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Agricultural Marketing Service, USDA.
Confirmation of regulations.
This action summarizes the results under the criteria contained in section 610 of the Regulatory Flexibility Act (RFA), of an Agricultural Marketing Service (AMS) review of Marketing Order No. 925 regulating the handling of grapes grown in a designated area of southeastern California (order). Based upon its review, AMS has concluded that there is a continued need for the order.
Interested persons may obtain a copy of the review. Requests for copies should 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:
Kathie Notoro, 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:
Marketing Order 925, as amended (7 CFR part 925), regulates the handling of grapes grown in a designated area of southeastern California. The marketing order is effective under the Agricultural Marketing Agreement Act of 1937 (Act), as amended (7 U.S.C. 601-674).
The desert grape marketing order establishes the California Desert Grape Administrative Committee (Committee) as the administrative body charged with overseeing program operations. Staff is hired to conduct the daily administration of the program. The Committee consists of 12 members. Five members represent producers, five represent handlers, one represents either producers or handlers (the “at large” member), and one member represents the public. Each member has an alternate. Members and alternate members are elected at annual nomination meetings.
Currently, there are approximately 50 producers and 14 handlers of California desert grapes. In addition, there are approximately 100 importers of grapes. The majority of the handlers and importers may be classified as small entities and the majority of producers may not be classified as small entities. The regulations implemented under the order are applied uniformly to small and large entities, and are designed to benefit all entities, regardless of size.
AMS published in the
The review was undertaken to determine whether the desert grape marketing order should be continued without change, amended, or rescinded to minimize the impacts on small entities. In conducting this review, AMS considered the following factors: (1) The continued need for the marketing order; (2) the nature of complaints or comments received from the public concerning the marketing order; (3) the complexity of the marketing order; (4) the extent to which the marketing order overlaps, duplicates, or conflicts with other Federal rules, and, to the extent feasible, with State and local governmental rules; and (5) the length of time since the marketing order has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the marketing order.
The marketing order authorizes the following activities: Quality control with mandatory outgoing inspection; container and pack requirements; packing holidays; production research; market research and development; and reporting requirements for collection and dissemination of shipment information.
The quality control provisions of the order have helped to ensure a good quality of fruit is provided to consumers. Pack and container requirements provide uniformity in the marketing of grapes. Wholesalers and retailers are assured of consistency in the packaging of the product they receive and market. Packing holidays can help reduce buildup of excess inventories in handlers' warehouses. This can help to provide a more stable flow of product to market and relieve downward pressure on pricing. Collection and dissemination of handler information is useful to the industry in making production and marketing decisions. Finally, production research activities have helped the industry address specific issues that impact the growing of grapes in the production area. The quality control and inspection regulations are also applied to imported grapes under section 608e of the Act.
Market research and development activities are authorized under the order but have not been implemented. Should the industry determine such programs may be beneficial in the future, it may choose to implement them. Funds to administer the marketing order are obtained from handler assessments.
Based on the potential benefits of the marketing order to producers, handlers, and consumers, AMS has determined that the order should continue without change.
In regard to complaints or comments received from the public regarding this
In considering the order's complexity, AMS has determined that the marketing order is not unduly complex.
During the review, the order was also checked for duplication and overlap with other regulations. AMS did not identify any relevant Federal rules, or State and local regulations that duplicate, overlap, or conflict with the marketing order for California desert grapes.
The marketing order was established in 1980. Since its inception, AMS and the California desert grape industry have continuously monitored its operations. Changes in regulations have been implemented to reflect current industry operating practices, and to solve marketing problems as they occur. The goal of these evaluations is to assure that the order and the regulations implemented under it fit the needs of the industry and are consistent with the Act.
The Committee meets whenever needed to discuss the marketing order and the various regulations issued thereunder, and to determine if, or what, changes may be necessary to reflect current industry practices. As a result, numerous regulatory changes have been made over the years to address industry operation changes and to improve program administration. The marketing order itself has never been amended since its inception, but several regulatory changes have been made through informal rulemaking, as noted above, to ensure the program continues to meet the industry's needs.
Accordingly, AMS has determined that the California desert grape marketing order should be continued. The marketing order was established to help the desert grape industry work with USDA to solve marketing problems. The marketing order continues to be beneficial to producers, handlers, and consumers.
AMS will continue to work with the California desert grape industry in maintaining an effective program.
Agricultural Marketing Service, USDA.
Final rule.
This rule changes the delinquent assessment requirements in effect under the marketing order for Vidalia onions grown in Georgia (order). The order regulates the handling of Vidalia onions grown in Georgia and is administered locally by the Vidalia Onion Committee (Committee). This rule establishes a late payment charge of 10 percent on unpaid assessments that are 10 days past due and increases the interest rate applied to delinquent assessments from 1 percent to 1.5 percent per month. This action should improve handler compliance with the assessment and reporting provisions of the order and help reduce the Committee's collection expenditures.
Jennie M. Varela, Marketing Specialist, or Christian D. Nissen, Regional Manager, Southeast Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 325-8793, 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 final rule is issued under Marketing Agreement and Order No. 955, both as amended (7 CFR part 955), regulating the handling of Vidalia onions grown in Georgia, 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 final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This final rule changes the delinquent assessment requirements in effect under the order. This rule establishes a late payment charge of 10 percent on unpaid assessments that are 10 days past due and increases the interest rate applied to delinquent assessments from 1 percent to 1.5 percent per month. The change was recommended unanimously by the Committee at a meeting on February 17, 2011.
Section 955.42 of the order provides authority for imposition of a late charge or interest rate or both on delinquent assessments. Section 955.142 of the order's rules and regulations prescribes the requirements for delinquent assessments. Prior to this action, § 955.142 specified that each handler pay an interest charge of 1 percent per month on any unpaid assessments and accrued unpaid interest beginning the day after the assessments are due. This rule modifies § 955.142 to include a 10 percent late charge on delinquent assessments that are 10 days past due and increases the interest rate on delinquent assessments to 1.5 percent per month.
The order requires handlers to pay to the Committee a pro rata assessment on the volume of onions handled. The volume of onions handled is based on
At the Committee's January 20, 2011, meeting, Committee staff indicated that some handlers have been late in reporting shipments and paying the associated assessments, and that this has been an ongoing problem for the last few seasons. The handlers eventually comply with the order requirements, but late payments deprive the Committee of expected operating income and increase Committee costs.
Vidalia onions are typically shipped from late April through August of each year. This creates a compressed window in which the Committee collects the funds it uses throughout the year for its operating expenses. In addition, the Committee spends the majority of funds allocated to promotion during the shipping season. With promotional expenses accounting for more than 50 percent of the Committee's total budget, timely payment of assessments is necessary for the Committee to have funds available to cover expenditures. When several handlers are late in paying assessments, the Committee can lack the operating funds required. If sufficient operating funds are not available, the Committee has to borrow money, increasing operating costs.
Further, there are costs associated with trying to collect the delinquent assessments. Some handlers require numerous contacts from Committee staff by mail and telephone, with others requiring on-site visits from the Committee's compliance officer. Throughout a season, these collection activities expend time and resources.
In addition to the costs associated with unpaid assessments, the failure of handlers to report on time is also a problem for the Committee. The monthly shipping report serves several functions, including providing volume information on which handler assessments are based. Without complete shipping information, the Committee is unable to provide timely and accurate market information to the industry. Also, monthly reports play an important role in terms of order compliance.
In an effort to address this problem, the Committee staff has provided additional information to handlers on when reports and assessments are due and on the importance of timely submission. They have also increased the number of reminder calls made to handlers when submissions are late, and visits have been made to delinquent handler facilities to collect late reports and payments. However, these efforts have not been successful in resolving this concern.
In its discussion of this issue, the Committee agreed the current interest rate applied to unpaid assessments does not provide sufficient incentive for handlers to turn in monthly reports and their associated assessments on time. As it stands, the rate is low enough that some handlers view the interest rate as a cost of doing business, and only submit reports and assessments after numerous contacts from the Committee staff.
Committee members wanted to find a solution that encourages handlers to submit their reports and payments as required. Initially, at its January meeting, the Committee favored changing the way the interest rate was compounded and calculated as a way to address the problem. However, it was determined that such a change could exceed what USDA considered reasonable and customary under marketing order programs. At its meeting in February, the Committee reviewed different scenarios imposed by other marketing orders to address this issue. Several other marketing orders utilize late payment charges to encourage compliance, and that authority is available under the order for Vidalia onions. As such, the Committee decided to impose a late payment charge, as well as increase the monthly interest rate.
Committee members agreed that establishing a 10 percent late charge on late assessments helps provide some additional incentive for handlers to submit their reports and assessments on time. The Committee also discussed an appropriate grace period to set before the late penalty was applied. Recognizing the importance of the timely receipt of reports and payments, the Committee did not want to set an overly long grace period. The Committee agreed that 10 days provides a sufficient buffer for those who may mistakenly miss a due date, while still supporting timely reports and payments.
As an added incentive to report and pay on time, the Committee also believes the monthly interest charge on delinquent assessments should also be increased. Consequently, the Committee unanimously recommended imposing a late payment charge of 10 percent on any assessments paid 10 days after the date the shipping report and assessments are due and increasing the interest rate applied to unpaid assessments by .5 percent to 1.5 percent per month.
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 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 50 handlers of Vidalia onions subject to regulation under the order and around 80 producers in the designated production area. Small agricultural service firms are defined by the Small Business Administration (SBA) as those whose annual receipts are less than $7,000,000, and small agricultural producers are defined as those whose annual receipts are less than $750,000 (13 CFR 121.201).
Based on National Agricultural Statistical Service and Committee data, the average annual grower price for fresh Vidalia onions during the 2010 season was around $20 per 40-pound container, and total Vidalia onion shipments were around 4,503,000 40-pound containers. Using available data, more than 90 percent of Vidalia onion handlers have annual receipts less than $7,000,000. However, the average receipts for Vidalia producers were around $1,118,970 in 2010, which is higher than the SBA threshold for small producers. Assuming a normal distribution, the majority of handlers of Vidalia onions may be classified as small entities, while the majority of producers may be classified as large entities, according to the SBA definition.
This action establishes a late payment charge of 10 percent on unpaid assessments that are 10 days past due and increases the interest rate applied to delinquent assessments from 1 percent to 1.5 percent per month. This change is expected to motivate handlers to submit shipping reports and assessments on time. This change also helps lower or offset the Committee's compliance expenditures associated with delinquent reports and
This rule does not impose any additional costs on handlers that are complying with the requirements under the order. This action only represents additional costs for handlers who are delinquent in submitting their reports and assessments. A 10 day grace period is also provided before the late penalty is applied, giving delinquent handlers additional time to avoid the costs associated with the late payment charge. In addition, the late charge and interest rate were considered reasonable by industry members who participated in the discussion of this issue. Since the late payment charge and interest rate are percentages of amounts due, the costs, when applicable, are proportionate and will not place an extra burden on small entities as compared to large entities. In addition, the industry overall benefits if handler reports and assessments are collected on time and the Committee's compliance costs are reduced, regardless of entity size.
The Committee discussed alternatives to this change, including not making a change to the delinquent assessment requirements. However, a number of members commented that if some handlers are not paying on time, a change was necessary. The Committee also considered increasing the interest rate accrual to daily rather than monthly, but this option could result in an interest charge that was disproportionately large and considered to be beyond the scope of what is reasonable and customary under marketing order programs. Thus, these alternatives were rejected.
This action will not impose any additional reporting or recordkeeping requirements on either small or large Vidalia onion 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. As noted in the Initial Regulatory Flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this final rule.
AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
In addition, the Committee's meeting was widely publicized throughout the Vidalia onion industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the February 17, 2011, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.
A proposed rule concerning this action was published in the
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
After consideration of all relevant matter presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.
It is further found that good cause exists for not postponing the effective date of this rule until 30 days after publication in the
Marketing agreements, Onions, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 955 is amended as follows:
7 U.S.C. 601-674.
(b) Each handler shall pay interest of 1.5 percent per month on any assessments levied pursuant to § 955.42 and on any accrued unpaid interest beginning the day immediately after the date the monthly assessments were due, until the delinquent handler's assessments, plus applicable interest, have been paid in full. In addition to the interest charge, the Committee shall impose a late payment charge on any handler whose assessment payment has not been received within 10 days of the due date. The late payment charge shall be 10 percent of the late assessments.
Office of the Comptroller of the Currency, Treasury; Board of Governors of the Federal Reserve System; and the Federal Deposit Insurance Corporation.
Final rule.
The Office of the Comptroller of the Currency (OCC), Board of
This final rule is effective July 28, 2011.
Section 171(b)(2) of the Act
On December 7, 2007, the agencies published in the
To provide a smooth transition to the advanced approaches rules and to limit temporarily the amount by which a banking organization's risk-based capital requirements could decline relative to the general risk-based capital rules, the advanced approaches rules established a series of transitional floors over a period of at least three years following a banking organization's completion of a satisfactory parallel run.
Section 171(a)(2) of the Act defines the term “generally applicable risk-based capital requirements” to mean: “(A) the risk-based capital requirements, as established by the appropriate Federal banking agencies to apply to insured depository institutions under the prompt corrective action regulations implementing section 38 of the Federal Deposit Insurance Act, regardless of total consolidated asset size or foreign financial exposure; and (B) includes the regulatory capital components in the numerator of those capital requirements, the risk-weighted assets in the denominator of those capital requirements, and the required ratio of the numerator to the denominator.” Section 171(b)(2) of the Act further
In accordance with section 38 of the Federal Deposit Insurance Act, the Federal banking agencies established minimum leverage and risk-based capital requirements for insured depository institutions for prompt corrective action (PCA) rules.
By notice in the
For bank holding companies subject to the advanced approaches rule, the proposal stated that in calculating their risk-based capital ratios, these organizations must calculate their floor requirements under the general risk-based capital rules for state member banks.
The proposal also included a modification to the general risk-based capital rules to address the appropriate capital requirement for low-risk assets held by depository institution holding companies
The agencies collectively received 16 comments from both domestic and international trade associations and from individual financial institutions, including insurance companies. Groups representing large banking organizations generally argued against the proposed permanent floor. These commenters asserted that it would place large U.S. banking organizations at a disadvantage relative to their international competitors, increase their costs, and undermine the risk sensitivity of the advanced approaches capital rules. In contrast, a trade organization for community banks and a financial reform advocacy organization supported the proposal.
Commenters representing insurance companies generally supported the proposed revisions to the general risk-based capital rules for selected nonbank assets, arguing that insurance companies have different risk profiles and their liabilities and assets are of different durations compared to banks. These commenters said it would not be appropriate to mechanically apply bank capital regulations to insurance companies.
In response to the agencies' question on how the proposal would affect U.S.
Some of the commenters who opposed the permanent floor also criticized the proposal for retaining two regulatory capital regimes, causing confusion, and diverting significant resources into developing systems to comply with the advanced rules, without a corresponding reduction in capital costs due to the imposition of the proposed permanent floor. These commenters also expressed concern and asked the agencies to clarify how the proposal would interact with Basel III
In contrast, one commenter representing community banks and another representing a financial reform advocacy organization expressed strong support for modifying the advanced approaches rules by replacing the transitional floors with the permanent floor. These commenters asserted that it is not appropriate for the agencies to allow large banking organizations to determine their capital requirements based on internal models because it may allow them to reduce their capital levels and give them a competitive advantage over community banks, and could also increase negative procyclical outcomes.
The preamble to the proposed rule noted that in approving an application by a foreign banking organization to establish a branch or agency in the United States or to make a bank or nonbank acquisition, the Board considers, among other factors, whether the capital of the foreign banking organization is equivalent to the capital that would be required of a U.S. banking organization.
The Board has been making capital equivalency findings for foreign banking organizations under the International Banking Act and the BHC Act since 1992 pursuant to guidelines developed as part of a joint study by the Board and Treasury on capital equivalency.
The NPR sought commenters' views on how the proposed rule should be applied to foreign banking organizations in evaluating capital equivalency in the context of applications to establish branches or make bank or nonbank acquisitions in the United States, and in evaluating capital comparability in the context of foreign banking organization FHC declarations. In raising this question, the agencies recognized the challenge of administering capital equivalency determinations where the foreign banking organization is not subject to the same floor requirement as its U.S. counterpart.
In responding to this question, most commenters asserted that extending U.S. capital requirements to a foreign banking organization operating outside of the United States would not be appropriate and would be inconsistent with the Board's supervisory practice regarding the recognition of home country capital regulations. Several commenters noted that subjecting a foreign banking organization to the proposed rule contradicts the language of the Act, which excludes foreign banking organizations from the requirements of section 171. Several commenters supported applying the proposed rule to the U.S. operations of foreign banking organizations operating in the United States to be consistent with requirements for domestic banking organizations.
Some commenters noted that foreign banking organizations operating under the advanced approaches rules would receive a competitive advantage over U.S. banking organizations subject to the proposal's permanent floor requirement. In addition, several commenters expressed concern that the applying the proposed floor to foreign banking organizations may incentivize
The agencies acknowledge that section 171, by its terms, does not apply to foreign banking organizations. Rather, the question on capital equivalency and comparability determinations was intended to seek views on practical ways to administer such determinations in the context of certain foreign bank organization applications to enter or expand operations within the United States given the proposal's requirements and longstanding supervisory practice. One of the agencies' supervisory objectives is to establish a consistent means for making capital equivalency determinations in the context of foreign banking organization applications to establish branches or to acquire banks or nonbanks in the United States, and in evaluating capital comparability in the context of foreign banking organization FHC declarations. The agencies recognize the challenges of establishing a consistent process for evaluating capital equivalency in cases where, among other things, the foreign banking organization applicant operating under advanced approaches no longer has the Basel I floor in place in its home country, and therefore no longer produces financial information based on Basel I requirements. The agencies believe that it is important to take into consideration the competitive issues highlighted by commenters. The agencies will continue to evaluate equivalency issues on a case-by-case basis taking into consideration the comments received.
