manufacturing process unit (MCPU) which manufactures a product, PET, which is described by the North American Industry Classification System 325. In doing so, it, generates a hazardous air pollutant (HAP), acetaldehyde. The MCPU is located at a major source of HAP. Thus, the SSP process satisfies all of the conditions for applicability under MACT subpart FFFF, specifically 40 CFR 63.2435 (a) and (b)(1) through (3).
Q: Does EPA waive excess emissions reporting requirements under 40 CFR part 63, subpart EEE, for a waste liquid fuel-fired boiler system (WFBS) at the Diversified Scientific Services facility in Kingston, Tennessee, if the unit is equipped with an automatic fuel cutoff?
A: No. EPA does not waive the excess emissions reporting requirements of MACT subpart EEE even when the WFBS has safe guards that minimizes emissions because there remain numerous reportable situations involving continuous monitoring system devices, such as opacity monitors, thermocouples, pressure transducers, and flow meters, that could malfunction and that should be included in the required report.
Q1: Is the exemption in section 60.14(e)(4) of the General Provisions applicable to Power Boiler No. 6, at Rayonier Performance Fibers, in Fernandina Beach, Florida, even though the emission rate of nitrogen oxide (NO
A1: Yes. Even though there will be an increase in the NO
Q2: An interpretation of the reference in 40 CFR 60.14(e)(4) to the “facility's construction specifications” is requested for Power Boiler No. 6. The boiler was purchased by Rayonier as a traveling grate boiler and was later converted to a bubbling fluidized bed boiler.
A2: The exemption in 40 CFR 60.14(e)(4) relates to the construction specifications prior to the date a standard becomes applicable to a source category. Because the applicability date for 40 CFR part 60, subpart Db, is June 18, 1984, 40 CFR 60.14(e)(4) relates to the construction specifications for Power Boiler No. 6 prior to that date.
Q: Does EPA grant the request of Detroit Edison's River Rouge Power Plant in River Rouge, Michigan, to eliminate the requirement for temperature monitors on the gas stream exits of the thermal dryers?
A. No. Continuous temperature monitoring, as required in 40 CFR 60.256(a) (1), indicates compliance status with respect to the carbon monoxide (CO) limits. The temperature record ensures the source temperature correlates with the results of performance tests or other emissions
Q: Does the landfill gas treatment system proposed by the City of Midland, Michigan, meet the requirements that allow the landfill gas to be exempt from control requirements per 40 CFR 60.752(b)(2)(iii)(C) when burned in internal combustion engines? A: Yes. Because the proposed landfill gas treatment system will use 10-micron filtration and sufficient dewatering, it meets the current requirements used by EPA for gas “treatment” and is therefore exempt from the requirements of 40 CFR 60.752(b)(2)(iii)(C).
Q: Is dry cleaning equipment that was initially installed prior to December 21, 2005, but was removed from its original location, sold to a new owner, and relocated subsequent to December 21, 2005, subject to the area source, non-residential carbon adsorption requirements at 40 CFR 63.322(o)(2)?
A: Yes. Reselling and relocating dry cleaning equipment constitutes installation of a dry cleaning system. Therefore dry cleaning equipment that is resold and relocated would be subject to the secondary carbon adsorption requirements of 40 CFR 63.322(o)(2).
Q: Does EPA approve higher landfill gas temperatures under 40 CFR 60.753(c) for specific extraction and leachate wells at Veolia's Glacier Ridge Landfill near Horicon, Wisconsin?
A: Yes. Because the proposed operating limit of 148 degrees Fahrenheit is properly supported by data that shows there would be a minimal risk of a landfill fire or significantly inhibited anaerobic decomposition, EPA approves the higher landfill gas temperatures under 40 CFR 60.753(c).
Q: Does EPA approve a request to waive the minimum secondary combustion chamber temperature operating parameter limit under 40 CFR part 63, subpart EEE, for the Heritage-WTI (WTI) facility in East Liverpool, Ohio?
A: No. EPA concludes that the rotary kiln and the secondary combustion chamber (SCC) are separate combustion chambers and thus does not approve the request under MACT subpart EEE. WTI cannot legitimately argue that the SCC at its facility does not contain a steady-state, or near steady-state, process wherein fuel, hazardous waste, and oxidizer (
Q: Does 40 CFR part 60, subpart CCCC, apply to the thermal destruction unit operated by PIKA International in Calhoun County, Arkansas?
A: Yes. NSPS subpart CCCC applies because the waste that is burned (1) Is a RCRA solid waste, but not a RCRA hazardous waste; (2) meets the definition of a commercial solid waste; and (3) is not eligible for any exemptions under NSPS subpart CCCC. In addition, NSPS subpart CCCC applies as a result of the date construction began on the incinerator.
Q: If Riceland Cabinet's (Riceland) facility in Orville, Ohio, which is subject to 40 CFR part 63, subpart JJ, relocates its facility and reduces its emission to area source status thresholds after the NESHAP compliance date, does it remain subject to the MACT subpart JJ and Title V Permitting requirements?
A: Yes. The relocated facility would be considered an existing source under MACT subpart JJ. The relocated facility would also be required to obtain a Title V Permit. The “Once In Always In” Policy (OIAI Policy) allows new sources the option to comply with federally enforceable limits after the compliance date in order to not be subject to the NESHAP. However, a relocated facility cannot be defined as a new source for the purposes of the NESHAP. To be considered a new source, a source would have to be constructed after the compliance date; however, relocating a facility is not construction according to NESHAP definition of construction. Construction is defined as the on-site fabrication, erection, or installation of an affected source. Construction does not include the removal of all equipment comprising an affected source from an existing location and reinstallation of such equipment at a new location. Any source that is not a new source is defined as an existing source.
Q: Does EPA approve the use of alternative method ASTM D975-07b for fuel certification under 40 CFR part 60, subpart Dc, in lieu of ASTM D396 for Quest Diagnostics in Chantilly, Virginia?
A: Yes. ASTM D975-07b is more stringent than ASTM D396 in all cases except viscosity, which will not affect sulfur dioxide emissions, and thus is acceptable under NSPS subpart Dc.
Q1: Is Method 7E an allowable alternative test method for measuring nitrogen oxide (NOx) emissions at nitric acid plants for the purposes of determining compliance with 40 CFR part 60, subpart G?
A1: No. Method 7E is not approved for use to demonstrate compliance with NSPS subpart G.
Q2: Is Method 6C an allowable alternative test method for measuring sulfur dioxide (SO2) emissions at sulfuric acid plants for the purposes of determining compliance with 40 CFR part 60, subpart H?
A2: No. Method 6C is not approved for use to demonstrate compliance with NSPS subpart H.
Q: Will EPA reconsider its February 8, 2006 determination that 40 CFR part 60, subpart KKKK, applies to a turbine at Great River Energy in Cambridge, Minnesota?
A: No. The request does not provide any new information that would cause the Agency to reconsider the February 8, 2006 determination that NSPS subpart KKKK applies.
Q: Did construction commence on the proposed installation of a gas turbine at Great River Energy (GRE) in Cambridge, Minnesota, before the applicability date of 40 CFR part 60, subpart KKKK?
A: No. GRE did not begin installation of the turbine nor enter into a contractual obligation to undertake and complete within a reasonable time a continuous program of construction for the installation of the turbine prior to
Q1: Is the installation of a capacitor bank and tuned reactor at the electrical substation servicing an electric arc furnace (EAF) at the Alton Steel, Inc. facility, a physical or operational change to an existing EAF under 40 CFR 60.14 of the General Provisions?
A1: Yes. The capacitor/reactor project increased the capacity (
Q2: Is the capacitor/reactor project exempt from the definition of “modification” because it is “routine maintenance, repair, or replacement” under 40 CFR 60.14(e)(1)?
A2: No. The capacitor/reactor project was not routine maintenance, repair, or replacement under 40 CFR 60.14(e)(1).
Q3: Is the capacitor/reactor project not subject to 40 CFR part 60, subpart AAa because it is not considered “modification” based on the capital expenditure exemption at 40 CFR 60.14(e)(2)?
A3: Yes. The capacitor/reactor project allowed the EAF to increase the rate of production but involved no capital expenditure on the “existing facility” (
Q1: Does 40 CFR part 60, subpart AAAA, apply to the syngas gasification process at Fulcrum BioEnergy's (Fulcrum) proposed facility in McCarran, Nevada?
A1: No. Because Fulcrum's proposed syngas gasification process is neither combustion nor pyrolysis, the syngas generation unit is not considered a “pyrolysis/combustion unit” or “municipal waste combustion unit” as defined in NSPS subpart AAAA.
Q2: Does 40 CFR part 60, subpart AAAA, apply to the combined cycle combustion turbine if the facility meets the requirements for the small power production facility exemption or the cogeneration facility exemption?
A2: No. 40 CFR 60.1020(b) and (c) list the requirements that a facility must meet to be exempt from NSPS subpart AAAA as a small power production facility or cogeneration facility. Those requirements include meeting criteria established by the Federal Power Act, combusting homogeneous waste, and providing notification and documentation to EPA. EPA concurs with Fulcrum's assessment that the gasified waste would be considered homogeneous. However, to qualify for either of the facility exemptions Fulcrum would also need to provide appropriate notification and documentation that it meets the criteria established by the Federal Power Act.
Q3: Does 40 CFR part 60, subpart AAAA, apply to the air pollution control flare?
A3: No. As long as the flare is operated solely as an air pollution control device, it is excluded from the definition of “municipal waste combustion unit” under NSPS subpart AAAA.
Q: Does EPA approve NuStar Logistics (“NuStar”) request for alternative monitoring of emissions under 40 CFR part 63, subpart R, of continuous presence of a pilot flame for the vapor combustion unit (VCU) in lieu of temperature monitoring at the firebox at its bulk gasoline terminal in Colorado Springs, Colorado?
A: EPA does not approved NuStar alternative monitoring request because it does not demonstrate meeting the requirements of 40 CFR 63.8(f)(4), 63.427(a)(5), and 63.428(c)(3)). Additional information needs to be provided within 30 calendars days after receipt of this letter. [Additional information was not provided.]
Q: Does EPA approve the request of the Tooele Chemical Agent Disposal Facility (TOCDF) in Stockton, Utah, to waive the requirement to establish, and subsequently monitor, at the Deactivation Furnace System (DFS), a 12-hour rolling average (HRA) feed rate for mercury, ash, semi- and low-volatile metals, and chlorine required by 40 CFR 63.1290(l), (m), (n), and (o), respectively?
A: EPA conditionally approves TOCDF's request to waive the requirement to establish, and subsequently monitor, at the DFS, a 12-HRA feed rate for mercury, ash, semi- and low-volatile metals, and chlorine required by 40 CFR 63.1290(l), (m), (n), and (o), respectively. EPA's approval is limited to when burster and fuze pairs from 4.2″ HD mortars, HT mortars, and minimal amounts of process generated waste such as agent contaminated rags and small metal parts are fed to the DFS. Additionally, EPA's approval is based on a feed rate to the DFS of combined 4.2″ mortar burster/fuze pairs of 274/hour, as well as the RCRA Permit limits for process generated waste, and TOCDF's commitment to monitor and comply with those limits.
Q: Does EPA approve the request of the Tooele Chemical Agent Disposal Facility (TOCDF) located in Stockton, Utah, under 40 CFR part 63, subpart EEE, to modify the first condition of the approved alternative monitoring request (AMR) of April 27, 2006, to also include munitions processing? The first condition states that “this approval shall apply only to the Baseline Processing phase of the TOCDF Mustard campaign which restricts processing to only those ton containers (TCs) in which the level of Hg in the liquid phase is less than 1 ppm”?
A: Yes. EPA approves modifying the scope of the AMP request to include the processing of the above TCs, munitions, and secondary waste. Based on the information provided, EPA believes that TOCDF can process the additional TCs, munitions, and secondary waste and maintain compliance with 40 CFR part 63, subpart EEE standards.
Q: Does EPA approve under 40 CFR part 63, subpart EEE, the request of the Tooele Chemical Agent Disposal Facility (TOCDF) in Stockton, Utah, to modify Condition #2 of the alternative monitoring request approved by EPA on June 29, 2009? The condition states among other things, that during the Non-Baseline Processing Phase, the sampling period for the Appendix K System sorbent tube trap sets shall be no greater than 12 hours, and Tooele requests to change “no greater than 12 hours” to “no greater than 12 hours (plus or minus 30 minutes to allow for unforeseen events)”?
A: EPA approves the revision to Condition #2 because TOCDF has confirmed that even though the start or stop time may vary by up to 30 minutes, TOCDF will sample continuously. For those periods where the start or stop time varies by 15 minutes or more, TOCDF will provide a reason code in its reporting to explain why sampling was plus or minus 15 minutes or more. In addition, EPA believes the change in Condition #2 is approvable for the reasons expressed in its June 29, 2009 letter.
Q1: Does EPA approve Albemarle Corporation's (Albemarle) alternative monitoring request for its facility in Orangeburg, South Carolina, to measure the liquid temperature in the receiver of its process condensers as described in 40 CFR 63.2460(c)(2)(v) when conducting the process condenser demonstration required by 40 CFR 63.1257(d)(3)(iii)(B)?
A1: Yes. EPA agrees that measuring the liquid temperature of the condensed liquid in the receiver would be an acceptable alternative to measuring the exhaust gas temperature as required by 40 CFR 63.1257(d)(3)(iii)(B) because the temperature of the condensed liquid and the exhaust gas are in equilibrium.
Q2: Does EPA approve Albemarle's alternative recordkeeping request under 40 CFR part 63, subpart GGG, to maintain records of standard and non-standard batch production to allow the calculation of rolling annual emissions on a daily basis to comply with the daily rolling 365-day HAP emissions once per month as required by 40 CFR 63.1259(b)(4)?
A2: Yes. For purposes of compliance with the annual mass limits of 40 CFR 63.1254(a)(2) and (b)(2), Albemarle must calculate and record the daily rolling annual total emissions for the previous month by the fifth day of each month.
Q3: Does EPA approve Albemarle's request for a waiver of the performance test requirements of 40 CFR 63.11(b)(6)(i) for a flare used to control Hydrogen Cyanide (HCN) emissions from the HCN Pharmaceutical Manufacturing Process Unit (PMPU)?
A3: Yes. EPA approves a waiver of the requirement to conduct a performance test to demonstrate compliance with 40 CFR 63.11(b)(6)(i). This waiver is for the same flare being operated under the same conditions for which Albemarle submitted information in 2002 and 2003 to support its request for a waiver of the performance test requirements under 40 CFR 60.18(c)(3)(i). In addition, the regulatory language of 40 CFR.11(b)(6)(i) is identical to that of 40 CFR 60.18(c)(3)(i).
Q4: Does EPA approve Albemarle's setting alternate operating limits for a hydrochloric acid (HCl) bubbler control device to those required by 40 CFR 63.1258(b)(1)(ii) for scrubbers?
A4: EPA conditionally approves the alternate operating parameters pending a successful performance test and other conditions listed in the EPA response letter.
Q: Do the requirements for external floating roof tanks (EFR) in 40 CFR 60.112b(a)(2), the requirements for internal floating roof (IFR) tanks in 40 CFR 112b(a)(1) apply, or both, apply to EFR tanks which have been enclosed with a fixed roof located at the TransMontaigne Operating Company LP facility in Selma, North Carolina?
A: An EFR tank which is enclosed by the installation of a fixed roof meets the 40 CFR part 60, subpart Kb description of an IFR tank and is therefore subject to the requirements for IFR tanks. An enclosed EFR tank is no longer subject to the NSPS subpart Kb requirements for EFR tanks.
Q1: Is a municipal solid waste landfill that already has a design capacity equal to or greater than 2.5 million megagrams and 2.5 million cubic meters required under 40 CFR part 60, subpart WWW, to submit an amended design capacity report upon approval of a further expansion?
A1: No. The facility is not required to do so as it is subject to the standards 40 CFR 60.752(b), which does not require such reports.
Q2: Is a municipal solid waste landfill that already has a design capacity equal to or greater than 2.5 million megagrams and 2.5 million cubic meters required under 40 CFR part 60, subpart WWW, to submit a notice for a physical or operation change pursuant to 40 CFR 60.7(a)(4) upon approval of a further expansion?
A2: Yes. Under NSPS subpart WWW, the facility is required to do so for all modifications that meet the definition of 40 CFR 60.14.
Q1: Does the removal of asbestos containing coating materials from stator bars at a metal recycling facility in Ashtabula, Ohio, constitute an asbestos conversion process subject to 40 CFR 61.155?
A1: No. 40 CFR 61.155 applies to situations where regulated asbestos containing material, and asbestos-containing waste material, is converted to a non-asbestos material. The information provided by the requestor indicates that stator bars coated with an asbestos containing resin and wrapped with tape covered by an asbestos containing tar will be removed from various locations and the bars will be taken to a recycling operation where the asbestos containing resin and tar will be removed from the bars. All of the asbestos that is removed from the stator bars will remain asbestos after it is removed from the bars. The asbestos material that is removed will be disposed of in a landfill. Because the asbestos containing material is not subject to any process or treatment that would convert it to a nonasbestos material, there is no conversion to a non asbestos material taking place.
Q2: Are the notification requirements at 40 CFR 61.145 applicable to the removal of asbestos covered and coated stator bars at the site where they are removed and at the site where the asbestos is stripped from the bars?
A2: At each site where the stator bars are removed, if the surface area (of the bars to be removed) covered with asbestos containing resin and tar equals or exceeds 160 square feet, then the notification requirements of 40 CFR 61.145 apply and a notice must be submitted to the Federal, State or local agency delegated to receive such notifications. Because the stator bars will be stripped of asbestos at a site in Ashtabula, Ohio, a copy of each notification for bars removed outside of Ohio should also be sent to the Ohio Environmental Protection Agency. No matter where the bars are removed, a notification must be in place for each batch of stator bars stripped of asbestos containing materials at the site in Ashtabula, Ohio.
Q3: Which sections of 40 CFR 61.145(c) apply at the site where the stator bars are removed?
A3: Because the stator bars are not going to be stripped of asbestos at the site where they are removed, and because the stator bars are going to be shipped to Ashtabula, Ohio, the bars must be handled in accordance with the requirements of 40 CFR 61.145(c)(5)(i) through (iii).
Q: With respect to the operating limits for cold core machines utilizing capture and wet acid scrubbers to control triethylamine (TEA) emissions at the Indianapolis Casting facility in Indianapolis, Indiana: When dampers are manually set in a fixed position, does the exemption from the continuous parameter monitoring system (“CPMS”) requirement apply only to exempting a CPMS with regard to damper position or would a fixed damper position exempt the cold core machine capture system from monitoring the hourly average rate as with respect to 40 CFR 63.7740(a)?
A: 40 CFR 63.7710(b)(2)(i) contains two different requirements (at a minimum) for the capture system: level of ventilation draft and damper position settings. Both types of CPMS are required, but the CPMS for damper system is not needed if the damper position is manually set and in a fixed position. Thus, the CPMS exemption referred to in 40 CFR 63.7740(a)(2)
Q: Does EPA approve a request for alternate performance testing under 40 CFR part 60, subpart KKKK, for combustion turbines and direct-fired heaters being installed as part of a process modification at the PL Propylene facility in Houston, Texas?
A: Yes. EPA has determined that the stationary combustion turbines are subject to the requirements of NSPS subpart KKKK, and has approved the request to conduct one performance test downstream of the selective catalytic reduction units, and to apply reference method results from the NOx continuous monitoring system certification for the initial demonstration of compliance with 40 CFR 60.4320. However, testing must be conducted using the fuel or combination of fuels that would result in the highest emissions.
Q. Is the proposed Earth Energy oil sand mine and processing facility in eastern Utah, which will include mining of the naturally occurring oil sands and extraction of the bitumen from these sands, subject to 40 CFR part 60, subpart Ja?
A: No. The Earth Energy facility would not be considered a “petroleum refinery” and thus is not subject to NSPS subpart Ja.
Q1: Does EPA approve the Tooele Army Depot's (TEAD's) request to establish a limit on the minimum baghouse inlet temperature to replace the requirement to establish a limit on the maximum baghouse temperature (40 CFR 63.1209(k)(1)(i)) to assure compliance with the dioxin and furan limit in 40 CFR 63.1219(a)(1)?
A1: EPA conditionally approves the use of a minimum baghouse inlet temperature rather than a maximum baghouse inlet temperature during the Comprehensive Performance Test if the baghouse inlet temperature is maintain at the required level, as established in the EPA response letter.
Q2: Does EPA approve TEAD's request to establish a limit on the maximum afterburner outlet temperature to replace the requirement to establish a limit on the maximum baghouse inlet temperature (40 CFR 63.1209(n)(1)) to ensure compliance with the semi-volatile and low volatility metals limits in 40 CFR 63.1219(a)(3) and (4)?
A2: No. EPA cannot approve the request because the temperature range of the inlet to the baghouse can vary so dramatically.
Q3: Does EPA approve TEAD's request to establish the maximum potential particulate matter (PM) generation as a limit to replace the requirement to establish the maximum ash feed rate limit to ensure compliance with 40 CFR 63.1219(a)(7)?
A3: Yes. EPA conditionally approves the request to establish the maximum potential particulate matter (PM) generation as a limit to replace the requirement to establish the maximum ash feed rate limit, provided that (i) The propellants, explosives and pyrotechnics (PEP) feed rate will not exceed 56.28 lb/hr and (ii) the PM generation will not exceed the worst case theoretical maximum based on the PEP feed rate above.
Q1: Does EPA approve of the operator of a secondary aluminum continuous caster at the Commonwealth Aluminum Concast (Commonwealth) facility in Uhrichsville, Ohio, weighing the metal by measuring the volume of the slab produced by the continuous caster even if the method does not meet the one percent accuracy requirement at 40 CFR 63.1510(e)?
A1: Yes. Although these accuracies do not meet the one percent accuracy requirement at 40 CFR 63.1510(e), EPA has concluded that on the basis of the information provided the affected source should be able to meet the relevant emission standard.
Q2: May the operator record and report on a 24-hour basis the chlorine injection rate for its in-line fluxers since the chlorine meter is not accurate to one percent for the 15-minute block time period intervals specified in the rule at 40 CFR 63.1510(j)?
A2: No. In this instance, available data indicate that the required one percent accuracy can be achieved on a 16-hour basis. Therefore, EPA determines that there is no basis for extending the averaging period beyond 16 hours.
Q3: May the operator test only one of two identical in-line fluxers to measure particulate matter emissions?
A3: Yes. Because the in-line casters operate in series, the test plan does not contemplate testing of PM emissions from each fluxer individually. For the purposes of compliance calculations, however, the particulate matter is assumed to emit from the tested caster. This would represent a conservative worst-case assumption, and does not require the assumption that an equal amount of particulate matter is emitted from each caster.
Q4: May the operator conduct performance testing for two of the four aluminum melting furnaces?
A4: Yes. EPA approves the testing of two of a total of four of the aluminum melting furnaces if these have the same physical dimensions and capacity, and the operator charges each furnace with the same materials and the same reactive fluxing agents in the same proportions, and this will maintain identical work practices. Also, Commonwealth will perform three test runs for two representative furnaces during a complete operating cycle, which is defined for purposes of this testing as the initial metal charging through the final skim, or about 1.5 hours. In addition, each melting furnace (M1 through M4) has the same physical dimensions and capacity of 233,000 tons, and maximum 21 million Btu/hour heat input natural gas burners. The testing of emissions from M1 will be representative of emissions from M3, and the testing of emissions from M2 will be representative of emissions from M4.
Q1: Does EPA approve the revised comprehensive performance test plan (CPT) and continuous monitoring system (CMS) performance evaluation test (PET) plan for Sunoco Chemicals, in Haverhill, Ohio, pursuant to 40 CFR 63.1207(e)(1)(i)(A)?
A1: Yes. EPA approves Sunoco's revised CPT and CMS PET plan under MACT subpart EEE.
Q2: Does the requirement for a one-time dioxin/furan test apply to Boiler UC pursuant to 40 CFR 63.1207(b)(3)(ii) and 63.1207(b)(3)(iii)?
A2: EPA concludes that the requirement for a one-time dioxin/furan test for Boiler UC does not apply until Sunoco resumes generation and incineration of its two hazardous waste feedstreams.
Q3: Does EPA approve Sunoco's PM DIL requests for Boiler UC?
A3: Yes. EPA approves Sunoco's PN DIL requests for Boiler UC.
Q4: Does EPA approve Sunoco's request to use data from a 2006 DRE test on Boiler UC as documentation of conformance with the applicable DRE emission standard for Boiler UC pursuant to 40 CFR 63.1207(c)(2)?
A4: Yes. EPA approves Sunoco's request to use data from a 2006 DRE test on Boiler UC as documentation of conformance with the applicable DRE emission standard for Boiler UC.
Q5: Does EPA approve Sunoco's request to use data from a November
A5: Yes. EPA approves Sunoco's request to use data from a November 2001 DRE test on Boiler UE as documentation of conformance with the applicable DRE emission standard for Boiler UE pursuant to 40 CFR 63.1207(c)(2).
Q6: Does EPA approve a maximum theoretical emission concentration request for Boiler UC and Boiler UE pursuant to 40 CFR 63.7(h) and 63.1207(m)?
A6: Yes. EPA approves a maximum theoretical emission concentration request for Boiler UC and Boiler UE pursuant to 40 CFR 63.7(h) and 63.1207(m).
Q1: Are the flow monitoring procedures under 40 CFR part 60, subpart RRR, an acceptable alternative to the 40 CFR part 60, subpart NNN, requirements for the distillation operation at Flint Hills' facility in Saint Paul, Minnesota?
A1: Yes. EPA finds that in this instance the NSPS subpart RRR flow monitoring procedures are an acceptable alternative to those under NSPS subpart NNN. The NSPS subpart RRR requirement to monitor diversions from the control device accomplishes the same result (
Q2: Does EPA approve the use of certain monitoring, recordkeeping, and reporting provisions under 40 CFR part 60, subpart RRR, as alternative monitoring requirements to those under 40 CFR part 60, subpart NNN, for the Flint Hills' facility in Saint Paul, Minnesota?
A2: Yes. EPA approves the use of the provisions in NSPS subpart RRR as an alternative means of demonstrating compliance under NSPS subpart NNN for the specified distillation unit. As conditions of approval, the facility must comply with the recordkeeping and reporting requirements for flow indicators in NSPS subpart RRR and must maintain a schematic diagram for all related affected vent streams, collection system(s), fuel systems, control devices, and bypass systems as stated in 40 CFR 60.705(s).
Q3: Does EPA approve a waiver of initial performance tests for certain boilers and heaters at the Flint Hills' facility in Saint Paul, Minnesota?
A3: Yes. Pursuant to 40 CFR 60.8(b)(4), EPA conditionally approves the performance test waiver for the boilers and process heaters which are fired with fuel gas containing a vent stream from the Poly Unit De-Propanizer (43V-5), Saturates Gas De-Propanizer (43V-19), and Alky Unit De-Propanizer (35V-2). This waiver is applicable for boilers and process heaters that meet the definitions of a boiler or process heater in 40 CFR 60.701. Both the alternative monitoring and the waiver of performance testing are contingent upon the vent streams being vented to a fuel gas system and introduced into the flame zone with the primary fuel.
Q4: Does EPA approve Flint Hills' request for alternate flare reporting required by 40 CFR 60.665(l)(4), Subpart NNN?
A4: Yes. EPA approves Flint Hills Resources' (FHR's) request to comply with the reporting requirements on the status of the pilot flame in 40 CFR 63.654(g)(6)(i)(B) of Subpart RRR in lieu of the flare requirements in 40 CFR 60.665(l)(4) of Subpart NNN, based on approval of the AMP request.
Q: What is considered a comparable new source under 40 CFR Part 63, Subpart PPPPP, when determining if reconstruction has occurred under 40 CFR 3.2 of the General Provisions at John Deere's engine testing facility in Dubuque, Iowa?
A: While the regulations do not define “comparable new source,” it is clear within context of the paragraph (see 63.2, reconstruction definition) that the term stands for “a newly reconstructed existing facility.” EPA has determined that the addition of the new test cells equipment to a facility, as defined in 40 CFR part 63, Subpart PPPPP, does not automatically trigger new source MACT requirements, unless the definition of reconstruction as listed in 40 CFR 63.2 is met. Based on the information provided, EPA has determined that for the John Deere Facility the cost of new equipment is not more than 50 percent of the cost to construct a comparable new facility. Therefore, the definition of reconstruction would not be met and new source MACT requirements were not triggered. The percent cost of installation should be calculated by dividing the cost of new components (
Q1: How does the vacatur of the startup, shutdown, and malfunction (SSM) exemption provisions of 40 CFR part 63, subpart A, impact the reporting requirements of 40 CFR part 63, subpart RRR?
A1: In general, the SSM vacatur should have no impact on the reporting requirements in MACT subpart RRR.
Q2: If a monitoring malfunction occurs that does not cause excess emissions, is it a reportable occurrence?
A2: Yes, all malfunctions are required to be reported regardless of the resulting emissions.
Q: Does EPA approve the request of the Enbridge Energy facility in Superior, Wisconsin, to perform an internal inspection under 40 CFR part 60, subpart Kb, on the internal floating roofs (IFR) tanks while they are in-service and out-of-service?
A: Yes. Enbridge Energy may perform an internal inspection by visually inspecting the IFR components from the top of the IFR using inspection procedures that are similar to those found in 40 CFR 63.1063(d)(1) and 40 CFR part 63, subpart WW. The proposed alternative monitoring procedure, based on 40 CFR part 63, subpart WW, would serve to satisfy the requirements of 40 CFR 60.113b(a)(4).
Q: Are sour water streams managed in sour water strippers regulated upstream of the sour water stripper exit under 40 CFR part 61, subpart FF?
A: Yes. Assuming that the total annual benzene quantity from facility waste is 10 Mg/year or greater, as provided by 40 CFR 61.342(b), the facility must comply with the requirements of 40 CFR 61.342 (c)-(h). Thus, these requirements would apply to sour water streams managed upstream of the sour water stripper exit.
Q: Does EPA approve the request of Ross Incineration Services in Grafton, Ohio, for the hazardous waste incinerator operator to use alternate operating parameters in lieu of flow rate measurements for the scrubbers to avoid automatic waste feed cutoffs should a flow meter fail pursuant to 40 CFR part 63 subpart EEE?
A: Yes. EPA conditionally approves this request based upon the review of the data submitted showing that the alternate operating parameters, specifically, scrubber temperatures, water pump current, and nozzle pressure, can be measured and
Q: Does EPA approve the request of the Tooele Chemical Agent Disposal Facility (TOCDF) in Stockton, Utah, to modify conditions of the alternative monitoring request (AMR) approved by EPA on June 29, 2009, pursuant to 40 CFR part 63, subpart EEE, with regards to the use of a thermal desorption mercury analyzer and mercury sampling timeframes?
A: Yes, EPA approves revisions to applicable conditions of the June 26, 2009 AMR approval. All conditions of approval are restated in the current AMR approval.
Q: Does EPA approve the request of the Tooele Chemical Agent Disposal Facility (TOCDF) in Stockton, Utah, to comply with the mercury emission standard (130 micrograms/dscm, corrected to 7 percent oxygen) at the Metal Parts Furnace (MPF) by: 1) continuously collecting exhaust gas samples and sampling for mercury (Hg) and taking the rolling average of the results obtained from three consecutive 4-hour sampling events, resulting in a 12-hour averaging period for compliance determination purposes, rather than relying on an operating parameter limit (OPL) for a maximum Hg feedrate as required by 40 CFR 63.1209(l)(1)(i); and (2) continuously sampling exhaust gas samples using a modified EPA method approved for use by coal-fired power plants found at 40 CFR Part 75, Appendix K rather than using Method 29 for Hg emissions, as required by 40 CFR 63.1208(b)(2)?
A: Yes. EPA conditionally approves the request provided that the facility meets all of the conditions set out in the EPA response letter.
Q: Does EPA approve the request of the Tooele Chemical Agent Disposal Facility (TOCDF) in Stockton, Utah, to modify some of the Conditions of Approval contained in determination letters issued by EPA on April 27, 2006 and September 24, 2007 approving previously submitted alternative monitoring requests (AMRs) pertaining to the Manual Mercury (Hg) Emission Measurement method used during the Mustard Agent Processing in TOCDF's Metal Parts Furnace (MPF), and to add the Manual Hg Emission Measurement method on the Liquid Incinerators (LICs)?
A: Yes. EPA conditionally approves the request, provided that the facility meets all of the conditions set out in the EPA response letter.
Q1: If a city, county, municipality undertakes an “urban renewal” project that demolishes or renovates multiple single family homes, is it subject to the asbestos NESHAP regulation, NESHAP subpart M?
A1: It may be subject to the asbestos NESHAP. The city, county or municipality may be the owner or operator, depending upon the situation. As the owner or operator, the government entity must conduct a thorough inspection of each home that is identified to be demolished or renovated for the project. If the combined amount of friable asbestos or asbestos that will be made friable during the demolition or renovation operation exceeds the regulated threshold, then the demolition or renovation operation must comply with the air emission, the waste management, and the disposal requirement of the asbestos NESHAP.
Q2: Are single family homes not subject to the asbestos NESHAP based on the 1995 Clarification of Intent which described how isolated single family homes were exempt from the asbestos NESHAP?
A2: As stated in the question, the Clarification of Intent describes how to determine an isolated single family home. The “urban renewal” projects are not about isolated homes but a group of homes as part of a project that will be demolished or renovated over a period of time. In the preamble to the 1990 asbestos NESHAP amendments, EPA did not consider residential structures that are demolished as part of a commercial or public project to be exempt from this rule.
Q3: What is or please define “planning period?”
A3: Planning period is not defined in the asbestos NESHAP regulation. Planning period was identified in the 1995 Clarification of Intent to provide guidance when considering single family homes being demolished, and whether the home was considered a facility under the demolition operation. Demolition or renovation operations planned at the same time or as part of the same planning period or scheduling period are considered to be part of the same project, and that in the case of municipalities, a planning or scheduling period is often a fiscal or calendar year or the term of a contract. The fact that demolitions might be spread out over multiple fiscal or calendar years or even multiple contracts, however, does not necessarily mean they are not occurring as part of the same planning period.
Environmental Protection Agency (EPA).
Notice of a final decision on a no migration petition.
Notice is hereby given that an exemption to the land disposal Restrictions, under the 1984 Hazardous and Solid Waste Amendments to the Resource Conservation and Recovery Act, has been granted to ExxonMobil Environmental Services Company for two Class I injection wells located at Pasadena, Texas. The company has adequately demonstrated to the satisfaction of the Environmental Protection Agency by the petition and supporting documentation that, to a reasonable degree of certainty, there will be no migration of hazardous constituents from the injection zone for as long as the waste remains hazardous. This final decision allows the underground injection by ExxonMobil, of the specific restricted hazardous wastes identified in this exemption, into Class I hazardous waste injection wells No. WDW-397 and WDW-398 at the Agrifos Pasadena Texas Fertilizer facility, Pasadena, Texas, until December 31, 2020, unless EPA moves to terminate this exemption. Additional conditions included in this final decision may be reviewed by contacting the Region 6 Ground Water/UIC Section. A public notice was issued April 19, 2011. The public comment period closed on June 6, 2011. No comments were received. This decision constitutes final Agency action and there is no Administrative appeal. This decision may be reviewed/appealed in compliance with the Administrative Procedure Act.
This action is effective as of June 13, 2011.
Copies of the petition and all pertinent information relating thereto are on file at the following location: Environmental Protection Agency, Region 6, Water Quality Protection Division, Source Water Protection Branch (6WQ-S), 1445 Ross Avenue, Dallas, Texas 75202-2733.
Philip Dellinger, Chief Ground Water/UIC Section, EPA—Region 6, telephone (214) 665-7150.
Federal Accounting Standards Advisory Board.
Request for nominations.
This Notice reopens the application period announced in the
Applications must be postmarked or electronically transmitted on or before July 15, 2011. All applications will be acknowledged by e-mail or phone within 48 hours of receipt. Applicants not receiving an acknowledgement should contact the FASAB offices at (202) 512-7350 no later than July 19, 2011 to ensure that the materials were received.
Persons wishing to submit applications should send the information described below to: Wendy Payne, Designated Federal Officer, by e-mail to
Wendy Payne at (202) 512-7350, or
Pursuant to 31 U.S.C. 3511(d), the Federal Advisory Committee Act (Pub. L. 92-463), as amended, and the FASAB Rules of Procedure, as amended in October 2010, notice is hereby given that the FASAB is currently seeking candidates (current federal employees are not eligible for appointment) to serve on the Board. Appointments to the Board are made jointly by the Secretary of the Treasury, the United States Comptroller General, and the Director of the Office of Management and Budget.
FASAB is the body designated to establish generally accepted accounting principles for federal government entities. Generally, non-federal Board members are selected from the general financial community, the accounting and auditing community, or academics. Specifically, FASAB is particularly interested in candidates who have experience as: Analysts of financial information, Economists or forecasters, Academics, Auditors, Preparers of financial information, or those otherwise knowledgeable regarding the use of financial information in decision-making.
The Board meets in Washington, DC, for two days every other month. Members are compensated for 24 days service per year based on current federal executive salaries. Travel expenses related to meeting attendance are reimbursed in accordance with federal travel regulations.
All parties wishing to be considered should submit their full name, address, telephone number and e-mail address and a brief summary identifying how their education, training, experience, or other factors would support the FASAB's work. They should also include a detailed re
Additional information about the FASAB can be obtained from its Web site at
Federal Advisory Committee Act, Pub. L. 92-463.
10 a.m. (EST) June 23, 2011.
4th Floor Conference Room,1250 H Street, NW.,Washington, DC.
Open.
1. Approval of the minutes of the May 16, 2011 Board member meeting.
2. Thrift Savings Plan activity report by the Executive Director.
a. Monthly Performance Report.
b. Monthly Investment Report.
c. Legislative Report.
Thomas J. Trabucco, Director,Office of External Affairs,(202) 942-1640.
Office of the Secretary, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed information collection request for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, e-mail your request, including your address, phone number,
ONC will conduct an evaluation of the usefulness and usability of the HITRC contractor-provided materials and services in supporting the RECs. This evaluation will provide critical formative feedback to the HITRC, from the REC perspective, about the quality, usefulness, and ease of use of the HITRC products, resources, and services and their ability to adequately support REC needs.
ONC is requesting approval to administer the HITRC User Experience Survey to two types of REC respondents who are customers of the HITRC program: REC frontline service staff (administered quarterly) and managers (administered annually) who draw support from the HITRC. These respondents will be asked to complete an online survey.
Office of the Secretary, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed information collection request for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, e-mail your request, including your address, phone number, OMB number, and OS document identifier, to
These data collection efforts will provide urgently needed information about the provision of ECE/SA across the country and spanning many sectors of care providers such as community-based child care, Head Start, school-based Pre-K, family child care, family, friend and neighbor care, and after-school programs. The study will also dramatically extend the available resources for understanding how families use, seek, and cope with the ECE/SA choices that are available to them. Perhaps most significantly, the NSECE will allow the policy and research communities to merge data from families and providers at the local level—where the two actually meet.
Estimated Total Annual Burden Hours: 36,377.
Copies of the proposed collection may be obtained by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade, SW., Washington, DC 20447,
OMB is required to make a decision concerning the collection of information between 30 and 60 days after publication of this document in the
The Deficit Reduction Act of 2005 amended Section 452 of the Social Security Act (the Act) to authorize the Secretary, through the Federal Parent Locator Service (FPLS), to conduct comparisons of information concerning individuals owing past-due child support with information maintained by insurers (or their agents) concerning insurance claims, settlements, awards, and payments. Public Law 109-171, § 7306. The Federal Office of Child Support Enforcement (OCSE) operates the FPLS in accordance with section 453(a)(1) of the Act. The Federal Case Registry of Child Support Orders (FCR) is maintained in the FPLS in accordance with section 453(h)(1) of the Act.
At the option of an insurer, the comparison may be accomplished by either of the following methods. Under the first method, an insurer or the insurer's agent will submit to OCSE information concerning claims, settlements, awards, and payments. OCSE will compare that information with information pertaining to individuals owing past-due support.
Under the second method, OCSE will furnish to the insurer or the insurer's agent a file containing information pertaining to individuals owing past-due support. The insurer or the insurer's agent will compare that information with information pertaining to claims, settlements, awards, and payments. The insurer will furnish the information resulting from the comparison to OCSE.
On a daily basis OCSE will furnish the results of the comparison by transmitting the Insurance Match Response Record to the state agencies responsible for collecting past-due child support from the individuals. The results of the comparison will be used by the state agencies to collect past-due child support from the insurance proceeds.
Insures or their agents, including the U.S. Department of Labor and State agencies administering Workers Compensation program, and the Insurance Services Office (ISO).
Estimated Total Annual Burden Hours: 143.
Copies of the proposed collection may be obtained by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447,
OMB is required to make a decision concerning the collection of information between 30 and 60 days after publication of this document in the
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA) is announcing the availability of two related draft guidances for industry and FDA staff entitled “Draft Guidance for Industry and FDA Staff: Classification of Products as Drugs and Devices and Additional Product Classification Issues” and “Draft Guidance for Industry and FDA Staff: Interpretation of the Term 'Chemical Action' in the Definition of Device Under Section 201(h) of the Federal Food, Drug, and Cosmetic Act.” These draft guidances provide the Agency's current thinking on approaches for classifying products as drugs and devices, certain additional product classification issues, and the interpretation of the term “chemical action” under the FD&C Act.
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comments on these draft guidances before it begins work on the final versions of these guidances, submit either electronic or written comments on the draft guidances by September 19, 2011.
Submit written requests for single copies of these draft guidances to the Office of Combination Products, 10903 New Hampshire Ave., Bldg. 32, Rm. 5129, Silver Spring, MD 20993-0002. Send one self-addressed adhesive
Submit electronic comments on the draft guidances to
John Barlow Weiner, Office of Combination Products, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 5129, Silver Spring, MD 20993-0002, 301-796-8930.
FDA is announcing the availability of two draft guidances for industry and FDA staff entitled “Draft Guidance for Industry and FDA Staff: Classification of Products as Drugs and Devices and Additional Product Classification Issues” (Draft Classification Guidance) and “Draft Guidance for Industry and FDA Staff: Interpretation of the Term 'Chemical Action' in the Definition of Device Under Section 201(h) of the Federal Food, Drug, and Cosmetic Act” (Draft Chemical Action Guidance). These draft guidances provide the Agency's current thinking on approaches for classifying products as drugs and devices, certain additional product classification issues, and the interpretation of the term “chemical action” under section 201(h).
FDA determines whether to classify a product as a drug or device based on the statutory definitions for these terms set forth in sections 201(g) and 201(h) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act)(21 U.S.C. 321(g) and 321(h)), respectively, as applied to the scientific data concerning the product that are available to FDA at the time the classification determination is made.
The Draft Classification Guidance addresses three topics: (1) It explains how to obtain a formal classification determination for a medical product; (2) it presents the Agency's current thinking on the interpretation of the statutory definitions of device and drug, other than the term “chemical action” in the definition of device at section 201(h), which is addressed in the Draft Chemical Action Guidance, as discussed in the following paragraphs; and (3) it presents the Agency's current thinking on the status of published intercenter jurisdictional agreements, current regulations establishing classifications, and classifications the Agency has otherwise previously made for specific products.
The definition of device at section 201(h) states, in part, that a device “does not achieve its primary intended purposes through
The Agency welcomes all comments on the Draft Classification Guidance and the Draft Chemical Action Guidance. In particular, we request comment on the following two topics:
1.
We seek input on how groups of products would be classified under these approaches and the regulatory implications of those classifications. While we welcome more general input on the approaches announced, we are seeking particular comments regarding the application of these approaches to specific products or groups of products. We note that questions concerning whether to classify a product as a drug or device have most frequently arisen with respect to products consisting of gels, liquids, semi-liquids, or powders that come into contact with the body.
We also seek input on whether or how to clarify or modify any elements or terms of the approaches presented. For example, the approach for whether a product exhibits chemical action quoted previously from the Draft Chemical Action Guidance includes the phrase “mediates a bodily response at the cellular or molecular level.” We welcome input on this phrase or any other aspect of this approach.
2.
As noted previously, the Draft Classification Guidance discusses the Agency's current thinking on the status of the current published intercenter jurisdictional agreements, regulations establishing classifications, and other classifications of specific products (e.g., via marketing authorizations or requests for designation). We seek comment on the concepts presented in this section of the Draft Classification Guidance. For example, we welcome comment on procedures for determining whether to change current product classifications and, if so, how to implement those changes appropriately.
These draft guidances are being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). These draft guidances, when finalized, will represent the Agency's current thinking on classification of products as drugs and devices, certain additional product classification issues, and the interpretation of the term “chemical action” under section 201(h). They do not create or confer any rights for or on any person and do not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
The draft guidance on classification of products as drugs or devices refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 3 have been approved under OMB control number 0910-0523.
Interested persons may submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain the document at either
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
The Substance Abuse and Mental Health Services Administration's (SAMHSA), Center for Mental Health Services (CMHS), will conduct the National Child Traumatic Stress Initiative (NCTSI) Evaluation. This evaluation serves multiple practical purposes: (1) To collect and analyze descriptive, outcome, and service experience information about the children and families served by the NCTSN; (2) to assess the NCTSN's impact on access to high-quality, trauma-informed care; (3) to evaluate NCTSN centers' training and consultation activity designed to promote evidence-based, trauma-informed services and the impact of such activity on child-serving systems; and (4) to assess the sustainability of the grant-funded activities to improve access to and quality of care for trauma-exposed children and their families beyond the grant period.
Data will be collected from caregivers and youth served by NCTSN centers, NCTSN and non-NCTSN administrators, NCTSN trainers, service providers trained by NCTSN centers and other training participants, administrators of mental health and non-mental health professionals from state and national child-serving organizations, and administrators of affiliate centers. Data collection will take place in all Community Treatment and Services Programs (CTS) and Treatment and Service Adaptation Centers (TSA) active during the three-year approval period. Currently, there are 45 CTS centers and 17 TSA centers active (
The NCTSI Evaluation is composed of four distinct study components, each of which involve data collection, which are described below.
In order to describe the children served, their trauma histories and their clinical and functional outcomes, nine instruments will be used to collect data from children and adolescents who are receiving services in the NCTSN, and from caregivers of all children who are receiving NCTSN services. Data will be collected when the child/youth enters services and during subsequent follow-up sessions at three-month intervals over the course of one year. This study relies upon the use of data already being collected as a part of the Network's Core Data Set, and includes the following instruments:
• The Core Clinical Characteristics Form, which collects demographic, psychosocial and clinical information about the child being served including information about the child's domestic environment and insurance status, indicators of the severity of the child's problems, behaviors and symptoms, and use of non-Network services;
• The Trauma Information/Detail Form, which collects information on the history of trauma(s) experienced by the child being served in the NCTSN including the type of trauma experienced, the age at which the trauma was experienced, type of exposure, whether or not the trauma is chronic, and the setting and perpetrator(s) associated with the traumatic experience;
• The Child Behavior Checklist (CBCL) 1.5-5 and 6-18, which measure symptoms in such domains such as emotionally reactive, anxious/depressed, somatic complaints, withdrawn, attention problems, aggressive behavior, sleep problems, rule-breaking behavior, social problems, thought problems, and withdrawn/depressed;
• The UCLA PTSD Short Form, which screens for exposure to traumatic events and for all DSM-IV PTSD symptoms in children who report traumatic stress experiences; and the
• The Trauma Symptoms Checklist for Children, which evaluates acute and chronic posttraumatic stress symptoms in children's responses to unspecified traumatic events across several symptom domains.
• The Trauma Symptoms Checklist for Young Children (TSCYC), which is a 90-item caretaker-report instrument developed for the assessment of trauma-related symptoms in children ages 3 to 12.
• The Parenting Stress Index Short Form (PSI-SF), which yields a total stress score from three scales: parental distress, parent-child dysfunctional interaction, and difficult child. The PSI-SF was developed from factor analysis of the PSI-Full-Length Version.
• The Children's Depression Inventory-2 Short (CDI-2S), which is a comprehensive multi-rater assessment of depressive symptoms in youth aged 7 to 17 years. Depressive symptomatology is quantified by the CDI 2 based on reports from children/adolescents, teachers and parents.
• The Global Appraisal of Individual Needs Modified Shore Screener (GAIN-MSS), which is designed primarily as a screener in general populations, ages 12 and older, to quickly and accurately identify clients who have 1 or more behavioral health disorders (
Approximately 6,000 youth and 9,700 caregivers will participate in the descriptive and clinical outcomes study over the clearance period.
The NCTSI mission is to expand access to high quality, trauma-informed services for trauma-exposed children and adolescents and their families nationwide. This component of the evaluation is designed to assess NCTSI program progress in achieving this mission by collecting and analyzing data from a variety of sources addressing the question of whether access to high quality, trauma-informed services has improved and for which
• Evidence-based Practice (EBP) and Trauma-informed Systems Change Survey (ETSC), which assesses the extent to which NCTSN training and other dissemination activities have enhanced the knowledge base and use of trauma-informed services (TIS) within child-serving agencies, centers and organizations that are not a part of the NCTSN but rather have received training from the NCTSN as well as to assess the extent to which such services are evidence-based. The survey branches into two versions adapted for project directors/administrators and human service providers (
• The National Impact Survey, which assesses the extent to which the NCTSN has impacted the knowledge and awareness, policies, planning, programs, and practices related to trauma-informed care among state and national child-serving organizations external to the NCTSN centers.
• The Online Performance Monitoring Report (OPMR), which is primarily a mechanism for SAMHSA to monitor centers' progress towards achieving stated goals and a fulfillment of SAMHSA requirements for accountability and performance monitoring. In addition, this form will also serve as an important data source informing several components of the NCTSI evaluation.
Approximately 496 service providers and 186 administrators from NCTSN centers and organizations or agencies trained by NCTSN centers will participate in the ETSC survey. Approximately 4,000 individuals will be participating in the National Impact Survey, while approximately 62 individuals will participate in the OPMR.
A major goal of the NCTSN is to enhance the capacity of administrators and service providers from agencies, centers and organizations associated with child-serving systems (including mental health, child welfare, juvenile justice, education and primary care) to use trauma-informed services (TIS) with trauma-exposed children and their families. NCTSN centers promote the use of TIS within child-serving systems to increase public awareness and knowledge about trauma exposure, trauma impact, and the range of trauma-informed assessments and services that are available. For this component, the ETSC Survey will be used to assess whether agencies, schools, and organizations that are a part of child-serving systems trained by the NCTSN have become more evidence-based and trauma-informed. Two additional forms will be used including:
• The Training Summary Form (TSF), which will be completed by trainers and will collect information on the number of participants trained, the type of training (including the trauma types addressed in the training), and the topics emphasized in the training.
• The Training Sign-In Sheet (TSIS), which will be completed by this participants of NCTSN-sponsored trainings. Participants will provide their names; agency, organization or center for which they work; their roles; and contact information including e-mail addresses. In addition, they will be asked to indicate whether the evaluation may contact them for participation.
Approximately 124 trainers will complete and submit the TSF, while approximately 12,400 trainees will complete the TSIS.
Assessing the sustainability of the progress made by the NCTSN and its partners is a key evaluation priority identified by stakeholders advising on the redesign of the NCTSI Evaluation. Therefore, while this issue was not addressed as part of the previous evaluation design, it has been included as a new area of importance for future NCTSI evaluation. This component of the evaluation focuses on understanding the degree to which NCTSI grant activities continue after funding has ended and the factors associated with the continuation of—or lapse in—grant activities such as the implementation of evidence-based practices or approaches to strengthen trauma-informed service provision. This component collects sustainability data as part of the OPMR in the case of funded centers and, in the case of affiliate centers (centers that no longer receive SAMHSA funding but have continued involvement with the NCTSN and are defined by SAMHSA as affiliates), the following survey will be implemented:
• Sustainability Survey for Affiliate Centers, which assesses sustainability of NCTSI grant activities by collecting data on domains including grant history, funding sources and fiscal strategies, program mission, infrastructure, service delivery and continuation of practices and programs. Approximately 45 administrators of affiliate centers are expected to participate in this survey.
The revision to the currently approved information collection activities includes the extension of NCTSI Evaluation information collection activities for an additional three years. This revision also addresses the following programmatic changes:
• The number of centers for which burden was calculated is 62, which represents the number of currently active grantees (the number of centers at the time of the previous submission was 44).
• As a result of efforts to address updated evaluation priorities, reduce redundancy and consolidate multiple data collection efforts focused on national monitoring and evaluating of the NCTSI program, the request discontinues ten surveys, forms or interviews that are currently OMB-approved.
• In place of the ten surveys, forms or interviews that are currently OMB-approved that are being discontinued, and as part of the redesigned evaluation, three new data collection efforts will be implemented, including:
○ Online Performance Monitoring Report Form (OPMR).
○ Evidence-based Practice and Trauma-informed System Change Survey (ETSC).
○ Sustainability Survey for affiliate centers.
• This request also enhances the existing Core Data Set by revising the Core Clinical Characteristics Forms and adding new instruments to address existing gaps in knowledge including:
○ Trauma Symptom Checklist for Young Children (TSCYC).
○ Parenting Stress Index Short Form (PSI-SF).
○ Children's Depression Inventory-2 Short (CDI-2S).
○ Global Appraisal of Needs Modified Short Screener (GAIN-MSS).
• A Training Sign-in Sheet (TSIS) has been developed for use at each training event sponsored by NCTSN centers. The purpose of the form is to collect brief information about NCTSN training participants.
The average annual respondent burden is estimated below.
Send comments to Summer King, SAMHSA Reports Clearance Officer, Room 8-1099, One Choke Cherry Road, Rockville, MD 20857 OR e-mail a copy to
National Protection and Programs Directorate, DHS.
Committee Management; Notice of an open Federal Advisory Committee Meeting.
The National Infrastructure Advisory Council (NIAC) will meet on Tuesday, July 12, 2011, at the Washington Marriott at Metro Center, Salon A, 775 12th Street, NW., Washington, DC 20005. The meeting will be open to the public.
DATE: The NIAC will meet Tuesday, July 12, 2011, from 1:30 p.m. to 4:30 p.m. The meeting may close early if the committee has completed its business. For additional information, please consult the NIAC Web site,
The meeting will be held at the Washington Marriott at Metro Center, Salon A, 775 12th Street, NW., Washington, DC 20005.
While this meeting is open to the public, participation in the NIAC
Immediately following the committee member deliberation and discussion period, there will be a limited time period for public comment on listed agenda items only. Relevant public comments may be submitted in writing or presented in person for the Council to consider. Off-topic questions or comments will not be permitted or discussed. In-person presentations will be limited to three minutes per speaker, with no more than 30 minutes for all speakers. Parties interested in making in-person comments must register no fewer than 15 minutes prior to the beginning of the meeting at the meeting location. Oral comments will be permitted based upon the order of registration; all registrants may not be able to speak if time does not permit. Written comments may be sent to Nancy Wong, Department of Homeland Security, National Protection and Programs Directorate, 245 Murray Lane, SW., Mail Stop 0607, Arlington, VA 20598-0607. Written comments must be received by Nancy Wong no later than July 5, 2011, identified by
•
•
•
•
Nancy Wong, National Infrastructure Advisory Council Designated Federal Officer, Department of Homeland Security, telephone (703) 235-2888.
Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. App. (Pub. L. 92-463). The NIAC shall provide the President through the Secretary of Homeland Security with advice on the security of the critical infrastructure sectors and their information systems.
The NIAC will meet to address issues relevant to the protection of critical infrastructure as directed by the President. At this meeting, the committee will receive work from a NIAC working group to review, deliberate on, and provide further direction to the working group.
Coast Guard, DHS.
Notice.
The Coast Guard announces that a Certificate of Alternative Compliance was issued for the passenger vessel CHICAGO'S LEADING LADY.
The Certificate of Alternative Compliance was issued on June 02, 2011.
The docket for this notice is available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet by going to
If you have questions on this notice, call LCDR Wm. Erik Pickering, District Nine, Prevention Branch, U.S. Coast Guard, telephone 216-902-6050. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.
A Certificate of Alternative Compliance, as allowed for under 33 U.S.C. 1605(c) and 33 CFR 81.18, has been issued for the passenger vessel CHICAGO'S LEADING LADY. The vessel's primary purpose is to give architectural tours on the Chicago River. This route requires passing beneath a number of low bridges, and the clearance does not allow the masthead light to be mounted as high as required for full compliance with Annex I of the Inland Rules Act.
The Commandant, U.S. Coast Guard, certifies that full compliance with the Inland Rules Act would interfere with the special functions/intent of the vessel and would not significantly enhance the safety of the vessel's operation. Placing the masthead light in the required position would interfere with the vessel's ability to navigate the Chicago River, which has several low bridges.
The Certificate of Alternative Compliance authorizes the CHICAGO'S LEADING LADY to deviate from the requirements set forth in Annex I of the Inland Rules Act, and place its masthead light on the pilothouse visor, at a height of 13′-7′ above the main deck.
This notice is issued under authority of 33 U.S.C. 1605(c), and 33 CFR 81.18.
Federal Emergency Management Agency, DHS.
30-Day notice of submission of information collection approval from the Office of Management and Budget and request for comments.
As part of a Federal Government-wide effort to streamline the process to seek feedback from the public on service delivery, the Federal Emergency Management Agency (FEMA) has submitted a Generic Information Collection Request (Generic ICR): “Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery” to the Office of Management and Budget for approval under the Paperwork Reduction Act (PRA).
Submit comments on or before July 21, 2011.
Written comments may be submitted to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the Desk Officer for the Department of Homeland Security, Federal Emergency Management Agency, and sent via electronic mail to
Requests for additional information or copies of the information collection should be made to Director, Records Management Division, 1800 South Bell Street, Arlington, VA 20598-3005, facsimile number (202) 646-3347, or e-mail address
Feedback collected under this generic clearance will provide useful information, but it will not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: The target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed sample size, the expected response rate, methods for assessing potential non-response bias, the protocols for data collection, and any testing procedures that were or will be undertaken prior fielding the study. Depending on the degree of influence the results are likely to have, such collections may still be eligible for submission for other generic mechanisms that are designed to yield quantitative results.
The Agency received no comments in response to the 60-day notice, which the Office of Management and Budget published in the
Below we provide FEMA's projected average estimates for the next 3 years:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of an emergency declaration for the State of Tennessee (FEMA-3321-EM), 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.
Notice is hereby given that the incident period for this emergency is closed effective June 7, 2011.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant;
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster 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.
Notice is hereby given that, in a letter dated May 13, 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 South Dakota resulting from flooding beginning on March 11, 2011, and continuing, 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, Mark A Neveau, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of South Dakota have been designated as adversely affected by this major disaster:
Aurora, Beadle, Brookings, Brown, Buffalo, Clark, Codington, Day, Edmunds, Faulk, Grant, Hamlin, Hand, Hughes, Hyde, Jackson, Jerauld, Kingsbury, Lake, Marshall, Miner, Moody, Perkins, Potter, Roberts, Sanborn, Spink, and Sully Counties for Public Assistance.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Mississippi (FEMA-1983-DR), dated May 11, 2011, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, in a letter dated May 11, 2011, the President declared a major disaster 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 Mississippi resulting from flooding beginning on May 3, 2011, and continuing, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Individual Assistance in the designated areas and Hazard Mitigation throughout the State, and any other forms of assistance under the Stafford Act that you deem appropriate subject to completion of Preliminary Damage Assessments (PDAs), unless you determine that the incident is of such unusual severity and magnitude that PDAs are not required to determine the need for supplemental Federal assistance pursuant to 44 CFR 206.33(d).
Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation and Other Needs Assistance will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
The time period prescribed for the implementation of section 310(a), Priority to Certain Applications for Public Facility and Public Housing Assistance, 42 U.S.C. 5153, shall be for a period not to exceed six months after the date of this declaration.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Terry L. Quarles, of FEMA, is appointed to act as the Federal Coordinating Officer for this declared disaster.