In the NPR, the agencies sought comment on whether the proposed treatment of nonbanking exposures described above was appropriate, whether this treatment was sufficiently flexible to address the exposures of depository institution holding companies and nonbank financial companies supervised by the Board, and, if not, how the treatment should be modified.
The agencies received substantial comments from insurance companies about the capital requirements for these entities in general as well as on the proposed modifications to the general risk-based capital rules to address certain nonbank assets. These commenters argued that it would not be appropriate to apply capital requirements applicable to banking organizations to insurance companies because their risk profiles, balance sheet characteristics, and business models fundamentally differ. Several of these commenters were concerned that applying capital requirements for banking organizations to insurance companies without taking these differences into account is overly simplistic and may lead to distorted incentives, undermine efficient use of capital, curtail insurance underwriting capacity, and negatively impact insurance markets.
Some commenters suggested that significant adjustments to the risk weights applicable to banking organizations' exposures would be necessary when considering applicability to insurance companies' exposures. Other commenters suggested that adjustments to risk weights alone would be insufficient. Several commenters suggested that the agencies recognize and incorporate established insurance capital standards into any new capital regime that may apply to insurance companies. Some commenters suggested that the agencies use a principle of equivalence to evaluate insurance companies' capital adequacy similar to the practice used by the Board to determine if the capital of a foreign bank is equivalent to the capital required of a U.S. banking organization. Certain insurance industry commenters provided specific examples of exposures that should be given consideration for a lower risk weight under the general risk-based capital rules, including non-guaranteed separate accounts based on the rationale that the insurance policyholder and not the institution bears the investment risk associated with the contract. Other assets for which commenters suggested consideration regarding the capital treatment included guaranteed separate accounts, corporate debt, and private placements.
Some commenters expressed concern that the Board may require insurance companies to use U.S. generally accepted accounting principles for preparing financial statements instead of the statutory accounting principles applicable to insurance companies. These commenters noted the burden and costs associated with using two accounting systems.
The NPR sought comment on how the agencies should, in the future, evaluate changes to the general risk-based capital requirements to ensure they are not quantitatively lower than the “generally applicable capital requirements” in effect as of the enactment of section 171 of the Act.
Several commenters were concerned about the operational expense and burden associated with determining compliance with two sets of capital rules. One stated that requiring two sets
Commenters generally indicated that keeping track of two sets of capital regulations (the advanced approaches rules and the generally applicable risk-based capital rules then in effect) was preferable to tracking three capital rules (the above two capital regimes and the general risk-based capital rules in effect on July 21, 2010).
Two commenters also suggested that because the FSOC has not designated any systemically important nonbank financial companies, potential designees were not provided sufficient notice and opportunity to comment on the proposal.
As described in the preceding section, a number of the commenters expressed opinions about the appropriateness of the policy underlying section 171 of the Act. The agencies note that they are required by law to comply with the Act and sought comment in the NPR on the manner in which the agencies proposed to implement certain requirements of section 171, and on ways to mitigate banking organizations' burden in meeting the proposed requirements.
In response to comments on the burden of maintaining two systems to calculate capital requirements under both the risk-based capital rules and the advanced approaches rules, the agencies note that banking organizations in parallel run are currently reporting their capital requirements under both sets of rules. The agencies recognize that reporting capital calculations under two capital frameworks beyond the transitional floor arrangement was not expected at the onset of the advanced approaches rules. However, as discussed above, the agencies are issuing the final rule to be consistent with the requirements under section 171(b)(2) of the Act.
Generally commenters supported the proposal's amendment to the general risk-based capital rules to address the appropriate capital requirement for low risk assets that non-depository institutions may hold and for which there is no explicit capital treatment in the general risk-based capital rules. This change was focused on providing limited flexibility for future changes to the risk-based capital rules applicable to bank holding companies following an evaluation of the exposures of covered institutions that may not previously have been subject to consolidated risk-based capital requirements applicable to banking organizations. Several commenters provided specific examples of assets that warrant consideration for a risk weight lower than 100 percent. The Board will consider the risk characteristics for such assets on a case-by-case basis as it considers potential changes to the risk-based capital rules applicable to bank holding companies.
One commenter recommended that the agencies remove from this treatment the condition that the bank holds the asset in connection with the satisfaction of a debt previously contracted or similar authority. This commenter suggests that the assignment to a risk category should be based on the risk of the asset, not an authority to own the asset. The agencies agree that in the cases where this limited treatment is used, the assignment of a capital requirement in this situation would be based on an evaluation of the asset's risk profile. The condition related to legal authority is intended to limit the scope for assignments of capital requirements under this provision to assets not typically held by depository institutions, whose risks and characteristics were not contemplated when the general risk-based capital rules were developed.
Insurance-related commenters noted that some large insurance companies which engage predominantly in insurance activities have depository institution subsidiaries or affiliates that represent a relatively small portion of the consolidated entity. These commenters highlighted fundamental differences in risk profiles, balance sheet characteristics, and business models between insurance companies and banking organizations. In response to these comments, the agencies note that section 171(b)(2) of the Act does not take into account the size or other differences between a holding company and its subsidiary depository institution(s). Consistent with this section of the Act, the “generally applicable” capital requirements serves as a floor for any capital requirements the agencies may require.
Some commenters suggested that foreign banking organizations operating under the advanced approaches rules could hold less capital and therefore, receive a competitive advantage compared to U.S banking organizations. The agencies agree that without the proposal's floor requirement, a banking organization that uses the advanced approaches rules could theoretically operate with lower minimum risk-based capital requirements than would be required under the general risk-based capital rules. The agencies will consider these competitive equity concerns when working with the BCBS and other supervisory authorities to mitigate potential competitive inequities across jurisdictions, as appropriate.
In explaining their concern about how the proposal would interact with Basel III, a number of commenters focused on the proposed rule and future changes to regulatory capital requirements, including those related to U.S. implementation of Basel III. These commenters stated that it is not possible to understand the consequences of implementing section 171 without addressing the broader range of changes in capital regulations, such as changes to the leverage ratio and PCA provisions.
The agencies agree that implementing section 171 will require careful consideration and diligence over time, as the agencies propose and implement various enhancements to the regulatory capital rules. Consistent with the joint efforts of the U.S. banking agencies and the Basel Committee to enhance the regulatory capital rules applicable to internationally active banking organizations, the agencies anticipate that their capital requirements will be amended, establishing different minimum and “generally applicable” capital requirements. These amendments would reflect advances in risk sensitivity and potentially other
Thus, the “generally applicable” capital requirements as defined under section 171 will evolve over time, and as they evolve, continue to serve as a floor for all banking organizations' risk-based capital requirements. Section 171 also requires that the minimum capital requirements established under section 171 not be “quantitatively lower” than the “generally applicable” capital requirements in effect for insured depository institutions as of the date of the Act.
The agencies anticipate performing a quantitative analysis of any new capital framework developed in the future for purposes of ensuring that future changes to the agencies' capital requirements result in minimum capital requirements that are not “quantitatively lower” than the “generally applicable” capital requirements for insured depository institutions in effect as of the date of enactment of the Act. By performing such an analysis, the agencies would ensure that all minimum capital requirements established under section 171 meet this requirement, including minimum requirements that become the new “generally applicable” capital requirements under section 171.
The agencies are currently considering how that analysis may be performed for anticipated changes to the capital rules. As some commenters noted, comparing capital requirements on an aggregate basis is an effective way of conducting the “quantitatively lower” analysis and the agencies expect to propose this method as appropriate in future rulemakings. The agencies anticipate that before proposing future changes to their capital requirements, the agencies will consider the implications for the capital adequacy of banking organizations, the implementation costs, and the nature of any unintended consequences or competitive issues. The agencies note that section 171 does not require a “permanent Basel-I based floor” as some commenters have suggested. The agencies also note that they do not anticipate proposing to require banking organizations to compute two sets of generally applicable capital requirements from current and historic frameworks as the generally applicable requirements are amended over time.
In addition, the agencies agree with commenters that the relationship between the requirements of section 171 and other aspects of the Act, including section 165, must be considered carefully and that all aspects of the Act should be implemented so as to avoid imposing conflicting or inconsistent regulatory capital requirements.
The agencies have considered the comments received on the NPR, and continue to believe that the rule as proposed is consistent with the requirements of section 171 of the Act with respect to risk-based capital requirements. Therefore, the agencies have decided to implement the rule as proposed, effective July 28, 2011.
Thus, each organization implementing the advanced approaches rules will continue to calculate its risk-based capital requirements under the agencies' general risk-based capital rules, and the capital requirement it computes under those rules will serve as a floor for its risk-based capital requirement computed under the advanced approaches rules. The agencies note that the effect of this rule on banking organizations is to preclude certain reductions in capital requirements that might have occurred in the future, absent the rule and absent any further changes to the capital rules. The agencies also note that in practice, the rule will not have an immediate effect on banking organizations' capital requirements because all organizations subject to the advanced approaches rules are currently computing their capital requirements under the general risk-based capital rules.
For bank holding companies subject to the advanced approaches rule, as noted above, the final rule provides that they must calculate their floor requirement under the general risk-based capital rules for state member banks.
Commenters generally supported the agencies' proposed treatment of certain low-risk, nonbanking exposures. The agencies believe the proposed treatment provides flexibility to address situations where exposures of a depository institution holding company or a nonbank financial company supervised by the Board not only do not wholly fit within the terms of a risk weight category applicable to banking organizations, but also impose risks that are not commensurate with the risk weight otherwise specified in the generally applicable risk-based capital requirements. Therefore, the final rule retains the proposed rule's treatment for these assets without modification.
As a general matter, the Board and the other federal banking agencies retain a reservation of authority to assign alternate risk-based capital requirements if such action is warranted.
The Regulatory Flexibility Act, 5 U.S.C. 601
As discussed in greater detail above, the purpose of the final rule is to establish a risk-based capital floor for the advanced approaches rules in a manner that is consistent with section 171 of the Act. In addition, the final rule also amends the general risk-based capital rules for depository institutions to provide flexibility consistent with section 171 of the Act for addressing the appropriate capital requirement for low-risk assets held by depository institution holding companies or by nonbank financial companies supervised by the Board, in situations where there is no explicit capital treatment for such exposures under the general risk-based capital rules.
As discussed above, the agencies solicited public comment on the rule in a notice of proposed rulemaking. The agencies did not receive any comments regarding burden to small banking organizations. After considering the comments on the proposal, the agencies decided to issue the proposed rule text as a final rule without change.
The final rule would affect bank holding companies, national banks, state member banks, and state nonmember banks that use the advanced approaches rules to calculate their risk-based capital requirements according to certain internal ratings-based and internal model approaches. A bank holding company or bank must use the advanced approaches rules only if: (i) It has consolidated total assets (as reported on its most recent year-end regulatory report) equal to $250 billion or more; (ii) it has consolidated total on-balance sheet foreign exposures at the most recent year-end equal to $10 billion or more; or (iii) it is a subsidiary of a bank holding company or bank that would be required to use the advanced approaches rules to calculate its risk-based capital requirements.
With respect to the changes to the general risk-based capital rules, the final rule has the potential to affect the risk weights applicable only to assets that generally are impermissible for banks to hold. These changes are, accordingly, unlikely to have a significant impact on banking organizations. The agencies also note that the changes to the general risk-based capital rules would not impose any additional obligations, restrictions, burdens, or reporting, recordkeeping or compliance requirements on banks including small banking organizations, nor do they duplicate, overlap or conflict with other Federal rules.
The agencies estimate that zero small bank holding companies (out of a total of approximately 4,493 small bank holding companies), one small national bank (out of a total of approximately 664 small national banks), one small state member bank (out of a total of approximately 398 small state member banks), and one small state nonmember bank (out of a total of approximately 2,639 small state nonmember banks) are required to use the advanced approaches rules.
Section 202 of the Unfunded Mandates Reform Act of 1995, Public Law 104-4 (UMRA) requires that an agency prepare a budgetary impact statement before promulgating a rule that includes a Federal mandate that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more (adjusted annually for inflation) in any one year. If a budgetary impact statement is required, section 205 of the UMRA also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule. The OCC has determined that its final rule will not result in expenditures by state, local, and tribal governments, or by the private sector, of $100 million or more. Accordingly, the OCC has not prepared a budgetary impact statement or specifically addressed the regulatory alternatives considered.
In accordance with the requirements of the Paperwork Reduction Act of 1995,
Section 722 of the Gramm-Leach-Bliley Act (Pub. L. 106-102, 113 Stat. 1338, 1471) requires the agencies to use plain language in all proposed and final rules published after January 1, 2000. In light of this requirement, the agencies have sought to present the final rule in a simple and straightforward manner.
Administrative practice and procedure, Banks, banking, Capital, National banks, Reporting and recordkeeping requirements, Risk.
Confidential business information, Crime, Currency, Federal Reserve System, Mortgages, Reporting and recordkeeping requirements, Risk.
Administrative practice and procedure, Banks, banking, Federal Reserve System, Holding companies, Reporting and recordkeeping requirements, Securities.
Administrative practice and procedure, Banks, banking, Capital adequacy, Reporting and recordkeeping requirements, Savings associations, State nonmember banks.
For the reasons stated in the common preamble, the Office of the Comptroller of the Currency amends part 3 of chapter I of Title 12, Code of Federal Regulations as follows:
12 U.S.C. 93a, 161, 1818, 1828(n), 1828 note, 1831n note, 1835, 3907, and 3909.
(a) * * *
(4) * * *
(xi) Subject to the requirements below, a bank may assign an asset not included in the categories above to the risk weight category applicable under the capital guidelines for bank holding companies (see 12 CFR part 225, appendix A), provided that all of the following conditions apply:
(A) The bank is not authorized to hold the asset under applicable law other than debt previously contracted or similar authority; and
(B) The risks associated with the asset are substantially similar to the risks of assets that are otherwise assigned to a risk weight category less than 100 percent under this appendix.
(a) (1) Except as modified by paragraph (c) of this section or by section 23 of this appendix, each bank must meet a minimum:
(i) Total risk-based capital ratio of 8.0 percent; and
(ii) Tier 1 risk-based capital ratio of 4.0 percent.
(2) A bank's total risk-based capital ratio is the lower of:
(i) Its total qualifying capital to total risk-weighted assets; and
(ii) Its total risk-based capital ratio as calculated under Appendix A of this part.
(3) A bank's tier 1 risk-based capital ratio is the lower of:
(i) Its tier 1 capital to total risk-weighted assets; and
(ii) Its tier 1 risk-based capital ratio as calculated under Appendix A of this part.
(b) Each bank must hold capital commensurate with the level and nature of all risks to which the bank is exposed.
(c) When a bank subject to 12 CFR part 3, Appendix B, calculates its risk-based capital requirements under this appendix, the bank must also refer to 12 CFR part 3, Appendix B, for supplemental rules to calculate risk-based capital requirements adjusted for market risk.
For the reasons set forth in the common preamble, parts 208 and 225 of chapter II of title 12 of the Code of Federal Regulations are amended as follows:
Subpart A of Regulation H (12 CFR part 208, Subpart A) is issued by the Board of Governors of the Federal Reserve System (Board) under 12 U.S.C. 24, 36; sections 9, 11, 21, 25 and 25A of the Federal Reserve Act (12 U.S.C. 321-338a, 248(a), 248(c), 481-486, 601 and 611); sections 1814, 1816, 1818, 1831o, 1831p-l, 1831r-l and 1835a of the Federal Deposit Insurance Act (FDI Act) (12 U.S.C. 1814, 1816, 1818, 1831o, 1831p-l, 1831r-l and 1835); and 12 U.S.C. 3906-3909.
III. * * *
C. * * *
4.
e. Subject to the requirements below, a bank may assign an asset not included in the categories above to the risk weight category applicable under the capital guidelines for bank holding companies (
(a)(1) Except as modified by paragraph (c) of this section or by section 23 of this appendix, each bank must meet a minimum:
(i) Total risk-based capital ratio of 8.0 percent; and
(ii) Tier 1 risk-based capital ratio of 4.0 percent.
(2) A bank's total risk-based capital ratio is the lower of:
(i) Its total qualifying capital to total risk-weighted assets, and
(ii) Its total risk-based capital ratio as calculated under Appendix A of this part.
(3) A bank's tier 1 risk-based capital ratio is the lower of:
(i) Its tier 1 capital to total risk-weighted assets, and
(ii) Its tier 1 risk-based capital ratio as calculated under Appendix A of this part.
(b) Each bank must hold capital commensurate with the level and nature of all risks to which the bank is exposed.
(c) When a bank subject to 12 CFR part 208, appendix E calculates its risk-based capital requirements under this appendix, the bank must also refer to 12 CFR part 208 for supplemental rules to calculate risk-based capital requirements adjusted for market risk.
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, 3907, and 3909; 15 U.S.C. 6801 and 6805.
(a)(1) Except as modified by paragraph (c) of this section or by section 23 of this appendix, each bank holding company must meet a minimum:
(i) Total risk-based capital ratio of 8.0 percent; and
(ii) Tier 1 risk-based capital ratio of 4.0 percent.
(2) A bank holding company's total risk-based capital ratio is the lower of:
(i) Its total qualifying capital to total risk-weighted assets, and
(ii) Its total risk-based capital ratio as calculated under 12 CFR part 208, appendix A, as adjusted to include certain debt or equity instruments issued before May 19, 2010 as described in section 171(b)(4)(B) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act).
(3) A bank holding company's tier 1 risk-based capital ratio is the lower of:
(i) Its tier 1 capital to total risk-weighted assets, and
(ii) Its tier 1 risk-based capital ratio as calculated under 12 CFR part 208, appendix A, as adjusted to include certain debt or equity instruments issued before May 19, 2010 as described in section 171(b)(4)(B) of the Dodd-Frank Act.