The following areas of the State of Mississippi have been designated as adversely affected by this declared major disaster:
Adams, Bolivar, Claiborne, Coahoma, DeSoto, Humphreys, Issaquena, Jefferson, Sharkey, Tunica, Warren, Washington, Wilkinson, and Yazoo Counties for Individual Assistance.
All counties within the State of Mississippi are eligible to apply for assistance under the Hazard Mitigation Grant Program.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Minnesota (FEMA-1982-DR), dated May 10, 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 10, 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 Minnesota resulting from severe storms and flooding beginning on March 16, 2011, and continuing, 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. Direct Federal assistance is authorized. 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, Paul J. Ricciuti, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Minnesota have been designated as adversely affected by this major disaster:
All counties within the State of Minnesota are eligible to apply for assistance under the Hazard Mitigation Grant Program.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of 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.
Notice is hereby given that the incident period for this disaster is closed effective June 6, 2011.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Tennessee (FEMA-1979-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.
Notice is hereby given that the incident period for this disaster is closed effective June 7, 2011.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households in Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Tennessee (FEMA-1974-DR), dated May 1, 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 Tennessee 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 1, 2011.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of North Dakota (FEMA-1981-DR), dated May 10, 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 North Dakota is hereby amended to include the following area among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of May 10, 2011.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Arkansas (FEMA-1975-DR), dated May 2, 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 June 3, 2011.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Department of the Interior, Office of the Assistant Secretary—Water and Science.
Notice.
The Central Utah Water Conservancy District (CUWCD) and the U.S. Department of the Interior (Interior), as joint lead agencies, are proposing to administratively convert Central Utah Project (CUP) Bonneville Unit water delivered under Development Block Notice No. 1A and currently dedicated to the Heber Sub-Area from irrigation to municipal and industrial (M&I) use. The conversion would include up to 12,100 acre-feet of irrigation water in Wasatch County that is currently intended to provide supplemental irrigation water to commercially viable agricultural tracts that have been deemed irrigable under Bureau of Reclamation (Reclamation) law. The irrigation water would be converted incrementally to M&I use, when requested by petitioners and contract holders, over a period of up to 25 years.
Submit written comments on the Draft EA by
Send written comments on the Draft EA to Sarah Sutherland, Heber Sub-Area Irrigation to M&I Water Conversion, 355 West University Parkway, Orem, UT 84058-7303, by e-mail to
Mr. Lynn Hansen, (801) 379-1238, or e-mail at
Before including your name, address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Fish and Wildlife Service, Interior.
Notice of intent; request for comments.
We, the U.S. Fish and Wildlife Service (Service), intend to prepare a comprehensive conservation plan (CCP) and associated environmental assessment (EA) for Bombay Hook National Wildlife Refuge (BHNWR). We provide this notice in compliance with our policy to advise other Federal and State agencies, Tribes, and the public of our intentions, and to obtain suggestions and information on the scope of issues to consider in the planning process.
To ensure consideration, please send your written comments by September 1, 2011. Submit comments by one of the methods listed under
Send your comments or requests for more information on the planning process by any of the following methods.
Michael Stroeh, Project Leader, Bombay Hook National Wildlife Refuge, 2591 Whitehall Neck Road, Smyrna, DE 19977; 302-653-9345 (phone); 302-653-0684 (fax);
With this notice, we initiate the process for developing a CCP for BHNWR, located in Kent County, Delaware. This notice complies with our CCP policy to: (1) Advise other Federal and State agencies, Tribes, and the public of our intention to conduct detailed planning on this refuge, and (2) obtain suggestions and information on the scope of issues to consider in the environmental document and during development of the CCP.
The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee) (Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997, requires us to develop a CCP for each national wildlife refuge. The purpose for developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and contributing toward the mission of the National Wildlife Refuge System (NWRS), consistent with sound principles of fish and wildlife management, conservation, legal
Each unit of the NWRS was established for specific purposes. We use these purposes as the foundation for developing and prioritizing the management goals and objectives for each refuge within the NWRS mission, and to determine how the public can use each refuge. The planning process is a way for us and the public to evaluate management goals and objectives that will ensure the best possible approach to wildlife, plant, and habitat conservation, while providing for wildlife-dependent recreation opportunities that are compatible with each refuge's establishing purposes and the mission of the NWRS.
Our CCP process provides participation opportunities for Tribal, State, local government agencies, organizations, and the public. At this time we encourage input in the form of issues, concerns, ideas, and suggestions for the future management of BHNWR.
We will conduct the environmental review of this project and develop an EA in accordance with the requirements of the National Environmental Policy Act of 1969, as amended (NEPA) (42 U.S.C. 4321
Under Executive Order (EO) 7643, dated June 22, 1937, BHNWR was established “* * * as a refuge and breeding ground for migratory birds and other wildlife. * * *” Two other authorities supported additional land protection: the Migratory Bird Conservation Act “* * * for use as an inviolate sanctuary, or for any other management purpose, for migratory birds” (16 U.S.C. 715d) and the General Services Administration. Transfer Authority for “* * * carrying out the national migratory bird management program” (16 U.S.C. 667b).
The refuge currently encompasses 16,251 acres, located in Kent County, Delaware. Comprised of 80 percent tidal salt marsh, it also includes 1,100 acres of impounded freshwater pools, brushy and timbered swamps, and timbered and grassy upland. The refuge's location along the Atlantic Flyway makes it a vital resting and feeding spot for a large number and diversity of birds.
Popular attractions within the refuge include a wide array of habitats for wildlife observation and photography, the 12-mile auto tour route, and five nature trails, including Bear Swamp Boardwalk and Trails that are handicap accessible. The refuge also provides other wildlife-dependent recreational opportunities such as hunting deer, turkey, small game, and waterfowl, and has an established environmental education program. The historic circa-1753 Allee House is located on the refuge and requires restoration before it can be re-opened to the public.
We have identified preliminary issues, concerns, and opportunities that we may address in the CCP. We have briefly summarized these issues below. During public scoping, we may identify additional issues.
A growing body of evidence indicates that accelerating climate change, associated with increasing global temperatures, is affecting water, land, and wildlife resources. Along the Delaware Bay, rising sea levels have begun to affect fish and wildlife habitats, including those used by waterfowl, wading birds, and shorebirds on our national wildlife refuges. Interior marsh loss is occurring at a rate of approximately 58 acres per year at the refuge, and this important habitat is primarily converting to open water. Successful conservation strategies will require an understanding of climate change and the ability to predict how those changes will affect fish and wildlife at multiple scales.
Balancing the needs of wildlife and people is becoming more difficult as residential developments encroach upon wild areas and more visitors participate in wildlife-dependent recreational opportunities on the refuge. Providing quality habitat in sufficient quantities for an increasing number of species and individuals is challenging to wildlife managers and biologists. Mosquitoes are a part of the natural environment and a food source for a variety of wildlife. More importantly, insecticides, in particular adulticides that are used to control mosquitoes, kill non-target insects that are utilized by fish, amphibians, and migratory birds as important food sources. BHNWR will continue to work with the State's Mosquito Control Section related to mosquito control on the refuge while striving to protect the biological integrity, diversity, and environmental health of the refuge.
The Allee House at BHNWR stands today, as it did in the 18th century, overlooking the fields and marshes of Kent County. The original restoration of the Allee House was completed in 1966, and in 1971, it was placed on the National Register of Historic Places. The Allee House is in need of major repairs, and is closed to visitors until further notice. A Comprehensive Condition Assessment and Preventive Maintenance Plan were completed in 2010. The work required to properly protect and restore the house to historical standards is extensive and costly and is estimated at a cost of $1,000,000.
Cooperative farming has been utilized on the refuge since its establishment. Farming is still considered a viable wildlife management tool, but the role of the farming program has changed over the years. BHNWR suspended the cooperative farming program in January 2010 because the NEPA documentation was not completed. Subsequently, a complaint was filed in Federal court in March 2010 to cease cooperative farming on the refuge. We will evaluate the farming program and its support of our conservation priorities in the CCP process.
On the Delmarva Peninsula, hunting is a traditional outdoor pastime that is deeply rooted in American and Delaware heritage. Opportunities for public hunting are decreasing with increasing private land development. Refuge lands thus become increasingly important in the region as a place to engage in this activity. Hunting will continue to be an integral component of the public use program at the refuge. The Service Manual (605 FW 2) states that hunting programs must provide quality experiences for the public, be compatible with the mission of the NWRS and the purposes of the refuge, and, to the extent practicable, be consistent with State fish and wildlife laws and regulations. In scoping for the CCP, we invite suggestions on how to improve the current hunting program.
We will give the public an opportunity to provide input at public meetings. You can obtain the schedule from the refuge manager or planning team leader (see
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Land Management, Interior.
Notice.
The Bureau of Land Management (BLM) Alaska State Office, under the authority of 43 CFR 3131.2, is issuing a call for nominations and comments on tracts for oil and gas leasing for the 2011 National Petroleum Reserve—Alaska (NPR-A) oil and gas lease sale. Available tracts are within the Northeast and Northwest Planning Areas of the NPR-A. Maps of the NPR-A showing available areas are online at
BLM-Alaska must receive all nominations and comments on these tracts for consideration on or before July 21, 2011.
Mail nominations and/or comments to: State Director, Bureau of Land Management, Alaska State Office, 222 West 7th Ave., Mailstop 13, Anchorage, AK 99513. 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.
Ted Murphy, Deputy State Director, BLM-Alaska Division of Resources, 907-271-4413. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
Describe and depict all tract nominations on the NPR-A map by outlining your area(s) of interest. NPR-A maps, legal descriptions of the tracts, and additional information are available through the BLM-Alaska Web site at
National Park Service, Interior.
Notice.
Western Michigan University, Department of Anthropology, has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribe. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects may contact Western Michigan University, Department of Anthropology. Disposition of the human remains and associated funerary objects to the Indian tribe stated below may occur if no additional requestors come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains and associated funerary objects should contact the Western Michigan University, Department of Anthropology, at the address below by July 21, 2011.
LouAnn Wurst, Department of Anthropology, Western Michigan University, 1005 Moore Hall, Kalamazoo, MI 49008, telephone (269) 387-2753.
Notice is hereby given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects in the possession of Western Michigan University, Department of Anthropology, Kalamazoo, MI. The human remains and associated funerary objects were removed from Mendon Township, St. Joseph County, MI.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Western Michigan University, Department of Anthropology, professional staff in consultation with representatives of the Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; Nottawaseppi Huron Band of the Potawatomi, Michigan (formerly the Huron Potawatomi, Inc.); Pokagon Band of Potawatomi Indians, Michigan and Indiana; and the Saginaw Chippewa Indian Tribe of Michigan (hereinafter referred to as “The Tribes”). The Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; Nottawaseppi Huron Band of the Potawatomi, Michigan; and the Saginaw Chippewa Indian Tribe of Michigan have sent the Western Michigan University, Department of Anthropology, letters of support and do
In 1988, human remains representing a minimum of one individual were removed from the Kline Site, in Mendon Township, St. Joseph County, MI, during excavation by the Western Michigan University field school directed by Dr. William Cremin. The remains were encountered during excavation of the agricultural plow zone. As a result, the burial was heavily disturbed and the human remains were shattered into 128 fragments. After the field season was completed, the remains were transferred to Western Michigan University's anthropology department for further curation and study. The remains were too fragmentary for morphological identification. No known individual was identified. The 33 associated funerary objects are 1 green slate gorget, 1 ceramic elbow pipe, 1 Levanna type triangular point, 1 broken lithic biface (possible projectile point base), 1 ceramic body sherd, 26 lithic flakes, 1 vial with residue from clay pipe, and 1 small bag containing a soil sample.
Officials of Western Michigan University, Department of Anthropology, have determined that:
• Based on the associated funerary objects and oral traditions, the human remains are Native American.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and associated funerary objects and any present-day Indian tribe.
• Multiple lines of evidence, including the Chicago Treaty of 1833, continued occupation of the area, and oral tradition, indicate that the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of The Tribes.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 33 objects described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains and associated funerary objects is to the Pokagon Band of Potawatomi Indians, Michigan and Indiana.
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects or any other Indian tribe that believes it satisfies the criteria in 43 CFR 10.11(c)(1) should contact LouAnn Wurst, Department of Anthropology, Western Michigan University, 1005 Moore Hall, Kalamazoo, MI 49008, telephone (269) 387-2753, before July 21, 2011. Disposition of the human remains and associated funerary objects to the Pokagon Band of Potawatomi Indians, Michigan and Indiana, may proceed after that date if no additional requestors come forward.
Western Michigan University, Department of Anthropology, is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The University of Oregon Museum of Natural and Cultural History has completed an inventory of human remains, in consultation with the appropriate Indian tribes, and has determined that there is a cultural affiliation between the human remains and present-day Indian tribes. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains may contact the University of Oregon Museum of Natural and Cultural History. Repatriation of the human remains to the Indian tribe(s) stated below may occur if no additional claimants come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains should contact the University of Oregon Museum of Natural and Cultural History at the address below by July 21, 2011.
Dr. Pamela Endzweig, Director of Collections, University of Oregon Museum of Natural and Cultural History, 1224 University of Oregon, Eugene, OR 97403-1224, telephone (541) 346-5120.
Notice is hereby given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the possession of the University of Oregon Museum of Natural and Cultural History, Eugene, OR. The human remains were removed from an unknown site, but possibly from Lane County, OR.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by University of Oregon Museum of Natural and Cultural History professional staff in consultation with representatives of the Confederated Tribes of the Grand Ronde Community of Oregon and Confederated Tribes of Siletz Indians of Oregon (previously listed as Confederated Tribes of the Siletz Reservation, Oregon).
At an unknown date, human remains representing a minimum of one individual were acquired by the museum. Museum records indicate that their provenience is “unknown/is possibly the Creswell burial excavated by Peterson.” Based on museum records, the remains may have been recovered from Creswell, Lane County, OR. Elsewhere, the remains are cataloged as “unknown, Indian.” No known individual was identified. No associated funerary objects are present.
The skeletal characteristics of the human remains are not suggestive of race. Historical documents, ethnographic sources, and oral history indicate that the Kalapuya people have occupied the southern Willamette Valley since precontact times in the area where the remains may have been recovered. Based on the information available, the individual is assumed to
Officials of the University of Oregon Museum of Natural and Cultural History have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described above represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Confederated Tribes of the Grand Ronde Community of Oregon and Confederated Tribes of Siletz Indians of Oregon.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains should contact Dr. Pamela Endzweig, Director of Collections, University of Oregon Museum of Natural and Cultural History, 1224 University of Oregon, Eugene, OR 97403-1224, telephone (541) 346-5120, before July 21, 2011. Repatriation of the human remains to the Confederated Tribes of the Grand Ronde Community of Oregon and/or Confederated Tribes of Siletz Indians of Oregon may proceed after that date if no additional claimants come forward.
The University of Oregon Museum of Natural and Cultural History is responsible for notifying the Confederated Tribes of the Grand Ronde Community of Oregon and the Confederated Tribes of Siletz Indians of Oregon that this notice has been published.
National Park Service, Interior.
Notice.
The Bureau of Land Management, Prineville District has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian tribes. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects may contact the Bureau of Land Management, Prineville District. Repatriation of the human remains and associated funerary objects to the Indian tribes stated below may occur if no additional claimants come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains and associated funerary objects should contact the Bureau of Land Management, Prineville District at the address below by July 21, 2011.
Molly M. Brown, Bureau of Land Management, 3050 NE 3rd St., Prineville, OR 97754, telephone (541) 416-6766.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects in the control of the U.S. Department of the Interior, Bureau of Land Management, Prineville District, Prineville, OR, and in the possession of the University of Oregon Museum of Natural and Cultural History, Eugene, OR. The human remains and associated funerary objects were removed from Jefferson County, OR.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Bureau of Land Management's Prineville District and Museum of Natural and Cultural History professional staff in consultation with representatives of the Burns Paiute Tribe and the Confederated Tribes of the Warm Springs Reservation of Oregon.
In 1962, human remains representing one individual were removed from site 35JE52, in Jefferson County, OR, during excavations by University of Oregon archeologists. No known individual was identified. The three associated funerary objects consist of fragments of matting.
Based on archeological context, the individual has been determined to be Native American. In April 1961, the site 35JE52, also known as the Peninsula II site, was first recorded by the Klamath County Archaeological Survey. The site is a rockshelter with pictographs and adjacent shell middens located at the base of a cliff on the east bank of the Deschutes River. The age of occupation of the site is unknown. The Museum of Natural and Cultural History reported the remains to the Confederated Tribes of the Warm Springs Reservation in its March 1996 NAGPRA inventory. In 2007, the Bureau of Land Management, Prineville District, in conjunction with Archaeological Resources Protection Act (ARPA) investigations concerning site 35JE52, contacted the museum. At that time, the museum learned that the site is on Federal land, and the NAGPRA notification process was referred to the Bureau of Land Management officials.
Oral traditions and ethnographic reports indicate that site 35JE52 lies within the historic territory of Sahaptin-speaking Tenino or Warm Springs peoples whose descendants are culturally affiliated with the present-day Confederated Tribes of the Warm Springs Reservation of Oregon. The Confederated Tribes of the Warm Springs Reservation is composed of three Wasco bands, four Warm Springs bands, and Northern Paiutes. The Columbia River-based Wasco were the easternmost group of Chinookan-speaking Indians. The Sahaptin-speaking Warm Springs bands lived farther east along the Columbia River and its tributaries. Oral traditions and ethnographic information also indicated that site 35JE52 lies within a region that was occasionally used during historic times by Northern Paiute people whose descendants are culturally affiliated
Officials of the Bureau of Land Management, Prineville District have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described above represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the three objects described above are reasonably believed to have been placed with or near the individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Burns Paiute Tribe and the Confederated Tribes of the Warm Springs Reservation of Oregon.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects should contact Molly M. Brown, Bureau of Land Management, 3050 NE 3rd St., Prineville, OR 97754, telephone (541) 416-6766, before July 21, 2011. Repatriation of the human remains and associated funerary objects to the Burns Paiute Tribe and Confederated Tribes of the Warm Springs Reservation of Oregon may proceed after that date if no additional claimants come forward.
The Bureau of Land Management, Prineville District is responsible for notifying the Burns Paiute Tribe and the Confederated Tribes of the Warm Springs Reservation of Oregon that this notice has been published.
National Park Service, Interior.
Notice.
The Fowler Museum at UCLA has completed an inventory of human remains, in consultation with the appropriate Indian tribes, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribe. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains may contact the Fowler Museum at UCLA. Disposition of the human remains to the tribe stated below may occur if no additional requestors come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains should contact the Fowler Museum at UCLA at the address below by July 21, 2011.
Wendy G. Teeter, PhD, Curator of Archaeology, Fowler Museum at UCLA, Box 951549, Los Angeles, CA 90095-1549, telephone (310) 825-1864.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the possession of the Fowler Museum at UCLA, Los Angeles, CA. The human remain was removed from Humboldt County, CA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Fowler Museum at UCLA professional staff in consultation with representatives of the Bear River Band of the Rohnerville Rancheria, California; Blue Lake Rancheria, California; Smith River Rancheria, California; Wiyot Tribe, California (formerly the Table Bluff Reservation—Wiyot Tribe); and the Yurok Tribe of the Yurok Reservation, California. The Wiyot Tribe, California, requested the transfer of control of the individual described in this notice. The Bear River Band of the Rohnerville Rancheria, California, and the Blue Lake Rancheria, California, sent letters of support for the transfer of control to the Wiyot Tribe.
In the first half of the 20th century, a human remain representing one individual was most likely removed from Eureka, Humboldt County, CA. The human remain is a mandible from a female. It was found in the Bird and Mammal collection of the UCLA Department of Biology and subsequently transferred to the Fowler Museum at UCLA. According to the Bird and Mammal collection accession records, Loye Miller, a biologist who worked in the first half of the 20th century, collected it from an unknown person. The human remain is labeled “W.H.M.M. #313 Eureka, California.” “W.H.M.M.” stands for the Wellcome Historic Medical Museum. A search of the Wellcome archives produced no documentation directly related to this remain and the circumstances surrounding its excavation or collection are unknown. However, the Wellcome Museum did purchase remains from several collectors from the Eureka region. Therefore, it is reasonably believed that this individual was received from one of these collectors and removed from the Humboldt County area. No known individual was identified. No associated funerary objects are present.
Based on the records and condition of the mandible, archeologists have determined that the human remain probably comes from a coastal shell midden and is of fairly late age. The soil in the redwood forest areas of the Humboldt County area is very acidic, and bone does not survive long in the ground. However, the calcium carbonate from the shells in the shell mounds in the coastal areas helps preserve bone, and thus several hundred year-old burials are found in shell mounds in the Eureka area. Loud (1918) recorded shell mound sites in Eureka, on Indian (Gunther) Island and around the margins of Humboldt Bay, most of which have associated Wiyot village place names and burials and have been dated to the Late Prehistoric Period between A.D. 700-1100 (Loud 1918; Heizer & Elsasser 1964; Tushingham 2010).
Officials of the Fowler Museum at UCLA have determined that:
• Based on the analysis performed by a physical anthropologist it is determined that the mandible is Native American.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• Multiple lines of evidence, including the Wiyot Tribe's 1978 Constitution, treaties, Acts of Congress, Executive Orders, and other credible lines of evidence obtained through consultation with tribal representatives, indicate that the land from which the Native American human remain was removed is the aboriginal land of the Wiyot people. Present-day Wiyot citizens are enrolled in the following Federally-recognized tribes: the Wiyot Tribe, California; Bear River Band of the Rohnerville Rancheria, California; and Blue Lake Rancheria, California.
• Pursuant to 25 U.S.C. 3001(9), the human remain described in this notice represents the physical remains of one individual of Native American ancestry.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remain is to the Wiyot Tribe, California.
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains or any other Indian tribe that believes it satisfies the criteria in 43 CFR 10.11(c)(1) should contact Wendy G. Teeter, PhD, Curator of Archaeology, Fowler Museum at UCLA, Box 951549, Los Angeles, CA 90095-1549, telephone (310) 825-1864, before July 21, 2011. Disposition of the human remain to the Wiyot Tribe, California, may proceed after that date if no additional requestors come forward.
The Fowler Museum at UCLA is responsible for notifying the Bear River Band of the Rohnerville Rancheria, California; Blue Lake Rancheria, California; Smith River Rancheria, California; Wiyot Tribe, California; and the Yurok Tribe of the Yurok Reservation, California, that this notice has been published.
National Park Service, Interior.
Notice.
Western Michigan University, Department of Anthropology, has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes, and has determined that there is no cultural affiliation between the human remains and associated funerary objects and any present-day Indian tribe. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects may contact the Western Michigan University, Department of Anthropology. Disposition of the human remains and associated funerary objects to the Indian tribe stated below may occur if no additional requestors come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains and associated funerary objects should contact the Western Michigan University, Department of Anthropology, at the address below by July 21, 2011.
LouAnn Wurst, Department of Anthropology, Western Michigan University, 1005 Moore Hall, Kalamazoo, MI 49008, telephone (269) 387-2753.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects in the possession of the Western Michigan University, Department of Anthropology, Kalamazoo, MI. The human remains and associated funerary objects were removed from Middlebury Township, Shiawassee County, MI.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by Western Michigan University, Department of Anthropology, professional staff in consultation with representatives of the Little Traverse Bay Bands of Odawa Indians, Michigan; Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; Pokagon Band of Potawatomi Indians, Michigan and Indiana; and the Saginaw Chippewa Indian Tribe of Michigan.
In 1974, human remains representing a minimum of 19 individuals were removed from the Gilde site, Middlebury Township, Shiawassee County, MI. The Michigan History Division, now the Michigan Historical Center, investigated the burials and conducted salvage excavations. The individuals are represented by 2,000 fragmentary remains. The ages of the individuals range from infants to adults, however, a determination of the sex of the individuals was not possible due to the fragmentary nature of the remains. The burial was inadvertently uncovered in 1974 by construction crews of the Central Michigan Sand and Gravel Company during gravel mining. The investigators noted that the heavily disturbed burials consisted of several deep pits covered with red ochre, which indicates that the site dates to the Late Archaic period (3000 B.C. to 1000 B.C.) since the use of red ochre in burials is a hallmark of this period in the Great Lakes. After recovery, the remains and funerary objects were transferred to Western Michigan University's anthropology department for further curation and study by Dr. Robert Sundick. No known individuals were identified. The 92 associated funerary objects are 79 fragments of bone from two Blue Racer snakes (Columber constrictor foxi), 12 fragments representing white-tailed deer and unidentified small and medium mammals, and 1 lot of soil samples recovered from the excavations.
Officials of Western Michigan University, Department of Anthropology, have determined that:
• Based on skeletal and dental morphology, and the Late Archaic date of the site, the human remains and
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and associated funerary objects and any present-day Indian tribe.
• Multiple lines of evidence, such as the Treaty of Saginaw 1819 (also known as the Treaty with the Chippewa of 1819), continued occupation of the area, and oral tradition, indicate that the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of the Saginaw Chippewa Indian Tribe of Michigan.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 19 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 92 objects described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains is to the Saginaw Chippewa Indian Tribe of Michigan.
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects or any other Indian tribe that believes it satisfies the criteria in 43 CFR 10.11(c)(1) should contact LouAnn Wurst, Department of Anthropology, Western Michigan University, 1005 Moore Hall, Kalamazoo, MI 49008, telephone (269) 387-2753, before July 21, 2011. Disposition of the human remains and associated funerary objects to the Saginaw Chippewa Indian Tribe of Michigan may proceed after that date if no additional requestors come forward.
Western Michigan University, Department of Anthropology, is responsible for notifying the Little Traverse Bay Bands of Odawa Indians, Michigan; Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; Pokagon Band of Potawatomi Indians, Michigan and Indiana; and the Saginaw Chippewa Indian Tribe of Michigan, that this notice has been published.
National Park Service, Interior.
Notice.
The Florida Department of State/Division of Historical Resources has completed an inventory of human remains, in consultation with the appropriate Indian tribes, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribe. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains may contact the Florida Department of State/Division of Historical Resources. Disposition of the human remains to the Indian tribe stated below may occur if no additional requestors come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains should contact the Florida Department of State/Division of Historical Resources at the address below by July 21, 2011.
Ryan J. Wheeler, State Archaeologist, Florida Department of State/Division of Historical Resources, 1001 de Soto Park Dr. Tallahassee, FL 32301, telephone (850) 245-6301.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the possession of the Florida Department of State/Division of Historical Resources, Tallahassee, FL. The human remains were removed from Alachua, Miami-Dade, Duval, and Sumter Counties, FL.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Florida Department of State/Division of Historical Resources professional staff in consultation with representatives of the Miccosukee Tribe of Indians of Florida. Requests for consultation were also sent to the Muscogee (Creek) Nation, Oklahoma; Poarch Band of Creek Indians of Alabama; Seminole Nation of Oklahoma; and the Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations). The Miccosukee Tribe of Indians of Florida requested that the remains described in this notice be transferred to their control so that reburial can occur at or near the original areas of removal. There are no objections to the disposition to the Miccosukee Tribe of Indians of Florida by the other Indian tribes contacted by Florida Department of State/Division of Historical Resources.
In October and November 2006, human remains representing a minimum of one individual were removed from site 8AL832, in Alachua County, FL. Archeological site 8AL832 is described as a dense scatter of lithic and ceramic artifacts, associated with the pre-European contact Native American Alachua and St. Johns cultures of the area (circa A.D. 700 to 1500). The remains were found during archeological monitoring during the development of Ficke Gardens at the University of Florida. The archeologists that found the remains contacted the State Archaeologist. Based on consultation with the State Archaeologist, the district medical examiner was asked to investigate the discovery. The district medical examiner, with assistance from the C.A. Pound Human Identification Laboratory and Dr. John Krigbaum, University of Florida, Department of Anthropology, determined that the remains were Native American. On August 11, 2008, the remains were transferred to the Florida Department of State/Division of Historical Resources. The remains of this individual are 12 bone and tooth fragments. No known individual was identified. No associated funerary objects are present.
In June 2007, human remains representing a minimum of two individuals were removed from site 8DA5918 at the White Rock Mine, in Miami-Dade County, FL. Archeological site 8DA5918 is described as a multi-component black earth midden deposit on a relict Everglades tree island, associated with the Archaic and Glades cultures of the area. The human remains are believed to be from the Glades period (circa 500 B.C. to A.D. 1500). The remains of these two individuals are 28 bone and tooth fragments. No known
In March 2005, human remains representing a minimum of one individual were removed from site 8DU276, in Duval County, FL. Archeological site 8DU276 is described as a deep black earth midden with material dating from several periods, dominated by the pre-European contact Native American St. Johns II culture of the area (circa A.D. 900 to 1250). The area where the human remains were found may be a remnant burial mound or cemetery. The remains of this individual were transferred by the consulting archeologist to the Florida Department of State/Division of Historical Resources for identification pending reburial. Additional remains were located in the same area during subsequent investigation by another archeological consultant, but left in place. No known individual was identified. No associated funerary objects are present.
In July 2008, human remains representing a minimum of two individuals were removed from site 8SM186, in Sumter County, FL. Archeological site 8SM186 is described as having both pre-European contact Native American Middle Archaic and Weeden Island cultural deposits (circa A.D. 200 to 900). The remains were transferred to the Florida Department of State/Division of Historical Resources by the Sumter County Sheriff's Office and the district medical examiner. The remains of these individuals are 20 bone and tooth fragments. No known individuals were identified. No associated funerary objects are present.
Officials of the Florida Department of State/Division of Historical Resources have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described above represent the physical remains of six individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission, the land from which the Native American human remains were removed is the aboriginal land of the Miccosukee Tribe of Indians of Florida, Seminole Nation of Oklahoma, and the Seminole Tribe of Florida.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains is to the Miccosukee Tribe of Indians of Florida.
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains or any other Indian tribe that believes it satisfies the criteria in 43 CFR 10.11(c)(1) should contact Ryan J. Wheeler, State Archaeologist, Florida Department of State/Division of Historical Resources, 1001 de Soto Park Dr., Tallahassee, FL 32301, telephone (850) 245-6301, before July 21, 2011. Disposition of the human remains to the Miccosukee Tribe of Indians of Florida may proceed after that date if no additional requestors come forward.
The Florida Department of State/Division of Historical Resources is responsible for notifying the Miccosukee Tribe of Indians of Florida; Muscogee (Creek) Nation, Oklahoma; Poarch Band of Creek Indians of Alabama; Seminole Nation of Oklahoma; and the Seminole Tribe of Florida that this notice has been published.
National Park Service, Interior.
Notice.
The Museum of Anthropology, University of Michigan, has completed an inventory of human remains, in consultation with the appropriate Indian tribe, and has determined that there is a cultural affiliation between the human remains and a present-day Indian tribe. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains may contact the Museum of Anthropology, University of Michigan. Repatriation of the human remains to the tribe stated below may occur if no additional claimants come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains should contact the Museum of Anthropology, University of Michigan, at the address below by July 21, 2011.
Dr. Carla Sinopoli, NAGPRA Coordinator, Museum of Anthropology, University of Michigan, Ann Arbor, MI 48109-1079, telephone (734) 764-0485.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the possession of the Museum of Anthropology, University of Michigan, Ann Arbor, MI. The human remains were removed from the Fort Rice area in North Dakota.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by Museum of Anthropology, University of Michigan, professional staff in consultation with representatives of the Standing Rock Sioux Tribe of North & South Dakota.
At an unknown date, a human remain representing one individual was removed from most likely the Fort Rice area in North Dakota. The skull became part of a collection created by Corydon La Ford, MD (tenure 1854-1894), University of Michigan, Medical School, Department of Anatomy. The collection was created by Dr. La Ford during the late 19th century and it was later added to by unknown individuals until the early 20th century. The collection was used for anatomy teaching in the Medical School and no information exists as to how the crania were acquired. In 1996, the collection was transferred from the Medical School to the Museum of Anthropology. Written on this cranium is: “The skull of a Sioux Indian picked up on the plains near Fort Rice Dakota.” No known individual was identified. No associated funerary objects are present.
Officials of the Museum of Anthropology, University of Michigan, have determined that:
• Based on provenience location written on the cranium and dental morphology, the individual is determined to be of Native American ancestry.
• Based on the provenience, the individual is most likely culturally affiliated with the Standing Rock Sioux Tribe of North & South Dakota.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represents the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Standing Rock Sioux Tribe of North & South Dakota.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains should contact Dr. Carla Sinopoli, NAGPRA Coordinator, Museum of Anthropology, University of Michigan, Ann Arbor, MI 48109-1079, telephone (734) 764-0485, before July 21, 2011. Repatriation of the human remains to the Standing Rock Sioux Tribe of North & South Dakota may proceed after that date if no additional claimants come forward.
The Museum of Anthropology, University of Michigan, is responsible for notifying the Standing Rock Sioux Tribe of North & South Dakota that this notice has been published.
National Park Service, Interior.
Notice; correction.
In a Notice of Inventory Completion (75 FR 67998, Thursday, November 4, 2010), Little Traverse Bay Bands of Odawa Indians, Michigan, was listed as being culturally affiliated to human remains and associated funerary objects removed from the Gyftakis site (20MK51), Mackinac County, MI, however, since publication, additional consultation has resulted in a determination that the human remains and associated funerary objects are culturally unidentifiable. Therefore, this Notice of Inventory Completion corrects the affiliation of the human remains and associated funerary objects that were removed from the Gyftakis site (20MK51), Mackinac County, MI, described in the previously published Notice of Inventory Completion to that of culturally unidentifiable Native American human remains and associated funerary objects.
Western Michigan University, Department of Anthropology has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes, and has determined that there is no cultural affiliation between the human remains and associated funerary objects and any present-day Indian tribe. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects may contact the Western Michigan University, Department of Anthropology. Disposition of the human remains and associated funerary objects to the Indian tribe stated below may occur if no additional requestors come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains and associated funerary objects should contact the Western Michigan University, Department of Anthropology at the address below by July 21, 2011.
LouAnn Wurst, Department of Anthropology, Western Michigan University, 1005 Moore Hall, Kalamazoo, MI 49008, telephone (269) 387-2753.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects in the possession of Western Michigan University, Department of Anthropology, Kalamazoo, MI. The human remains and associated funerary objects were removed from Mackinac County, MI.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice
A detailed assessment of the human remains was made by Western Michigan University, Department of Anthropology professional staff in consultation with representatives of the Bay Mills Indian Community, Michigan; Little Traverse Bay Bands of Odawa Indians, Michigan; Sault Ste. Marie Tribe of Chippewa Indians of Michigan; and the Saginaw Chippewa Indian Tribe of Michigan (hereinafter referred to as “The Tribes”). The Tribes do not object to the disposition of the human remains and associated funerary objects described in this notice to the Little Traverse Bay Bands of Odawa Indians, Michigan.
In 1973, human remains representing a minimum of eight individuals were removed from the Gyftakis site (20MK51), St. Ignace, Moran Township, Mackinac County, MI, during an archeological excavation directed by Dr. James Fitting. Middle Woodland period ceramic sherds were found during test excavations for the St. Ignace Archaeological Survey Project, which prompted further archeological research. The burials were found to be in good condition. The human remains were transferred to Western Michigan University for curation and further analysis by Dr. Robert Sundick, a physical anthropologist in the Anthropology Department at Western Michigan University. No known individuals were identified. The 20 associated funerary objects are 8 black bear scapula and fragments, 1 black bear atlas, 1 black bear proximal femur head, 1 large bird long bone shaft, 1 possible black bear phalanx, 1 possible crane carpometacarpus, 1 raptor carpometacarpus, 1 possible small bird long bone, 1 unidentified non-human cranium fragment, 2 bird or small mammal long bones, and 2 probable bird phalanxes.
Native American ancestry was determined based on skeletal and dental morphology, as well as the temporal association of the Gyftakis Site to the Middle Woodland period (A.D. 170). Radiocarbon dating of a sample from an associated hearth and AMS date of ceramic pot residue, as well as seriation of the pottery and lithic tools discovered at the Gyftakis site which were not associated funerary objects, are all indicative of the Middle Woodland period and are clearly of pre-Contact/European manufacturing.
Officials of Western Michigan University, Department of Anthropology, have determined that:
• Based on skeletal and dental morphology, in addition to radiocarbon and AMS dating, and other artifacts which all demonstrate a Middle Woodland temporal association, the human remains are Native American.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and associated funerary objects and any present-day Indian tribe.
• Multiple lines of evidence, such as the Treaty of Saginaw 1819 (also known as the Treaty with the Chippewa of 1819), continued occupation of the area, and oral tradition, indicate that the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of The Tribes.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of eight individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 20 objects described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains is to the Little Traverse Bay Bands of Odawa Indians, Michigan.
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects or any other Indian tribe that believes it satisfies the criteria in 43 CFR 10.11(c)(1) should contact LouAnn Wurst, Department of Anthropology, Western Michigan University, 1005 Moore Hall, Kalamazoo, MI 49008, telephone (269) 387-2753, before July 21, 2011. Disposition of the human remains and associated funerary objects to the Little Traverse Bay Bands of Odawa Indians, Michigan, may proceed after that date if no additional requestors come forward.
Western Michigan University, Department of Anthropology, is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, Bureau of Reclamation, Pacific Northwest Region has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribe, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and a present-day Indian tribe. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects may contact the Bureau of Reclamation, Pacific Northwest Region. Repatriation of the human remains and associated funerary objects to the Indian tribe stated below may occur if no additional claimants come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains and associated funerary objects should contact the Bureau of Reclamation, Pacific Northwest Region at the address below by July 21, 2011.
Dr. Sean Hess, Archeologist, Grand Coulee Power Office, Bureau of Reclamation, PO Box 620, Grand Coulee, WA 99133, telephone (509) 633-9233.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects in the control of the U.S. Department of the Interior, Bureau of Reclamation, Pacific Northwest Region, Boise, ID, and in the physical custody of Central Washington University, Ellensburg, WA. The human remains and associated funerary objects were removed from lands within the boundaries of the Colville Indian Reservation, Okanogan County, WA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by a Central Washington University physical anthropologist, under contract to the Bureau of Reclamation. The assessment included research to find the current locations of the human remains and associated funerary objects from 45OK7, so they could be returned to the Bureau of Reclamation's control and included in the inventory and repatriation. Consultation by Bureau of Reclamation, Pacific Northwest Region was done with the Confederated Tribes of the Colville Reservation, Washington.
In 1950, human remains representing a minimum of five individuals were recovered from archeological site 45OK7, on the east bank of the Columbia River, below the Grand Coulee Dam, in Okanogan County, WA, during archeological investigations conducted by the U.S. Army Corps of Engineers in association with construction of Chief Joseph Dam. The site is on Federal lands under the Bureau of Reclamation's jurisdiction that are within the boundaries of the Colville Indian Reservation. The archeological site consisted of three house pits and an undocumented number of grave pits, which had been previously disturbed by looters. The recovered archeological materials, including the human remains and associated funerary objects, were sent to the Washington State Museum, Seattle, WA (now the Thomas Burke Washington State Memorial Museum). No known individuals were identified. The 12 associated funerary objects are 1 lot of beads strung on twine, 1 mammal bone fragment, 1 individual bone bead, 2 mussel or clam shell beads, 1 fragment of rolled copper, 2 lots of items consisting of loose dentalia beads or fragments, 2 lots of dentalia beads strung on bark twine, 1 lot of fragments of rolled copper beads strung on bark twine, and 1 bone harpoon point.
During the years since recovery, the human remains from 45OK7 have been transferred between several museums and institutions, often with little
No physical description of the human remains was prepared at the time of recovery. Between 1950 and 1957, Roger Heglar, a University of Washington graduate student, analyzed the burials from 45OK7. That inventory documented the partial remains of four individuals in collections; the field records indicated the excavators, in 1950, had believed the remains of three individuals were recovered. A 1966 inventory by the Burke Museum also indentified four individuals. However, the current physical inventory completed by Central Washington University determined that the collection of skeletal elements previously identified as individual 5A actually included skeletal elements of two individuals. In conclusion, elements from five individuals (4, 5A, 5B individual 1, 5B individual 2, and 6) recovered from site 45OK7 are presently in collections.
Osteological evidence documented by the physical anthropologist, the archeological association of the materials with a prehistoric site, and the kinds of associated funerary objects recovered, indicate that the human remains described above are Native American. The geographic location of the site within the Plateau Culture Area, tribal oral tradition, and anthropological and historical research all indicate that site 45OK7 lies within an area occupied by the San Poil and Nespelem tribes or bands, who are members of and legally represented by the Confederated Tribes of the Colville Reservation, Washington. Moreover, site 45OK7 is situated within the exterior boundaries of the Colville Indian Reservation, WA.
Officials of the Bureau of Reclamation, Pacific Northwest Region have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of five individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 12 objects described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Confederated Tribes of the Colville Reservation, Washington.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects should contact Dr. Sean Hess, Archeologist, Grand Coulee Power Office, Bureau of Reclamation, PO Box 620, Grand Coulee, WA 99133, telephone (509) 633-9233, before July 21, 2011. Repatriation of the human remains and associated funerary objects to the Confederated Tribes of the Colville Reservation, Washington, may proceed after that date if no additional claimants come forward.
The Bureau of Reclamation, Pacific Northwest Region is responsible for notifying the Confederated Tribes of the Colville Reservation, Washington, that this notice has been published.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on May 17, 2011, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of MOSAID Technologies Inc. of Canada. Letters supplementing the complaint were filed on June 6 and June 7, 2011. The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain equipment for communications networks, including switches, routers, gateways, bridges, wireless access points, cable modems, IP phones, and products containing same by reason of infringement of certain claims of U.S. Patent No. 7,035,280 (“the `280 patent”);
The complainant requests that the Commission institute an investigation and, after the investigation, issue an exclusion order and cease and desist orders.
The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Room 112, Washington, DC 20436, telephone (202) 205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone 202-205-2560.
Authority: The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2011).
Scope of Investigation: Having considered the complaint, the U.S. International Trade Commission, on June 15, 2011,
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain equipment for communications networks, including switches, routers, gateways, bridges, wireless access points, cable modems, IP phones, and products containing same that infringe one or more of claims 1, 5, 9, 11-13, 15, 18, 19, 23, 27, 30, 31, 36, 43, 45, 46, and 51 of the `280 patent; claims 12, 13, 17, 18, 44-46, 50-53, 57, 58, 83, and 139 of the `600 patent; claims 34-39, 111-114, 118, 120-131 of the `858 patent; claims 15-17 and 20-25 of the `459 patent; claims 1, 3, 5, 6, and 9 of the `966 patent; and claims 1, 6, and 9 of the `360 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is: MOSAID Technologies Inc., 11 Hines Road, Suite 203, Ottawa, ON K2K 2X1, Canada.
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street, SW., Suite 401, Washington, DC 20436; and
(3) For the investigation so instituted, the Honorable Paul J. Luckern, Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d)-(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
60-day Notice of Information Collection Under Review: Establishment and distribution of National Fingerprint Examiners Questionnaire.
The Department of Justice, Federal Bureau of Investigation, Training and Records Testimony Team will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with established review procedures of the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted until August 22, 2011.
This process is conducted in accordance with 5 CFR 1320.10.
All comments, suggestions, or questions regarding additional information, to include obtaining a copy of the proposed information collection instrument with instructions, should be directed to David R. Cotton, Training Administrator, Federal Bureau of Investigation, Training and Records Testimony Team, Criminal Justice Information Services Division, Clarksburg, West Virginia 26306; facsimile (304) 625-2337.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques of other forms of information technology,
Overview of this information collection:
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(3)
(4)
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, United States Department of Justice, Two Constitution Square, 145 N Street, NE., Room 2E-808, Washington, DC 20530.
The National Endowment for the Humanities.
Notice of meetings.
Pursuant to the provisions of the Federal Advisory Committee Act (Pub. L. 92-463, as amended), notice is hereby given that the following meetings of Humanities Panels will be held at the Old Post Office, 1100 Pennsylvania Avenue, NW., Washington, DC 20506.
Michael P. McDonald, Advisory Committee Management Officer, National Endowment for the Humanities, Washington, DC 20506; telephone (202) 606-8322. Hearing-impaired individuals are advised that information on this matter may be obtained by contacting the Endowment's TDD terminal on (202) 606-8282.
The proposed meetings are for the purpose of panel review, discussion, evaluation and recommendation on applications for financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including discussion of information given in confidence to the agency by the grant applicants. Because the proposed meetings will consider information that is likely to disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential and/or information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, pursuant to authority granted me by the Chairman's Delegation of Authority to Close Advisory Committee meetings, dated July 19, 1993, I have determined that these meetings will be closed to the public pursuant to subsections (c) (4), and (6) of section 552b of Title 5, United States Code.
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Alaska Industrial X-Ray, Inc. (AIX or Licensee) is the holder of Materials License 50-16084-01 issued by the U.S. Nuclear Regulatory Commission (NRC or Commission) pursuant to 10 CFR parts 30-36, 39, 40 and 70 and last amended on November 2, 2007, which expired on March 31, 2011. The license remains in effect while being reviewed by NRC licensing staff because AIX filed a timely licensee renewal application dated March 3, 2011. The license authorizes AIX to possess and use sealed radioactive sources in conducing industrial radiography activities in accordance with the conditions specified therein.
This Confirmatory Order is the result of an agreement reached during an alternative dispute resolution (ADR) mediation session conducted on April 19, 2011, in Seattle, Washington.
On January 29, 2010, the NRC Office of Investigations (OI) began an investigation (OI Case number OI-4-2010-023) to determine if AIX willfully failed to comply with portions of NRC Order Modifying License (EA-08-196). NRC Order Modifying License (EA-08-196) included requirements that AIX obtain an independent auditor to perform field audits of radiographic operations and that an independent consultant be hired by AIX to evaluate the effectiveness of the radiation safety and compliance programs. The OI investigation concluded that (1) from July 2009 through March 2010, AIX failed to ensure that unannounced field audits were conducted; (2) monthly reports of audit activities were not transmitted to the NRC during this same time period; and (3) an independent consultant failed to commence an assessment of the AIX radiation safety program, as required by NRC Order Modifying License, EA-08-196 (Order). The results of the OI investigation and NRC inspection were discussed with AIX during a telephonic exit on February 3, 2011, and were documented in NRC Inspection Report 030-10346/2009-001 and Investigation Report 4-2010-023, dated March 3, 2011.
On April 19, 2011, the NRC and Licensee representatives met in an ADR session in Seattle, Washington, mediated by a professional mediator, arranged through Cornell University's Institute on Conflict Resolution. ADR is a process in which a neutral mediator with no decision-making authority assists the parties in reaching an agreement that resolves any differences regarding the dispute. This confirmatory order is issued pursuant to the agreement reached during the ADR process.
In response to the NRC's offer, the Licensee requested use of the NRC's ADR process to resolve differences it had with the NRC. During that ADR session, a preliminary settlement agreement was reached. The elements of the agreement consisted of the following:
Pursuant to the Nuclear Regulatory Commission Office of Enforcement's Alternative Dispute Resolution program (ADR), the following are the terms and conditions agreed upon in principle by Alaska Industrial X-Ray, Inc. (AIX) and the Nuclear Regulatory Commission (NRC) relating to the NRC's letter dated March 3, 2011 (EA-10-231).
Whereas, the NRC has concluded that willful violations were committed by AIX associated with failure to ensure that an independent contractor performed field audits and that an approved independent consultant began an evaluation of the effectiveness of the AIX radiation safety program as required by Conditions of NRC Order Modifying License (EA-08-196).
Whereas, the NRC considers willful actions to be a significant concern to the regulatory program and the NRC is interested in obtaining comprehensive corrective actions from AIX that would deter future willful violations and
Whereas, the NRC recognizes that AIX restored compliance with the license requirements, once the NRC brought the findings to AIX's attention; and AIX restored full compliance with the NRC Order Modifying License (EA-08-196) by October 28, 2010.
Whereas, the NRC recognizes that, based on the NRC's thorough inspection conducted between August and September 2010, AIX had improved its compliance with NRC regulations in that there were no findings involving the conduct of radiography; and that the NRC's findings were consistent with the auditor's findings that had been conducted prior to August 24, 2010;
Therefore, the parties agree to the following terms and conditions:
1. Within 60 days of the date of the ADR Confirmatory Order, AIX will contract with a person to provide training to all AIX employees engaged in licensed activities (up to and including the company president) on what is meant by willfulness and the potential enforcement sanctions that the NRC may take against employees who engage in deliberate misconduct. The training will also include instruction on what is meant by compliance to NRC orders and company procedures that provide direction to AIX personnel. The goal of the training is to deter future willful violations by ensuring AIX employees understand the importance upon which the NRC places on willful violations and compliance. The training will be completed within 120 days of the ADR Confirmatory Order.
(a) The training will include the elements of willfulness discussed in the NRC Enforcement Manual (Chapter 6) and will include some examples of enforcement actions taken against individuals (which are publicly available on the NRC's Web site).
(b) AIX will submit for NRC approval at least 30 days prior to the training, the résumé of the contractor who will be conducting the training.
(c) The training will include the willful issues discussed in the NRC's “Notice of Violation and Proposed Imposition of Civil Penalty—$20,800 and Order Modifying License” issued to AIX on August 20, 2008, and the willful issues discussed in NRC Inspection Report 030-10346/2009-001 dated March 3, 2011.
(d) At least 14 days prior to the training, AIX will provide the NRC with an outline of the topics to be covered during this training session.
2. AIX will use an independent auditor to perform the annual review of its radiation safety and compliance program. The auditor will utilize the AIX RSO to assist during the review of the radiation safety program. The audits will use the guidance contained in NUREG 1556 (Volume 2), and include an audit of adherence to applicable security requirements by AIX. The first annual program review will be completed by February 15, 2012, for the calendar year 2011. The final annual program review will be completed by February 15, 2013, for the calendar year 2012.
(a) AIX will submit within 60 days of the date of this order the name of the independent auditor planned to perform the annual review.
(b) If AIX decides to use an auditor which the NRC has not previously approved, AIX must submit the auditor's résumé to the NRC for approval prior to using the individual.
(c) The auditor will submit their findings to both AIX and the NRC simultaneously. Within 30 days after receiving the auditor's findings, AIX will submit to the NRC its response to the audit findings, including any corrective actions needed to address the auditor's findings.
3. From the date of the ADR Confirmatory Order until June 30, 2013, NRC management and AIX will conduct conference calls approximately six-month intervals to review audit and/or inspection results.
4. From the date of the ADR Confirmatory Order until June 30, 2013, the president of AIX or RSO shall perform quarterly audits of AIX radiographers as they conduct radiography. To the maximum extent possible, the audits shall include observations such that the crew cannot detect his presence. During these audits, the president of AIX or RSO must, to the extent possible, prevent violations from occurring or continuing as he observes the radiography crews, even in situations where the crew has not detected his presence prior to the violation. These audits must be separate and apart from any required audits performed for compliance with 10 CFR 34.43(e). Records shall be maintained documenting these audits and the results of the audits.
5. A Civil Penalty in the amount of $1,000 will be assessed by the NRC.
6. This ADR confirmatory order will supersede the NRC Order Modifying License (EA 08-196).
On June 1, 2011, the Licensee consented to issuing this Order with the commitments, as described in Section V below. The Licensee further agreed that this Order is to be effective upon issuance and that it has waived its right to a hearing.
Since the Licensee has agreed to take additional actions to address NRC concerns, as set forth in Item III above, the NRC has concluded that its concerns can be resolved through issuance of this Confirmatory Order.
I find that the Licensee's commitments as set forth in Section V are acceptable and necessary and conclude that with these commitments the public health and safety are reasonably assured. In view of the foregoing, I have determined that public health and safety require that the Licensee's commitments be confirmed by this Order. Based on the above and Licensee's consent, this Confirmatory Order is immediately effective upon issuance.
Accordingly, pursuant to Sections 81, 161b, 161i, 161o, 182 and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.202 and 10 CFR Part 20, 34, and 10 CFR 150.20,
1. Within 60 days of the date of the ADR Confirmatory Order, AIX will contract with a person to provide training to all AIX employees engaged in licensed activities (up to and including the company president) on what is meant by willfulness and the potential enforcement sanctions that the NRC may take against employees who engage in deliberate misconduct. The training will also include instruction on what is meant by compliance to NRC orders and company procedures that provide direction to AIX personnel. The goal of the training is to deter future willful violations by ensuring AIX employees understand the importance upon which the NRC places on willful violations and compliance. The training will be completed within 120 days of the ADR Confirmatory Order.
(a) The training will include the elements of willfulness discussed in the NRC Enforcement Manual (chapter 6) and will include some examples of enforcement actions taken against individuals (which are publicly available on the NRC's Web site).
(b) AIX will submit for NRC approval at least 30 days prior to the training, the résumé of the contractor who will be conducting the training.
(c) The training will include the willful issues discussed in the NRC's “Notice of Violation and Proposed Imposition of Civil Penalty—$20,800 and Order Modifying License” issued to AIX on August 20, 2008, and the willful
(d) At least 14 days prior to the training, AIX will provide the NRC with an outline of the topics to be covered during this training session.
2. AIX will use an independent auditor to perform the annual review of its radiation safety and compliance program. The auditor will utilize the AIX RSO to assist during the review of the radiation safety program. The audits will use the guidance contained in NUREG 1556 (Volume 2), and include an audit of adherence to applicable security requirements by AIX. The first annual program review will be completed by February 15, 2012, for the calendar year 2011. The final annual program review will be completed by February 15, 2013, for the calendar year 2012.
(a) AIX to submit within 60 days of the date of this order the name of the independent auditor planned to perform the annual review.
(b) If AIX decides to use an auditor which the NRC has not previously approved, AIX must submit the auditor's résumé to the NRC for approval prior to using the individual.
(c) The auditor will submit their findings to both AIX and the NRC simultaneously. Within 30 days after receiving the auditor's findings, AIX will submit to the NRC its response to the audit findings, including any corrective actions needed to address the auditor's findings.
3. From the date of the ADR Confirmatory Order until June 30, 2013, NRC management and AIX will conduct conference calls at approximately six-month intervals to review audit and/or inspection results.
4. From the date of the ADR Confirmatory Order until June 30, 2013, the president of AIX or RSO shall perform quarterly audits of AIX radiographers as they conduct radiography. To the maximum extent possible, the audits shall include observations such that the crew cannot detect his presence. During these audits, the president of AIX or RSO must, to the extent possible, prevent violations from occurring or continuing as he observes the radiography crews, even in situations where the crew has not detected his presence prior to the violation. These audits must be separate and apart from any required audits performed for compliance with 10 CFR 34.43(e). Records shall be maintained documenting these audits and the results of the audits.
A Civil Penalty in the amount of $1,000 will be assessed by the NRC.
This ADR confirmatory order will supersede the NRC Order Modifying License (EA-08-196).
The Regional Administrator, Region IV, or designee, may, in writing, relax or rescind any of the above conditions upon demonstration by the licensee of good cause.
Any person adversely affected by this Confirmatory Order, other than Licensee, may request a hearing within 20 days of its publication in the
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E-Filing rule (72 FR 49139, August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by e-mail at
Information about applying for a digital ID certificate is available on NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC public Web site at
The E-Filing system also distributes an e-mail notice that provides access to the document to the NRC Office of the General Counsel and any others who have advised the Office of the Secretary that they wish to participate in the proceeding, so that the filer need not serve the documents on those participants separately. Therefore, applicants and other participants (or their counsel or representative) must apply for and receive a digital ID certificate before a hearing request/petition to intervene is filed so that they
A person filing electronically using the agency's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) first class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001,
Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at
If a person (other than Licensee) requests a hearing, that person shall set forth with particularity the manner in which his or her interest is adversely affected by this Confirmatory Order and shall address the criteria set forth in 10 CFR 2.309(d) and (f).
If a hearing is requested by a person whose interest is adversely affected, the Commission will issue an order designating the time and place of any hearing. If a hearing is held, the issue to be considered at such hearing shall be whether this Confirmatory Order should be sustained.
In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, the provisions specified in Section V above shall be final 20 days from the date this Confirmatory Order is published in the
For the Nuclear Regulatory Commission.
The ACRS Subcommittee on Radiation Protection and Nuclear Materials will hold a meeting on June 20, 2011, Room T-2B1, 11545 Rockville Pike, Rockville, Maryland.
The entire meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will review the staff's development of the Fuel Cycle Oversight Process (FCOP). The Subcommittee will hear presentations by and hold discussions with the NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Derek Widmayer (Telephone 301-415-7366 or E-mail:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please contact Ms. Jessie Delgado (Telephone 301-415-7360) to be escorted to the meeting room.
Nuclear Regulatory Commission.
Weeks of June 20, 27, July 4, 11, 18, 25, 2011.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the week of June 20, 2011.
There are no meetings scheduled for the week of June 27, 2011.
There are no meetings scheduled for the week of July 4, 2011.
* The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings, call (recording)—(301) 415-1292. Contact person for more information: Rochelle Bavol, (301) 415-1651.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
This notice is distributed electronically to subscribers. If you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969), or send an e-mail to
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rule 1017, Openings in Options, to reflect a system change that describes the price at which the Exchange will route opening orders to away markets in certain circumstances. Specifically, the Exchange will route orders on the open to away markets at prices other than the Exchange's opening price when such order's limit price is marketable against an away market but not marketable against the Exchange's opening price.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to reflect a change to the PHLX XL ® automated options trading system
Currently, Exchange Rule 1017 describes a variety of situations under which the PHLX XL system routes opening orders to away markets when there is remaining interest on the Exchange that cannot be executed at the Exchange's opening price.
If there are opening quotes or orders that lock or cross each other, the Phlx XL II system will take the highest bid and the lowest offer among quotations received that have a bid/ask differential that is compliant with Rule 1014(c)(i)(A)(1)(a) (“valid width quotes”), to determine the highest quote bid and lowest quote offer. To calculate the opening price, the Phlx XL II system will take into consideration all valid width Phlx quotes, sweeps (defined below) and orders together with other exchanges' markets for the series and identify the price at which the maximum number of contracts can trade. If that price is within the highest quote bid and lowest quote offer and leaves no imbalance, the Exchange will open at that price, executing marketable trading interest, as long as the opening price includes only Phlx interest.
The PHLX XL system calculates the opening price based upon the price at which the greatest number of contracts can be executed.
The following example illustrates the issue. Assume that the opening scenario is:
The ABBO is 1.00 (10) × 1.05 (10);
Opening order to buy 10 contracts at 1.05;
Opening order to buy 10 contracts at 1.06;
Opening order to buy 10 contracts at 1.06, with instructions “do not route”; Opening order to sell 20 contracts at 1.06 with instructions “do not route.” In this example, the Exchange's opening price is 1.06, because that is the price at which the greatest number of contracts will trade. The PHLX XL system will route 10 contracts to the ABBO to buy at 1.06 (with an expected execution price of 1.05) and trade 10 contracts on the Exchange at 1.06 (matching the “do not route” buy order for 10 contracts against the “do not route” order to sell 20 contracts at 1.06, leaving 10 remaining “do not route” contracts to sell at 1.06 on the Exchange). The opening order to buy 10 contracts at 1.05 will remain on the Exchange's order book as will the remaining 10 contracts of the “do not route” sell order at 1.06. The order to buy 10 contracts at 1.05 was marketable against the ABBO but could not be executed as part of the opening process because the PHLX XL system currently only routes to the ABBO market(s) at the Exchange's opening price, which is 1.06, and which is inferior to the 1.05 limit price.
In order to address the issue described in the above example, the Exchange proposes to amend the rule and change the system to provide that the PHLX XL system will not only route to the ABBO market(s) at a price that is
The PHLX XL system will determine to route contracts to the ABBO market(s) at a price that is equal to the Exchange's opening price when there is interest on the Exchange at that price, but not all of the contracts marketable at that price can be executed on the Exchange. Remaining contracts from the partially executed order will be routed to ABBO market(s) against which the order is marketable.
The PHLX XL system will determine to route contracts to the ABBO market(s) at a price that is better than the Exchange's opening price when such contracts are not marketable on the Exchange but are marketable against the ABBO market.