(b) Each bank holding company must hold capital commensurate with the level and nature of all risks to which the bank holding company is exposed.
(c) When a bank holding company subject to 12 CFR part 225, appendix E calculates its risk-based capital requirements under this appendix, the bank holding company must also refer to 12 CFR part 225, appendix E for supplemental rules to calculate risk-based capital requirements adjusted for market risk.
For the reasons stated in the common preamble, the Federal Deposit Insurance Corporation amends Part 325 of Chapter III of Title 12, Code of the Federal Regulations as follows:
12 U.S.C. 1815(a), 1815(b), 1816, 1818(a), 1818(b), 1818(c), 1818(t), 1819(Tenth), 1828(c), 1828(d), 1828(i), 1828(n), 1828(o), 1831o, 1835, 3907, 3909, 4808; Pub. L. 102-233, 105 Stat. 1761, 1789, 1790 (12 U.S.C. 1831n note); Pub. L. 102-242, 105 Stat. 2236, as amended by Pub. L. 103-325, 108 Stat. 2160, 2233 (12 U.S.C. 1828 note); Pub. L. 102-242, 105 Stat. 2236, 2386, as amended by Pub. L. 102-550, 106 Stat. 3672, 4089 (12 U.S.C. 1828 note).
II. * * *
The risk based capital framework contains five risk weight categories—0 percent, 20 percent, 50 percent, 100 percent, and 200 percent. * * *
(d) Subject to the requirements below, a bank may assign an asset not included in the categories above to the risk weight category applicable under the capital guidelines for bank holding companies (12 CFR part 225, appendix A), provided that all of the following conditions apply:
(1) The bank is not authorized to hold the asset under applicable law other than debt previously contracted or similar authority; and
(2) The risks associated with the asset are substantially similar to the risks of assets that are otherwise assigned to a risk weight category less than 100 percent under this appendix.
(a)(1) Except as modified by paragraph (c) of this section or by section 23 of this appendix, each bank must meet a minimum:
(i) Total risk-based capital ratio of 8.0 percent; and
(ii) Tier 1 risk-based capital ratio of 4.0 percent.
(2) A bank's total risk-based capital ratio is the lower of:
(i) Its total qualifying capital to total risk-weighted assets, and
(ii) Its total risk-based capital ratio as calculated under appendix A of this part.
(3) A bank's tier 1 risk-based capital ratio is the lower of:
(i) Its tier 1 capital to total risk-weighted assets, and
(ii) Its tier 1 risk-based capital ratio as calculated under appendix A of this part.
(b) Each bank must hold capital commensurate with the level and nature of all risks to which the bank is exposed.
(c) When a bank subject to appendix C of this part calculates its risk-based capital requirements under this appendix, the bank must also refer to appendix C of this part for supplemental rules to calculate risk-based capital requirements adjusted for market risk.
By order of the Board of Directors. Federal Deposit Insurance Corporation.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for the products listed above. This AD requires inspecting certain Lycoming and TCM reciprocating engines with certain Hartzell Engine Technologies, LLC (HET) turbochargers installed, and disassembly and cleaning of the turbocharger center housing and rotating assembly (CHRA) cavities of affected turbochargers. This AD was prompted by a turbocharger failure due to machining debris left in the cavities of the CHRA during manufacture. We are issuing this AD to prevent seizure of the turbocharger turbine, which could result in damage to the engine, and smoke in the airplane cabin.
This AD is effective July 13, 2011.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of July 13, 2011.
We must receive comments on this AD by August 12, 2011.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Hartzell Engine Technologies, LLC, 2900 Selma Highway, Montgomery, AL 36108, phone: 334-386-5400; fax: 334-386-5450. You may review copies of the referenced service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.
You may examine the AD docket on the Internet at
Gary Wechsler, Aerospace Engineer, Atlanta Aircraft Certification Office, 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5575; fax: 404-474-5606; e-mail:
HET recently informed us of a failure of one of their turbochargers installed on a TCM TSIO-550-K model reciprocating engine. HET identified the cause of the failure as machining debris left in the CHRA. HET also informed us that the debris was a by-product of manufacture that had not been removed. This debris, if present, could result in seizure of the turbocharger turbine, which could result in damage to the engine, and smoke in the airplane cabin.
We reviewed Hartzell Engine Technologies, LLC Service Bulletin (SB) No. 040, Revision A, dated December 22, 2010. The SB describes procedures for identifying affected turbochargers, and performing a one-time disassembly, CHRA cleaning, and reassembly.
We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other turbochargers of the same type design.
This AD requires accomplishing the cleaning specified in the service information described previously.
An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because airplanes with no more than 50 hours time-in-service on new or overhauled affected turbochargers are at risk of the unsafe condition described in this AD. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We estimate that about 2,761 turbochargers are installed on Lycoming and TCM engines, installed on airplanes of U.S. registry. We also estimate it will take about 1 work-hour to inspect each turbocharger and that 264 turbochargers will fail inspection and require corrective action. Each corrective action will require 3 work-hours. The average labor rate is $85 per work-hour. No additional parts are required. Based on these figures, we estimate the cost of the AD on U.S. operators to be $391,765. Our cost estimate is exclusive of possible warranty coverage.
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 turbochargers identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
(a) This AD is effective July 13, 2011.
(b) None.
(c) This AD applies to the Lycoming Engines and TCM turbocharged reciprocating engines listed in, but not limited to, Table 1 of this AD, with the following Hartzell Engine Technologies, LLC (HET) turbocharger models TA3601, TAO401, TAO402, TAO411, TAO413, T1879, T18A21, T18A44, THO867, and TEO659, installed:
(1) Newly manufactured turbochargers (otherwise known as the -0000 series) before serial number H-NJL00003, or rebuilt (otherwise known as the -9000 series) before serial number H-NJR00002; and
(2) With less than 50 hours time-in-service (TIS) on the effective date of this AD; and
(3) With a part number listed in Table 2 or Table 3 of this AD; and
(4) With a “slanted A” foundry mark located on the center housing and rotating assembly (CHRA).
(d) This AD does not require action for:
(1) Turbochargers with more than 50 hours TIS on the effective date of this AD.
(2) Turbochargers with a circled “JT” foundry mark on the CHRA.
(e) This AD does not apply to engines with new or overhauled turbochargers installed on or before September 2001.
(f) This AD was prompted by a turbocharger failure due to machining debris that was not cleaned from the cavities of the center housing and rotating assembly (CHRA), during manufacture. We are issuing this AD to prevent seizure of the turbocharger turbine, which could result in damage to the engine, and smoke in the airplane cabin.
(g) Unless already done, disassemble, clean, and reassemble the turbochargers affected by this AD as follows:
(1) For affected turbochargers including overhauls, with between 0 and 10 hours TIS on the effective date of this AD, before further flight, disassemble the turbocharger, clean the CHRA center housing cavity, and reassemble the turbocharger.
(2) For affected turbochargers including overhauls, with more than 10 hours TIS but less than 50 hours TIS on the effective date of this AD, within the next 10 hours TIS, disassemble the turbocharger, clean the CHRA center housing cavity, and reassemble the turbocharger.
(3) Use paragraphs 1 through 10 of the CLEANING CHRA CENTER HOUSING section of Hartzell Engine Technologies, LLC SB No. 040, Revision A, dated December 22, 2010, to do the cleaning.
(4) The reference to Step 16 in paragraph 10 of the CLEANING CHRA CENTER HOUSING section of Hartzell Engine Technologies, LLC SB No. 040, Revision A, dated December 22, 2010, is incorrect. The correct reference is Step 9.
(h) For turbochargers with more than 50 hours TIS on the effective date of this AD, no further action is required.
(i) Special flight permits are restricted to day Visual Meteorological Conditions flight only.
(j) The Manager, Atlanta Aircraft Certification Office, has the authority to approve AMOCs for this AD if requested using the procedures found in 14 CFR 39.19.
(k) For more information about this AD, contact Gary Wechsler, Aerospace Engineer, Atlanta Aircraft Certification Office, 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5575; fax: 404-474-5606; e-mail:
(l) You must use Hartzell Engine Technologies, LLC Service Bulletin No. 040, Revision A, dated December 22, 2010, to clean the turbocharger.
(m) The Director of the Federal Register approved the incorporation by reference of this service bulletin in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
(n) For service information identified in this AD, contact Hartzell Engine Technologies, LLC, 2900 Selma Highway, Montgomery, AL 36108, phone: 334-386-5400; fax: 334-386-5450.
(o) You may review copies of the service information that is incorporated by at the FAA, New England Region, 12 New England Executive Park, Burlington, MA; or at the National Archives and Records Administration (NARA). For information on
Bureau of Industry and Security, Commerce.
Final rule.
This rule amends the Export Administration Regulations (EAR) by adding eight persons to the Entity List (Supplement No. 4 to part 744) on the basis of section 744.11 of the EAR. The persons who are added to the Entity List have been determined by the U.S. Government to be acting contrary to the national security or foreign policy interests of the United States. These eight persons will be listed under the following three destinations on the Entity List: France, Iran and the United Arab Emirates (U.A.E.).
The Entity List provides notice to the public that certain exports, reexports, and transfers (in-country) to parties identified on the Entity List require a license from the Bureau of Industry and Security (BIS) and that availability of license exceptions in such transactions is limited.
This rule is effective June 28, 2011.
Karen Nies-Vogel, Chair, End-User Review Committee, Office of the Assistant Secretary, Export Administration, Bureau of Industry and Security, Department of Commerce, Phone: (202) 482-5991, Fax: (202) 482-3911, E-mail:
The Entity List provides notice to the public that certain exports, reexports, and transfers (in-country) to parties identified on the Entity List require a license from BIS, and that availability of license exceptions in such transactions is limited. Persons are placed on the Entity List on the basis of criteria set forth in certain sections of part 744 (Control Policy: End-User and End-Use Based) of the EAR.
The End-User Review Committee (ERC), composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, Treasury, makes all decisions regarding additions to, removals from, or changes to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote, and all decisions to remove or modify an entry by unanimous vote.
The ERC made a determination to add eight persons to the Entity List on the basis of section 744.11 (License Requirements that Apply to Entities Acting Contrary to the National Security or Foreign Policy Interests of the United States) of the EAR. The eight entries added to the Entity List consist of three new entries in France, three new entries in Iran, and two new entries in the U.A.E.
The ERC reviewed the criteria for revising the Entity List (section 744.11(b) of the EAR) in making the determination to add these persons to the Entity List. These criteria establish how to add to the Entity List those entities that, based on specific and articulable facts, there is reasonable cause to believe have been involved, are involved, or pose a significant risk of being or becoming involved in activities that are contrary to the national security or foreign policy interests of the United States, and those acting on behalf of such entities (section 744.11 of the EAR). The persons being added to the Entity List under this rule have been determined by the ERC to be involved in activities that could be contrary to the national security or foreign policy interests of the United States. An illustrative list of such activities can be found in paragraphs (b)(1)-(b)(5) of section 744.11 of the EAR.
Pursuant to section 744.11, these eight persons are being added based on evidence that they have engaged in actions that could enhance the military capability of Iran, a country designated by the U.S. Secretary of State as having repeatedly provided support for acts of international terrorism. These persons are also being added because their overall conduct poses a risk of ongoing EAR violations.
This rule implements the decision of the ERC to add eight persons to the Entity List on the basis of section 744.11 of the EAR. For all eight persons added to the Entity List, the ERC specified a license requirement for all items subject to the EAR and established a license application review policy of a presumption of denial. A BIS license is required to export, reexport or transfer (in-country) any item subject to the EAR to any of the persons described below, including any transaction in which any of the listed persons will act as purchaser, intermediate consignee, ultimate consignee, or end-user of the items. This listing of these persons also prohibits the use of license exceptions (see part 740 of the EAR) for exports, reexports and transfers (in-country) of items subject to the EAR involving such persons.
Specifically, this rule adds the following eight persons to the Entity List:
(1)
(2)
(3)
(1)
(2)
(3)
(1)
(2)
Shipments of items removed from eligibility for a license exception or export or reexport without a license (NLR) as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting or reexporting carrier, or en route aboard a
Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of August 12, 2010, 75 FR 50681 (August 16, 2010), has continued the EAR in effect under the International Emergency Economic Powers Act, 50 U.S.C. 1701,
1. This rule has been determined to be not significant for purposes of Executive Order 12866.
2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.
4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military or foreign affairs function of the United States (
Exports, Reporting and recordkeeping requirements, Terrorism.
Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730-774) are amended as follows:
50 U.S.C. app. 2401
The additions read as follows:
Bureau of Industry and Security, Commerce.
Final rule.
In this final rule, the Bureau of Industry and Security (BIS) amends the Export Administration Regulations (EAR) to revise the validated end-user authorization for CSMC Technologies Corporation (CSMC) in the People's Republic of China (PRC) by adding an item to the list of items that may be exported, reexported, or transferred (in-country) to CSMC's eligible destinations under Authorization Validated End-User (VEU).
This rule is effective June 28, 2011.
Karen Nies-Vogel, Chair, End-User Review Committee, Office of the Assistant Secretary, Export Administration, Bureau of Industry and Security, U.S. Department of Commerce, Phone: (202) 482-5991, Fax: (202) 482-3911,
BIS amended the EAR in a final rule on June 19, 2007 (72 FR 33646), creating a new authorization for “validated end-users” (VEUs) located in eligible destinations to which eligible items may be exported, reexported, or transferred (in-country) under a general authorization instead of a license, in conformance with section 748.15 of the EAR. On January 18, 2011, BIS identified CSMC as a Validated End-User (76 FR 2802).
VEUs may obtain eligible items that are on the Commerce Control List, set forth in Supplement No. 1 to Part 774 of the EAR, without having to wait for their suppliers to obtain export licenses from BIS. Eligible items may include commodities, software, and technology, except those controlled for missile technology or crime control reasons.
The VEUs listed in Supplement No. 7 to Part 748 of the EAR were reviewed and approved by the U.S. Government in accordance with the provisions of section 748.15 and Supplement Nos. 8 and 9 to Part 748 of the EAR. The End-User Review Committee (ERC), composed of representatives from the Departments of State, Defense, Energy and Commerce, and other agencies, as appropriate, is responsible for administering the VEU program. A unanimous vote by the ERC is required to authorize VEU status for a candidate or to add any eligible items to an existing authorization. Majority vote of the ERC is required to remove VEU authorization or to remove eligible items from an existing authorization.
In addition to U.S. exporters, Authorization VEU may be used in accordance with the provisions of the EAR by foreign reexporters and by persons transferring in-country, and it does not have an expiration date. VEUs are subject to regular reviews, based on information available to the United States government, to ensure that items shipped under Authorization VEU are used for civilian purposes. In addition, VEUs are subject to on-site reviews as warranted.
As of the date of this rule, pursuant to section 748.15(b) of the EAR, VEUs are only located in the PRC and India.
This final rule amends Supplement No. 7 to Part 748 of the EAR to add most items classified under Export Control Classification Number (ECCN) 3B001.h (“Multi-layer masks with a phase shift layer”) to the list of items that may be exported, reexported, or transferred (in-country) to CSMC's “Eligible Destinations” under Authorization VEU. Multilayer masks with a phase shift layer designed to produce “space qualified” semiconductor devices are excluded from those items eligible for shipment under Authorization VEU to CSMC. The ERC reviewed CSMC's request to add these items to its VEU Authorization and concluded the proposed addition is appropriate.
The complete list of items by ECCN, as revised, that may be exported, reexported, or transferred (in-country) to CSMC's eligible destinations under Authorization VEU is as follows:
Items classified under Export Control Classification Numbers 1C350.c.3, 1C350.c.11, 2B230.a, 2B230.b, 2B350.f, 2B350.g, 2B350.h, 3B001.c.1.a, 3B001.c.2.a, 3B001.e, 3B001.h (except for multilayer masks with a phase shift layer designed to produce “space qualified” semiconductor devices), 3C002.a, and 3C004.
Since August 21, 2001, the Export Administration Act (the Act) has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp., p. 783 (2002)), as extended most recently by the Notice of August 12, 2010 (75 FR 50681 (August 16, 2010)), has continued the EAR in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222.
1. 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 determined to be not significant for purposes of Executive Order 12866.
2. This rule involves collections previously approved by the Office of Management and Budget (OMB) under Control Number 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748; and for recordkeeping, reporting and review requirements in connection with Authorization VEU, which carries an estimated burden of 30 minutes per submission. This rule is expected to result in a decrease in license applications submitted to BIS because this rule expands the list of items that do not require an individually validated license for exports, reexports, or transfers (in-country) to eligible CSMC destinations. Total burden hours associated with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Notwithstanding any other provisions of law, no person is required to respond nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.
4. Pursuant to the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), BIS finds good cause to waive requirements that this rule be subject to notice and the opportunity for public comment because such notice and comment here are unnecessary. In determining whether to grant VEU designations, a committee of U.S. Government agencies evaluates information about and commitments made by candidate companies, the nature and terms of which are set forth in 15 CFR part 748, Supplement No. 8. The criteria for evaluation by the committee are set forth in 15 CFR 748.15(a)(2).
The information, commitments, and criteria for this extensive review were all established through the notice of proposed rulemaking and public comment process (71 FR 38313, July 2, 2006, and 72 FR 33646, June 19, 2007). Given the similarities between the authorizations provided under the VEU program and export licenses (as discussed further below), the publication of this information does not establish new policy; in publishing this final rule, BIS simply amends an authorization by adding an eligible ECCN to the list of items approved for export, reexport, or transfer (in-country)
Publication of a proposed rule is unnecessary because the authorization granted in the rule is consistent with the authorizations granted to exporters for individual licenses (and amendments or revisions thereof), which do not undergo public review. Just as license applicants do, VEU authorization applicants provide the U.S. Government with confidential business information. This information is extensively reviewed according to the criteria for VEU authorizations, as set out in 15 CFR 748.15(a)(2). Additionally, just as the interagency reviews license applications, the authorizations granted under the VEU program involve interagency deliberation and result from review of public and non-public sources, including licensing data, and the measurement of such information against the VEU authorization criteria. Given the thorough nature of the review, and in light of the parallels between the VEU application review process and the review of license applications, public comment on this authorization and subsequent amendments prior to publication is unnecessary. Moreover, because, as noted above, the criteria and process for authorizing and administering VEUs were developed with public comments; allowing additional public comment on this amendment to an individual VEU authorization, which was determined according to those criteria, is unnecessary.