The Exchange believes that this solution to the opening routing issue described above ensures the routing of marketable opening orders with a limit price that is better than the Exchange's opening price to ABBO markets. This enables the PHLX XL system to seek, and route opening orders to, the best away market(s) in the circumstance described above, all to the benefit of the investing public.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Pursuant to Section 19(b)(3)(A)
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative for 30 days after the
The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest because it will allow the proposal to take effect immediately, which may result in better execution prices for investors at the opening. Accordingly, the Commission designates the proposed rule change as operative upon filing with the Commission.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Small Business Administration's intentions to request approval on a new and/or currently approved information collection.
Submit comments on or before August 22, 2011.
Send all comments regarding whether this information collection is necessary for the proper performance of the function of the agency, whether the burden estimates are accurate, and if there are ways to minimize the estimated burden and enhance the quality of the collection, to Veronica Dymond, Public Affairs Specialist, Office of Communications, Small Business Administration, 409 3rd Street, 7th Floor, Washington, DC 20416.
Veronica Dymond, Office of Communications, 202-205-6746,
This form is used to collect information from candidates for advisory councils. This form is needed to determine eligibility, potential conflict-of-interest and mailing data.
Send all comments regarding whether this information collection is necessary for the proper performance of the function of the agency, whether the burden estimates are accurate, and if there are ways to minimize the estimated burden and enhance the quality of the collection, to Cynthia Pitts, Director, Disaster Administrative Services, Small Business Administration, 409 3rd Street, 6th Floor, Washington, DC 20416.
Cynthia Pitts, Disaster Administrative Services, 202-205-7570,
The objective of the debt collection activities is to obtain immediate repayment or arrive at a satisfactory arrangement for future repayment of debts owed to the Government. SBA uses the financial information provided by the debtor on Form 770 in making a determination regarding the compromise of such debts and other liquidation proceedings including litigation by the Agency and/or the Department of Justice.
Send all comments regarding whether this information collection is necessary for the proper performance of the function of the agency, whether the burden estimates are accurate, and if there are ways to minimize the estimated burden and enhance the quality of the collection, to Louis Cupp, New Markets Policy Analyst, Office of Investment, Small Business Administration, 409 3rd Street, 6th Floor, Washington, DC 20416.
Louis Cupp, Office Investment, 202-619-0511,
SBA uses this information collection for proper oversight within the scope of the Small Business Act to assess NMVC Program applicants and participants.
Johnny Kitts, Chief, Fund Administration, Office of Investment, 202-205-6551,
Applicants for SBA-guaranteed commitment must complete these forms as part of the application process. SBA uses the information to make informed and proper credit decisions and to establish the SBIC's eligibility for leverage and need for funds.
Gail Hepler, Chief, 7(a) Program Branch, Office of Financial Assistance, 202-205-7530,
The information on this form is provided by Lenders to indicate how, to whom and for what purpose Lender disbursed the loan proceeds. SBA relies on this information during the guaranty purchase review process to determine whether to honor the guaranty, in full or in part, or to deny liability.
Lenders requesting SBA to purchase the guaranty portion of a loan are required to supply the Agency with a certified transcript of the loan account. This form is uniform and convenient means for lenders to report and certify loan accounts to purchase by SBA. The Agency uses the information to determine date of loan default and whether Lender disbursed and serviced the loan according to Loan Guaranty agreement.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of New Jersey dated 06/14/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 12626 6 and for economic injury is 12627 0.
The States which received an EIDL Declaration # are New Jersey, Delaware, Pennsylvania.
U.S. Small Business Administration.
Amendment 4.
This is an amendment of the Presidential declaration of a major disaster for the State of Tennessee (FEMA-1979-DR), dated 05/09/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for the State of Tennessee, dated 05/09/2011 is hereby amended to extend the deadline for filing applications for physical damages as a result of this disaster to 08/09/2011.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Kansas dated 06/14/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 12628 6 and for economic injury is 12629 0.
The State which received an EIDL Declaration # is Kansas.
U.S. Small Business Administration.
Amendment 5.
This is an amendment of the Presidential declaration of a major disaster for the State of Missouri (FEMA-1980-DR), dated 05/09/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the Presidential disaster declaration for the State of Missouri, dated 05/09/2011 is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 4.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of Missouri, dated 05/09/2011, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of New Jersey dated 06/14/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 12624 6 and for economic injury is 12625 0.
The States which received an EIDL Declaration # are New Jersey, New York.
U.S. Small Business Administration.
Amendment 4.
This is an amendment of the Presidential declaration of a major disaster for the State of Tennessee (FEMA-1974-DR), dated 05/01/2011.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for the State of Tennessee, dated 05/01/2011 is hereby amended to extend the deadline for filing applications for physical damages as a result of this disaster to 08/09/2011.
All other information in the original declaration remains unchanged.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Julie Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6467). The mailing address is U.S. Department of State, SA-5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522-0505.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App 10(a)(2), the Department of State announces a meeting of the International Security Advisory Board (ISAB) to take place on July 12, 2011, at the Department of State, Washington, DC.
Pursuant to section 10(d) of the Federal Advisory Committee Act, 5 U.S.C. App 10(d), and 5 U.S.C. 552b(c)(1), it has been determined that this Board meeting will be closed to the public in the interest of national defense and foreign policy because the Board will be reviewing and discussing matters classified in accordance with Executive Order 13526. The purpose of the ISAB is to provide the Department with a continuing source of independent advice on all aspects of arms control, disarmament, political-military affairs, and international security and related aspects of public diplomacy. The agenda for this meeting will include classified discussions related to the Board's ongoing studies on current U.S. policy and issues regarding arms control, international security, nuclear proliferation, and diplomacy.
For more information, contact Richard W. Hartman II, Executive Director of the International Security Advisory Board, Department of State, Washington, DC 20520, telephone: (202) 736-4290.
Pursuant to Section 7086(c)(2) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2010 (Division F, Pub. L. 111-117) as carried forward under the Department of Defense and Full-Year Continuing Appropriations Act, 2011 (Pub. L. 112-10) (“the Act”), and Department of State Delegation of Authority Number 245-1, I hereby determine that it is important to the national interest of the United States to waive the requirements of Section 7086(c)(1) of the Act with respect to Afghanistan, and I hereby waive such restriction.
This determination shall be reported to the Congress, and published in the
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The information collected is used by the FAA to register aircraft or hold an aircraft in trust. The information required to register and prove ownership of an aircraft is required by any person wishing to register an aircraft.
Written comments should be submitted by August 22, 2011.
Carla Scott on (202) 385-4293, or by e-mail at:
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The collection is used to nominate private citizens for recognition of their significant voluntary contribution to aviation education and flight safety.
Written comments should be submitted by August 22, 2011.
Carla Scott on (202) 385-4293, or by e-mail at:
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The information is used to determine if applicants satisfy requirements for obtaining a launch license to protect the public from risks associated with reentry operations from a site not operated by or situated on a Federal launch range.
Written comments should be submitted by August 22, 2011.
Carla Scott on (202) 385-4293, or by e-mail at:
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB)
Written comments should be submitted by August 22, 2011.
Carla Scott on (202) 385-4293, or by e-mail at:
Send comments to the FAA at the following address: Ms. Carla Scott, Room 336, Federal Aviation Administration, AES-300, 950 L'Enfant Plaza, SW., Washington, DC 20024.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The Advanced Qualification Program (AQP) incorporates data driven quality control processes for validating and maintaining the effectiveness of air carrier training program curriculum content.
Written comments should be submitted by August 22, 2011.
Carla Scott on (202) 385-4293, or by e-mail at:
Send comments to the FAA at the following address: Ms. Carla Scott, Room 336, Federal Aviation Administration, AES-300, 950 L'Enfant Plaza SW., Washington, DC 20024.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. This collection covers the reporting of unauthorized illumination of aircraft by lasers.
Written comments should be submitted by August 22, 2011.
Carla Scott on (202) 385-4293, or by e-mail at:
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. U.S. Code authorizes the issuance of regulations governing the use of navigable airspace. Respondents conducting general operation and flight of aircraft or any activity that could encroach on airspace must apply for approval.
Written comments should be submitted by August 22, 2011.
Carla Scott on (202) 385-4293, or by e-mail at:
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The information collected allows the FAA to evaluate its certification standards, maintenance programs, and regulatory requirements. It is also the basis for issuance of Airworthiness Directives designed to prevent unsafe conditions and accidents.
Written comments should be submitted by August 22, 2011.
Carla Scott on (202) 385-4293, or by e-mail at:
Send comments to the FAA at the following address: Ms. Carla Scott, Room 336, Federal Aviation Administration, AES-300, 950 L'Enfant Plaza, SW., Washington, DC 20024.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. Information required from the public by 14 CFR part 133 is used by the FAA to process the operating certificate as a record of aircraft authorized for use, and to monitor Rotorcraft External-Load Operations.
Written comments should be submitted by August 22, 2011.
Carla Scott on (202) 385-4293, or by e-mail at:
Send comments to the FAA at the following address: Ms. Carla Scott, Room 336, Federal Aviation Administration, AES-300, 950 L'Enfant Plaza, SW., Washington, DC 20024.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. Aircraft operators seeking operational approval to conduct RVSM operations within the 48 contiguous United States (U.S.), Alaska and a portion of the Gulf of Mexico must submit an application to the Certificate Holding District Office.
Written comments should be submitted by August 22, 2011.
Carla Scott on (202) 385-4293, or by e-mail at:
Send comments to the FAA at the following address: Ms. Carla Scott, Room 336, Federal Aviation Administration, AES-300, 950 L'Enfant Plaza, SW., Washington, DC 20024.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The information to be collected includes data required for performing launch site location analysis. The launch site license is valid for a period of 5 years. Respondents are licensees authorized to operate sites.
Written comments should be submitted by August 22, 2011.
Carla Scott on (202) 385-4293, or by e-mail at:
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. SFAR 36 (to part 121) relieves qualifying applicants involved in aircraft repair of the burden to obtain FAA approval of data developed by them for the major repairs on a case-by-case basis; and provides for one-time approvals.
Written comments should be submitted by August 22, 2011.
Carla Scott on (202) 385-4293, or by e-mail at:
Send comments to the FAA at the following address: Ms. Carla Scott, Room 336, Federal Aviation Administration, AES-300, 950 L'Enfant Plaza, SW., Washington, DC 20024.
Federal Aviation Administration, (FAA), DOT.
Notice of Availability of Documents for Inspection.
Incident to a public meeting held by the Federal Aviation Administration (FAA) on Wednesday, June 1, 2011, in Oklahoma City, Oklahoma, concerning aircraft registration by owner trustees for non-U.S. citizen beneficiaries, interested parties have submitted written comments to FAA. Those comments as well as the Notice of Public Meeting and FAA slide presentation may be viewed at the Office of Chief Counsel's FAA Web site located at
LaDeana Peden at 405-954-3296, Office of Aeronautical Center Counsel, Federal Aviation Administration.
Federal Highway Administration (FHWA), DOT.
Notice of Limitation on Claims for Judicial Review of Actions by the California Department of Transportation (Caltrans), pursuant to 23 U.S.C. 327.
The FHWA, on behalf of Caltrans, is issuing this notice to announce actions taken by Caltrans that are final within the meaning of 23 U.S.C. 139(
By this notice, the FHWA, on behalf of Caltrans, is advising the public of final agency actions subject to 23 U.S.C. 139(
Gail Miller, Senior Environmental Planner, California Department of Transportation (Caltrans), 2015 East Shields Avenue, Suite 100, Fresno, CA 93726; weekdays 8 a.m. to 5 p.m. (Pacific time); telephone (559) 243-8274, e-mail:
Effective July 1, 2007, the FHWA assigned, and Caltrans assumed environmental responsibilities for this project pursuant to 23 U.S.C. 327. Notice is hereby given that the Caltrans has taken final agency actions subject to 23 U.S.C. 139(
The actions by the Federal agencies, and the laws under which such actions were taken, are described in the Environmental Assessment (EA)/Finding of No Significant Impact (FONSI) for the project, approved on May 25, 2011. The EA/FONSI and other documents are available by contacting Caltrans at the addresses provided above.
This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
1. General: National Environmental Policy Act (NEPA) [42 U.S.C. 4321-4351]; and Federal-Aid Highway Act [23 U.S.C. 109 and 23 U.S.C. 128].
2. Air: Clean Air Act [42 U.S.C. 7401-7671(q)].
3. Land: Landscape and Scenic Enhancement (Wildflowers) [23 U.S.C. 319].
4. Wetlands and Water Resources: Safe Drinking Water Act [42 U.S.C. 300(f)-300(j)(6)]; and Wetlands Mitigation [23 U.S.C. 103(b)(6)(m) and 133(b)(11)].
5. Wildlife: Endangered Species Act [16 U.S.C. 1531-1544 and Section 1536]; Fish and Wildlife Coordination Act [16 U.S.C. 661-667(d)]; and Migratory Bird Treaty Act [16 U.S.C. 703-712].
6. Historic and Cultural Resources: Section 106 of the National Historic Preservation Act of 1966, as amended [16 U.S.C. 470(f)
7. Social and Economic: Civil Rights Act of 1964 [42 U.S.C. 2000(d)-2000(d)(1)]; Farmland Protection Policy Act [7 U.S.C. 4201-4209]; and The Uniform Relocation Assistance and Real Property Acquisition Act of 1970, as amended.
8. Hazardous Materials: Comprehensive Environmental Response, Compensation, and Liability Act [42 U.S.C. 9601-9675]; Superfund Amendments and Reauthorization Act of 1986; and Resource Conservation and Recovery Act [42 U.S.C. 6901-6992(k)].
9. Executive Orders: E.O. 11990 Protection of Wetlands; E.O. 11988 Floodplain Management; E.O.12898 Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations; E.O. 11593 Protection and Enhancement of the Cultural
23 U.S.C. 139(
National Highway Traffic Safety Administration (NHTSA), DOT.
Meeting Notice—Federal Interagency Committee on Emergency Medical Services.
NHTSA announces a meeting of the Federal Interagency Committee on Emergency Medical Services (FICEMS) to be held in the Washington, DC area. This notice announces the date, time and location of the meeting, which will be open to the public. Pre-registration is required to attend.
The meeting will be held on July 12, 2011, from 1 p.m. EDT to 4 p.m. EDT.
The meeting will be held at the Department of Homeland Security (DHS), Office of Health Affairs at 1120 Vermont Avenue, NW., 4th Floor Conference Room, Washington, DC 20005.
Drew Dawson, Director, Office of Emergency Medical Services, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., NTI-140, Washington, DC 20590, Telephone number (202) 366-9966; E-mail
Section 10202 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy For Users (SAFETEA-LU), Public Law 109-59, provided that the FICEMS consist of several officials from Federal agencies as well as a State emergency medical services director appointed by the Secretary of Transportation. SAFETEA-LU directed the Administrator of NHTSA, in cooperation with the Administrator of the Health Resources and Services Administration of the Department of Health and Human Services and the Director of the Preparedness Division, Directorate of Emergency Preparedness and Response of the Department of Homeland Security, to provide administrative support to the Interagency Committee, including scheduling meetings, setting agendas, keeping minutes and records, and producing reports.
This meeting of the FICEMS will focus on addressing the requirements of SAFETEA-LU and the opportunities for collaboration among the key Federal agencies involved in emergency medical services. The agenda will include:
There will not be a call-in number provided for this FICEMS meeting, however minutes of the meeting will be available to the public online at
The Department of the Treasury will submit the following public information collection requirements to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13 on or after the date of publication of this notice. A copy of the submissions may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding these information collections should be addressed to the OMB reviewer listed and to the Treasury PRA Clearance Officer, Department of the Treasury, 1750 Pennsylvania Avenue, NW., Suite 11010, Washington, DC 20220.
Written comments should be received on or before July 21, 2011 to be assured of consideration.
The Department of Treasury will submit the following public information collection requirement to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13 on or after the publication date of this notice. A copy of the submission may be obtained by calling the Bureau Information Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury PRA Clearance Officer, Department of the Treasury, 1750 Pennsylvania Avenue, NW., Suite 11010, Washington, DC 20220.
Dates: Written comments should be received on or before July 21, 2011 to be assured of consideration.
Notice.
The United States Mint is announcing the price of the National September 11 Memorial & Museum Commemorative Medal. Introductory pricing will be $56.95, and regular pricing, which will go into effect approximately 60 days after the on-sale date, will be $66.95.
B. B. Craig, Associate Director for Sales and Marketing; United States Mint; 801 9th Street, NW.; Washington, DC 20220, or call 202-354-7500.
31 U.S.C. 5111 & 9701; Public Law 111-221.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice; correction.
The Department of Veterans Affairs (VA) published a collection of information notice in a
This correction is effective June 21, 2011.
Denise McLamb, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, at 202-461-7485.
In FR Doc. 2011-14760, published on June 15, 2011, at 76FR115, make the following correction. On page 35086, in the third column, under Abstract, insert the word “be” before “used” and remove “or their representative” each place it appears.
Office of Labor-Management Standards, Department of Labor.
Notice of proposed rulemaking; request for comments.
The Office of Labor-Management Standards of the Department of Labor (Department) is proposing revisions to the Form LM-10 Employer Report and to the Form LM-20 Agreements and Activities Report, which are required under section 203 of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA or Act), 29 U.S.C. 433. These reports cover agreements or arrangements between employers and labor relations consultants whereby the consultant undertakes activities to persuade employees concerning their rights to organize and bargain collectively. The Department proposes to revise its interpretation of the “advice” exemption to such reporting, by limiting the definition of what activities constitute “advice” under the exemption, and thus expanding those circumstances under which reporting is required of employer-consultant persuader agreements. The Department also proposes to revise the forms and instructions to make them more user-friendly and require more detailed reporting on employer and consultant agreements, as well as to require that Forms LM-10 and LM-20 be filed electronically. The Department invites comments on any aspect of this proposed rule.
Comments must be received on or before August 22, 2011.
You may submit comments, identified by RIN 1215-AB79 and 1245-AA03. (The Regulatory Information Number (RIN) identified for this rulemaking changed with publication of the Spring 2010 Regulatory Agenda due to an organizational restructuring. The old RIN (1215-AB79) was assigned to the Employment Standards Administration, which no longer exists; a new RIN (1245-AA03) has been assigned to the Office of Labor-Management Standards.) The comments can be submitted only by the following methods:
The Office of Labor-Management Standards (OLMS) recommends that you confirm receipt of your delivered comments by contacting (202) 693-0123 (this is not a toll-free number). Individuals with hearing impairments may call (800) 877-8339 (TTY/TDD). Only those comments submitted through
The Department will post all comments received on
Andrew R. Davis, Chief of the Division of Interpretations and Standards, Office of Labor-Management Standards, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-5609, Washington, DC 20210,
The Secretary of Labor administers and enforces the Labor-Management Reporting and Disclosure Act of 1959, as amended (LMRDA), Public Law 86-257, 73 Stat. 519-546, codified at 29 U.S.C. 401-531. The LMRDA, in part, establishes labor-management transparency through reporting and disclosure requirements for labor organizations and their officials, employers, labor relations consultants, and surety companies.
In enacting the LMRDA in 1959, a bipartisan Congress expressed the conclusion that in the labor and management fields “there have been a number of instances of breach of trust, corruption, disregard of the rights of individual employees, and other failures to observe high standards of responsibility and ethical conduct which require further and supplementary legislation that will afford necessary protection of the rights and interests of employees and the public generally as they relate to the activities of labor organizations, employers, labor relations consultants, and their officers and representatives.” 29 U.S.C. 401(b).
The LMRDA was the direct outgrowth of an investigation conducted by the Senate Select Committee on Improper Activities in the Labor or Management Field, commonly known as the McClellan Committee, which convened in 1958. Enacted in 1959 in response to the report of the McClellan Committee, the LMRDA addressed various ills identified by the Committee through a set of integrated provisions aimed, among other things, at shedding light on labor-management relations, governance, and management. These provisions include financial reporting and disclosure requirements for labor organizations, their officers and employees, employers, labor relations consultants, and surety companies.
Among the abuses that prompted Congress to enact the LMRDA was questionable conduct by some employers and their labor relations consultants that interfered with the right of employees to organize labor unions and to bargain collectively under the National Labor Relations Act (“NLRA”), 29 U.S.C. 151
As a result, Congress imposed reporting requirements on employers and their consultants under LMRDA section 203. Under LMRDA section 208, the Secretary of Labor is authorized to issue, amend, and rescind rules and regulations prescribing the form and publication of required reports, as well as “such other reasonable rules and regulations * * * as [s]he may find necessary to prevent the circumvention or evasion of such reporting requirements.” 29 U.S.C. 438. The Secretary is also authorized to bring civil actions to enforce the LMRDA's reporting requirements. 29 U.S.C. 440. Willful violations of the reporting requirements, knowing false statements made in a report, and knowing failures to disclose a material fact in a report are subject to criminal penalties. 29 U.S.C. 439.
Section 203(a) of the LMRDA, 29 U.S.C. 433(a), requires employers to report to the Department of Labor:
Any agreement or arrangement with a labor relations consultant or other independent contractor or organization pursuant to which such person undertakes activities where an object thereof, directly or indirectly, is to persuade employees to exercise or not to exercise, or persuade employees as to the manner of exercising, the right to organize and bargain collectively through representatives of their own choosing * * * .
The report must be one “showing in detail the date and amount of each such payment, * * * agreement, or arrangement * * * and a full explanation of the circumstances of all such payments, including the terms of any agreement or understanding pursuant to which they were made.” 29 U.S.C. 433. The Department of Labor's implementing regulations require employers to file a Form LM-10 (“Employer Report”) that contains this information in a prescribed form.
LMRDA section 203(b) imposes a similar reporting requirement on labor relations consultants and other persons. It provides, in part, that:
Every person who pursuant to any agreement or arrangement with an employer undertakes activities where an object thereof is, directly or indirectly—(1) to persuade employees to exercise or not to exercise, or persuade employees as to the manner of exercising, the right to organize and bargain collectively through representatives of their own choosing * * * shall file within thirty days after entering into such agreement or arrangement a report with the Secretary * * * containing * * * a detailed statement of the terms and conditions of such agreement or arrangement.
LMRDA section 203 creates an exemption from the requirement to report agreements or arrangements to persuade employees for “advice” or representation before a court, agency or arbitral tribunal, or in collective bargaining. Section 203(c) provides in pertinent part that:
Nothing in this section shall be construed to require any employer or other person to file a report covering the services of such person by reason of his giving or agreeing to give advice to such employer * * *.
Finally, LMRDA section 204 exempts attorney-client communications from reporting, which is defined as, “information which was lawfully communicated to [an] * * * attorney by any of his clients in the course of a legitimate attorney-client relationship.” 29 U.S.C. 434.
The legal authority for this notice of proposed rulemaking is set forth in sections 203 and 208 of the LMRDA, 29 U.S.C. 432, 438. Section 208 of the LMRDA provides that the Secretary of Labor shall have authority to issue, amend, and rescind rules and regulations prescribing the form and publication of reports required to be filed under Title II of the Act and such other reasonable rules and regulations as she may find necessary to prevent the circumvention or evasion of the reporting requirements. 29 U.S.C. 438. The Secretary has delegated her authority under the LMRDA to the Director of the Office of Labor-Management Standards and permits re-delegation of such authority.
The “advice” exemption of LMRDA section 203(c) is reflected in the Department's implementing regulations, but the regulations simply track the language of the statute. 29 CFR 405.6(b), 406.5(b). However, the Department has interpreted the “advice” exemption in the course of administering the LMRDA, and those interpretations have been communicated primarily in documents intended to guide Department staff in administering the statute. As explained below, interpretations have varied during the years since the LMRDA was enacted.
In its earliest approach to the “advice” exemption, reflected in a 1960 technical assistance publication to guide employers, the Department took the position that employers were required to report any “arrangement with a `labor relations consultant' or other third party
The Department also took the position, in at least some opinion letters to members of the public, that a lawyer or consultant's revision of a document prepared by an employer was reportable activity. In a 1961 article, a Department of Labor official, after noting that the drafting of speeches or written material by a consultant or lawyer was reportable, addressed the issue of revisions to material prepared by the employer:
[A]dvice to a client with respect to a speech or letter, drafted by the client, is not reportable. However, if the individual undertakes to revise that speech, this constitutes an affirmative act; it is the undertaking of activities to persuade employees in the exercise of their rights and, comparable to the giving of a speech, requires reporting. The Bureau [Bureau of Labor-Management Reports] takes the position that reporting is required in any situation where it is impossible to separate advice from activity which goes beyond advice. In any situation where an attorney undertakes activities which are more than mere advice for the same employer, the exclusion of [LMRDA] section 203(c) does not apply since the causal relationship is clear.
Benjamin Naumoff,
In 1962, the Department changed its original view of the “advice” exemption, adopting what remained the Department's interpretation, except for the brief period in 2001.
The change is reflected in a February 19, 1962 memorandum from then Solicitor of Labor Charles Donahue to John L. Holcombe, then Commissioner of the Bureau of Labor-Management Reports, in response to a November 17, 1961 memorandum from Commissioner Holcombe. Commissioner Holcombe sought guidance on “exactly what the Department's position is with respect to the drafting and editing of communications to employees which are intended to persuade employees.” Holcombe endorsed the view that the initial preparation of a persuasive document by a lawyer or consultant for use by an employer was reportable, but that revising a draft constituted “advice” for purposes of Section 203(c).
In response, the Donahue memorandum addressed three situations: (1) Where persuasive material is prepared and delivered by the lawyer or consultant; (2) where an employer drafts the material and intends to deliver it to his employees, and a lawyer or other person provides oral or written advice on its legality; and (3) where a lawyer or consultant prepares an entire speech or document for the employer. The Donahue memorandum concluded that the first activity (preparation and delivery of material) was reportable; that the second activity (legal review of a draft) constituted “advice”; and that the third activity (preparation of an entire document) “can reasonably be regarded as a form of written advice where it is carried out as part of a bona fide undertaking which contemplates the furnishing of advice to an employer.” In discussing the reportability of preparing an entire document, the Donahue memorandum observed:
[S]uch activity in itself will not ordinarily require reporting unless there is some indication that the underlying motive is not to advise the employer. In a situation where the employer is free to accept or reject the written material prepared for him and there is no indication that the middleman is operating under a deceptive arrangement with the employer, the fact that the middleman drafts the material in its entirety will not in itself generally be sufficient to require a report.
The Donahue memorandum did not explicitly analyze the language of LMRDA section 203 or the statute's legislative history, but asserted that both had been examined.
In a 1962 presentation to the American Bar Association's Section of Labor Relations Law, Solicitor Donahue described the Department's original interpretation of the “advice” exemption this way:
[T]he Department of Labor originally took the position that [the exemptions in LMRDA section 203(b) and section 204] did not extend to drafting or revising speeches, statements, notices, letters, or other materials by attorneys or consultants for the use or dissemination by employers to employees for the purpose of persuading them with respect to their organizing or bargaining rights. This kind of help was not viewed as advice but, instead, was regarded as an affirmative act with the direct or indirect objective of persuading employees in the exercise of their rights.
Charles Donahue, Some Problems under Landrum Griffin in American Bar Association, Section of Labor Relations Law, Proceedings 48-49 (1962). Donahue observed that this position had been “reviewed in the light of Congressional intent,” which revealed “no apparent attempt to curb labor relations advice in whatever setting it might be couched.”
Even where this advice is embedded in a speech or statement prepared by the advisor to persuade, it is nevertheless advice and must be fairly treated as advice. The employer and not the advisor is the persuader.
The conclusions and language of the 1962 Donahue memorandum appear as current guidance in section 265.005 (“Scope of the Advice Exemption”) of the LMRDA Interpretative Manual (“IM”). The Manual reflects the Department's official interpretations of the LMRDA and is intended to guide the work of the staff of the Office of Labor-Management Standards in the administration and enforcement of the statute. Section 265.005 of the Manual states:
Section 203(b) provides for reports from every person who pursuant to an agreement or arrangement with an employer undertakes the type of activities described therein. Section 203(c) provides that nothing in section 203 shall be construed to require any person to file a report * * * by reason of his giving or agreeing to give advice to such employer * * *.”
The question of application of the “advice” exemption requires an examination of the intrinsic nature and purpose of the arrangement to ascertain whether it essentially calls exclusively for advice or other services in whole or in part. Such a test cannot be mechanically or perfunctorily applied. It involves a careful scrutiny of the basic fundamental characteristics of any arrangement to determine whether giving advice or furnishing some other services is the real underlying motivation for it.
As to specific kinds of activity, it is plain that the preparation of written material by a lawyer, consultant, or other independent contractor which he directly delivers or disseminates to employees for the purpose of persuading them with respect to their organizational or bargaining rights is reportable. Moreover, the fact that such material may be delivered or disseminated through an agent would not alter the result. Such undertakings obviously do not call for the giving of advice to an employer.
However, it is equally plain that where an employer drafts a speech, letter or document which he intends to deliver or disseminate to his employees for the purpose of persuading them in the exercise of their rights, and asks a lawyer or other person for advice concerning its legality, the giving of such advice, whether in written or oral form, is not in itself sufficient to require a report.
A more difficult problem is presented where the lawyer or middleman prepares an entire speech or document for the employer. We have concluded that such an activity can reasonably be regarded as a form of written advice where it is carried out as part of a bona fide undertaking which contemplates the furnishing of advice to an employer. Consequently, such activity in itself will not ordinarily require reporting unless there is some indication that the underlying motive is not to advise the employer. In a situation where the employer is free to accept or reject the written material prepared for him and there is no indication that the middleman is operating under a deceptive arrangement with the employer, the fact that the middleman drafts the material in its entirety will not in itself generally be sufficient to require a report.
In later years, the Department reiterated the 1962 position, sometimes expressing doubts about its soundness.
Prior to the interpretive revision announced in January 2001, the Department of Labor's public statements involving the “advice” exemption were made in the context of litigation. The Department's position in the litigation was consistent with, and derived from, the interpretation of LMRDA section 203(c) reflected in the Donahue memorandum and section 265.005 of the LMRDA Interpretative Manual.
In 1982, the United Automobile Workers sued the Department, seeking to compel the Department to proceed against the Kawasaki Motor Corporation for failing to report conduct that the union alleged was reportable under LMRDA sections 203(a) and 203(b). One focus of the litigation was Kawasaki's payments to a consultant to devise personnel policies to discourage unionization. The Department took the position that the payments were not reportable, since the consultant's activity constituted “advice” under section 203(c). In a statement of its reasons for not proceeding against Kawasaki, the Department cited section 265.005 of the LMRDA Interpretative Manual and stated: “An activity is characterized as advice if it is submitted orally or in written form to the employer for his use, and the employer is free to accept or reject the oral or written material submitted to him.”
A Federal district court ruled against the Department.
Following the decision of the Court of Appeals, OLMS staff was guided by a March 24, 1989 memorandum from then Acting Deputy Assistant Secretary for Labor-Management Standards Mario A. Lauro, Jr. The Lauro Memorandum cited LMRDA Interpretative Manual section 265.005 and stated:
[T]here is no purely mechanical test for determining whether an employer-consultant agreement is exempt from reporting under the section 203(c) advice exemption. However, a usual indication that an employer-consultant agreement is exempt is the fact that the consultant has no direct contact with employees and limits his activity to providing to the employer or his supervisors advice or materials for use in persuading employees which the employer has the right to accept or reject.
The reliance in the 1989 memo on the distinction between a consultant's direct or indirect contact with the employer's employees has origins in the 1962 interpretation.
In 2001, the Department published a notice of a revised statutory interpretation regarding the advice exemption without request for public comment, which narrowed the category of information exempted from disclosure by consultants.
Then, on April 11, 2001, the Department rescinded the new interpretation and returned to its prior interpretation.
We now believe that the Department's current interpretation of the advice exemption may be overbroad, and could sweep within it agreements and arrangements between employers and labor consultants that involve certain persuader activity that Congress intended to be reported under the LMRDA. In its Fall 2009 Regulatory Agenda, the Department announced its intention to initiate notice and comment rulemaking on this matter, and on May 24, 2010, a public meeting was held regarding employer and consultant reporting.
The Department proposes to adopt the approach of the “advice” exemption as set forth in its January 11, 2001 notice, as that approach better effectuates the purpose of section 203 of the LMRDA to secure public disclosure concerning employer-consultant agreements that have a direct or indirect object to persuade employees concerning their rights to organize and bargain collectively and preserves the “advice” exemption than the Department's current interpretation.
With respect to persuader agreements or arrangements, “advice” means an oral or written recommendation regarding a decision or a course of conduct. In contrast to advice, “persuader activity” refers to a consultant's providing material or communications to, or engaging in other actions, conduct, or communications on behalf of an employer that, in whole or in part, have the object directly or indirectly to persuade employees concerning their rights to organize or bargain collectively. Reporting is thus required in any case in which the agreement or arrangement, in whole or part, calls for the consultant to engage in persuader activities, regardless of whether or not advice is also given.
As discussed more fully below, support for this revised interpretation is firmly rooted in the plain meaning of the statutory text. In addition, in examining the legislative history of the reporting obligations pertinent here, the Department has concluded that this revised approach better reflects the congressional intent in enacting the LMRDA. Also, the preamble demonstrates that this revised interpretation has been suggested for decades by various Department agency heads and Executive Branch and Congressional observers, and is amply supported by contemporary academic research in the industrial relations and labor-management fields. This body of research and commentary clearly demonstrates that the labor consultant industry has proliferated since the passage of the LMRDA, that employers mount sophisticated responses to the presence of union-related activity among their employees, and that employers rely to a great extent on such consultants to assist with those responses.
In addition, evidence suggests that despite the extraordinary growth in the labor consultant industry and employers' utilization of that industry to respond to protected employee activity, current reporting under the LMRDA about persuader activity is negligible, as a result of the current overly broad interpretation of the advice exemption. The Department views reporting of persuader agreements or arrangements as providing employees with essential information regarding the underlying source of the views and materials being directed at them, as aiding them in evaluating their merit and motivation, and as assisting them in developing independent and well-informed conclusions regarding union representation and collective bargaining. Congress viewed such disclosures as mitigating the disruptive impact of labor relations consultants, or as Congress called them, “middlemen,” on peaceful and stable labor relations. Indeed, in the Department's view, full
The Department also proposes related changes to the employer and consultant reporting standards on the Form LM-10 Employer Report and on the Form LM-20 Agreement and Activities Report. In addition, expanded reporting detail concerning reportable agreements and arrangements is proposed for both forms. The Department also proposes modifications of the layout of the LM-10 and LM-20 forms and instructions to better outline the reporting requirements and improve the readability of the information. Finally, the Department proposes that Form LM-10 and Form LM-20 reports must be submitted to the Department electronically, and provides a process to apply for an electronic filing exemption on the basis of specified criteria.
The Department invites comment on the proposed changes, their advantages and disadvantages, and whether the changes would better implement the LMRDA. The Department invites general and specific comments on any aspect of this proposal; it also invites comment on specific points, as noted throughout the text of this notice.
Section 203(c) of the statute exempts a consultant's services provided “by reason of his giving or agreeing to give advice,” without expressly defining or otherwise giving meaning to the term “advice.” As noted above, the Department has employed various interpretations of the term over the past five decades, but those interpretations, excluding the short-lived 1960 and 2001 interpretations, have not provided analytical distinctions between exempt “advice” and reportable persuader activity in order to ensure adequate reporting of persuader agreements. In particular, the interpretation of advice currently contained in section 265.005 of the LMRDA Interpretative Manual (IM)—that an activity is characterized as advice if it is submitted orally or in written form to the employer for his use, and the employer is free to accept or reject the oral or written material submitted to him—sets a standard that is not grounded in common or ordinary understanding of the term “advice” as used in section 203(c). The focus on whether an employer can “accept or reject” the material submitted by a consultant has resulted in an overbroad interpretation of “advice” that, in the Department's present view, exempts from reporting agreements and arrangements to persuade employees for which disclosure is appropriate. The interpretation now proposed by the Department better serves the purposes of section 203 to provide the level of disclosure for persuader agreements as described.
“Advice” ordinarily is understood to mean a recommendation regarding a decision or a course of conduct.
The practical applications of the current interpretation of “advice” provide illustrative guidance. The current “advice” standard in the IM treats as advice not only the situation in which a lawyer or consultant reviews drafts of persuasive material at the employer's request to determine whether the statements in the material are permissible under the National Labor Relations Act, but also covers a lawyer or consultant's preparation of persuasive material to be disseminated or distributed to employees. Because an employer generally has the authority to accept or reject the work performed for him or her in either case, the Department's current IM interpretation regards both examples as advice and therefore not triggering reporting. However, in the Department's view, the latter example appears to be quintessential persuader activity—one that has an object to persuade employees. This application demonstrates that the current scope of the “advice” exemption is overbroad and ultimately does not appear to be the best approach in making the statutory distinctions called for.
In contrast, the common understanding of “advice” noted above would not include, for example, the preparation of persuasive material for dissemination or distribution to employees because undertaking such activity is itself more than a recommendation regarding a course of conduct in the ordinary sense. It is the supply of material or communications that have an object to persuade employees. This distinction is further underscored by the deliberate disclosure in this example of material or communications to third parties (the employees), thus waiving any attorney-client privilege that might have attached to the activity. The Department's current view—that preparation of persuasive material or communications is advice so long as the employer is free to accept or reject the material—thus does not appear to provide the best analytical framework for ensuring necessary disclosure.
For purposes of the LMRDA, the distinction between activities properly characterized as “advice” and those that go beyond “advice” has not been made clear. This is particularly so in the case in which an employer essentially serves as the conduit for persuasive communication or material developed or prepared by an outside consultant or lawyer. The role of the outside consultant in attempting to influence or persuade employees, whether the consultant deals directly with employees or deals with the employer and his or her agents who in turn deal with employees, is the matter required to be disclosed by the statute. To be sure, Congress identified the potential for abuse when employers rely heavily on third parties in the context of union organizing drives and collective bargaining.
As a result, reporting is essential to fulfill the statutory purpose, and thus is mandated, when the consultant activity goes beyond recommending a course of conduct and either directly or indirectly persuades or influences, or attempts to persuade or influence, employees regarding their protected rights. Thus, the better approach for distinguishing between “advice” and “persuader activity” should focus on whether an activity calls exclusively for recommendations or guidance for use by the advisee regardless of whether the advisee may accept or reject it.
Furthermore, the Department's most recent approach does not appear to be
The current IM interpretation seems inconsistent with the legislative history of section 203 of the LMRDA. It is clear from the legislative history that one of the primary purposes behind the enactment of section 203(b) was to promote an employee's freedom of choice by revealing to him or her the real source of persuader activity designed to influence the employee in the exercise of protected rights. Further, it is readily apparent from the history that Congress was most concerned with the so-called “middleman” operating under an arrangement with an employer to persuade employees either directly or indirectly through an agent or through some other indirect means.
The problems related to the interference of “middlemen” in the labor relations arena were first identified in Congress by the Senate Select Committee on Improper Activities in the Labor or Management Field, which, after the name of its chairman, became known as the McClellan Committee. Among the abuses uncovered by the McClellan Committee was the employment of middlemen by management to spy on employee organizing activity or to otherwise prevent employees from forming or joining a union, or to induce them to form or join company unions through such deceptive devices as “spontaneous” employee committees, essentially fronts for the employer's anti-union activity. S. Rep. No. 85-1417 at 255-300 (1958). In particular, the select committee scrutinized the activities of Nathan W. Shefferman and his labor consulting firm, Labor Relations Associates of Chicago, Inc., concluding that this firm indulged in the worst types of deceptive consultant activity, including organizing “vote no” committees during union campaigns, designing psychometric employee tests designed to weed out pro-union workers, and negotiating improper “sweetheart” contracts with union officials.
In reporting on S. 1555, the Senate version of the bill that ultimately became the LMRDA, the Senate Committee on Labor and Public Welfare adopted one of the central recommendations of the McClellan Committee to “curb activities of middlemen in labor-management disputes.” S. Rep. 187 at 2, LMRDA Leg. Hist. at 398. In describing the problem of “union-busting middlemen,” the Labor Committee stated that it had:
Received evidence in prior hearings showing that large sums of money are spent in organized campaigns on behalf of some employers for the purpose of interfering with the right of employees to join or not to join a labor organization of their choice, a right guaranteed by the National Labor Relations Act. Sometimes these expenditures are hidden behind committees or fronts. However the expenditures are made, they are usually surreptitious because of the unethical content of the message itself. The committee believes that this type of activity by or on behalf of employers is reprehensible * * * [W]here they are engaged in they should be exposed to public view, for if the public has an interest in preserving the rights of employees then it has a concomitant obligation to insure free exercise of them.
In almost every instance of corruption in the labor-management field there have been direct or indirect management involvements. The report of the McClellan Committee describes management middlemen flitting about the country on behalf of employers to defeat attempts at labor organization. In some cases they work directly on employees or through committees to discourage legitimate organizational drives or set up company-dominated unions. These middlemen have been known to negotiate sweetheart contracts. They have been involved in bribery and corruption as well as unfair labor practices. The middlemen have acted in fact if not in law as agents of management. Nevertheless, an attorney for the National Labor Relations Board has testified before the McClellan committee that the [National Labor Relations Act] is not adequate to deal with such activities.
Accordingly, the Labor Committee indicated that the provision that ultimately became section 203(b) of the LMRDA was necessary in order to
In 1980 and again in 1984, the Subcommittee on Labor Management Relations of the House Committee on Education and Labor investigated and reported on, among other things, the role of management consultants in employee organizing campaigns and the Department's requirements for reporting that activity.
The 1980 Subcommittee Report noted the growth in employers' utilization of labor relations consulting firms to engage in persuader activity. 1980 Subcommittee Report at 28 (“[T]he labor consultant industry has undergone very substantial growth since the [passage of the LMRDA], particularly during the past decade.”). This report also notes the increase in the use of law firms to assist employers in their union avoidance activities:
Many lawyers no longer confine their practice to traditional services such as representing employers in administrative and judicial proceedings or advising them about the requirements of the law. They also advise employers and orchestrate the same strategies as non-lawyer consultants for union “prevention,” union representation election campaigns, and union decertification and de-authorization. Lawyers conduct management seminars, publish widely, and often form their own consulting organizations.
One commenter describes the 1980 Subcommittee hearings this way:
Lawmakers learned that little had changed since the enactment of the LMRDA. Although the consulting industry's spokesmen claimed that their firms acted only as industrial `marriage counselors,' majority members rejected this contention, writing, `consultants promote a perspective of labor-management relations which exalts the short-run over the long-run, presuming that workers will vote against a union, if management exercises the correct combination of manipulation, persuasion and control during the relatively brief duration of an organizing campaign.' Much of the committee's interest centered on the business community and their mercenaries' reluctance to comply with the Landrum-Griffin Act.
Subsequent subcommittee hearings, conducted in 1984, also addressed labor relations consultants' and employers' noncompliance with the LMRDA's reporting and disclosure requirements. The 1984 Subcommittee Report further underscored the reduction in the filing of LMRDA consultant and employer reports despite evidence of the continuing growth of the consultant industry. 1984 Subcommittee Report at 15. “In the 25 years since the enactment of the LMRDA there has been a dramatic increase in management's use of consultants to counter the unionization efforts of employees or to decertify existing unions. This well-documented increase has been most pronounced in the past 10 years.” 1984 Subcommittee Report at 2. The Subcommittee again admonished the Labor Department for failing to act on its recommendations from 1980 regarding the need for more vigorous enforcement of employer and consultant reporting requirements, 1984 Subcommittee Report at 4, and suggested that lack of robust enforcement of employer and consultant reporting requirements of section 203 “frustrated Congress' intent that labor-management relations be conducted in the open.”
Concern about the impact of consultant activity on labor-management relations emanated from the Executive Branch as well. In March, 1993, the Secretaries of Labor and Commerce announced the establishment of the U.S. Commission on the Future of Worker-Management Relations, which was charged with investigating and making recommendations regarding enhancement of workplace productivity and labor-management cooperation, among other things. The Commission, also called the Dunlop Commission after its chairman, Professor John T. Dunlop of Harvard University, held public hearings and took testimony on the state of labor relations in the early 1990s. The Commission issued a fact-finding report in June 1994 and a final report in December of the same year, and the reports provide further support for the need for the revision of the interpretations involving consultant reporting.
In assessing economic costs that labor and management face in the competition surrounding representation elections, the Commission found in its fact-finding report that “[f]irms spend considerable internal resources and often hire management consulting firms to defeat unions in organizing campaigns at sizable cost.” Commission on the Future of Worker-Management Relations, Fact-Finding Report at 74 (May 1994) (hereafter “Dunlop Commission Fact-Finding Report”). Indeed, the Commission concluded, the “NLRA process of representation elections is often highly confrontational with conflictual activity for workers, unions, and firms that thereby colors labor-management relations.”
Contemporary research in the industrial relations arena provides ample support for the conclusion that the consultant industry has mushroomed, and the use of consultants by employers to defeat union organizing efforts has similarly proliferated in recent years. One study estimated that only 100 management consultant firms operated in the 1960s, shortly after the
As labor consultants' roles in employer responses to union activity has grown, so too has the role of law firms specializing in union avoidance.
Typically at the first sign of union activity at a facility management seeks the advice and counsel of one or more attorneys. In some cases the attorney's role is largely one of providing legal assistance, such as advising supervisors on what constitutes an unfair labor practice under the NLRA, with overall direction of the firm's campaign entrusted to either top management or an outside consultant. In other situations, the attorney not only provides legal counsel but also plays an important (sometimes dominant) role in developing and implementing the company's anti-union strategy and campaign tactics.
Another evolving dimension of the union avoidance industry is its increasingly sophisticated use of technology, including highly produced anti-union videos and the growing use of information technology. These methods permit consultants to more easily locate anti-union media stories and to disseminate persuader communication more quickly and easily. John Logan,
In today's digital and media driven world, messages must be delivered in varied formats. Custom labor videos provide excellent pro-employer messages with hard-hitting facts as well as personal testimonials and perspectives from employees and supervisors. CD/DVD hosted presentations are another format that will enable you to reach the technical savvy of your employee group, allowing employees to browse through information in “chapters” and learn at their own pace. Digital communications strengthen critical messages with verbal and visual reinforcement.
Another consultant's Web site promises to “reinforce your campaign message in a format that preserves employee anonymity, enhances personalization and enables dynamic content solutions. Employees will be able to access current news, organizational communications, union activity data and statistics anywhere, anytime.”
Although it is clear that employer-consultant persuader activity has continued since enactment of the LMRDA, evidence suggests that much of this persuader activity goes unreported. Although there is some variation from year to year, the average number of representation cases filed with NMB during the FY 2005-2009 is 38.8; the average number of NLRB representation cases filed during the same period is 3,429.2.
Several observers have suggested that persuader reporting has decreased despite the increase in employer utilization of consultants because of the ineffectiveness of the LMRDA. John Logan,
The law states that management consultants only have to file financial disclosures if they engage in certain kinds of activities, essentially attempting to persuade employees not to join a union or supplying the employer with information regarding the activities of employees or a union in connection with a labor relations matter. Of course, that is precisely what anti-union consultants do, have always done. Yet I never filed with Landrum-Griffin in my life, and few union busters do * * * As long as [the consultant] deals directly only with supervisors and management, [the consultant] can easily slide out from under the scrutiny of the Department of Labor, which collects the Landrum-Griffin reports.
Martin Jay Levitt (with Terry Conrow),
Within a couple of weeks I had identified the few supervisors who were willing to work extra hard for me * * * Through that handful of good soldiers I set to work establishing a network of rank-and-file employees who would serve as spies, informants, and saboteurs. Those so-called loyal employees would be called upon to lobby against the union, report on union meetings, hand over union literature to their bosses, tattle on their co-workers, help spread rumors, and make general pests of themselves within the organizing drive. I rarely knew who my company plants were * * *. It was cleaner that way. Nobody could connect me to the activities, I steered clear of the reporting requirements of Landrum-Griffin, and the workers' `pro-company' counter campaign was believed to be a grass-roots movement.
Considering Mr. Levitt's extensive personal experience in the field, his statements raise concerns about the effectiveness of the LMRDA's reporting provisions. Mr. Levitt is incorrect in suggesting that the LMRDA, by its terms, requires direct contact between a consultant and employees before the statutory duty to report persuader activities is triggered. But the Department's most recent interpretation of LMRDA section 203(c) lends itself to the understanding described by Mr. Levitt, since it views most activity other than direct contact between a consultant and employees as falling within the “advice” exemption. If Mr. Levitt's statement is representative of the consulting industry, then the Department's most recent interpretation may be contributing to the substantial under-reporting of persuader activities that Congress wanted disclosed.
The evidence suggests that consultants, in order to avoid reporting under the LMRDA, engage predominantly in indirect persuader activity by directing their activities to the employer's supervisors. The clarification of the distinction between advice and persuader activity is intended to correct this problem, and will result in better information for employees when making decisions about representation.
The reporting of persuader and information-supplying agreements and arrangements enables workers to become more informed as they determine whether to exercise, and the manner of exercising, their protected rights to organize and bargain collectively. As stated above, such disclosure makes employees aware of the underlying source of the information they are receiving, helps them in assessing its content, and assists them in their decision making process regarding union representation. As described above, many employers engage third-party consultants, often attorneys, to conduct “union avoidance” or “counter-organizing” efforts to prevent workers from successfully organizing and bargaining collectively or otherwise acting concertedly. These efforts include the dissemination of persuader material to workers, whether conveyed verbally or in written or electronic formats, as well as the development and implementation of personnel policies and actions. These campaigns often begin before employees initiate a National Labor Relations Board (NLRB) or National Mediation Board (NMB) representation process. Moreover, third-party consultants and attorneys routinely conduct and direct these activities, as employers often retain their services to orchestrate, in whole or part, these union avoidance and counter-organizing efforts.
While in some cases workers may recognize the presentation of anti-union views as those of the employer, and may be aware of some of the employer's methods used to disseminate those views, employees generally do not know the source of those views or the tactics and strategies chosen to disseminate them. Indeed, to the extent that the employees recognize the presence of a concerted counter-campaign, they typically do not know that a third party has been retained to orchestrate it.
To illustrate the above points, the Department observes that employers often argue to their employees that a union is a “third party” that they do not need to further their interests.
In particular, as discussed in more depth above, union avoidance efforts often utilize supervisors and other lower-level management representatives, as these individuals are generally known and more easily trusted by the employees than is the consultant. See, Logan,
While employees may or may not otherwise know detailed information concerning their employer, potential union, or the larger labor-management context, the information concerning a persuader agreement with a third-party consultant may provide important clues to the employees that assist them in making decisions. Indeed, employees have a great deal of information available to them concerning unions, such as the annual union financial reporting provided on the Form LM-2, LM-3, and LM-4 pursuant to section 201 of the LMRDA. See submitted reports on the Department's Web site at
The disclosure of consultants' interests in representation and bargaining campaigns promotes the same goals the Department has advanced in regulating unions' financial disclosure, and furthers parity between the two reporting regimes. The overarching purpose of the LMRDA's labor organization reporting requirements is to provide union members with “all the vital information necessary for them to take effective action in regulating affairs of their organization.” Labor Organization Annual Financial Reports, 68 FR 58,374, 58,380 (Oct. 10, 2003), quoting S. Rep. 187, 86th Cong., 1st Session, p.9, 1959 U.S.C.C.A.N. 2318, 2325 (1959). By mandating that labor organizations disclose their financial operations to employees they represent, Congress intended to promote union self-government by providing union members with complete and accurate information that would permit them to take effective action in regulating internal union affairs. “[U]nion financial disclosure regimes are intended to reduce the informational advantages agents [unions] have over principals [members] and permit principals to monitor and assess the performance of agents.”
Furthermore, the financial disclosure provided by the Form LM-10 concerning the disbursements to the consultant, and the details of the terms and conditions of the persuader agreement on the Form LM-10 and the Form LM-20, also provides important information to the employees. See S.Rep. 187 at 10-11, LMRDA Leg. Hist. at 406-407, referring to the “large sums of money” spent on behalf of some employers to interfere with employee rights guaranteed by the NLRA. For example, as discussed in more detail below, employers have been estimated to spend approximately $200 million per year in direct payments to defeat organizing drives, with the actual value closer to $1 billion when factoring indirect costs, such as management time off to oppose unions. Logan,
The LMRDA's provisions requiring the disclosure of consultant participation in representation elections have close analogs in Federal election campaign law.
The LMRDA's disclosure provisions are not unlike the financial disclosure requirements in the FECA and reviewed in
The Department contends that this reasoning also applies to workers making a determination regarding a vote in a union representation election or otherwise exercising their rights to organize and bargain collectively. Furthermore, regardless of election outcome, the integrity of the union representation election process is strengthened when voters become better informed—by virtue of union disclosure, as well as by consultant and employer disclosure. In this way, the public can be more confident that the election outcomes reflect the sound and informed intent of the voters. This in turn creates greater confidence and trust in labor-management relations.
Similarly, the NLRB has promoted and protected the value to employees of full and accurate information during representation campaigns in its regulation and maintenance of “laboratory conditions” surrounding union elections.
Further, the Board has promoted the goal of achieving the “uninhibited desires of employees” in a multitude of election cases regulating the campaign conduct of the parties.
As with the Board's rules promoting employee free choice, the LMRDA's requirements regarding the disclosure of consultant participation in representation campaigns, and specifically the limitations on the interpretation of “advice” proposed here, advance the goals of an informed electorate able to distinguish between well-reasoned and accurate information and campaign pressure. The environment of an NLRB-supervised election is highly competitive and adversarial, and the parties can engage in sophisticated campaign tactics that approach, but may not cross into, objectionable election conduct or unfair labor practices. Pressurized campaign tactics can and do lead to objections regarding the outcome of the election, which results in long periods of litigation before the NLRB about the election conduct. Such disputes heighten the acrimony between the parties, and in the event that the union is ultimately certified, prevent bargaining during the pendency of the election-related litigation. Making transparent the role of consultants during a campaign will permit employees to better evaluate campaign materials and tactics, increase the integrity of the election outcome, and promote reliance on the results of the election. Non-disputatious representation elections thus establish a firm foundation for the bargaining relationship that may ensue following an election.
In enacting section 203 of the LMRDA, Congress was concerned about the effect of consultant activity on peaceful labor relations. The National Labor Relations Act was enacted in 1935 in part to promote industrial peace through establishing and protecting workers' fundamental rights to organize and bargain collectively.
As in 1959, there is strong evidence today that the undisclosed activities of labor relations consultants are interfering with worker's protected rights and that this interference is disruptive to effective and harmonious labor relations. For instance, research in the industrial relations arena shows that newly certified unions are much less likely to secure a first contract in cases in which the employer has hired a consultant.
Studies also show that accompanying the proliferation of employers' use of labor relations consultants is the substantial utilization of anti-union tactics that are unlawful under the NLRA. Since the rise of consultant industry in the 1970s and 1980s, “no-holds-barred counter-organising campaigns” have become mainstream. Logan,
With or without the advice of labor consultants, employers utilize aggressive and even unlawful tactics in opposing unions. Bronfenbrenner found that during the course of an NLRB-supervised election, 14% of employers utilize surveillance, 63% used supervisors to interrogate employees, 54% used supervisors to threaten employees, 47% threatened cuts in benefits or wages, 18% granted unscheduled raises, 46% made promises of improvement, and 41% harassed and disciplined union activists. Bronfenbrenner,
The acquired expertise of labor consultants in union avoidance has enabled them to request and be granted complete autonomy in conducting employers' responses to union campaigns. Logan
The deleterious effect of labor consultant activity on industrial relations is not a new theme. Thirty years ago, it was noted that consultant-led anti-union campaigns and their resulting disruptions inevitably result in declines in workplace productivity. 1980 Subcommittee Report at 42. Similarly, sixteen years ago, it was noted that the “worst features” of political campaigns had been imported into union election campaigns, Dunlop Commission Final Report at 15, resulting in confrontation and conflict that unnecessarily colors labor-management relations. Dunlop Commission Fact-Finding Report at 68. Current research indicates that these observations are as true today as they were in their time.
The Department concludes that, as was true in the 1950s, the undisclosed use of labor relations consultants by employers interferes with employees' exercise of their protected rights to organize and bargain collectively and disrupts labor-management relations. The current state of affairs is clearly contrary to Congressional intent in enacting section 203 of the LMRDA. Congress intended that employees be permitted to know whether employers are using consultants to run anti-union campaigns or otherwise engage in persuader activities. Such information provides employees the ability to assess the underlying source of the information directed at them, aids them in evaluating its merit and motivation, and assists them in developing independent and well-informed conclusions regarding union representation. As noted above, the rise in the use of labor consultants, the increased tension in labor-management relations, and evidence that the Department's interpretation of the “advice” exemption has led to the under-reporting of these activities all support revision of the interpretation. The Department must take action to ensure that its interpretation of the provisions of section 203 comports with Congressional intent.
As a result of the evidence cited above, the Department considers its current interpretation of the LMRDA section 203(c) “advice” exemption as contributing to substantial underreporting of employer-consultant persuader agreements. The Department's current interpretation of “advice” does not represent the best reading of the statutory language and Congressional intent.
The application of the “advice” exemption depends on whether the activities can fairly be considered as exclusively giving “advice,” as opposed to engaging, in whole or part, in any activities that go beyond mere advice and constitute direct or indirect persuasion of employees. For the purposes of the Department's interpretation of section 203(c), “advice” means an oral or written
As discussed above in the discussion of the textual basis for the interpretation, an essential place to begin to draw the distinction between advice and persuader activity is with regard to the preparation of or revision to persuasive materials by labor relations consultants and other persons. Under the proposed interpretation, when such a person prepares or provides a persuasive script, letter, videotape, or other material or communication, including electronic and digital media, for use by an employer in communicating with employees, the “advice” exemption does not apply and the duty to report is triggered. Similarly, a consultant's revision of the employer's material or communications to enhance the persuasive message also triggers the duty to report, unless the revisions exclusively involve advice and counsel regarding the exercise of the employer's legal rights. Material or communications, or revisions thereto, are persuasive if they, for example, explicitly or implicitly encourage employees to vote for or against union representation, to take a certain position with respect to collective bargaining proposals, or refrain from concerted activity (such as a strike) in the workplace.
The concentration on the application of the proposed interpretation to the preparation of persuasive materials and communications, however, does not provide sufficient guidance in view of the array of contemporary practices and tactics of labor consultants. For example, persuader activities may additionally include: Training or directing supervisors and other management representatives to engage in persuader activity; establishing anti-union committees composed of employees; planning employee meetings; deciding which employees to target for persuader activity or discipline; creating employer policies and practices designed to prevent organizing; and determining the timing and sequencing of persuader tactics and strategies.
The Department has considered whether seminars, webinars, or conferences offered by lawyers or labor consultants to employers and their representatives must be reported. During such events, guidance is offered to attendees, who represent multiple employers on labor-management relations matters, including how to persuade employees concerning their organizing and bargaining rights. In general, to the extent that these meetings involve actions, conduct, or communications that have a direct or indirect object to persuade employees concerning their representation or collective bargaining rights, then the consultant and employer would be required to file the necessary reports. By contrast, in cases in which a seminar or conference involves no persuader activity, then no duty to report is triggered under the LMRDA. For example, if persuader materials, which are intended for presentation, dissemination, or distribution to employees, are provided to employers at such events, then reporting is triggered. Additionally, if, at such events, consultants train supervisors to conduct individual or group employee meetings, then reporting is also triggered. These examples reflect actions, conduct, and communications that have an object to persuade employees. The Department generally views so-called “union-avoidance” seminars and conferences offered by lawyers or labor consultants to employers to involve reportable persuader activity. The Department also cautions that employers and consultants cannot avoid the reporting requirements by inappropriately labeling an otherwise reportable persuader agreement or arrangement involving a seminar or conference as “advice.” The Department invites specific comment on the nature and scope of such seminars, and the applicability of the section 203 reporting requirements to them.
In the past, the Department has concluded that in cases in which a particular consultant activity involves both advice to the employer and persuasion of employees, the “advice” exemption controls.