Section 553(d) of the APA generally provides that rules may not take effect earlier than thirty (30) days after they are published in the
No other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required under the APA or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
Administrative practice and procedure, Exports, Reporting and recordkeeping requirements.
Accordingly, part 748 of the EAR (15 CFR parts 730-774) is amended as follows:
50 U.S.C. app. 2401
U.S. Consumer Product Safety Commission.
Final rule.
The Consumer Product Safety Improvement Act of 2008 (“CPSIA”) authorizes the U.S. Consumer Product Safety Commission (“Commission,” “CPSC,” or “we”) to specify, by rule, for any consumer product or class of consumer products, characteristics whose existence or absence shall be deemed a substantial product hazard under certain circumstances. We are issuing a final rule to determine that any hand-supported hair dryer without integral immersion protection presents a substantial product hazard.
The rule takes effect July 28, 2011. The incorporation by reference of the publications listed in this rule is approved by the Director of the Federal Register as of July 28, 2011.
Sheela Kadambi, Office of Compliance and Field Operations, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; telephone (301) 504-7561,
The Consumer Product Safety Improvement Act of 2008 (“CPSIA”) was enacted on August 14, 2008. Public Law 110-314, 122 Stat. 3016 (August 14, 2008). The CPSIA amends statutes that the Commission administers, and adds certain new requirements.
Section 223 of the CPSIA expands section 15 of the Consumer Product Safety Act (“CPSA”) to add a new subsection (j). That subsection delegates authority to the Commission to specify by rule, for a consumer product or class of consumer products, characteristics whose presence or absence the Commission considers a substantial product hazard. To issue such a rule, the Commission must determine that those characteristics are readily observable and have been addressed by an applicable voluntary standard. The Commission must also find that the standard has been effective in reducing the risk of injury and that there has been substantial compliance with it. 15 U.S.C. 2064(j).
Underwriters Laboratories' (“UL”)
Hand-supported hair dryers, most often used in bathrooms and near water, are subject to accidental immersion during their use. Section 15(a) of the CPSA defines “substantial product hazard” to include: A product defect that (because of the pattern of defect, the number of defective products distributed in commerce, the severity of the risk, or otherwise) creates a substantial risk of injury to the public. 15 U.S.C. 1064(a)(2).
On November 25, 2002, the CPSC's Director of the Office of Compliance sent a letter to manufacturers and importers of hand-supported hair dryers, stating that CPSC staff considers hair dryers available for sale to, or use by, consumers to present a substantial product hazard if they do not have immersion protection as required by UL 859. The letter urged manufacturers and importers to ensure that their hand-supported hair dryers provide immersion protection. The letter noted: “[s]ome firms market hand held hair dryers that they contend are intended for professional use only, that is, for use by professionals in hair salons. However, CPSC staff also considers `professional' hair dryers that are available for sale to consumers and that fail to provide immersion protection to be defective and to present a substantial product hazard.”
On May 17, 2010, we published a proposed rule (75 FR 27504) that would deem any hand-supported hair dryer without integral immersion protection, as specified in UL 859 or UL 1727, to be a substantial product hazard. (The proposal referred to “hand-held” hair dryers; however, as explained in section G.2 of this preamble, the final rule uses the term “hand-supported,” which is more consistent with the UL standards.)
We received six comments in response to the proposed rule. We describe and respond to the comments in section G of this preamble.
A hand-supported hair dryer is a portable electrical appliance with a cord-and-plug connection. Typically, such hair dryers have a big, barrel-like body with a pistol grip handle. Frequently, they have two control switches or knobs: One turns the unit on and off and may allow the user to adjust the blower speed; the second adjusts the heat setting, often labeled “cool/low/high.” Hand-supported hair dryers routinely contain open-coil heating elements that are, in essence, uninsulated, electrically energized wires, across which a fan blows air. These dryers are typically used in bathrooms near water sources, such as sinks, bathtubs, and lavatories. If the uninsulated heating element were to contact water, an alternative current flow path could easily be created, posing the risk of shock or electrocution to the user holding the dryer (or retrieving it after dropping it into a sink, bathtub, or lavatory).
The power cords of hand-supported hair dryers with integral immersion protection on the market today have a large, block-shaped plug that incorporates a type of circuit interrupter— a Ground Fault Circuit Interrupter (“GFCI”), an Appliance Leakage Circuit Interrupter (“ALCI”), or an Immersion Detection Circuit Interrupter (“IDCI”). Usually, the plug also has buttons labeled “Test” and “Reset.” If the hair dryer should become wet or immersed in water, enough to cause electrical current to flow beyond the normal circuitry, the circuit interrupter will sense the flow and, in a fraction of a second, disconnect the hair dryer from its power source, preventing serious injury or death to a consumer.
An estimated 23 million units of hand-supported hair dryers are sold annually. CPSC staff does not know exactly how many companies supply hand-supported hair dryers. The preamble to the proposed rule stated the number of companies listed as complying with the UL standards as follows. Sixteen suppliers of hand-supported hair dryers are listed in the UL Online Certifications Directory as being in compliance with UL 859. An additional 42 companies are listed in the Intertek ETL Listed Mark Product Directory as complying with the UL 859 standard. Ten firms are listed to the UL 1727 standard on UL's Online Certifications Directory, and another four firms are listed in the Intertek ETL Listed Mark Product Directory as being in compliance with UL 1727. In 2007, the three largest suppliers listed accounted for approximately 92 percent of domestic sales of hand-supported hair dryers.
The proposed rule summarized relevant incident data reported during the period from 1980 to 2007, involving hand-supported hair dryers. We repeat and update that information here.
The preamble to the proposed rule reviewed the incident data available at that time. As noted in that preamble, a total of 43 electric shock injuries due to hair dryer immersion/water contact, were reported to CPSC staff from 1984 through 2004. Of these electric shock injuries, the most incidents (33) occurred before 1990, compared to 7 from 1991 through 1997, and 3 from 1998 through 2004. Although these are small numbers of reports, they indicate that the number of reported injuries due
During 1980 through 1986, before the introduction of the initial UL requirements for hair dryers, a total of 110 electrocutions (15.7 annual average) were reported due to hair dryer immersion/water contact. In 1987, UL implemented a change to voluntary standard UL 859 to require immersion protection for hand-supported hair dryers if the dryer switch was in the “off” position. During the period 1987 through 1990, a total of 39 such electrocutions (9.75 annual average) were reported. In 1991, a revision to the UL standard requiring immersion protection in the “off” as well as the “on” position took effect. From 1991 through 1997, immediately following the time when the enhanced standard took effect, a total of 12 electrocutions (1.71 annual average) were reported. From 1998 through 2007, a period when most hair dryers made before 1991 were likely to be out of use, three electrocutions (0.3 annual average) were reported.
In preparation for the final rule, we reviewed data for the timeframe between 2006 and 2010. No new electrocutions associated with a hair dryer immersed in, or contacting water, have been reported since we published the proposed rule. There were reports of deaths associated with hair dryers, but these were not related to immersion in, or contact with, water. (Two reported deaths in 2008 were attributed to a fire started by a hairdryer igniting a couch; two reported deaths in 2010 were attributed to a fire started by a hairdryer igniting a mattress; and one reported death in 2010 was attributed to thermal injuries resulting from a running hairdryer). Data collection is ongoing for the years 2008 through 2010.
Hand-supported hair dryers are included in UL 859,
In 1990, the National Electrical Code (“NEC”) (Article 422-24, 1990 edition) instituted requirements for protection against electrocutions from immersion of hair dryers when the switch is in either the “on” or the “off” position.
In 1987, UL, in keeping with the NEC, revised its immersion protection standard to require that “a hand-supported hair-drying appliance (such as a hair dryer, blower-styler, heated air comb, heated air hair curler, curling iron-hair dryer combination, wall-hung hair dryer or hand unit of a wall-mounted hair dryer, or similar appliance) shall be constructed to reduce the risk of electric shock when the appliance is energized, with its power switch in either the “on” or “off” position, and immersed in water having an electrically conductive path to ground.” This revision, which took effect on January 1, 1991, expanded immersion protection to cover the appliance whether the switch was in the “on” or “off” position.
As discussed in section C of this preamble, the reported incidents of death from immersion-related electrocutions involving hand-supported hair dryers decreased significantly with implementation of immersion protection requirements in UL 859. The average number of reported hand-supported hair dryer electrocutions resulting in death is now less than one per year.
UL 1727,
As noted in section A of this preamble, in November 2002, the Director of the Office of Compliance sent a letter to importers and manufacturers of hand-supported hair dryers indicating CPSC staff's expectation that such hair dryers should have immersion protection and that staff would consider hand-supported hair dryers to present a substantial product hazard if they did not include such protection. The preamble to the proposed rule noted that, between January 1, 1991, and the time when we developed the proposed rule, there had been 30 recalls of hand-supported hair dryers due to lack of an immersion protection device (75 FR at 27506).
Since April 1, 2010, there have not been any recalls of hand-supported hair dryers without immersion protection. Shipments of hand-supported hair dryers without immersion protection have been seized at ports of entry and destroyed.
There is no statutory definition of “substantial compliance” in either the CPSIA or the CPSA. Legislative history of the CPSA provision that is related to issuance of consumer product safety standards indicates that substantial compliance should be measured by reference to the number of complying products, rather than the number of manufacturers of products complying with the standard. H.R. Rep. No. 208, 97th Cong., 1st Sess. 871 (1981). Legislative history of this CPSA rulemaking provision also indicates that there is substantial compliance when the unreasonable risk of injury associated with a product will be eliminated or adequately reduced “in a timely fashion.”
As noted in section B of this preamble, CPSC staff estimates that sales of hand-supported hair dryers are about 23 million units annually. As of the date of the publication of the proposed rule, there are 16 suppliers of hand-supported hair dryers listed in the UL Online Certifications Directory, and an additional 42 suppliers are listed in the Intertek ETL Listed Mark Product Directory as supplying hand-supported hair dryers that are compliant with UL 859. Ten firms are listed to the UL 1727 standard on UL's Online Certifications Directory, and another four firms are listed in the Intertek ETL Listed Mark Product Directory as being in compliance with UL 1727.
In 2007, the three largest suppliers listed accounted for approximately 92 percent of the domestic sales of hand-supported hair dryers. Additional retailers are also listed as supplying hand-supported hair dryers that are in compliance with the UL standards. Since the three largest suppliers (which are listed as producing hair dryers that comply with the UL standards) account for 92 percent of the domestic sales of hand-supported hair dryers, and additional companies are also listed as producing complying hand-supported hair dryers, we estimate that more than 95 percent of hand-supported hair dryers for sale in this country comply with the UL standards. Therefore, the Commission determines that there is
In the
The final rule creates a new part 1120 titled, “Substantial Product Hazard List,” and names as the first product group on the list any hand-supported hair dryer without integral immersion protection.
Section 1120.1 restates the statutory criteria required for the Commission to determine that a consumer product, or class of consumer products, have characteristics whose existence or absence present a substantial product hazard under section 15(a)(2) of the CPSA.
Section 1120.2 defines the terms “substantial product hazard” and “hand-supported hair dryer.” The definition of “substantial product hazard” comes from section 15(a)(2) of the CPSA and means “a product defect which (because of the pattern of defect, the number of defective products distributed in commerce, the severity of the risk, or otherwise) creates a substantial risk of injury to the public.” This definition is unchanged from the proposed rule.
As explained in section G.2 of this preamble, the final rule refers to “hand-supported hair dryer” instead of “hand-held hair dryer.” The definition remains the same as in the proposed rule and states that a “hand-supported dryer” is “an electrical appliance, intended to be held with one hand during use, which creates a flow of air over or through a self-contained heating element for the purpose of drying hair.”
Section 1120.3 establishes a list of products, or class of products, that the Commission deems to be substantial product hazards under section 15(a)(2) of the CPSA. It states that hand-supported hair dryers lacking integral immersion protection in compliance with the requirements of section 5 of the UL
To place a product (or class of products) on the list of substantial product hazards pursuant to section 15(j) of the CPSA, we must determine that: (1) The characteristics whose existence or absence present a substantial product hazard are readily observable; (2) those characteristics have been addressed by voluntary standards; (3) the relevant voluntary standards have been effective in reducing the risk of injury from the consumer product; and (4) there is substantial compliance with the voluntary standards. We find that hand-supported hair dryers without integral immersion protection meet these criteria.
• The characteristics of a hand-supported hair dryer with integral immersion protection are readily observable. A hair dryer that has such protection will have a large block-shaped plug that contains some type of circuit interrupter.
• Integral immersion protection has been addressed by UL 589 and UL 1727. Both of those standards require that
• These standards have been very effective in reducing deaths and electric shock injuries due to hair dryer immersion or contact with water. From 1980 to 1986 (before the initial UL requirements took effect), a total of 110 electrocutions (15.7 annual average) were reportedly due to hair dryer immersion/water contact. Only three electrocutions were reported between 1998 and 2007, and we have no reports of electrocutions associated with a hair dryer immersed in, or contacting water, for the period from 2006 through 2010.
• There is substantial compliance with the voluntary standards' requirements. We estimate that more than 95 percent of hand-supported hair dryers for sale in the United States comply with the immersion protection provisions of the UL standards.
Section 15(j) of the CPSA authorizes us to issue a rule specifying that a consumer product (or class of consumer products) has characteristics whose presence or absence creates a substantial product hazard. This rule, which falls under section 15 of the CPSA, is not a consumer product safety rule and does not create a consumer product safety standard. Thus, the rule does not trigger any testing or certification requirements under section 14(a) of the CPSA.
Although the final rule does not establish a consumer product safety standard, placing a consumer product on this substantial product hazard list has certain consequences. A product that is or has a substantial product hazard is subject to the reporting requirements of section 15(b) of the CPSA. 15 U.S.C. 2064(b). A manufacturer who fails to report a substantial product hazard to the Commission is subject to civil penalties under section 20 of the CPSA and possibly is subject to criminal penalties under section 21 of the CPSA. 15 U.S.C. 2069, 2070.
A product that is or contains a substantial product hazard is subject to corrective action under section 15(c) and (d) of the CPSA. 15 U.S.C. 2064(c), (d). Thus, the Commission can order the manufacturer, distributor, or retailer of the product to offer to repair or replace the product, or to refund the purchase price to the consumer.
Finally, a product that is offered for import into the United States, and is or contains a substantial product hazard, must be refused admission into the United States under section 17(a) of the CPSA. 15 U.S.C. 2066(a).
The Regulatory Flexibility Act (“RFA”) generally requires that agencies review proposed and final rules for their potential economic impact on small entities, including small businesses. 5 U.S.C. 601-612. In the preamble to the proposed rule (75 FR at 27506 through 27507), we noted that the majority of hair dryers sold in the United States are already UL-listed, and because the majority of businesses (both large and small) are already in compliance with the voluntary standard, the rule is not expected to pose a significant burden to small business. Therefore, we certified that, in accordance with section 605 of the RFA, the rule, if promulgated, would not have a significant economic impact on a substantial number of small entities. We received no comments concerning the rule's impact on small business, and we are not aware of any information that would change our certification.
In the preamble to the proposed rule (75 FR at 27507), we stated that a rule that determines that hand-supported hair dryers without immersion protection in accordance with UL 859 or UL 1727 present a substantial product hazard is not expected to have an adverse impact on the environment and is considered to be a “categorical exclusion” for the purposes of the National Environmental Policy Act (“NEPA”), according to the CPSC regulations that cover its “environmental review” procedures (16 CFR 1021.5(c)(1)). We did not receive any comments on the environmental impact of the rule. We affirm that this rule falls within a categorical exclusion for purposes of NEPA.
The final rule does not impose any information collection requirements. Accordingly, the final rule is not subject to the Paperwork Reduction Act, 44 U.S.C. 3501-3520.
The preamble to the proposed rule indicated that a final rule establishing that any hand-supported hair dryer without immersion protection, as specified in UL 859 or UL 1727, is a substantial product hazard, would take effect 30 days from its date of publication in the
The final rule places hand-supported hair dryers without integral immersion protection on a list of products that present a substantial product hazard. The rule does not establish a consumer product safety standard. The preemption provisions in section 26(a) of the CPSA, 15 U.S.C. 2075(a), apply when a consumer product safety standard is in effect. Therefore, section 26(a) of the CPSA does not apply to this rule.
Administrative practice and procedure, Consumer protection, Household appliances, Imports, Incorporation by reference.
Therefore, the Commission amends Title 16 of the Code of Federal Regulations by adding part 1120 to read as follows:
15 U.S.C. 2064(j).
Under the authority of section 15(j) of the Consumer Product Safety Act (CPSA), the Commission determines that consumer products or classes of consumer products listed in § 1120.3 of this part have characteristics whose existence or absence present a substantial product hazard under section 15(a)(2) of the CPSA. The Commission has determined that the listed products have characteristics that are readily observable and have been addressed by a voluntary standard, that the voluntary standard has been effective, and that there is substantial compliance with the voluntary standard. The listed products are subject to the reporting requirements of section 15(b) of the CPSA and to the recall provisions of section 15(c) and (d) of the CPSA, and shall be refused entry into the United States under section 17(a)(4) of the CPSA.
The definitions in section 3 of the Consumer Product Safety Act (15 U.S.C. 2052) apply to this part 1120.