Regarding the application of the advice exemption to attorneys, the Department first notes that, with respect to reports by attorneys,
For the foregoing reasons, the Department proposes to revise the Form LM-10 and Form LM-20 instructions to better implement the objectives of section 203. The revisions to the instructions will provide filers with guidance on the use of the “advice” exemption of section 203(c).
The Department proposes to amend page 3 of the Form LM-20 instructions to read as follows (the revised language is in
You must file a separate report for each agreement or arrangement made with an employer where the object is, directly or indirectly:
(1) To persuade employees to exercise or not to exercise, or to persuade them as to the manner of exercising, the right to organize and bargain collectively through representatives of their choice. (
(2) To supply the employer with information concerning activities of employees or a labor organization in connection with a labor dispute involving such employer. (
NOTE:
Additionally, the Department proposes to include the above guidance in the revised Form LM-10 instructions in like manner.
The Department has not revised the Form LM-20 and Form LM-10 since the advent of the forms in 1963.
While some of the proposed revisions are minor stylistic and layout modifications (with the exception of the proposed “advice” exemption guidance described above), there are four other significant proposed changes: (1) The mandating of electronic filing for each form, with language in each set of instructions depicting such process and guidance concerning the application for a hardship exemption from such electronic filing; (2) the addition of a detailed checklist that Form LM-10 and Form LM-20 filers must complete to disclose the scope of activities that consultants have engaged, or intend to engage, in under a reportable agreement or arrangement; (3) the changes to the Form LM-20 and instructions, including the requirement for filers to report their Employee Identification Number, as applicable, and explanations for terms “agreement or arrangement” and “employer”; and (4) the changes to the Form LM-10 and instructions, including the changes described above to the Form LM-20 and instructions, as well as a revamped layout for the Form LM-10, which divides the report into four parts, each presenting aspects of the reportable transactions, agreements, and arrangements required by sections 203(a)(1)-(5) of the LMRDA, in a more user-friendly manner.
These proposed changes are each discussed in more depth below, and the Department invites comments on each of them, as well as any other aspects regarding the layout of the forms and instructions.
Currently, only the Form LM-2, Form LM-3, Form LM-4, Labor Organization Annual Reports, can be submitted to OLMS electronically, and only the Form LM-2 must be filed electronically. However, an electronic filing option is planned for all LMRDA reports as part of an information technology enhancement. Electronic reporting contains error-checking and trapping functionality, as well as online, context-sensitive help, which improves the completeness of the reporting. Electronic filing is more efficient for reporting entities, results in more immediate availability of the reports on the agency's public disclosure Web site, and improves the efficiency of OLMS in processing the reports and in reviewing them for reporting compliance. In contrast, paper reports must be scanned and processed for data entry before they can be posted online for disclosure, which delays their availability for public review.
The Department proposes to mandate that the Form LM-20 and Form LM-10 be filed electronically. Currently, labor organizations that file the Form LM-2 are required by regulation to file electronically, and there has been good compliance with this requirement. Like labor unions, employers and consultants have the information technology resources and capacity to file electronically. Further, OLMS has deployed technology improvements that greatly facilitate its electronic filing process and eliminate the expenses formerly associated with such filing.
The proposed Form LM-20 and Form LM-10 Instructions outline a process for seeking an exemption from the electronic filing requirement that is identical to the Form LM-2 process.
A filer will be able to file a report in paper format only if the filer asserts a temporary hardship exemption or applies for and is granted a continuing hardship exemption. The temporary hardship exemption process, which is currently in place for Form LM-2 filing
If a filer experiences unanticipated technical difficulties that prevent the timely preparation and submission of an electronic filing, the organization may file the form in paper format by the required due date. An electronic format copy of the filed paper format document shall be submitted to the Department within ten business days after the required due date. Indicate in Item 1.b (Hardship Exempted Report) that the filer is filing under the hardship exemption procedures. Unanticipated technical difficulties that may result in additional delays should be brought to the attention of the OLMS Division of Interpretations and Standards, which can be reached at the address below, by e-mail at
If either the paper filing or the electronic filing is not received in the timeframe specified above, the report will be considered delinquent.
For a continuing hardship exemption, which is also applicable to Form LM-2 filing
(a) Apply in writing for a continuing hardship exemption if it cannot be filed electronically without undue burden or expense. Such written application shall be received at least 30 days prior to the required due date of the report(s). The written application shall contain the information set forth in paragraph (b). The application must be mailed to the following address: U.S. Department of Labor, Office of Labor-Management Standards, 200 Constitution Avenue, NW., Room N-5609, Washington, DC 20210
Questions regarding the application should be directed to the OLMS Division of Interpretations and Standards, which can be reached at the above address, by e-mail at
(b) The request for the continuing hardship exemption shall include, but not be limited to, the following: (1) The justification for the
(c) The continuing hardship exemption shall not be deemed granted until the Department notifies the applicant in writing. If the Department denies the application for an exemption, the filer shall file the report(s) in electronic format by the required due date. If the Department determines that the grant of the exemption is appropriate and consistent with the public interest and the protection of union members and so notifies the applicant, the filer shall follow the procedures set forth in paragraph (d).
(d) If the request is granted, the filer shall submit the report(s) in paper format by the required due date. The filer may be required to submit Form LM-20 in electronic format upon the expiration of the period for which the exemption is granted. Indicate in Item 1.b (Hardship Exempted Report) that the filer is filing under the hardship exemption procedures.
If either the paper filing or the electronic filing is not received in the timeframe specified above, the report will be considered delinquent.
The Department seeks comment on its mandatory electronic filing proposal for Form LM-20 and Form LM-10 filers, including any specific comments on the process for obtaining a hardship exemption, and the proposed revisions to the forms and instructions.
The current instructions to the Form LM-20 and Form LM-10 do not provide detailed guidance to the filer concerning how to report the nature of the activities undertaken by a consultant pursuant to an agreement or arrangement to persuade. For example, the current Form LM-20 Instructions
For each activity to be performed, give a detailed explanation of the following:
11.a.
Similarly, the current Form LM-10 Instructions
[You] must provide a full explanation identifying the purpose and circumstances of the payments, promises, agreements, or arrangements included in the report. Your explanation must contain a detailed account of services rendered or promised in exchange for promises or payments you have already made or agreed to make. Your explanation must fully outline the conditions and terms of all listed agreements.
In practice, the Department receives only vague descriptions of reportable persuader or information supplying activity, such as, “employed to give speeches to employees regarding their rights to organize and bargain collectively” and “presented informational meetings to company employees relative to the process of unionization, the role of the NLRB, and collective bargaining.”
As the review of the literature above has demonstrated, a wide range of activities and tactics have been utilized by employers, and employees and the public have a need to know in detail the types of activities in which consultants engage.
The Department seeks comment on the proposed checklist approach for detailing persuader and information supplying activities, as well as the items on the list itself.
The Proposed Form LM-20 and Instructions (
Additionally, the first page includes three items describing the employer agreement: The employer's contact information (Item 6), which adds the requirement to report the employer's EIN, the date the agreement was entered into (Item 7), and the person(s) through whom the agreement was made (Item 8). Item 8, which currently requires a consultant to report only the employer representative through whom the reported agreement or arrangement has been made, would be amended to require an indirect party to an employer-consultant agreement or arrangement to identify in a new Item 8(b) the consultant with whom he or she entered into the reportable agreement or arrangement. This specificity is added to clarify the reporting now required on the Form LM-20 when such indirect parties, or “sub-consultants,” are engaged by a primary consultant to assist in implementing a reportable agreement or arrangement. The primary consultant would report the employer representative in a new Item 8(a). This requirement is now included in the Form LM-20 Instructions in Part II, Who Must File, but its addition on the form itself will enable the Department, employees, and the public to more easily understand the nature of the activities conducted pursuant to the
The second page provides more detail concerning the agreement. Items 9 and 10 would be unchanged. Item 9 requires the filer to indicate if the agreement called for activities concerning persuading employees, supplying the employer with information concerning employees or a labor organization during a labor dispute, or both. Item 10 asks for the terms and conditions of the agreement, and requires written agreements to be attached. Item 11 calls for the provision of certain details concerning any covered agreement or arrangement, and a proposed Item 11.a, as described above in Section VI, B, would require filers to check boxes indicating specific activities undertaken as part of the agreement or arrangement. There is also an “other” box, which requires the filer to provide a narrative explanation of any other reportable activities planned or undertaken that are not specifically contained on the list.
Additionally, Items 11.b, 11.c, and 11.d, respectively, require the consultant, as before the proposed revisions, to indicate the period during which activity was performed, the extent of performance, and the name and address of the person(s) through whom the activity was performed. Item 11.d. would be revised to ask filers to specify if the person or persons performing the activities is employed by the consultant or serves as an independent contractor. In the latter scenario, the person or persons performing the activities is an indirect party to an employer-consultant agreement or arrangement, who would owe a separate Form LM-20 report. This requirement is not new, and it has been incorporated in the Form LM-20 Instructions in Part II, Who Must File, but this addition on the form itself will enable the Department, employees, and the public to more easily understand the nature of the activities conducted pursuant to the agreement or arrangement and determine if additional reports are owed. Finally, Items 12.a and 12.b require the consultant to identify the employees that are targets of the persuader activity and the labor organizations that represent or are seeking to represent them, respectively. To achieve more specificity, Item 12.a as proposed would include a description of the department, job classification(s), work location, and/or shift(s) of the employees targeted.
The proposed Form LM-20 instructions are similar to the current version, and they follow the layout of the proposed form. There are four significant modifications. First, a clarification of the term “agreement or arrangements” has been added to Part II, Who Must File. As there stated: “The term ‘agreement or arrangement’ should be construed broadly and does not need to be in writing.” Second, as discussed above, the proposed form would be submitted electronically, and the Department has made changes to the instructions describing the signature and submission process, as well as a procedure for filers to apply for an exemption from the electronic filing requirement. This procedure is modeled on the procedure for filers of the Form LM-2, Labor Organization Annual Report. Third, the proposed instructions include guidance on the application of the “advice” exemption, in the general guidance on reporting agreements, arrangements, and activities section. Fourth, as discussed, the proposed instructions refer to the new checklist of activities undertaken pursuant to the reportable agreement or arrangement (
The proposed Form LM-10 and Instructions (see appendix B) are significantly different in layout and style from the current form and instructions, although the reporting requirements have been altered only in two respects: The interpretation of the “advice” exemption is now included, and the form now requires detailed information regarding specific activities undertaken pursuant to the agreement or arrangement.
The proposed form is four pages in length and contains 19 items. The first page includes the first seven items, which provide the contact information for the employer. This information includes the file number (Item 1.a.), fiscal year covered (Item 2), contact information for the employer (Item 3), employer's president or corresponding principal officer (Item 4), and any other address containing records needed to verify the report (Item 5), at which of the listed addresses records are kept (Item 6), and type of organization that the employer is, such as an individual, partnership, or corporation (Item 7). Item 3 would be revised to require the employer to provide its EIN, which will assist the Department and public in identifying the employer and analyzing the employer's filings. Item 1.b.is for the filer to indicate if the report is filed pursuant to a hardship exemption from the proposed electronic filing requirement and Item 1.c. is for the filer to indicate whether the filing is an amended report. These items are not in the current form. The front page also includes the signature blocks, for the president (Item 18) and the treasurer (Item 19), including the date signed and telephone number.
The remainder of the proposed form is divided into four parts: Parts A, B, C, and D. This layout of the form is designed to clarify the Form LM-10 in Item 8, which currently requires the filer to check those box(es) (Items 8.a-8.f) that depict the reportable transaction, arrangement, or agreement, and then fill out a Part B to detail the transaction, arrangement, or agreement. The Department views the steps required by Item 8 as unnecessary and confusing. Part B exacerbates the confusion, because it is a “one size fits all” approach to reporting the diverse information required by section 203(a). Instead, the Department proposes to abandon the approach of the current form contained in Item 8 and Part B, and in its place adopt a four part structure that more conveniently presents the required information.
Proposed Part A requires employers to report payments to unions and union officials. The employer must report on the proposed form the contact information of the recipient in Item 8. In Item 9, the employer must report detailed information concerning the payment(s), including: The date of the payment (Item 9.a); the amount of each payment (Item 9.b), the kind of payment (Item 9.c), and a full explanation for the circumstances of the payment (Item 9.d). There are no changes to the substantive reporting requirements for payments in Part A, which are required pursuant to LMRDA section 203(a)(1).
Proposed Part B requires employers to report certain payments to any of their employees, or any group or committee of such employees, to cause them to persuade other employees to exercise or not to exercise, or as to the manner of exercising, the right to organize and bargain collectively through representatives of their own choosing. The employer must report the contact information of the recipient of the payment in Item 10. In Item 11, the employer must report detailed information concerning the payment(s): The date of the payment (Item 11.a); the amount of each payment (Item 11.b), the kind of payment (Item 11.c), and a full explanation for the circumstances of the payment (Item 11.d). There are no changes to the substantive reporting requirements in Part B, which are required by LMRDA section 203(a)(2).
Proposed Part C requires employers to detail any agreement or arrangement with a labor relations consultant or other independent contractor or organization in which the consultant, contractor, or organization undertakes activities with the object to persuade employees or supply information regarding employees and labor organizations involved in a labor dispute. The employer must indicate whether the agreement or arrangement involves one or both of the above purposes by checking the appropriate box in Part C. Next, the employer must provide contact information for the consultant in Item 12. A proposed revision to Item 12 would require the employer to provide the consultant's EIN, as appropriate. The date of the agreement or arrangement and its terms and conditions would be reported in Items 13.a and 13.b, respectively. Item 14 calls for detail concerning the agreements undertaken. A proposed Item 14.a, as described above regarding the proposed Form LM-20, would require filers to check boxes indicating specific activities undertaken or to be undertaken. There is also an “other” box, which requires the filer to provide a narrative explanation for any activities not specified on the list provided on the form. Items 14.b, 14.c, and 14.d, respectively, require, as before, the employer to indicate the period during which the activity was performed, the extent of performance, and the name and address of persons through whom the activity was performed. As with Item 11.d of the proposed Form LM-20, Item 14.d would require filers to specify whether the person performing the activity is employed by the consultant or serves as an independent contractor. Items 14.e and 14.f require the consultant to identify the employees and any labor organization that are targets of the persuader activity. Item 14.e would require a description of the department, job classification(s), work location, and/or shift of the employees targeted. Finally, the employer must provide detailed information concerning any payment(s) made pursuant to the agreement or arrangement: The date of the payment(s) (Item 15.a); the amount of each payment(s) (Item 15.b); the kind of payment(s) (Item 15.c); and a full explanation for the circumstances of the payment(s) (Item 15.d). Information reported in Part C is required by LMRDA sections 203(a)(4) and (5).
Proposed Part D requires employers to report certain expenditures designed to “interfere with, restrain, or coerce” employees regarding their rights to organize or bargain collectively, as well as expenditures to obtain information concerning the activities of employees or a labor organization in connection with a labor dispute involving such an employer. The employer must indicate the object of the expenditure by checking a box. The employer must report the contact information of the recipient of the expenditure in Item 16. In Item 17, the employer must report detailed information concerning the expenditure(s): The date of the expenditure (Item 17.a); the amount of each expenditure (Item 17.b), the kind of expenditure (Item 17.c), and a full explanation for the circumstances of the expenditure (Item 17.d). There are no changes to the substantive reporting requirements in Part D, which are required by LMRDA section 203(a)(3).
The proposed Form LM-10 instructions follow the layout of the proposed form. The proposed instructions contain the following specific revisions: They include the revised advice interpretation presented in the general instructions for Part C; they provide greater detail on how to complete the new checklist of activities undertaken pursuant to the reportable agreement or arrangement (
Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.
In the Paperwork Reduction Act (PRA) analysis below, the Department estimates that the proposed rule will result in a total recurring burden on employers, labor relations consultants, and other persons of approximately $826,000. This analysis is intended to address the analysis requirements of both the PRA and the Executive Orders.
This proposed rule will not include any Federal mandate that may result in increased expenditures by State, local, and Tribal governments, in the aggregate, of $100 million or more, or in increased expenditures by the private sector of $100 million or more.
This proposed rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of the United States-based companies to compete with foreign-based companies in domestic and export markets.
The Department has reviewed this proposed rule in accordance with Executive Order 13132 regarding federalism and has determined that the proposed rule does not have federalism implications. Because the economic effects under the rule will not be substantial for the reasons noted above and because the rule has no direct effect on states or their relationship to the Federal government, the rule does not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
In order to meet the requirements of the Regulatory Flexibility Act (RFA), 5 U.S.C. 601
Compliance with the requirements of this proposed rule involves information recordkeeping and information reporting tasks. Therefore, the overall impact to covered employers, labor relations consultants, and other persons, and in particular, to small employers and other organizations that are the focus of the RFA, is essentially equivalent to the financial impact to such entities assessed for the purposes of the PRA. As a result, the Department's assessment of the compliance costs to covered entities for the purposes of the PRA is used as a basis for the analysis of the impact of those compliance costs to small entities addressed by the RFA. The Department's analysis of PRA costs, and the quantitative methods employed to reach conclusions regarding costs, are presented first. The conclusions regarding compliance costs in the PRA analysis are then employed to assess the impact on small entities for the purposes of the RFA analysis, which follows immediately after it.
This statement is prepared in accordance with the PRA, 44 U.S.C. 3501. As discussed in the preamble, this proposed rule would implement an information collection that meets the requirements of the PRA in that: (1) The information collection has practical utility to labor organizations, their members, employees, other members of the public, and the Department; (2) the rule does not require the collection of information that is duplicative of other reasonably accessible information; (3) the provisions reduce to the extent practicable and appropriate the burden on employers, labor relations consultants, and other persons who must provide the information, including small entities; (4) the form, instructions, and explanatory information in the preamble are written in plain language that will be understandable by reporting entities; (5) the disclosure requirements are implemented in ways consistent and compatible, to the maximum extent practicable, with the existing reporting and recordkeeping practices of employers, labor relations consultants, and other persons who must comply with them; (6) this preamble informs reporting entities of the reasons that the information will be collected, the way in which it will be used, the Department's estimate of the average burden of compliance, the fact that reporting is mandatory, the fact that all information collected will be made public, and the fact that they need not respond unless the form displays a currently valid OMB control number; (7) the Department has explained its plans for the efficient and effective management and use of the information to be collected, to enhance its utility to the Department and the public; (8) the Department has explained why the method of collecting information is “appropriate to the purpose for which the information is to be collected;” and (9) the changes implemented by this rule make extensive, appropriate use of information technology “to reduce burden and improve data quality, agency efficiency and responsiveness to the public.” 5 CFR 1320.9;
The following is a summary of the need for and objectives of the proposed rule. A more complete discussion of various aspects of the proposal is found in the preamble.
The proposed rule would amend the form, instructions, and reporting requirements for the Form LM-10, Employer Report, and the Form LM-20, Agreements and Activities Report, each of which are filed pursuant to section 203 of the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. 433. Section 203 establishes reporting and disclosure requirements for employers and persons, including labor relations consultants, who enter into any agreement or arrangement whereby the consultant (or other person) undertakes activities to persuade employees as to their rights to organize and bargain collectively or to obtain certain information concerning the activities of employees or a labor organization in connection with a labor dispute involving the employer. Each party must also disclose payments made pursuant to such agreement or arrangement. An employer, additionally, must disclose certain other payments, including payments to its own employees, to persuade employees as to their bargaining rights and to obtain certain information in connection with a labor dispute. Employers report such information on the Form LM-10, which is an annual report due 90 days after the employer's fiscal year. Consultants file the Form LM-20, which is due 30 days after entering into each agreement or arrangement with an employer to persuade.
The LMRDA was enacted to protect the rights and interests of employees, labor organizations and their members, and the public generally as they relate to the activities of labor organizations, employers, labor relations consultants, and labor organization officers, employees, and representatives. Provisions of the LMRDA include financial reporting and disclosure requirements for labor organizations, employers, labor relations consultants, and others as set forth in Title II of the Act.
In this proposed rule, the Department proposes to narrow its interpretation of the “advice” exemption of section 203(c) of the LMRDA, which provides, in part, that employers and consultants are not required to file a report by reason of the consultant's giving or agreeing to give “advice” to the employer. Under current policy, as articulated in the LMRDA Interpretative Manual and in a
The Department views its current policy concerning the scope of the “advice” exemption as over-broad, and that a narrower construction will result in reporting that more closely reflects the employer and consultant reporting intended by the LMRDA. Strong evidence indicates that since the enactment of the LMRDA in 1959, the use of such consultants by employers to combat union organizing efforts has proliferated. Nevertheless, since it began administering the statute in 1960 the Department has consistently received a small quantity of LM-20 reports relative to the greatly increased employer use of the labor relations consultant industry, which suggests substantial underreporting by employers and consultants. Moreover, evidence indicates that the Department's broad interpretation of the advice exemption has contributed to this underreporting.
The result of the substantial underreporting of employer-consultant agreements and arrangements, as outlined above, is the failure to advance Congressional objectives concerning labor-management transparency. Furthermore, considerable evidence suggests that the lack of reporting from the consultant industry and employers who rely on consultants has had a deleterious effect on labor-management relations, and regulatory action to revise the advice exemption interpretation is needed to provide labor-management transparency for the public, and to provide workers with information critical to their effective participation in the workplace. Specifically, the Department views the lack of reporting and disclosure by consultants and employers as disrupting employee free choice regarding their rights to organize and bargain collectively and permitting the use of unlawful tactics by employers.
Congress intended that employees would be timely informed of their employer's decision to engage the services of consultants in order to persuade them how to exercise their rights. Congress intended that this information, including “a detailed statement of the terms and conditions” of the agreement or arrangement would be publicly available no later than 30 days after the employer and consultant entered into such relationship. 29 U.S.C. 433(b)(2). With such information, employees are better able to assess the actions of the employer and the employer's message to them as they are considering whether or not to vote in favor of a union or exercise other aspects of their rights to engage in or refrain from engaging in collective bargaining.
Where persuader activities are not reported, employees may be less able to effectively exercise their rights under Section 7 of the National Labor Relations Act and, in some instances, the lack of information will affect their individual and collective choices on whether or not to select a union as the exclusive bargaining representative or how to vote in contract ratification or strike authorization votes. The public disclosure benefit to the employees and to the public at large cannot reasonably be ascertained due to the uncertainty in knowing whether employees would have participated or not in a representation election or cast their ballots differently if they had timely known of the consultant's persuader activities. The real value of the LMRDA public disclosure of information is in its availability to workers and the public in accordance with Congressional intent. Such information gives employees the knowledge of the underlying source of the information directed at them, aids them in evaluating its merit and motivation, and assists them in developing independent and well-informed conclusions regarding union representation.
The Department also proposes to revise the Form LM-10, the Form LM-20, and the corresponding instructions. These changes include modifications of the layout of the forms and instructions to better outline the reporting requirements and improve the readability of the information. The proposed revised forms also require greater detail about the activities conducted by consultants pursuant to agreements and arrangements with employers.
Finally, the Department proposes that Form LM-10 and LM-20 filers submit reports electronically, but also has provided a process for a continuing hardship exemption, whereby filers may apply to submit hardcopy forms. Currently, labor organizations that file the Form LM-2 Labor Organization Annual Report are required by regulation to file electronically, and there has been good compliance with this submission requirement. Employers and consultants likely have the information technology resources and capacity to file electronically, as well. Moreover, an electronic filing option is also planned for all LMRDA reports as part of an information technology enhancement, including for those forms that cannot now be electronically filed, such as the Form LM-10 and Form LM-20. This addition should greatly reduce the burden on filers to electronically sign and submit their forms.
The Proposed Form LM-20 and Instructions (
The Proposed Form LM-10 and Instructions (
The Department first estimated the number of Form LM-10 and Form LM-20 filers that will submit the revised form, as well as the increase in submissions that result from the proposed rule. Then, the estimated number of minutes that each filer will need to meet the reporting and recordkeeping burden of the proposed forms was calculated, as was the total burden hours. The Department then estimated the cost to each filer for meeting those burden hours, as well as the total cost to all filers. Federal costs associated with the proposed rule were also estimated. Please note that some of the burden numbers included in this PRA analysis will not add perfectly due to rounding. Additionally, the Department notes that the burden figures provided below are intended to be reasonable estimates, for the average filer, and not precise statements of the number of filers and hour and cost burden for every filer. The Department invites general and specific comments on each estimate, assumptions made, and any other aspect of this analysis.
The Department estimates 2,601 proposed Form LM-20 filers and 3,414 proposed Form LM-10 filers. The Form LM-20 total represents an increase of 2,410 Form LM-20 reports over the total of 191 reports estimated in the Department's most recent Information Collection Request (ICR) submission to the Office of Management and Budget (OMB). The Form LM-10 total represents a 2,484 increase over the average of 930 Form LM-10 reports received during FY 2008 and FY 2009.
The Department estimates 2,601 proposed Form LM-20 filers, which represents an increase of 2,410 Form LM-20 reports over the total of 191
In order to estimate the number of Form LM-20 reports involving agreements and arrangements to persuade employees, the Department applied the 75% employer utilization rate of consultants to data from the NLRB and NMB. As shown above in Section IV. F., the NLRB received 3,429.2 representation cases in during the fiscal years 2005-2009.
The Department therefore estimates that the proposed Form LM-20 will generate 2,601 reports, which is an increase of 2,410 over the previous estimate. The Department notes that, pursuant to the terms of the statute and the instructions to the form, sub-consultants who enter into agreements to aid the consultant in its efforts to persuade the employer's employees, are also required to submit Form LM-20 reports. Furthermore, it is possible that an employer could enter into reportable agreements with multiple consultants during an anti-union organizing effort. However, the Department assumes in its estimate that most employers will hire one consultant for each representational or decertification election. The Department invites comment on this assumption, including any data on the use of sub-consultants and multiple agreements or arrangements entered into by employers.
The Department estimates 3,414 proposed Form LM-10 filers, for a total increase of 2,484 over the average of 930 Form LM-10 reports received during FY 2007 and FY 2008. The Form LM-10 analysis follows the above analysis, although the form has other aspects that are not affected by today's rule. Specifically, an employer must report certain payments to unions and union officials pursuant to section 203(a)(1), as well as other persuader and information gathering related payments pursuant to section 203(a)(2) and 202(a)(3). For these portions of the Form LM-10, the Department utilized data obtained from a review of Form LM-10 submissions in FY 2007 and FY 2008. This analysis revealed that, for the two year period, there were 1,616 forms that revealed information reported pursuant to section 203(a)(1), six reports pursuant to section 203(a)(2), and three for section 203(a)(3). Further, there were a total of 233 Form LM-10 reports filed pursuant to sections 202(a)(4) and (5).
The Department assumes for this calculation that each Form LM-10 report submitted will involve just one of the above statutory provisions, although in practice there may be some overlap. Thus, the Department combines the estimated 2,601agreements and arrangements, calculated for the Form LM-20, with 813 (the average number of Form LM-10 reports in the above two year period indicating that the forms were submitted pursuant to sections 203(a)(1)-(3), the non-consultant agreement or arrangement provisions). This yields a total estimate of 3,414 proposed Form LM-10 reports, which represents a 2,484 increase over the average of 930 Form LM-10 reports received during FY 2007 and FY 2008.
As part of this proposed Form LM-10 estimate, the Department notes that the issues of the number of agreements or arrangements that an employer makes with third parties, as well as the number of potential sub-consultants, are not relevant here, as any number of agreements or arrangements entered into will be reported on one Form LM-10 report per employer.
The Department has estimated the number of minutes that each Form LM-20 and Form LM-10 filer will need for completing and filing the proposed forms (reporting burden), as well as the minutes needed to track and maintain records necessary to complete the forms (recordkeeping burden). The estimates for the Form LM-20 are included in Tables 1 and 2, and the estimates for the Form LM-10 are included in Tables 3 and 4. The tables describe the information sought by the proposed forms and instructions, where on each form the particular information is to be reported, if applicable, and the amount of time estimated for completion of each item of information. The estimates for the reporting burden associated with completing certain items of the forms and reading the instructions, as well as the related recordkeeping requirements, are based on similar estimates utilized in the recent Form LM-30 Labor Organization Officer and Employee Report rulemaking, pursuant to section 202 of the LMRDA. While the information required to be reported in that form differs from the Form LM-10 and LM-20, and union officers differ from attorneys who complete the employer and consultant forms, the similarities in the forms, particularly the information items and length of the instructions, provide a reasonable basis for these estimates.
Further, the estimates include the time associated with gathering documentation and any work needed to complete the forms. For example, the estimates include reading the instructions, gathering relevant documentation and information, and checking the appropriate persuader or information supplying activities boxes. The Department also notes that there are no calculations required for the Form LM-20, as it does not require the reporting of financial transactions (although Item 10, Terms and Conditions, requires reporting of aspects related to rate of consultant pay). The aspect of the Form LM-10 affected by this rulemaking, concerning the details of persuader agreements, requires the reporting disbursements made to the consultant, without any calculations.
Additionally, the estimates below are for all filers, including first-time filers and subsequent filers. While the Department considered separately estimating burdens for first-time and subsequent filers, the nature of Form
The recordkeeping estimate of 15 minutes per filer represents a 13 minute increase from the 2 minute estimate for the current Form LM-20, as prepared for the Department's most recent information collection request for OMB #1215-0188.
The reporting burden of 45 minutes per filer represents a 25 minute increase from the 20 minute estimate for the current Form LM-20, as prepared for the Department's most recent information collection request for OMB #1215-0188.
The Department views the simple data entries required by Items 1.a through 1.c, 4, 5, 7, and 11b-c as only requiring 30 seconds each. These items only require simple data entry regarding dates or file numbers, checking boxes, or, in the case of 11.c, a simple answer regarding the extent or performance for the activities undertaken pursuant to the agreement or arrangement. Additionally, Item 9 includes two boxes to check identifying generally the nature of the activities performed, so the Department estimates that this item will require one minute to complete. The Department estimates that a filer will be able to enter his or her own contact information in only two minutes, including its Employer Identification Number (EIN), if applicable, in Item 2, as well as two minutes for any additional contact information in Item 3. Further, the filer will require two minutes to record in Item 8(a) or Item 8(b) the names of the employer's representatives or officials of the prime consultant with whom the filer entered into the agreement or arrangement, as well as two minutes to identify in Item 11.d the individuals who carried out the activities for the employer. The filer will need four minutes, however, to enter the information for the employer in Item 6, including the EIN, if applicable, as this information may not be as readily available as the filer's own.