(a)
(b)
The following products or class of products shall be deemed to be substantial product hazards under section 15(a)(2) of the CPSA:
(a) Hand-supported hair dryers that do not provide integral immersion protection in compliance with the requirements of section 5 of Underwriters Laboratories (UL)
(b) [Reserved]
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone in the navigable waters of Half Moon Bay, off of Pillar Point Harbor beach, Half Moon Bay, CA in support of the Independence Day Fireworks Celebration for the City of Half Moon Bay. Unauthorized persons or vessels are prohibited from entering into, transiting through, or remaining in the safety zone without permission of the Captain of the Port or a designated representative.
This rule is effective from 11 a.m. through 9:50 p.m. on July 4, 2011.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2011-0396 and are available online by going to
If you have questions on this temporary rule, call Lieutenant Junior Grade Liezl Nicholas at (415) 399-7442, or e-mail
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the event would occur before the rulemaking process would be completed. Because of the dangers posed by the pyrotechnics used in these fireworks displays, the safety zones are necessary to provide for the safety of event participants, spectators, spectator craft, and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
American Legion Post 474 will sponsor the Independence Day Fireworks Celebration for the City of Half Moon Bay on July 4, 2011, on the navigable waters of Half Moon Bay, off of Pillar Point Harbor beach, Half Moon Bay, CA. The fireworks display is meant for entertainment purposes. This safety zone establishes a temporary restricted area on the waters surrounding the fireworks launch site during the fireworks display. This restricted area around the launch site is necessary to protect spectators, vessels, and other property from the hazards associated with the pyrotechnics over the water. The Coast Guard has granted the event sponsor a marine event permit for the fireworks display.
From 11 a.m. until 9:30 p.m. on July 4, 2011, the temporary safety zone will extend 100 feet while pyrotechnics are loaded and maintained at the Pillar Point Harbor beach at position 37°30′03.02″ N, 122°28′24.86″ W (NAD 83). The fireworks display will occur from 9:30 p.m. to 9:50 p.m., during which the safety zone will extend 600 feet from position 37°30′03.02″ N, 122°28′24.86″ W (NAD 83). At 9:50 p.m., the safety zone shall terminate.
The effect of the temporary safety zone will be to restrict navigation in the vicinity of the fireworks site while the fireworks are set up, and until the conclusion of the scheduled display. Except for persons or vessels authorized
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
Although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant. The entities most likely to be affected are pleasure craft engaged in recreational activities. In addition, the rule will only restrict access for a limited time. Finally, the Public Broadcast Notice to Mariners will notify the users of local waterway to ensure that the safety zone will result in minimum impact.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
Although this rule may affect owners and operators of pleasure craft engaged in recreational activities and sightseeing, it will not have a significant economic impact on a substantial number of small entities for several reasons: (i) This rule will encompass only a small portion of the waterway for a limited period of time; (ii) vessel traffic can pass safely around the area; (iii) vessels engaged in recreational activities and sightseeing have ample space outside of the affected areas of Half Moon Bay, CA to engage in these activities; and (iv) the maritime public will be advised in advance of this safety zone via Broadcast Notice to Mariners.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraphs (34)(g) and (35)(b), of the Instruction. This rule involves establishing, disestablishing, or changing Regulated Navigation Areas and security or safety zones. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) The safety zone is closed to all vessel traffic, except as may be permitted by the COTP or a designated representative.
(3) Vessel operators desiring to enter or operate within the safety zone must contact the COTP or a designated representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP or the designated representative. Persons and vessels may request permission to enter the safety zones on VHF-16 or through the 24-hour Command Center at telephone (415) 399-3547.
(d)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone in the navigable waters off the North Eastern shoreline of Mandeville Island, Mandeville Island, California in support of the Delta Independence Day Fireworks Foundation Celebration. This temporary safety zone is established to ensure the safety of participants and spectators from the dangers associated with the pyrotechnics. Unauthorized persons or vessels are prohibited from entering into, transiting through, or remaining in the safety zone without permission of the Captain of the Port or their designated representative.
This rule is effective from 10 a.m. on July 3, 2011 through 10 p.m. on July 4, 2011.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2011-0395 and are available online by going to
If you have questions on this temporary rule, call or e-mail Lieutenant Junior Grade Liezl Nicholas, U.S. Coast Guard Sector San Francisco; telephone 415-399-7443, e-mail
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a)
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Delta Independence Day Foundation will sponsor the Delta Independence Day Foundation Celebration on July 4, 2011, 300 feet off of Mandeville Island, California. This temporary safety zone establishes a temporary restricted area on the waters 100 feet surrounding the fireworks loading, transit and launches sites, and extends the safety zone to 1,000 feet of the launch site during the fireworks display. The fireworks display is meant for entertainment purposes. This safety zone is issued to establish a temporary restricted area on the waters surrounding the fireworks launch site during loading of the pyrotechnics, and during the fireworks display. This restricted area around the launch site is necessary to protect spectators, vessels, and other property from the hazards associated with the pyrotechnics on the fireworks barges. The Coast Guard has granted the event sponsor a marine event permit for the fireworks display.
From 10 a.m. until 3 p.m. on July 3, 2011, pyrotechnics will be loaded onto a barge at Dutra Corporation Yard, Rio Vista, CA. From 3 p.m. until 6 p.m. on July 3, 2011 the loaded barge will be transiting from the Dutra Corporation Yard to the launch site 300 feet off of Mandeville Island, CA at position 38°03′19.37″ N, 121°31′54.34″ W (NAD 83). The temporary safety zone will extend 100 feet from the nearest point of the barge during the loading, transit, and arrival of the pyrotechnics from the Dutra Corporation Yard to position 38°03′19.37″ N, 121°31′54.34″ W (NAD 83). The fireworks display will occur from 9:30 p.m. until 10 p.m. on July 4, 2011, during which the safety zone will extend 1,000 feet from the nearest point of the barge at position 38°03′19.37″ N, 121°31′54.34″ W (NAD 83). At 10 p.m. on July 4, 2011 the safety zone shall terminate.
The effect of the temporary safety zone will be to restrict navigation in the vicinity of the fireworks site while the fireworks are set up, and until the conclusion of the scheduled display. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the restricted area. These regulations are needed to keep spectators and vessels away from the immediate vicinity of the fireworks barge to ensure the safety of participants, spectators, and transiting vessels.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes and executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
Although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant because the temporary safety zone is only in effect for a limited time and local waterway users will be notified via public Broadcast Notice to Mariners to ensure the safety zone will result in minimum impact. The entities most likely to be affected are pleasure craft engaged in recreational activities.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule will affect the following entities, some of which may be small entities: Owners and operators of pleasure craft engaged in recreational activities and sightseeing. This rule will not have a significant economic impact on a substantial number of small entities for several reasons: (i) Vessel traffic can pass safely around the area, (ii) vessels engaged in recreational activities and sightseeing have ample space outside of the effected portion of the areas off Mandeville Island, California to engage in these activities, (iii) this rule will encompass only a small portion of the waterway for a limited period of time, and (iv) the maritime public will be advised in advance of this safety zone via Broadcast Notice to Mariners.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves establishing a temporary safety zone. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) The safety zone is closed to all vessel traffic, except as may be permitted by the COTP or a designated representative.
(3) Vessel operators desiring to enter or operate within the safety zone must contact the COTP or a designated representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP or their designated representative. Persons and vessels may request permission to enter the safety
(d)
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the Fourth of July Fireworks, City of Sausalito annual safety zone. This action is necessary to control vessel traffic and to ensure the safety of event participants and spectators. During the enforcement period, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone, unless authorized by the Patrol Commander (PATCOM).
The regulations in 33 CFR 165.1191 will be enforced from 11 a.m. through 9:30 p.m. on July 4, 2011.
If you have questions on this notice, call or e-mail Lieutenant Junior Grade Liezl Nicholas, Sector San Francisco Waterways Safety Division, U.S. Coast Guard; telephone 415-399-7443, e-mail
The Coast Guard will enforce the safety zone for the annual Fourth of July Fireworks, City of Sausalito, safety zone in 33 CFR 165.1191 on July 4, 2011 from 11 a.m. through 9:30 p.m. During the fireworks display, scheduled to start at approximately 9:15 p.m., the fireworks barge will be located approximately 1,000 feet off-shore from Sausalito waterfront, North of Spinnaker Restaurant in the Richardson Bay in position 37°51′30.72″ N, 122°28′27.92″ W (NAD83).
Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM. Additionally, each person who receives notice of a lawful order or direction issued by an official patrol vessel shall obey the order of direction. The PATCOM is empowered to forbid and control the regulated area. The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco. The PATCOM may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.
This notice is issued under authority of 33 CFR 165.1191 and 5 U.S.C. 552(a). In addition to this notice in the
If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the annual safety zone for the Fourth of July Fireworks, Lake Tahoe, California, located off Incline Village in Crystal Bay. This action is necessary to control vessel traffic and to ensure the safety of event participants and spectators. During the enforcement period, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone, unless authorized by the Patrol Commander (PATCOM).
The regulations in 33 CFR 165.1191 will be enforced from 9 p.m. to 9:30 p.m. on July 4, 2011.
If you have questions on this notice, call or e-mail Lieutenant Junior Grade Liezl Nicholas, U.S. Coast Guard, Waterways Safety Division; telephone 415-399-7443, e-mail
The Coast Guard will enforce the 1,000 foot safety zone for the annual Fourth of July Fireworks Display in 33 CFR 165.1191 on July 4, 2011. The fireworks launch site is approximately 800 feet off the shore line of Incline Village Nevada in Crystal Bay in position 39°14′16.50″ N, 119°53′59.43″ W (NAD83).
Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM. Additionally, each person who receives notice of a lawful order or direction issued by an official patrol vessel shall obey the order of direction. The PATCOM is empowered to forbid entry into and control the regulated area. The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco. The PATCOM may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.
This notice is issued under authority of 33 CFR 165.1191 and 5 U.S.C. 552(a). In addition to this notice in the
If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the specified waters of the Missouri River from the Montana and North Dakota border to the confluence with the Mississippi River, extending the entire width of the river. During enforcement periods, vessels must obtain Captain of the Port authorization to enter the safety zone. This temporary safety zone is needed to protect the general public, vessels and tows from destruction, and the levee system from destruction, loss or injury due to hazards associated with rising flood water. Operation in this zone is restricted unless specifically authorized by the Captain of the Port Sector Upper Mississippi River or a designated representative.
Effective Date: this rule is effective in the CFR from June 28, 2011 until 11:59 p.m. CDT August 30, 2011, unless terminated earlier. This rule is effective with actual notice for purposes of enforcement beginning 12:01 a.m. CDT June 2, 2011.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2011-0511 and are available online by going to
If you have questions on this temporary rule, call or e-mail Lieutenant Commander (LCDR) Scott Stoermer, Sector Upper Mississippi River, Coast Guard at (314) 269-2540 or
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it would be contrary to public interest to publish an NPRM as immediate action is necessary to protect the public and property from the dangers associated with flooding emergencies.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
On June 1, 2011, the Captain of the Port Upper Mississippi River deemed navigation on the Missouri River unsafe due to severe flooding and has restricted navigation on the Missouri River, from the border between Montana and North Dakota at 104.05 degrees west longitude to the confluence with the Mississippi River at 90.11 degrees West longitude and extending the entire width of the river. Entry into this zone is prohibited during enforcement periods unless specifically authorized by the Captain of the Port Sector Upper Mississippi River or a designated representative. Emergency response boats or vessels may enter these waters when responding to emergent situations on or near the river.
The Coast Guard is establishing a temporary safety zone for the Missouri River from the border between Montana and North Dakota at 104.05 degrees west longitude to the confluence with the Mississippi River at 90.11 degrees West longitude and extending the entire width of the river. During enforcement periods, vessels and tows may not enter this zone unless authorized by the Captain of the Port Sector Upper Mississippi River. Emergency response boats or vessels may enter these waters when responding to emergent situations on or near the river. This rule is effective from 12:01 a.m. CDT June 2, 2011 until 11:59 p.m. CDT August 30, 2011, unless terminated earlier. This safety zone will be enforced when high water conditions pose a danger to navigation, the levee system, and the general public. The Captain of the Port Sector Upper Mississippi River will inform the public through broadcast notices to mariners and/or marine safety information bulletins when enforcement periods are in place and of all safety zone changes. When enforcement is implemented, vessels currently in the safety zone will be provided opportunity to safely exit the restricted area.
This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).
Notifications to the marine community will be made through broadcast notices to mariners and/or marine safety information bulletins. Vessels requiring entry into or passage through the Safety Zone may request permission from the Captain of the Port Sector Upper Mississippi, or a designated representative and entry will be evaluated on a case-by-case basis to minimize impact and protect the general public, levee system, and vessels from destruction, loss or injury due to the hazards associated with rising flood water. The impacts on routine navigation are expected to be minimal.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit waters of the Missouri River from the border between Montana and North Dakota at 104.05 degrees west longitude to the confluence with the Mississippi River at 90.11 degrees West longitude extending the entire width of the river on and after 12:01 a.m. CDT June 2, 2011, unless terminated earlier. This temporary safety zone is not expected to have a significant economic impact on a substantial number of small entities because vessels may request permission to transit the area from the Captain of the Port Sector Upper Mississippi, or a designated representative, for passage through the safety zone. Passage through the safety zone will be evaluated on a case-by-case basis to minimize impact and protect the general public, levee system, and vessels from destruction, loss or injury due to the hazards associated with rising flood water. If you are a small business entity and are significantly affected by this regulation, please contact LCDR Scott Stoermer, Sector Upper Mississippi River, Coast Guard at (314) 269-2540.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small businesses. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that Order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation because this rule is not expected to result in any significant adverse environmental impact as described in the National Environmental Policy Act of 1969 (NEPA).
This rule involves establishing a temporary safety zone in an emergency situation and will be in effect for over one week. An environmental analysis checklist and a categorical exclusion determination will be provided and made available at the docket as indicated in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(d)
(2) Vessels requiring entry into or passage through the Safety Zone must request permission from the Captain of the Port Sector Upper Mississippi River, or a designated representative. They may be contacted on VHF Channel 13 or 16, or by telephone at 314-269-2332.
(3) All persons and vessels shall comply with the instructions of the Captain of the Port Sector Upper Mississippi River or their designated representative. Designated Captain of the Port representatives include United States Coast Guard commissioned, warrant, and petty officers of the U.S. Coast Guard.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the annual Independence Day Fireworks (Kings Beach 4th of July Fireworks) safety zone. This action is necessary to control vessel traffic and to ensure the safety of event participants and spectators. During the enforcement period, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone, unless authorized by the Patrol Commander (PATCOM).
The regulations in 33 CFR 165.1191 will be enforced from 7 a.m. through 10 p.m. on July 3, 2011.
If you have questions on this notice, call or e-mail Lieutenant Junior Grade Liezl Nicholas, U.S. Coast Guard, Waterways Safety Division; telephone 415-399-7443, e-mail
The Coast Guard will enforce the safety zone for the annual Kings Beach 4th of July Fireworks in 33 CFR 165.1191 on July 3, 2011, from 7 a.m. through 10 p.m. The fireworks launch site is approximately 800 feet off the shore line of Kings Beach in position 39°13′55.37″ N, 120°01′42.26″ W (NAD83). The safety zone encompasses the navigable waters within a 1,000 ft radius of the launch site.
Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM. Additionally, each person who receives notice of a lawful order or direction issued by an official patrol vessel shall obey the order of direction. The PATCOM is empowered to forbid entry into and control the regulated area. The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco. The PATCOM may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.
This notice is issued under authority of 33 CFR 165.1191 and 5 U.S.C. 552 (a). In addition to this notice in the
If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce safety zone for the annual July 4th Fireworks Display (Tahoe City 4th of July Fireworks Display). This action is necessary to control vessel traffic and to ensure the safety of event participants and spectators. During the enforcement period, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone, unless authorized by the Patrol Commander (PATCOM).
The regulations in 33 CFR 165.1191 will be enforced from 7 a.m. through 10 p.m. on July 4, 2011.
If you have questions on this notice, call or e-mail Lieutenant Junior Grade Liezl Nicholas U.S. Coast Guard; telephone 415-399-7443, e-mail
The Coast Guard will enforce the safety zone for the annual Tahoe City 4th of July Fireworks in 33 CFR 165.1191 on July 4, 2011, from 7 a.m. through 10 p.m. The fireworks launch site is approximately 900 feet offshore of Common Beach, Tahoe City in position 39°10′09.09″ N, 120°08′16.33″ W (NAD83) and the safety zone is approximately 1,000 ft radius surrounding the launch site.
Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM. Additionally, each person who receives notice of a lawful order or direction issued by an official patrol vessel shall obey the order of direction. The PATCOM is empowered to forbid and control the regulated area. The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco. The PATCOM may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.
This notice is issued under authority of 33 CFR 165.1191 and 5 U.S.C. 552 (a). In addition to this notice in the
If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, a Broadcast Notice to Mariners will be used to grant general permission to enter the regulated area.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the safety zone for the annual Fourth of July Fireworks, South Lake Tahoe Gaming Alliance (Lights on the Lake Fireworks Display). This action is necessary to control vessel traffic and to ensure the safety of event participants and spectators. During the enforcement period, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone, unless authorized by the Patrol Commander (PATCOM).
The regulations in 33 CFR 165.1191 will be enforced from 9 a.m. on July 1, 2011 through 10 p.m. on July 4, 2011.
If you have questions on this notice, call or e-mail Lieutenant Junior Grade Liezl Nicholas U.S. Coast Guard; telephone 415-399-7443, e-mail
The Coast Guard will enforce the safety zone for the annual Lights on the Lake Fireworks in 33 CFR 165.1191 on July 1, 2011, from 9 a.m. through 10 p.m. on July 4, 2011. The fireworks launch site is approximately 600 feet offshore of Stateline Beach, South Lake Tahoe, CA in position 38°57′56″ N, 119°57′21″ W (NAD83), and extends approximately 1,000 ft radius surrounding the launch site.
Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM. Additionally, each person who receives notice of a lawful order or direction issued by an official patrol vessel shall obey the order of direction. The PATCOM is empowered to forbid and control the regulated area. The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco. The PATCOM may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.
This notice is issued under authority of 33 CFR 165.1191 and 5 U.S.C. 552 (a). In addition to this notice in the
If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone in the navigable waters of San Francisco Bay, off of the Berkeley Pier, Berkeley, CA in support of the 4th of July Festival Berkeley Marina Fireworks Display. Unauthorized persons or vessels are prohibited from entering into, transiting through, or remaining in the safety zone without permission of the Captain of the Port or a designated representative.
This rule is effective from 12 p.m. through 9:55 p.m. on July 4, 2011.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2011-0370 and are available online by going to
If you have questions on this temporary rule, call Lieutenant Junior Grade Liezl Nicholas at (415) 399-7442, or
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a)
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The City of Berkeley Marina will sponsor the 4th of July Festival Berkeley Marina Fireworks Display on July 4, 2011, on the navigable waters of San Francisco Bay, off of the Berkeley Pier, Berkeley, CA. The fireworks display is meant for entertainment purposes. This safety zone establishes a temporary restricted area on the waters surrounding the fireworks launch site during the fireworks display. This restricted area around the launch site is necessary to protect spectators, vessels, and other property from the hazards associated with the pyrotechnics over the water. The Coast Guard has granted the event sponsor a marine event permit for the fireworks display.
From 12 p.m. until 9:30 p.m. on July 4, 2011, the temporary safety zone will extend 100 feet while pyrotechnics are loaded and maintained on the Berkeley Pier at position 37°51′40.34″ N, 122°19′19.59″ W (NAD 83). The fireworks display will occur from 9:30 p.m. until 9:55 p.m., during which the safety zone will extend 1,000 feet from the Berkeley Pier at position 37°51′40.34″ N, 122°19′19.59″ W (NAD 83). At 9:55 p.m., the safety zone shall terminate.
The effect of the temporary safety zones will be to restrict navigation in the vicinity of the fireworks sites while the fireworks are set up, and until the conclusion of the scheduled displays. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the restricted area. These regulations are needed to keep spectators and vessels a safe distance away from the launch site to ensure the safety of participants, spectators, and transiting vessels.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
Although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant. The entities most likely to be affected are pleasure craft engaged in recreational activities. In addition, the rule will only restrict access for a limited time. Finally, the Public Broadcast Notice to Mariners will notify the users of local waterway to ensure that the safety zone will result in minimum impact.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
Although this rule may affect owners and operators of pleasure craft engaged in recreational activities and sightseeing, it will not have a significant economic impact on a substantial number of small entities for several reasons: (i) This rule will encompass only a small portion of the waterway for a limited period of time; (ii) vessel traffic can pass safely around the area; (iii) vessels engaged in recreational activities and sightseeing have ample space outside of the affected areas of San Francisco Bay, CA to engage in these activities; and (iv) the maritime public will be advised in advance of this safety zone via Broadcast Notice to Mariners.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraphs (34)(g) and (35)(b), of the Instruction. This rule involves establishing, disestablishing, or changing Regulated Navigation Areas and security or safety zones. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) The safety zone is closed to all vessel traffic, except as may be permitted by the COTP or a designated representative.
(3) Vessel operators desiring to enter or operate within the safety zone must contact the COTP or a designated representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP or the designated representative. Persons and vessels may request permission to enter the safety zones on VHF-16 or through the 24-hour Command Center at telephone (415) 399-3547.
(d)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone in the navigable waters of the Carquinez Strait, off of Waterfront Park, Martinez, Califonia in support of the Independence Day Fireworks Celebration for the City of Martinez. This safety zone is established to ensure the safety of participants and spectators from the dangers associated with the pyrotechnics. Unauthorized persons or vessels are prohibited from entering into, transiting through, or remaining in the safety zone without permission of the Captain of the Port or a designated representative.
This rule is effective from 9 a.m. through 9:50 p.m. on July 4, 2011.
Documents indicated in this preamble as being available in the docket are part of docketUSCG-2011-0400 and are available online by going to
If you have questions on this temporary rule, call Lieutenant Junior Grade Liezl Nicholas at (415) 399-7443, or e-mail
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the event would occur before the rulemaking process would be completed. Because of the dangers posed by the pyrotechnics used in these fireworks displays, the safety zone is necessary to provide for the safety of event participants, spectators, spectator craft, and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The City of Martinez will sponsor the Independence Day Fireworks Celebration for the City of Martinez on July 4, 2011, on the navigable waters of the Carquinez Strait, off of Waterfront Park, Martinez, California. The fireworks display is meant for entertainment purposes. This safety zone establishes a temporary restricted area on the waters surrounding the fireworks launch site during the fireworks display. This safety zone around the launch site is necessary to protect spectators, vessels, and other property from the hazards associated with the pyrotechnics over the water. The Coast Guard has granted the event sponsor a marine event permit for the fireworks display.
From 9 a.m. until 9:30 p.m. on July 4, 2011, the temporary safety zone will extend 100 feet while pyrotechnics are loaded and maintained at Waterfront Park, Martinez, CA at position 38°01′31.77″N, 121°08′23.75″W (NAD 83). The fireworks display will occur from 9:30 p.m. to 9:50 p.m. during which the safety zone will extend 600 feet from position 38°01′31.77″N, 121°08′23.75″W (NAD 83). At 9:50 p.m., the safety zone shall terminate.
The effect of the temporary safety zone will be to restrict navigation in the vicinity of the fireworks site while the fireworks are set up, and until the conclusion of the scheduled display. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the restricted area. These regulations are needed to keep spectators and vessels a safe distance away from the launch site to ensure the safety of participants, spectators, and transiting vessels.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
Although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant. The entities most likely to be affected are pleasure craft engaged in recreational activities. In addition, the rule will only restrict access for a limited time. Finally, the Public Broadcast Notice to Mariners will notify the users of local waterway to ensure that the safety zone will result in minimum impact.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
Although this rule may affect owners and operators of pleasure craft engaged in recreational activities and sightseeing, it will not have a significant economic impact on a substantial number of small entities for several reasons: (i) This rule will encompass only a small portion of the waterway for a limited period of time; (ii) vessel traffic can pass safely around the area;
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 0023.1 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves establishing, disestablishing, or changing Regulated Navigation Areas and security or safety zones.An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) The safety zone is closed to all vessel traffic, except as may be permitted by the COTP or a designated representative.
(3) Vessel operators desiring to enter or operate within the safety zone must contact the COTP or a designated representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP or the designated representative. Persons and vesselsmay request permission to enter the safety zone on VHF-16 or through the 24-hour Command Center at telephone(415) 399-3547.
(d)
Postal Service
Final rule.
The Postal Service is revising
Jonathan Leon at 202-268-7443, or Kevin Gunther at 202-268-7208.
The Postal Service is providing a new option for mailers to combine Standard Mail flats and Periodicals flats, when bundled and placed on pallets. Mailers using this option may combine different-class mailpieces within the same bundle (comail), or combine separate same-class bundles (of different classes) on the same pallet (copalletize) to maximize presorting or to qualify for deeper destination entry discounts. All mailpieces prepared under this option are required to be bundled and placed on pallets. Combined mailings enhance operational efficiencies within postal processing by allowing mailers to place mailpieces in bundles on pallets that might have been placed in sacks if prepared separately.
In 2007, the Postal Service introduced a pilot program for mailers to combine Standard Mail flats and Periodicals flats. The program was restricted to a limited number of participants, and to date, most of the original participants continue to mail under pilot standards. The pilot program generally allowed for entry, transport and processing of the combined mailings similar to that currently provided for Periodicals flats.
On March 24, 2011, the Postal Service published a proposed rule
This final rule will not change current DMM content and eligibility standards applicable to Periodicals and Standard Mail. Mailers using this option will continue to be required to meet the minimum volume standards for Standard Mail of 200 pieces or 50 pounds. Periodicals publications must be authorized or have a pending authorization to mail at Periodicals prices. The current processes that identify and isolate Periodicals origin mixed area distribution center (OMX) mailpieces, for integration into the First-Class Mail® mailstream, will not be available when combining Standard Mail flats and Periodicals flats on pallets. All mailpieces included in a combined mailing of Standard Mail and Periodicals flats on pallets must be machinable in accordance with DMM 301.3.0.
Mailers wishing to combine Standard Mail and Periodicals flats under this option will be required to submit a request for authorization, in writing, to the Manager, Business Mailer Support.
Participating mailers will be required to present standardized electronic mailing documentation for each combined mailing, and at the time of mailing, the following additional documentation:
• An edition or version summary for all pieces in the mailing.
• A consolidated postage statement register and postage statement for each Periodicals publication in the combined mailing.
• A consolidated postage statement register and postage statement for each Standard Mail mailing in the combined mailing. Mailers may provide a single consolidated postage statement and postage statement register of all Standard Mail mailings if the individual mailings are itemized.
• A register of Forms 8125,
When using this option, postage on all Standard Mail pieces must be paid through a permit imprint using a special postage payment system at the Post Office
Postage for Periodicals may be paid through an advance deposit account or through a Centralized Account Payment System (CAPS) account. Participating mailers will be required to apportion the Periodicals bundle charge based on the number of Periodicals copies in the bundles and container charge based on the weight of the Periodicals portion of the container.
Mailers combining Standard Mail flats and Periodicals flats will not have the option to form area distribution center (ADC) pallets or to dropship to ADCs. As a result, Periodicals publications included in combined mailings will not have access to DADC prices. Other specific prices for Periodicals flats in a combined mailing will be assessed as follows:
• The bundle prices applicable to the ADC container level will be applied to
• The container prices applicable to the ADC pallet level will apply to the ASF/NDC pallet level.
• The bundle price applicable to the ADC bundle placed on the ADC container level will apply to mixed ADC bundles placed on mixed NDC pallets.
• The container price applicable to the ADC pallet level will also apply to the mixed NDC pallet level.
Standard Mail flats and Periodicals flats combined on pallets will be processed as Standard Mail; and the Periodicals mailpieces included within these combined mailings may receive deferred handling. Periodicals mailpieces included within mailings of combined Standard Mail flats and Periodicals flats will be subject to the USPS® service standards applicable to Standard Mail. These mailings must also be identified as Standard Mail when scheduling dropship appointments in the Facility Access and Shipment Tracking (FAST®) system.
Mailers combining Standard Mail flats and Periodicals flats on pallets must populate field 10, “Product or Publication Title or Names,” of PS Form 8125 and/or field 11b, “Product Name/ID,” of PS Form 8125C with “MIX COMAIL” when preparing dropship documentation for these mailings.
Each Standard Mail and Periodicals mailpiece prepared under a combined mailing of Standard Mail flats and Periodicals flats will be required to be identified as containing mixed classes through the use of an optional endorsement line (OEL) in accordance with the proposed standards.
On March 14, 2011, the Postal Service published a proposed rule,
The Postal Service received eight comments in response to the proposed rule, some addressing multiple issues. Although one comment was received well after the published deadline, the Postal Service will also address that comment as well. These comments are summarized as follows:
Five commenters referenced the provision in the proposed rule that required all pieces included in a combined mailing of Standard Mail and Periodicals to meet the standards for the full-service Intelligent Mail® barcode (IMb
One commenter also raised questions regarding the format of the electronic documentation required by the USPS under this program. In April of 2011, the Postal Service added new DMM standards requiring mailers of copalletized and combined mailings to transmit postage statements and mailing documentation to the USPS by an approved electronic method (eDoc). Mail.dat® will be available for use with combined mailings of Standard Mail and Periodicals flats in January 2012. Mail.XML® may be available for use with mixed class combined mailings in the future.
Four commenters were opposed to the provision that would require mailers to transport all but mixed ADC pallets to the appropriate NDC or sectional center facility (SCF) and would require mixed ADC pallets to be entered only at the mailer's origin NDC. These commenters were specifically concerned that pallets destinating to offshore SCFs were required to be entered at the NDC responsible for distribution for that offshore area, and that these pallets would not be eligible for DNDC pricing. Mailers were similarly concerned that mixed ADC pallets entered at the origin NDC would have to be transported at the mailer's expense. In response to these concerns, the Postal Service is revising the program standards to allow optional origin-entry of all pallet levels.
Two commenters were opposed to the elimination of the option to enter combined mailings of Standard Mail and Periodicals flats at ADCs. These commenters argue that loss of the ADC entry option could result in a longer processing and delivery window than that experienced under the pilot program, and that loss of the DADC entry price could dissuade Periodicals mailers from entering into combined mixed class pools. It has always been a basic premise for the combining of mailings of Standard Mail and Periodicals flats that the Periodicals pieces including in these combined mailings are to be processed as Standard Mail. As a result, the Postal Service developed standards for mailpieces entered under this option that mirror those for the entry, transport and processing of Standard Mail flats. There is no option for mailers of Standard Mail flats to make ADC pallets, enter pallets at an ADC, or to claim DADC pricing. To maintain this consistency the Postal Service intends to retain the standards regarding ADC entry and DADC pricing as provided in the proposed rule. Additionally, postal systems lack the capability to track service standards for Standard Mail pieces if those pieces were entered at an ADC.
Three commenters requested a change in the standards to allow all bundles in a combined mailing of Standard Mail flats and Periodicals flats to be made using a minimum of six (6) pieces, as is currently permitted for Periodicals, instead of ten (10) pieces. The Postal Service will not incorporate this change into the standards in this final rule, as bundles with fewer than ten (10) pieces would have a negative impact on the Postal Service's costs for Standard Mail flats.
Two commenters were opposed to the requirement for mailers preparing combined mailings of Standard Mail flats and Periodicals flats to retain written notifications, signed and dated by each participating Periodicals publisher, disclosing the potential for pieces to receive deferred USPS handling. Standards provided in the proposed rule require that these signed notifications be retained by the mailer and be available for review by the USPS upon request. To document that each participant of each mailing is fully aware of the potential change to the service standards resulting from the addition of their mailpieces to a combined mixed class pool, the Postal Service intends to retain the standards described in the proposed rule.
Three commenters requested that, to allow mailers to test their software and systems, the Postal Service provide a lead time of several months between the publication date of the final standards and the program implementation date. One commenter asked that the Postal Service allow the current participants of
The Postal Service adopts the following changes to the
The Postal Service also amends 39 CFR Part 121.2 by adding a new item “c” to describe the USPS processing of Periodicals mailpieces included in combined mailings of Standard Mail flats and Periodicals flats, and specifying that Periodicals mailpieces included in these mailings will be assigned the service standards applicable to Standard Mail pieces.
Administrative practice and procedure, Postal Service.
Accordingly, 39 CFR parts 111 and 121 are amended as follows:
5 U.S.C. 552(a); 13 U.S.C 301-307; 18 U.S.C. 1692-1737; 39 U.S.C. 101, 401, 403, 404, 414, 416, 3001-3011, 3201-3219, 3403-3406, 3621, 3622, 3626, 3632, 3633 and 5001.
* * * Except as described in 15.1g, bundles must not be placed on mixed ADC or mixed NDC pallets. * * *
Authorized mailers may combine Standard Mail flats and Periodicals flats in a single mailing as follows:
a. Each mailpiece must meet the standards in 340 for Standard Mail and 707 for Periodicals. Periodicals publications must be authorized or pending original or additional entry at the office of mailing.
b. Mailers must prepare pieces in bundles on pallets.
c. All mailpieces must be machinable in accordance with 301.3.0.
d. Mailers must pay all annual mailing fees at the office of mailing.
e. Each mailing must include at least 200 pieces or 50 pounds of Standard Mail.
f. All mailpieces combined within bundles, in accordance with 14.0, must be similar in size so as to create stable bundles. Bundles placed on pallets under this provision must be prepared to create stable pallets.
g. When residual pieces are included in a combined mailing of Standard Mail flats and Periodicals flats on pallets, these pieces must be bundled and placed directly on mixed NDC pallets.
The Postal Service handles combined mailings of Standard Mail flats and Periodicals flats as Standard Mail. Periodicals flats included within mailings of combined Standard Mail flats and Periodicals flats are subject to the USPS service standards applicable to Standard Mail.
Postage for all Standard Mail pieces must be paid with permit imprint using a special postage payment system in 2.0 through 4.0 at the Post Office location serving the mailer's plant. Postage for Periodicals may be paid through an advance deposit account or through a Centralized Account Payment System (CAPS) account.
Mailers must present standardized electronic documentation according to 708.1.0. This documentation must accurately reflect the final piece count in the combined mailing. In addition, mailers must provide:
a. An edition or version summary for all pieces in the mailing. The summary may be part of the USPS qualification report and must include version ID, product or edition code, class of mail, piece weight of each version, and number of pieces by version; and for Periodicals, USPS or permit number (or pending permit number), issue date, and advertising percentage.
b. A consolidated postage statement register and postage statement for each Periodicals publication in the combined mailing.
c. A consolidated postage statement register and postage statement for each Standard Mail mailing in the combined mailing. Mailers may provide a single consolidated postage statement and a consolidated postage statement register of all Standard Mail mailings if they are itemized.
d. When pallets are dropshipped, a register of Forms 8125 (or PS 8125C) that consolidates all of the mailings into the destinations where the mail is dropshipped.
e. Documentation to support zones and bundle totals, if requested.
f. When requested, a copy of a notification document signed and dated by the Periodicals publisher, acknowledging their participation in a combined mailing of Standard Mail and Periodicals and the potential for their mailpieces to receive deferred USPS handling.
g. Any additional documentation to support postage payment system records, if requested.