The Department estimates that it will take filers five minutes to describe in Item 10 in narrative form the nature of the agreement or arrangement, as well as attach the written agreement (if applicable), and five minutes to complete the checklist in Item 11.a, which illustrates the nature of the activities undertaken pursuant to the agreement or arrangement. It will also take one minute each for Items 12.a and 12.b, in order to identify the subject group of employee(s) and organization(s).
Finally, the Department estimates that a Form LM-20 filer will utilize five minutes to check responses and review the completed report, and will require one minute per official to sign and verify the report in Items 13 and 14 (for two minutes total for these two items). The Department introduced in calendar year 2010 a cost-free and simple electronic filing and signing protocol, which will reduce burden on filers.
As a result, the Department estimates that a filer of the proposed revised Form LM-20 will incur 60 minutes in reporting and recordkeeping burden to file a complete form. This compares with the 22 minutes per filer in the currently approved information collection
As stated, the Department estimates that the burden of maintaining and gathering records is 15 minutes and that it will receive 2,601 proposed Form LM-20 reports. Thus, the estimated recordkeeping burden for all filers is 30,855 minutes (15 × 2,601 = 39,015 minutes) or approximately 650 hours (39,015/60 = 650.25). The remaining times (45 minutes) represents the burden involved with reviewing the instructions and reporting the data. The total estimated reporting burden for all filers is 117,045 minutes (45 × 2,601 = 117,045 minutes) or approximately 1,951 hours (117,045/60 = 1950.75 hours). The total estimated burden for all filers is, therefore, 156,060 minutes or 2,601 hours (650 + 1,951 = 2,601).
The total recordkeeping of 650 hours represents a 644.27 hour increase over the 5.73 hours Form LM-20 recordkeeping estimate presented in the Department's most recent ICR submission to OMB, and the total reporting burden of 1,951 hours represents a 1887.97 hour increase over the 63.03 hours Form LM-20 reporting burden estimate presented in the ICR submission. The total burden of 2,601 hours is a 2,532 hour increase over the estimated 69 hours Form LM-20 burden total in the most recent ICR submission.
The recordkeeping estimate of 25 minutes per filer represents a 20 minute increase from the 5 minute estimate for the current Form LM-10, as prepared for the Department's most recent information collection request for OMB #1215-0188.
In proposing these estimates, the Department is aware that not all employers required to file the Form LM-10 will need to complete each Part of the form. However, for purposes of assessing an average burden per filer, the Department assumes that the Form LM-10 filer engages in reportable transactions, agreements, or arrangements in all four of the proposed parts.
The reporting burden of 120 minutes per filer represents an 85 minute increase from the 35 minute estimate for the current Form LM-10, as prepared for the Department's most recent information collection request for OMB #1215-0188.
The Department estimates, as with the Form LM-20, that it will take 30 seconds to complete each item that calls for entering dates, checking appropriate boxes, as well as entering the amount of a payment or expenditure and its type (
The Department also estimated that it would take one minute to identify the employee and labor organization target of persuader activities, as well as indicating the extent to which the activities have been performed (
Further, the Department estimates, as with the Form LM-20, that it will take two minutes for the employer to complete items calling for its own identifying information (
Finally, the Department estimates that a Form LM-10 filer will utilize five minutes to check responses and review the completed report, and will require one minute per official to sign and verify the report in Items 18 and 19 (for two minutes total for these two items). The Department introduced in calendar year 2010 a cost-free and simple electronic filing and signing protocol, which will reduce burden on filers.
As a result, the Department estimates that a filer of the proposed revised Form LM-10 will incur 120 minutes in reporting and recordkeeping burden to file a complete form. This compares with the 35 minutes per filer in the currently approved information collection request.
As stated, the Department estimates that it will receive 3,414 proposed Form LM-10 reports. Thus, the estimated recordkeeping burden for all filers is 85,350 minutes (25 × 3,414 = 85,350 minutes) or approximately 1,423 hours (85,350/60 = 1,422.5). The total estimated reporting burden for all filers is 324,330 minutes (95 × 3,414 = 324,330 minutes) or approximately 5,406 hours (324,330/60 = 5,405.5 hours).
The total estimated burden for all filers is, therefore, approximately 409,680 minutes or 6,828 hours.
The total cost imposed by the proposed rule on Form LM-20 and Form LM-10 filers is $825,886.11.
To determine the cost per filer to submit the Form LM-20, the Department assumed that each filer would utilize the services of an attorney to complete the form. This is consistent with past calculations of costs per filer for the Form LM-20, and the assumption also corresponds to the analysis above in which the Department notes that the consultant industry consists in large part of practicing attorneys. The Department also considers non-attorney consultant firms as likely utilizing the services of attorneys to complete the form.
To determine the hourly compensation for attorneys for the purposes of this analysis, the Department first identified the average hourly salary for lawyers, $62.03, as derived from the Occupational Employment and Wages Survey for 2009, Table 1 on page 10, from the Bureau of Labor Statistics (BLS) at
Applying this hourly total compensation to the estimated one hour reporting and recordkeeping burden, yields an estimated cost of $87.59 ($87.59 × one hour) per filer. This is $80.29 greater than the $7.30 estimate in the most recent ICR submission. The total cost for the estimated 2,601 Form LM-20 filers is therefore $227,821.59, which is $226,427.59 greater than the $1,394 total burden estimate for the Form LM-20 in the most recent ICR submission.
As with the Form LM-20 calculation above, the Department assumed that each filer would utilize the services of an attorney to complete the form. This is consistent with past calculations of costs per filer for the Form LM-10. The Department also considers that consultant firms are likely utilizing the services of attorneys to complete the form.
Applying this hourly total compensation to the estimated two hour reporting and recordkeeping burden, yields an estimated cost of $175.18 ($87.59 × two hours) per filer. This is $150.68 greater than the estimated $24.50 Form LM-10 burden presented in the most recent ICR submission. The total cost for the estimated 3,414 Form LM-10 filers is therefore $598,064.52, which is $575,080.52 greater than the $22,984 estimated for the most recent ICR submission.
In its recent submission for revision of OMB #1215-0188, which contains all LMRDA forms (except the pre-2007 Form LM-30, which was approved under OMB #1215-0205), the Department estimates that its costs associated with the LMRDA forms are $2,710,726 for the OLMS national office and $3,779,778 for the OLMS field offices, for a total Federal cost of $6,490,504. Federal estimated costs include costs for contractors and operational expenses such as equipment, overhead, and printing as well as salaries and benefits for the OLMS staff in the National Office and field offices who are involved with reporting and disclosure activities. These estimates include time devoted
Currently, the Department is soliciting comments concerning the information collection request (“ICR”) for the information collection requirements included in this proposed regulation at section 405.2, Annual report, and at section 406.2, Agreement and activities report, of title 29, Code of Federal Regulations, which, when implemented will revise the existing OMB control number 1245-0003. A copy of this ICR, with applicable supporting documentation, including among other things a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the RegInfo.gov Web site at
The Department hereby announces that it has submitted a copy of the proposed regulation to the Office of Management and Budget (“OMB”) in accordance with 44 U.S.C. 3507(d) for review of its information collections. The Department and OMB are particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Potential respondents are hereby duly notified that such persons are not required to respond to a collection of information or revision thereof unless approved by OMB under the PRA and it displays a currently valid OMB control number.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601
The legal authority for this proposed rule is section 208 of the LMRDA. 29 U.S.C. 438. Section 208 provides that the Secretary of Labor shall have authority to issue, amend, and rescind rules and regulations prescribing the form and publication of reports required to be filed under title II of the Act, and such other reasonable rules and regulations as she may find necessary to prevent the circumvention or evasion of the reporting requirements. 29 U.S.C. 438.
The Department estimates that there are approximately 2,549 small entities affected by the Form LM-20 portion of the proposed rule and 3,404 employers, for a total of 5,953 small entities affected by the proposed rule.
To determine the number of labor relations consultants and similar entities affected by the Form LM-20 portion of the proposed rule, which can be classified as small entities, the Department analyzed data from the U.S. Census Bureau's North American Industry Classification System Codes (NAICS) for “Human Resources Consulting Services,” which includes “Labor Relations Consulting Services.”
A review of the above data reveals that there are 13,575 firms within the “Human Resources Consulting Services” NAICS category, with 13,307
To determine the number of employers that can be classified as small entities, pursuant to the Form LM-10 portion of the proposed rule, the Department notes that the SBA considers 99.7 percent of all employer firms to qualify as small entities.
The Department is not aware of any other Federal requirements requiring reporting of the activities, agreements, and arrangements covered by this proposed rule.
Under the proposed rule, the Form LM-20 reporting and recordkeeping requirements apply equally to all persons required to file a Form LM-20, and the Form LM-10 reporting and recordkeeping requirements apply equally to all employers covered under the LMRDA.
The revised format of the Form LM-10, which organizes the material in a more user-friendly manner, will simplify filing by small entity employers. Furthermore, the addition of instructions regarding the “advice” exemption into the Form LM-20 and Form LM-10 instructions will improve the ease of filing.
OLMS will provide compliance assistance for any questions or difficulties that may arise from using the electronic filing system. A toll-free help desk is staffed during normal business hours and can be reached by telephone at 1-866-401-1109.
The Department proposes that Form LM-10 and LM-20 filers submit reports electronically. Currently, labor organizations that file the Form LM-2 Labor Organization Annual Report are required by regulation to file electronically, and there has been good compliance with these requirements. The Department reasonably expects that employers and consultants will have the information technology resources and capacity to file electronically, as well.
The use of electronic forms helps reduce burden by making it possible to download information from previously filed reports directly into the form; enables most schedule information to be imported into the form; makes it easier to enter information; and automatically performs calculations and checks for typographical and mathematical errors and other discrepancies, which assists reporting compliance and reduces the likelihood that the filer will have to file an amended report. The error summaries provided by the electronic system, combined with the speed and ease of electronic filing, also make it easier for both the reporting organization and OLMS to identify errors in both current and previously filed reports and to file amended reports to correct them.
Moreover, a simplified electronic filing option is also planned for all LMRDA reports as part of an information technology enhancement, including for those forms that cannot currently be filed electronically, such as the Form LM-10 and Form LM-20. This addition should greatly reduce the burden on filers to electronically sign and submit their forms. Further, for those filers unable to submit electronically, they will be permitted to apply for a continuing hardship exemption that permits filers to submit hardcopy forms.
The proposed rule is not expected to have a significant economic impact on a substantial number of small entities. The LMRDA is primarily a reporting and disclosure statute. Accordingly, the primary economic impact will be the cost of retaining and reporting required information. It establishes various reporting requirements for employers, labor relations consultants, and others, pursuant to Title II of the Act. Accordingly, the primary economic impact of the proposed rule will be the cost to reporting entities of compiling, recording, and reporting required information.
The Regulatory Flexibility Act does not define either “significant economic impact” or “substantial” as it relates to the number of regulated entities. 5 U.S.C. 601. In the absence of specific definitions, “what is `significant' or `substantial' will vary depending on the problem that needs to be addressed, the rule's requirements, and the preliminary assessment of the rule's impact.”
As noted above, the Department estimates that there are approximately 2,549 labor relations consultants and other entities with under $7 million in total annual revenue, thus constituting small entities. Further, the Department estimated that there are 3,404 employer small entities, for a total of 5,953 small entities affected by the proposed rule. As noted in the PRA analysis,
For all employers, the average payroll cost is $722,757.70, and for employers with between one and four employees, the average payroll cost is $59,723.88.
The Department estimates that there are approximately 2,549 small entities affected by the Form LM-20 portion of the proposed rule and 3,404 employers, for a total of 5,953 small entities affected by the proposed rule. Based on the compliance cost calculations above, the Department concludes that the proposed rule will not have a significant economic impact on a substantial number of these small entities. Therefore, under 5 U.S.C. 605, the Department certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities.
Appropriate information technology is used to reduce burden and improve efficiency and responsiveness. The Form LM-20 and Form LM-10 reports now in use can be accessed and completed at the OLMS Web site. OLMS has implemented a system enabling such filers to submit forms electronically with electronic signatures.
The OLMS Online Disclosure Web site at
Information about this system can be obtained on the OLMS Web site at
Labor management relations, Reporting and recordkeeping requirements.
Labor management relations, Reporting and recordkeeping requirements.
Accordingly, for the reasons provided above, the Department proposes to amend parts 405 and 406 of Title 29, Chapter IV of the Code of Federal Regulations as set forth below:
1. The authority citation for part 405 is revised to read as follows:
Labor-Management Reporting and Disclosure Act Secs. 203, 207, 208, 73 Stat. 526, 529 (29 U.S.C. 433, 437, 438); Secretary's Order No. 08-2009, 74 FR 58835 (Nov. 13, 2009).
2. Section 405.5 is amended by remove the phrase “the second paragraph under the instructions for Question 8A of Form LM-10” and adding in its place “the instructions for Part A of the Form LM-10”.
3. Section 405.7 is amended by remove the phrase “Question 8C of Form LM-10” and adding in its place “Part D of the Form LM-10”.
4. The authority citation for part 406 is revised to read as follows:
Labor-Management Reporting and Disclosure Act Secs. 203, 207, 208, 73 Stat. 526, 529 (29 U.S.C. 433, 437, 438); Secretary's Order No. 08-2009, 74 FR 58835 (Nov. 13, 2009).
The following appendices will not appear in the Code of Federal Regulations.
Nuclear Regulatory Commission.
Final rule.
The NRC is amending its regulations to incorporate by reference the 2005 Addenda (July 1, 2005) and 2006 Addenda (July 1, 2006) to the 2004 ASME Boiler and Pressure Vessel Code, Section III, Division 1; 2007 ASME Boiler and Pressure Vessel Code, Section III, Division 1, 2007 Edition (July 1, 2007), with 2008a Addenda (July 1, 2008); 2005 Addenda (July 1, 2005) and 2006 Addenda (July 1, 2006) to the 2004 ASME Boiler and Pressure Vessel Code, Section XI, Division 1; 2007 ASME Boiler and Pressure Vessel Code, Section XI, Division 1, 2007 Edition (July 1, 2007), with 2008a Addenda (July 1, 2008); and 2005 Addenda, ASME OMa Code-2005 (approved July 8, 2005) and 2006 Addenda, ASME OMb Code-2006 (approved July 6, 2006) to the 2004 ASME
This rule is effective July 21, 2011. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Office of the Federal Register as of July 21, 2011.
You can access publicly available documents related to this document using the following methods:
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L. Mark Padovan, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone 301-415-1423, e-mail
A. Overview of Public Comments
The ASME develops and publishes the ASME Boiler and Pressure Vessel Code (B&PV Code), which contains requirements for the design, construction, and inservice inspection (ISI) of nuclear power plant components; and the ASME OM Code, which contains requirements for inservice testing (IST) of nuclear power plant components. The ASME issues new editions of the ASME B&PV Code every 3 years and issues addenda to the editions yearly, except in years when a new edition is issued. Periodically, the ASME publishes new editions and addenda of the ASME OM Code. The new editions and addenda typically revise provisions of the Codes to broaden their applicability, add specific elements to current provisions, delete specific provisions, and/or clarify them to narrow the applicability of the provision. The revisions to the editions and addenda of the Codes do not significantly change Code philosophy or approach.
It has been the NRC's practice to establish requirements for the design, construction, operation, ISI (examination) and IST of nuclear power plants by approving the use of editions and addenda of the ASME B&PV and OM Codes (ASME Codes) in Title 10 of the Code of Federal Regulations (10 CFR), Section 50.55a. The NRC approves and/or mandates the use of certain parts of editions and addenda of these ASME Codes in 10 CFR 50.55a through the rulemaking process of “incorporation by reference.” Upon incorporation by reference of the ASME Codes into 10 CFR 50.55a, the provisions of the ASME Codes are legally-binding NRC requirements as delineated in 10 CFR 50.55a, and subject to the conditions on certain of the ASME Codes' provisions which are set forth in 10 CFR 50.55a. The editions and addenda of the ASME B&PV and OM Codes were last incorporated by reference into the regulations in a final rule dated September 10, 2008 (73 FR 52730), as corrected on October 2, 2008 (73 FR 57235), incorporating Section III of the 2004 Edition of the ASME B&PV Code, Section XI of the 2004 Edition of the ASME B&PV Code, and the 2004 Edition of the ASME OM Code, subject to NRC conditions.
The ASME Codes are consensus standards developed by participants with broad and varied interests (including the NRC and licensees of nuclear power plants). The ASME's adoption of new editions of and
The ASME Codes are voluntary consensus standards, and the NRC's incorporation by reference of these Codes is consistent with applicable requirements of the National Technology Transfer and Advancement Act (NTTAA). Additional discussion on NRC's compliance with the NTTAA is set forth in Section VII of this document, Voluntary Consensus Standards.
The NRC published a proposed rule for public comments in the
The number assigned to each commenter is used to identify the sponsor of the comment in the NRC's comment summary in Part B, “NRC Responses to Public Comments,” of this document. Most of these comments pertained to the following:
• Suggested revising or rewording conditions to make them more clear.
• Supported incorporation of Code Case N-770 or N-770-1 into 10 CFR 50.55a.
• Supported the proposed changes to add or remove conditions.
• Opposed proposed conditions.
• Supplied additional information for NRC consideration.
• Proposed rewriting/renumbering of paragraphs.
• Asked questions or requested information from the NRC.
Due to the large number of comments received and the length of the NRC's responses, this statement of considerations (SOC) addresses: (i) Responses to the three questions raised by the NRC in the proposed rule; (ii) comments resulting in changes to the proposed regulations; and (iii) comments raising important issues of interest to stakeholders but which the NRC declined to adopt. A discussion of all comments and the NRC responses is available electronically at the NRC's Library, ADAMS Accession No. ML110280240.
The NRC requested comments on three NRC questions associated with its implementing 10 CFR 50.55a rulemaking process improvements to make incorporating by reference ASME B&PV Code editions and addenda into 10 CFR 50.55a more predictable and consistent:
NRC Question 1. What should the scope of the ASME B&PV Code edition and addenda rulemaking be (
NRC Question 2. What should the frequency of ASME B&PV Code edition and addenda rulemaking be (
a. This schedule would not be overly burdensome for the NRC, and this may allow for a more predictable process and publication schedule for 10 CFR 50.55a. A 4-year publication schedule would allow for more licensees to use the same
The NRC agrees in principal that a 4-year review cycle could possibly reduce the number of requests for relief when licensees use a common code of record for multiple units at a site, and that it is less of an administrative burden to have a common code of record at multiple unit sites. However, reducing the number of requests would depend on the timing of when a particular plant was required to update its inservice inspection (ISI) program in accordance with § 50.55a(g)(4). The option of using a common code of record at multiple units is still available through the use of an alternative in accordance with § 50.55a(a)(3), and the NRC has approved the use of alternatives many times in the past for this purpose.
NRC Question 3. In what ways should the NRC communicate the scope, schedule for publishing the rulemakings in the
• 10 CFR 50.55a could be amended to allow the use of a limited number of Code editions that have been incorporated by reference in 10 CFR 50.55a, instead of only the latest, provided all applicable conditions are met when using the chosen Code edition.
• 10 CFR 50.55a could be amended to require that licensees update their programs to comply with the latest Code of Record incorporated by reference into 10 CFR 50.55a no more than 36 months prior to the start of the subsequent 120-month inspection interval. [4-2, 11a-1, 14-1c, 19-1]
The NRC proposed that several paragraphs under 10 CFR 50.55a(b)(2) be removed, which would cause gaps in the numbering between the remaining paragraphs. To address the creation of these gaps, the NRC proposed to re-designate (renumber) the remaining paragraphs under 10 CFR 50.55a(b)(2). These proposed re-designations are outlined in Table 1 of this document.
A summary of the significant comments, and the NRC's responses to those comments for each 10 CFR 50.55a section or paragraph are set forth in this document. A more comprehensive summary of the comments and the NRC responses are set forth in the NRC's Analysis of Public Comments document (ADAMS Accession No. ML110280240).
The NRC disagrees with the comment, in part, given that for the vast majority of licensees implementing Option B of 10 CFR part 50, Appendix J, the argument could be made that containment modifications are implemented under the Inservice Inspection Program in accordance with ASME Section XI, Subsection IWE (for Class MC containments) pursuant to 10 CFR 50.55a(g)(4). Therefore, it could be argued that the system pressure testing requirements in IWE-5000 apply following containment modifications and not those in paragraph IV.A of 10 CFR part 50, Appendix J, Option A. Prior to the 2007 Edition of Section XI of the ASME B&PV Code, Article IWE-5000 referenced paragraph IV.A of 10 CFR part 50, Appendix J, Option A, for the leakage test requirements following containment modifications. By referencing the Appendix J, Option A, requirements, Article IWE-5000 indirectly required a Type A test to be performed following a major containment modification. Since the Type A test requires pressurization of the entire containment to the design basis accident pressure (P
Based on this discussion, the NRC has determined that the new condition in the final rule paragraph (b)(2)(ix)(J) only addresses the deficiency identified in Article IWE-5000, and does not include the provisions for an alternate short-duration structural test in the new condition.
• The actions described in (b)(2)(v)(J)(1) should not apply to the 2007 Edition with the 2008 Addenda of ASME Code, Section XI.
• The condition in (b)(2)(v)(J)(2) should not apply because IWE-5223 and IWE-5224 already provide adequate test requirements to assure essentially zero leakage.
• The actions described in (b)(2)(v)(J)(3) would prohibit the conduct of the pressure test at a pressure less than Pa. The 10 CFR part 50, Appendix J, Type A Test is permitted to be conducted at a test pressure of at least 0.96Pa. [4-12d, 4-12e, 11-15d, 11-15e, 11-15f, 14-15d, 14-15e, 14-15f, 19-1]
(i) The nondestructive examination of the repair welds specified in paragraph (b)(2)(v)(J)(1) is typically required to be performed as part of the repair process;
(ii) The provisions of IWE-5223 and IWE-5224 of the 2007 Edition with the 2008 Addenda include the soap bubble or equivalent leakage test specified in paragraph (b)(2)(v)(J)(2) and are adequate to assure essentially zero leakage through the repair welds or joints; and
(iii) The action specified in paragraph (b)(2)(v)(J)(3) required the entire containment to be pressurized to the peak calculated design basis accident pressure (P
However, the testing provisions of IWE-5223 and IWE-5224 of the 2007 Edition with the 2008 Addenda are not adequate to demonstrate global structural integrity of the repaired Class MC containment, which is essentially the deficiency that is sought to be addressed by the new condition. In the context of IWE-5000, it is the Type A test that would provide a verification of both structural and leak-tight integrity following a major modification. As such, the NRC determined that the new condition only addresses the deficiency in the provisions of Article IWE-5000 and did not include the proposed alternate short-duration structural test provision in the condition in the final rule.
The NRC disagrees with the portions of the comments requesting that the NRC mandate the use of later versions of Appendix VIII for all licensees. The comments did not provide a technical or regulatory justification for imposing such a backfit (a uniform date of implementation would be regarded as a backfit because it departs from the current regulatory approach of a ten-year inservice inspection program interval). In addition, the NRC notes that § 50.55a(g)(4)(iv) currently allows licensees to voluntarily comply with the inservice inspection requirements of more recent editions and addenda which the NRC has approved (via incorporation by reference into § 50.55a). Accordingly, the NRC declines to adopt the proposal. No change was made to the final rule as a result of this portion of the comment.
• Compare the flaw detection capabilities of UT and RT;
• Assess parameters such as false call rates;
• Assess qualification and acceptance standards;
• Assess the effectiveness and reliability of UT and RT for construction, preservice and inservice inspection;
• Assess the interchangeability of UT and RT; and
• Determine the state-of-the-art with regard to digital radiography.
Therefore, no change was made to the final rule as a result of this comment.
(1) UT may not be used in lieu of RT for examination of cast stainless steel or austenitic stainless steels and nickel alloys where only single-sided access is available;
(2) When UT is used in lieu of RT, the acceptance standards of ASME Section XI IWA-3000 shall be used in lieu of the construction code acceptance standards; and
(3) Encoded or automated UT shall be used to create a permanent record which would allow multiple analysis reviews as well as document the results for comparison with future examinations. [7-6]
The test data reported in the 1977 ASME Pressure Vessels and Piping Conference paper, “High Stress Crack Growth—Part II, Predictive Methodology Using a Crack Closure Model,” which serves as the basis for the ASME Code, Section XI, Appendix A approach, consists of only 10 test data points for −1.5 < R < 0, and one of those data points shows a trend opposite of the others. Although this data was produced from tests covering a limited R value range, it is used to support the application of the ASME Code, Section XI, Appendix A approach for a much wider range of R, (
Further, in ASME Code, Section XI, Appendix A applications, the generic, lower-bound material property values from ASME Code, Section II may be used. If the lower bound ASME Code, Section II generic flow stress (σ
For these reasons, the NRC disagrees with the comment. No change was made to the final rule as a result of the comment.
(1) Real flaw sizes in vessels are closer to a depth of approximately 0.10 inch deep or less based on actual vessel inspection data;
(2) Use of ASME Code, Section XI, Appendix VIII, and Electric Power Research Institute (EPRI) Performance Demonstration Initiative (PDI) provides continuous verification that the beltline region welds are either free of defects larger than approximately 0.10 inch or that they are documented and recorded, and;
(3) Additional conservatism exists in the use of a lower bound reference toughness curve for prevention of crack initiation for these reference flaws.
Quantitative results based on a probabilistic approach demonstrate that the current Appendix E approach provides an appropriate conservative methodology following an unanticipated transient. The Pressurized Water Reactor Owners Group (PWROG) has provided a risk-informed assessment of Appendix E, which indicated that by setting the core damage frequency (CDF) to 1E-6, the resulting pressure versus (T−RT
The NRC agrees with most of the qualitative arguments based on the deterministic FM approach. However, the NRC's final position to accept ASME Code, Section XI, Appendix E without the proposed conditions is not because of these arguments, but rather because of the supporting quantitative PFM results provided by the PWROG.
Although most of the qualitative arguments based on the deterministic FM approach have merit, they can only demonstrate that the probability of having a flaw close to 1/4T in size is very low. They cannot rule out that such a large flaw could exist. This observation is consistent with a key statement regarding a large flaw in NUREG-1806, “Technical Basis for Revision of the Pressurized Thermal Shock (PTS) Screening Limit in the PTS Rule (10 CFR 50.61).” NUREG-1806 states “It should also be noted that the empirical data used as the primary evidence to establish the distribution of embedded weld flaws do not, and cannot, provide any information about the maximum size a flaw can be.”
The final PTS rule (75 FR 13) published on January 4, 2010, is based on a PFM analysis using a weld flaw distribution with a cutoff flaw depth close to 1/4T of the RPV wall, indicating that although the 1/4T flaw has a low probability of existence it is prudent to still consider it.
The FM analyses in both ASME Code, Section XI, Appendix G and ASME Code, Section XI, Appendix E are based on postulated flaws using linear elastic FM in a deterministic approach. It is appropriate to assume different margins for these two types of analyses to
The PWROG performed a risk-informed assessment of Appendix E using the Fracture Analysis of Vessels—Oak Ridge (FAVOR) Code; the same tool used in the PFM analyses supporting the final PTS rule. Based on a selected PWR and BWR RPV having the highest RT
For these reasons, the NRC agrees with the comment based on the PFM analyses that the current ASME Code, Section XI, Appendix E analysis is appropriate. The proposed conditions placed on the use of ASME Code, Section XI, Appendix E in the proposed rule are, therefore, not included in the final rule.
(v) Subsection ISTD. Article IWF-5000, “Inservice Inspection Requirements for Snubbers,” of the ASME B&PV Code, Section XI, must be used when performing inservice inspection examinations and tests of snubbers at nuclear plants, except as modified in (A) and (B) below. [11-27; 14-27a; 17-12; 19-1]
The proposed rulemaking would not change the intent of the current paragraph (b)(3)(v). The proposed rulemaking would split paragraph (b)(3)(v) into (b)(3)(v)(A) and (b)(3)(v)(B), because snubber inservice examination and testing requirements have been deleted in the 2006 addenda and later Editions of ASME Section XI. Up to, and including, the 2005 Addenda, both ASME Section XI and ASME OM Code contained snubber examination and testing requirements. Now, in the 2006 Addenda, the ASME OM Code is the only Code which contains the inservice examination and testing requirements of snubbers. The paragraph (b)(3)(v)(A) option is for licensees using ASME Section XI up to the 2005 Addenda, which is similar to the current paragraph (b)(3)(v). The paragraph (b)(3)(v)(B) option is for the licensees using the 2006 Addenda or the later edition of ASME Section XI, where the licensee will not find any snubber requirements in ASME Section XI; therefore, the ASME OM Code must be used.
The intent of current paragraph (b)(3)(v) is based on the ASME Section XI, IWF-5000 and ASME OM, Subsection ISTD requirements. The ASME Section XI up to the 2005 Addenda does not clearly distinguish the boundary between the support structure, attachments and the snubber. The inservice examination of the support structure and attachments is performed using VT-3 as required by Subsection IWF of Section XI, and IWF-5000 requires that snubber examination must be performed using VT-3 visual examination as described in IWA-2213. Subsection ISTD of the ASME OM Code does not address inspection of the support structure and attachments. Therefore, to be consistent with the Section XI requirements, VT-3 visual examination is required when using Subsection ISTD of the OM Code in lieu of the IWF-5000 requirements of ASME Section XI, up to the 2005 Addenda. The proposed VT-3 requirement is consistent with the current requirement to ensure that an appropriate visual examination method was used for integral and non-integral snubber supports and attachments such as lugs, bolting, and clamps when using ISTD of the ASME OM Code in lieu of the ASME Section XI, 2005 Addenda.
In the 2006 Addenda and later edition of ASME Section XI, the inservice examination and testing requirements of snubbers have been deleted, and a Figure IWF-1300-1(f) has been added to clarify the boundary of a snubber (pin-to-pin) and its support structure and attachments. Figure IWF-1300-1(f) defines that a snubber (pin-to-pin) examination is excluded from Section XI, and the support structure and attachments,