A mailer must submit a written request to the Manager, Business Mailer Support (see 608.8.1 for address) to combine mailings of Standard Mail flats and Periodicals flats. The request must show the mailer's name and address, the mailing office, evidence of authorization to mail using a special postage payment system under 2.0 through 4.0, procedures for combining the mailing, the expected date of first mailing, quality control procedures, and a sample of all supporting mailing documentation, including postage statements and the USPS Qualification Report. Business Mailer Support will review the documentation and provide written authorization. A mailer may terminate an authorization at any time
Apply prices based on the standards in 340 for Standard Mail. Prices are based on the standards in 707 for Periodicals and as modified under the standards for this program.
Apply piece prices based on the bundle level. Pieces contained within mixed class bundles may claim prices based on the presort level of the bundle.
Apply bundle charges as follows:
a. Calculate the percentage of Periodicals copies in a bundle.
b. Convert the percentage to four decimal places, rounding off if necessary (for example, convert 20.221% to 0.2022, or 20.226% to 0.2023). Multiply by the applicable bundle charge.
c. Allocate the resulting charge across the Periodicals titles and editions based on the number of copies of each in the bundle.
Apply container charges to pallets as follows:
a. Calculate the percentage of the weight of Periodicals copies on each pallet.
b. Convert the percentage to four decimal places, rounding off if necessary (for example, convert 20.221% to 0.2022, or 20.226% to 0.2023). Multiply by the applicable container charge.
c. Allocate the resulting charge across the Periodicals titles and editions based on the number of copies of each on the pallet.
Other prices for Periodicals flats in a combined mailing of Standard Mail and Periodicals flats on pallets will be assessed as follows:
a. The bundle prices applicable to the ADC container level will be applied to the ASF/NDC container levels.
b. The container prices applicable to the ADC pallet level will apply to the ASF/NDC pallet levels.
Mailers may reallocate bundles under 8.11 or 8.13 to protect the SCF or NDC pallet.
Standard Mail flats and Periodicals flats may be combined in carrier route, 5-digit (scheme), 3-digit, ADC, and Mixed ADC bundles when prepared according to 707.19.0 and these additional standards:
a. Each bundle containing combined Standard Mail flats and Periodicals flats must contain a minimum of 10 pieces. Bundles of only Standard Mail flats must contain a minimum of 10 pieces. Bundles of only Periodicals flats must contain a minimum of 6 pieces.
b. Firm bundles must contain only Periodicals flats.
Each Standard Mail and Periodicals mailpiece prepared under a combined mailing of Standard Mail flats and Periodicals flats must be identified as being part of a mixed class mailing through the use of an optional endorsement line (OEL) in accordance with the standards in 708.7.1.8.
Mailers must prepare pallets according to the standards in 8.0 and in the sequence listed below. Merged 5-digit scheme through NDC pallets must contain at least 250 pounds of combined Standard Mail and Periodicals mailpieces, except as allowed under 8.5.3. Pallets must be labeled according to the Line 1 and Line 2 information listed below and under 8.6. Pallet placards must be white and measure at least 8 inches by 11 inches, unless prepared under 708.6.6.6. Prepare pallets according to the preparation, sequence and labeling instructions in 15.4.1.
Mailers must prepare bundles according to the standards for the class of mail and the prices claimed.
Each Standard Mail and Periodicals mailpiece prepared under a combined mailing of Standard Mail flats and Periodicals flats must be identified as being part of a mixed class mailing through the use of an optional endorsement line (OEL) in accordance with standards in 708.7.1.8.
Mailers must prepare pallets according to the standards in 8.0 and in the sequence listed below. Merged 5-digit scheme through NDC pallets must contain at least 250 pounds of combined Standard Mail and Periodicals, except as allowed under 8.5.3. When reallocating bundles under 8.11 or 8.12, mailers do not have to achieve the finest pallet presort level possible. Pallets must be labeled according to the Line 1 and Line 2 information listed below and under 8.6. Pallet placards must be white and measure at least 8 inches by 11 inches, unless prepared under 708.6.6.6. Prepare pallets according to the preparation, sequence and labeling instructions in 15.4.1.
When combining Standard Mail and Periodicals flats within the same bundle or combining bundles of Standard Mail flats and bundles of Periodicals flats on pallets, bundles must be placed on pallets. Preparation, sequence and labeling:
a.
1. Line 1: L001.
2. Line 2: “STD/PER FLTS CR/5D;” followed by “SCHEME” (or “SCH”); followed by “MIX COMAIL.”
b.
1. Line 1: L001.
2. Line 2: “STD/PER FLTS”; followed by “CARRIER ROUTES” (or “CR-RTS”); followed by “SCHEME” (or “SCH”); followed by “MIX COMAIL.”
c.
1. Line 1: city, state, and 5-digit ZIP Code destination (see 8.6.4c for overseas military mail).
2. Line 2: “STD/PER FLTS”; followed by “CR/5D”; followed by “MIX COMAIL.”
d.
1. Line 1: city, state, and 5-digit ZIP Code destination (see 8.6.4c for overseas military mail).
2. Line 2: “STD/PER FLTS”; followed by “CR/5D”; followed by “MIX COMAIL.”
e.
1. Line 1: city, state, and 5-digit ZIP Code destination (see 8.6.4c for overseas military mail).
2. Line 2: “STD/PER FLTS 5D”; followed by “BARCODED” (or “BC”); followed by “MIX COMAIL.”
f.
1. Line 1: L002, Column A.
2. Line 2: “STD/PER FLTS 3D”; followed by “BARCODED” (or “BC”); followed by “MIX COMAIL.”
g.
1. Line 1: L002, Column C.
2. Line 2: “STD/PER FLTS SCF”; followed by “BARCODED” (or “BC”); followed by “MIX COMAIL.”
h.
1. Line 1: L602.
2. Line 2: “STD/PER FLTS NDC”; followed by “BARCODED” (or “BC”); followed by “MIX COMAIL.”
i.
1. Line 1: L601.
2. Line 2: “STD/PER FLTS NDC”; followed by “BARCODED” (or “BC”); followed by “MIX COMAIL.”
j.
1. Line 1: “MXD” followed by the information in L601, for the NDC serving the 3-digit ZIP Code prefix of the entry Post Office.
2. Line 2: “STD/PER FLTS;” followed by “BARCODED” (or “BC”); followed by “WKG;” followed by “MIX COMAIL.”
For combined or copalletized mailings of Periodicals and Standard Mail, documentation must show this additional information:
Additional required human-readable text for use with combined mailings of Standard Mail and Periodicals flats:
Mailers authorized to combine Standard Mail flats and Periodicals flats, under 705.15, must apply an OEL identifying the presort level of the bundle and other applicable information as specified in 7.1 to each mailpiece. The following additional standards also apply:
a. Each OEL must contain the format elements described in 7.2 and must include a “MIX COMAIL” human-readable text, as its most right-justified element.
b. Mailpieces may include LOT information, in accordance with 7.1.7, only when there is sufficient space for the human-readable text in item a and all other required information.
We will publish an appropriate amendment to 39 CFR Part 111 to reflect these changes.
5 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 1001, 3691.
(c)
Postal Service.
Final rule.
The Postal Service is revising portions of the rules of practice before the Postal Service Board of Contract Appeals to clarify existing procedures, and to modify certain citations to reflect a change in statutory codification.
Administrative Judge Gary E. Shapiro, (703) 812-1910.
The rules of practice in proceedings before the Postal Service Board of Contract Appeals are contained in 39 CFR part 955, which was substantially revised on May 5, 2009 (74 FR 20592). Subsequently, it became apparent that certain aspects of the rules required further clarification to conform to existing practice. In addition, citations to the Contract Disputes Act required revision to conform to the new codification of title 41, United States Code, under Public Law 111-350, 124 Stat. 3677 (Jan. 4, 2011).
Changes to § 955.1 conform the rules to the new codification of the Contract Disputes Act.
Formerly, § 955.6 provided that either party may apply for a hearing on a motion addressed to the jurisdiction of the Board. The revised rule clarifies existing practice that the Board determines whether to conduct oral argument related to such a motion and that it may do so on its own initiative. The term “oral argument” is substituted for “hearing” as a more accurate descriptor of current practice.
Section 955.7 is revised to reflect that the Board, on its own initiative and in the absence of a request by the appellant, may designate a document to constitute the appellant's complaint, and may do so prior to the time required for the appellant to file its complaint. The revised rule is intended to clarify that the complaint designation determination is to be made by the Board although it may be requested by the appellant.
Section 955.9 is revised to reflect that while the parties may request a hearing, the Board determines whether a hearing will be conducted. Accordingly, references to the “election” of a party or parties are changed to the “request” of a party or parties. Corresponding changes are made to §§ 955.10 and 955.18.
Administrative practice and procedure, Contract Disputes Act of 1978, Postal Service.
For the reasons set forth in the preamble, the Postal Service hereby amends 39 CFR part 955 as set forth below:
39 U.S.C. 204, 401; 41 U.S.C. 7101-7109.
(a) Any motion addressed to the jurisdiction of the Board shall be promptly filed. Oral argument on the motion may be afforded on application of either party, in the Board's discretion, or on the Board's initiative. The Board may at any time and on its own initiative raise the issue of its jurisdiction to proceed with a particular case.
(a)
As directed by Board order, each party shall inform the Board, in writing, whether it requests a hearing as prescribed in §§ 955.18 through 955.25, or in the alternative submission of its case on the record without a hearing as prescribed in § 955.12. If a hearing is requested, the request should state where and when the requesting party desires the hearing to be conducted and should explain the reasons for its choices. After considering the parties' requests, the Board will determine whether a hearing will be held.
Based on an examination of the documentation described in § 955.5, the pleadings, and a determination of whether the arguments and authorities addressed to the issues are adequately set forth therein, the Board may, in its discretion, require the parties to submit prehearing briefs in any case in which a hearing has been ordered pursuant to § 955.9. * * *
If there is to be a hearing, it will be held at a time and place prescribed by the Board after consultation with the parties. * * *
Federal Communications Commission.
Final rule.
In this document, the Commission amends its rules to clarify that winning bidders in auctions of commercial broadcast spectrum are
Effective June 28, 2011.
Roland Helvajian, Federal Communications Commission, Office of the Managing Director, Revenue and Receivables Operations Group, 445 12th Street, SW., Washington, DC 20445.
Roland Helvajian, Office of the Managing Director, Revenue and Receivables Operations Group, (202) 418-0444 or
This is a summary of the Commission's Second Order, FCC 11-98, adopted June 17, 2011, and released June 20, 2011.
1. In the
2. The Commission received no comments or reply comments regarding the proposed rule change. Therefore, the Commission adopts the change to 47 CFR 1.2107(c) as set forth herein.
3. The rule adopted in this
4.
5.
Administrative practice and procedure.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 1 to read as follows:
15 U.S.C. 79
(c) A high bidder that meets its down payment obligations in a timely manner must, within ten (10) business days after being notified that it is a high bidder, submit an additional application (the “long-form application”) pursuant to the rules governing the service in which the applicant is the high bidder. Except as otherwise provided in § 1.1104, high bidders need not submit an additional application filing fee with their long-form applications. Specific procedures for filing applications will be set out by Public Notice. Ownership disclosure requirements are set forth in § 1.2112. Beginning January 1, 1999, all long-form applications must be filed electronically. An applicant that fails to submit the required long-form application under this paragraph and fails to establish good cause for any late-filed submission, shall be deemed to have defaulted and will be subject to the payments set forth in § 1.2104.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice.
This notice advises the public that PHMSA is currently reviewing numerous administrative appeals (
Charles E. Betts, Director, Standards and Rulemaking Division, Office of Hazardous Materials Safety, (202) 366-4512, PHMSA, 1200 New Jersey Avenue, SE., Washington, DC 20590.
The Pipeline and Hazardous Materials Safety Administration's (PHMSA) Office of Hazardous Materials Standards recently received a number of petitions for reconsideration of several recent PMHSA final rules, which are known as “administrative appeals” under PHMSA's applicable regulations, 49 CFR 106.110
49 CFR 106.130(a)(4) provides that if PHMSA does not issue a decision on whether to grant or deny an administrative appeal within 90 days after the date that the final rule is published in the
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the Tumbling Creek cavesnail
This rule becomes effective on July 28, 2011.
This final rule, the associated final economic analysis, comments and materials received, as well as supporting documentation used in preparing this final rule are available on the Internet at
Charles M. Scott, Field Supervisor, Columbia Fish and Wildlife Office, (see
It is our intent to discuss only those topics directly relevant to the development and designation of critical habitat for the Tumbling Creek cavesnail in this final rule. For more information on the biology and ecology of the Tumbling Creek cavesnail, refer to the final listing rule published in the
The Tumbling Creek cavesnail is a critically imperiled aquatic snail, endemic to a single cave stream and associated springs in Taney County, southwestern Missouri. The species is known only from Tumbling Creek and a few of its small tributaries and associated underground springs within Tumbling Creek Cave, and areas immediately downstream of the cave between the cave's natural exit and the confluence of Tumbling Creek with Big Creek at Schoolhouse Spring. Suitable habitat includes the underside of rocks, small stones, and cobble, and occasionally the upper surface of solid rock bottom within sections of Tumbling Creek that have moderate current (U.S. Fish and Wildlife Service 2003, p. 10). The Tumbling Creek cavesnail is dependent on good water quality and reduced sediment loads in Tumbling Creek (Aley and Ashley 2003, p. 20).
The primary threats are related to the degradation of water quality in Tumbling Creek and include increased siltation from overgrazing, tree removal, and other activities. Nonpoint source pollution within the recharge area of Tumbling Creek cave is also a threat to the species (Aley and Ashley 2003, p. 19; U.S. Fish and Wildlife Service 2003, pp. 14-18). The deposition of silt into Tumbling Creek from aboveground activities within the recharge area of Tumbling Creek Cave has likely contributed to the decline of the species by eliminating the species' habitat, covering egg masses, or adversely impacting the snail in other ways (Tom and Cathy Aley, 2001, pers. comm.; U.S. Fish and Wildlife Service 2001, p. 66806; Aley and Ashley 2003, p. 19; U.S. Fish and Wildlife Service 2003, pp. 14-18).
The Tumbling Creek cavesnail was emergency listed on December 27, 2001 (66 FR 66803) and subsequently listed as endangered on August 14, 2002 (67 FR 52879). At the time of listing, we determined that a delay in designating critical habitat would enable us to concentrate our limited resources on other actions that must be addressed and allow us to invoke immediate protections needed for the conservation of the species. We concluded that, if prudent and determinable, we would prepare a critical habitat proposal in the future at such time as our available resources and other listing priorities under the Act would allow. We approved a final recovery plan for the Tumbling Creek cavesnail on September 15, 2003, and announced its availability to the public through a notice published in the
On August 11, 2008, the Institute for Wildlife Protection and Crystal Grace Rutherford filed a lawsuit against the Secretary of the Interior for our failure to timely designate critical habitat for the Tumbling Creek cavesnail (
We requested written comments from the public on the proposed designation of critical habitat for the Tumbling Creek cavesnail during two comment periods. The first comment period associated with the publication of the proposed rule (75 FR 35751) opened on June 23, 2010, and closed on August 23, 2010. We also requested comments on the proposed critical habitat designation and associated draft economic analysis during a comment period that opened January 12, 2011, and closed on February 11, 2011 (76 FR 2076). We contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule and the associated DEA during these comment periods.
During the first comment period, we received four comment letters directly addressing the proposed critical habitat designation. During the second comment period, we received one comment letter addressing the proposed critical habitat designation and the DEA. We did not receive any requests for a public hearing, so no public hearing was held. All substantive information provided during comment periods has either been incorporated directly into this final determination or addressed below. Comments received, including comments from peer reviewers (see below) were grouped into three general issues specifically relating to the proposed critical habitat designation for the Tumbling Creek cavesnail and are addressed in the following summary and incorporated into the final rule as appropriate.
In accordance with our peer review policy published in the
We reviewed all comments received from the peer reviewers for substantive issues and new information regarding critical habitat for the Tumbling Creek cavesnail. All peer reviewers strongly supported the proposed rule and believed that our analysis was based on solid science. Peer reviewers provided additional information and editorial suggestions to improve the final critical habitat rule. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.
We thoroughly evaluated all comments received on the proposed designation of critical habitat. As a result of the comments we received on the proposed rule, as well as errors we found, we have made the following changes to our proposed designation.
• Changed a typographical error related to a misstatement regarding the correct dissolved oxygen levels identified as one of the physical and biological features essential to the conservation of the Tumbling Creek cavesnail.
• Relabeled the map to depict the difference between Tumbling Creek and Bear Cave Hollow that was incorrectly labeled on the U.S. Geological Survey Protem 7.5 minute topographic map.
• Changed the relevant portions of the text in this rule to note that the area designated as critical habitat is from the emergence of Tumbling Creek within Tumbling Creek cave to its confluence with Bear Cave Hollow upstream of Big Creek. These changes, however, do not affect the area outlined in the critical habitat designation, or its total acreage.
• In preparing the final rule, the Service noted a typographical error related to the area of the above-ground recharge listed for Tumbling Creek cave.
In preparing the final rule and relabeling the map outlining critical habitat for the Tumbling Creek cavesnail, the Service noticed that the designation does not include Schoolhouse Spring as stated in the proposed rule. The only spring within the designation is Owens Spring. The landowner confirmed that the area depicted in our map only includes Owens Spring and not Schoolhouse Spring. The removal of references to Schoolhouse Spring in the description of the area designated as critical habitat does not change the map or the total acreage included in the designation.
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided under the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management, such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7(a)(2) of the Act through the prohibition against Federal agencies carrying out, funding, or authorizing the destruction or adverse modification of critical habitat. Section 7(a)(2) requires consultation on Federal actions that may affect critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner seeks or requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
For inclusion in a critical habitat designation, the habitat within the geographical area occupied by the species at the time it was listed must contain the physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection. Critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical and biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat), focusing on the principal biological or physical constituent elements (primary constituent elements) within an area that are essential to the conservation of the species (such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type). Primary constituent elements are the elements of physical and biological features that, when laid out in the appropriate quantity and spatial arrangement to provide for a species' life-history processes, are essential to the conservation of the species.
Under the Act, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species. When the best available scientific data do not demonstrate that the conservation needs of the species require such additional areas, we will not designate critical habitat in areas outside the geographical area occupied by the species. An area currently occupied by the species but that was not occupied at the time of listing may, however, be essential to the conservation of the species and may be included in the critical habitat designation.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards under the Endangered Species Act (published in the
When we are determining which areas we should designate as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge.
Habitat is dynamic, and species may move from one area to another over time. In particular, we recognize that climate change may cause changes in the arrangement of occupied habitat stream reaches. Climate change may lead to increased frequency and duration of droughts (Rind
The information currently available on the effects of global climate change and increasing temperatures does not make sufficiently precise estimates of the location and magnitude of the effects. Nor are we currently aware of any climate change information specific to the habitat of the Tumbling Creek cavesnail that would indicate what areas may become important to the species in the future. Nonetheless, because the Tumbling Creek cavesnail is an aquatic snail that is totally dependent upon an adequate water supply, adverse effects associated with climate change that could significantly alter the quantity and quality of Tumbling Creek could impact the species in the future. Other than Tumbling Creek, we are currently unaware of any other cave stream inhabited by the Tumbling Creek cavesnail. Therefore, as explained in the proposed rule (75 FR 35751), we are unable to determine which additional areas, if any, may be appropriate to include in the final critical habitat for this species to address the effects of climate change.
We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species, especially if future surveys are successful in documenting the species' presence in another cave stream. For these reasons, a critical habitat designation does not signal that habitat outside the designated critical habitat area is unimportant or may not be required for recovery of the species.
Areas that are important to the conservation of the species, but are outside the critical habitat designation, will continue to be subject to conservation actions we implement under section 7(a)(1) of the Act. They are also subject to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined based on the best available scientific information at the time of the agency action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), section 7 consultations, or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.
In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act and the regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied at the time of listing to designate as critical habitat, we consider the physical and biological features that are essential to the conservation of the species, which may require special management considerations or protection. These include, but are not limited to:
(1) Space for individual and population growth and for normal behavior;
(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and
(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.
We derive the specific essential physical and biological features for the Tumbling Creek cavesnail from studies on this species' habitat, ecology, and life history as described in the Critical Habitat section of the proposed rule to designate critical habitat published in the
The specific space requirements for the Tumbling Creek cavesnail are unknown, but given that 15,118 snails were estimated in a 1,016-square-meter (3,333-square-foot) area of Tumbling Creek in 1973 (Greenlee 1974, p. 10), space is not likely a limiting factor for the species. The loss of interstitial habitats for the species, however, likely contributed to the species decline (U.S. Fish and Wildlife Service 2003, p. 14).
It is believed that the species feeds on biofilm, the organic coating and bacterial layer associated with the underside of rocks or a bare rock stream bottom (Aley and Ashley 2003, p. 19). This biofilm is directly connected to energy input from the guano of a large colony of roosting bats in Tumbling Creek Cave, particularly the Federally listed gray bat (
The Tumbling Creek cavesnail has been found on both the upper and lower surfaces of rocks and gravel (Greenlee 1974, p. 10; Aley and Ashley 2003, p. 18; U.S. Fish and Wildlife Service 2003, p. 12). Flow rates in Tumbling Creek can reach 150 cubic feet per second (cfs) during flash flood events (Aley 2010, pers. comm.), and such events may dislodge cavesnails from the upper surface of substrates. Consequently, it is likely that the underside of larger rocks provides some cover for cavesnails. Rocks and gravel are used by cavesnails for attachment (Greenlee 1974, p. 10; U.S. Fish and Wildlife Service, p. 12). Additionally, it is likely that a stable stream bottom and cave stream banks and riffle, run, and pool habitats are important components of the species' habitat.
In summary, the Tumbling Creek cavesnail depends on stable stream bottoms and banks (stable horizontal dimension and vertical profile) that maintain bottom features (riffles, runs, and pools) and transition zones between bottom features. Furthermore, the species requires bottom substrates consisting of fine gravel with coarse gravel or cobble, or bedrock with sand
Like other members of the snail family Hydrobiidae, the Tumbling Creek cavesnail has separate male and female individuals (Aley and Ashley 2003, p. 19), but there is no information on the mating behavior of the species or what role the unknown sex ratio of the species may have on successful reproduction. Eggs are likely deposited in gelatinous egg masses, but to date, the occurrence of such egg masses has yet to be documented (Aley and Ashley 2003, p. 19). Although little is known about the reproductive behavior and development of offspring of the Tumbling Creek cavesnail, it is likely that rock and gravel substrates that are free from silt are important elements necessary for successful propagation, especially for attachment of gelatinous egg masses. Aley and Ashley (2003, p. 19) postulated that silt deposited in Tumbling Creek could smother egg masses, and Ashley (2000, p. 8) suggested that silt could suffocate early developmental stages of the cavesnail. The lifespan of the Tumbling Creek cavesnail is unknown, but, if similar to other surface-dwelling hydrobid snails that have been studied, it is probably between 1 and 5 years (Aley and Ashley 2003, p. 19).
The cavesnail is dependent on good water quality (Aley and Ashley 2003, pp. 19-20; U.S. Fish and Wildlife Service 2003, pp. 13-22). Aley (2001, pers. comm.; U.S. Fish and Wildlife Service 2003, p. 22) noted that oxygen depletion could occur in Tumbling Creek during low flows; therefore, permanent flow of the stream is apparently important to the survival of the cavesnail. Aley (2010, pers. comm.) calculated that an average daily discharge of 0.07-150 cubic feet per second (cfs) was necessary to maintain good water quality for the cavesnail. Aley (2010, pers. comm.) also postulated that, to ensure good water quality for the Tumbling Creek cavesnail, water temperature of the cave stream should be 55-62 °F (12.78-16.67 °C), dissolved oxygen levels should equal or exceed 4.5 milligrams per liter, and turbidity of an average monthly reading should not exceed 200 Neophelometric Units (NTU; units used to measure sediment discharge) and should not persist for a period greater than 4 hours.
In summary, the Tumbling Creek cavesnail depends on an instream flow regime with an average daily discharge between 0.07 and 150 cubic feet per second (cfs), inclusive of both surface runoff and groundwater sources (springs and seepages), and water quality with temperature 55-62 °F (12.78-16.67 °C), dissolved oxygen 4.5 milligrams or greater per liter, and turbidity of an average monthly reading of no more than 200 NTUs for a duration not to exceed 4 hours.
Under the Act and its implementing regulations, we are required to identify the physical and biological features essential to the conservation of the Tumbling Creek cavesnail in areas occupied at the time of listing and focus on the features' primary constituent elements. We consider primary constituent elements to be the elements of physical and biological features, that, when laid out in the appropriate quantity and spatial arrangement to provide for a species' life-history processes, are essential to the conservation of the species.
Based on our current knowledge of the physical or biological features and habitat characteristics to sustain the species' life-history processes, we determine that the primary constituent elements specific to the Tumbling Creek cavesnail are:
(1) Geomorphically stable stream bottoms and banks (stable horizontal dimension and vertical profile) in order to maintain bottom features (riffles, runs, and pools) and transition zones between bottom features; to continue appropriate habitat to maintain essential riffles, runs, and pools; and to promote connectivity between Tumbling Creek and its tributaries and associated springs to maintain gene flow throughout the population.
(2) Instream flow regime with an average daily discharge between 0.07 and 150 cubic feet per second (cfs), inclusive of both surface runoff and groundwater sources (springs and seepages).
(3) Water quality with temperature 55-62 °F (12.78-16.67 °C), dissolved oxygen 4.5 milligrams or greater per liter, and turbidity of an average monthly reading of no more than 200 Nephelometric Turbidity Units (NTU; units used to measure sediment discharge) for a duration not to exceed 4 hours.
(4) Bottom substrates consisting of fine gravel with coarse gravel or cobble, or bedrock with sand and gravel, with low amounts of fine sand and sediments within the interstitial spaces of the substrates.
(5) Energy input from guano that originates mainly from gray bats that roost in the cave; guano is essential in the development of biofilm (the organic coating and bacterial layer that covers rocks in the cave stream) that cavesnails use for food.
With this designation of critical habitat, we intend to identify the physical and biological features essential to the conservation of the species, through the identification of the appropriate quantity and spatial arrangement of the primary constituent elements sufficient to support the life-history processes of the species. The unit designated as critical habitat is currently occupied by the Tumbling Creek cavesnail and contains the primary constituent elements in the appropriate quantity and spatial arrangement sufficient to support the life-history needs of the species.
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain the physical and biological features that are essential to the conservation of the species and that may require special management considerations or protection.
The one unit we are designating as critical habitat will require some level of management to address the current and future threats to the physical and biological features essential to the conservation of the species. Although no portion of the designated critical habitat unit is presently under special management or protection provided by a legally operative plan or agreement for the conservation of the Tumbling Creek cavesnail, the cave owners Tom and Cathy Aley have been actively involved in implementing numerous conservation measures that continue to contribute to the recovery of the species. Various activities in or adjacent to the critical habitat unit described in this final rule may affect one or more of the primary constituent elements. For example, features in the critical habitat designation may require special management due to threats associated with management of water levels on Bull Shoals Reservoir (such as increased sedimentation or bank erosion from backwater flooding); by significant changes in the existing flow regime of Tumbling Creek, its tributaries, or associated springs; by significant alteration of water quality; by significant alteration in the quantity of groundwater and alteration of spring discharge sites; by alterations to septic
Energy input in the form of bat guano is identified above as an important primary constituent element for the Tumbling Creek cavesnail. Most of the bat guano in Tumbling Creek cave originates from a large population of gray bats that roost in the cave (Aley and Ashley 2003, p. 18; U.S. Fish and Wildlife Service 2003, p. 11). White-nose Syndrome (WNS) and the causative fungus,
Other activities that may affect the primary constituent elements in the designated critical habitat unit include those listed in the “Effects of Critical Habitat Designation” section below. The designation of critical habitat does not imply that lands outside of critical habitat do not play an important role in the conservation of the Tumbling Creek cavesnail. Activities with a Federal nexus that may affect areas outside of critical habitat, such as development; road construction and maintenance; oil, gas, and utility easements; forest and pasture management; maintenance of Bull Shoals Reservoir; and effluent discharges, are still subject to review under section 7 of the Act if they may affect the Tumbling Creek cavesnail, because Federal agencies must consider both effects to the species and effects to critical habitat independently. The Service should be consulted regarding disturbances to areas both within the designated critical habitat unit as well as areas within the recharge area of Tumbling Creek cave, including springs and seeps that contribute to the instream flow in the tributaries, especially during times when stream flows are abnormally low (during droughts), because these activities may impact the essential features of the designated critical habitat. The prohibitions of section 9 of the Act against the take of listed species also continue to apply both inside and outside of designated critical habitat.
As required by section 4(b)(1)(A) of the Act, we used the best scientific and commercial data available to designate critical habitat. We reviewed available information pertaining to the habitat requirements of this species. In accordance with the Act and its implementing regulation at 50 CFR 424.12(e), we considered whether designating additional areas—outside those currently occupied as well as those occupied at the time of listing—are necessary to ensure the conservation of the species. We are not designating any areas outside the geographical area occupied by the species because occupied areas are sufficient for the conservation of the species, adjacent caves surveyed for the cavesnail failed to document the species (U.S. Fish and Wildlife Service 2003, p. 4), and there is no known habitat within a certain radius of Tumbling Creek cave which provides a combination of aquatic substrate and a large source of energy input that is necessary for the conservation of the species. We are designating critical habitat in areas within the geographical area occupied by the species at the time of listing in 2002.
In order to determine which sites were occupied at the time of listing, we used information from surveys conducted by Greenlee (1974, pp. 9-11) and Ashley (2010, pers. comm.), data summarized in the final listing rule (67 FR 52879), the Tumbling Creek Cavesnail Recovery Plan (U.S. Fish and Wildlife Service 2003, pp. 1-13), and personal observations by cave owners Tom and Cathy Aley. Currently, occupied habitat for the species is limited and isolated to Tumbling Creek, from its emergence in Tumbling Creek Cave to its confluence with Bear Cave Hollow and Owens Spring upstream of Big Creek.
Following the identification of the specific locations occupied by the Tumbling Creek cavesnail, we determined the appropriate length of occupied segments of Tumbling Creek by identifying the upstream and downstream limits of these occupied sections necessary for the conservation of the species. Because Tumbling Creek is intricately linked with fractures in chert rock and associated springs and underground portions that are inaccessible to humans, we determined that currently occupied habitat includes the area from the emergence of Tumbling Creek within Tumbling Creek Cave to its confluence with Bear Cave Hollow and Owens Spring upstream of Big Creek. This determination was made to ensure incorporation of all potential sites of occurrence. These portions of Tumbling Creek and Owens Spring were then digitized using 7.5′ topographic maps and ArcGIS to produce the critical habitat map.
We are designating as critical habitat all portions of Tumbling Creek and the underground portions of Owens Spring as occupied habitat. We have defined “occupied habitat” as those stream reaches documented at the time of listing and all portions of Tumbling Creek between its emergence in Tumbling Creek Cave and its confluence with Bear Cave Hollow and Owens Spring upstream of Big Creek. Although there are underground portions of Tumbling Creek that are inaccessible to humans, the entire stream length is believed to be occupied by the Tumbling Creek cavesnail; thus, the entire stream is believed to comprise the entire known range of the Tumbling Creek cavesnail. We are not designating any areas outside of those mentioned above, because the species is believed to be a site endemic, and surveys in other nearby cave streams and springs have failed to find additional populations (U.S. Fish and Wildlife Service 2003, p. 4).
The one unit contains all of the physical and biological features in the appropriate quantity and spatial arrangement essential to the conservation of this species and supports all life processes for the Tumbling Creek cavesnail.
Although the above-ground recharge area of Tumbling Creek Cave (estimated to be 9 square miles (23.57 square kilometers) (U.S. Fish and Wildlife Service 2003, p. 14)) is important to maintain the condition of cavesnail habitat, such areas do not themselves contain the physical and biological features essential to the conservation of the species, and are, therefore, not designated as critical habitat.
To the best of our knowledge, there are no unoccupied areas that are essential to the conservation of the Tumbling Creek cavesnail. All of the areas designated as critical habitat for the Tumbling Creek cavesnail are currently occupied by the species and contain the essential physical and biological features. All of the areas designated as critical habitat are also within the known historical range of the species. Therefore, we are not designating any areas outside the
We are designating one unit, totaling approximately 25 ac (10.12 ha), as critical habitat for the Tumbling Creek cavesnail. The critical habitat unit described below constitutes our best assessment of areas that currently meet the definition of critical habitat for the Tumbling Creek cavesnail.
We present a brief description for the unit and reasons why it meets the definition of critical habitat below. The designated critical habitat unit includes the stream channel of Tumbling Creek to the confluence with Bear Cave Hollow and Owens Spring upstream of Big Creek. For the one stream reach designated as critical habitat, the upstream and downstream boundaries are described generally below; more precise descriptions are provided in the Regulation Promulgation at the end of this final rule.
The unit includes the entire length of Tumbling Creek, from its emergence in Tumbling Creek Cave (southeast of the intersection of Routes 160 and 125) downstream to its confluence with Bear Cave Hollow and Owens Spring upstream of Big Creek, encompassing 25 ac (10.12 ha). This section of Tumbling Creek and the associated spring are under private ownership by Tom and Cathy Aley of the Ozark Underground Laboratory and contain all of the essential physical and biological features necessary for the Tumbling Creek cavesnail.
Threats to the essential physical and biological features necessary for the Tumbling Creek cavesnail that may require special management and protection include:
• Actions associated with the management of water levels of Bull Shoals Reservoir (such as increased sedimentation or bank erosion on the terminal portions of Tumbling Creek from backwater flooding);
• Significant changes in the existing flow regime of Tumbling Creek, its tributaries. or associated springs;
• Significant alteration of water quality;
• Significant alteration in the quantity of groundwater and spring discharge sites;
• Alterations to septic systems that could adversely affect the quality of Tumbling Creek;
• Other watershed and floodplain disturbances that release sediments or nutrients into the water;
• The accidental introduction of nonnative aquatic species into the stream due to backwater flooding of Bull Shoals Reservoir into Tumbling Creek; or
• The potential effects of WNS on bats occupying the cave.
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat. Decisions by the 5th and 9th Circuits Courts of Appeals have invalidated our definition of “destruction or adverse modification” (50 CFR 402.02) (see
If a species is listed or critical habitat is designated, section 7(a)(2) of the Act requires Federal agencies to insure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2) A biological opinion for Federal actions that may affect, or are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended purpose of the action;
(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction;
(3) Are economically and technologically feasible; and
(4) Would, in the Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.
Federal activities that may affect the Tumbling Cave snail or its designated critical habitat require section 7 consultation under the Act. Activities on State, Tribal, local, or private lands requiring a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that alter the physical and biological features to an extent that appreciably reduces the conservation value of critical habitat for the Tumbling Creek cavesnail.
Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.
Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the Tumbling Creek cavesnail. These activities include, but are not limited to:
(1) Actions that would cause an increase in sedimentation to areas of Tumbling Creek, its tributaries, and associated springs occupied by the cavesnail. Such activities could include, but are not limited to, alteration or maintenance of pool levels on Bull Shoals Reservoir that causes backwater flooding of occupied habitat, or any discharge of fill materials. Such activities occurring within the recharge area of Tumbling Creek Cave may also impact the designated critical habitat. These activities could eliminate or reduce habitats necessary for the growth and reproduction of the species by causing excessive sedimentation and burial of the species or their habitats or eliminate interstitial spaces needed by cavesnails.
(2) Actions that would significantly alter the existing flow regime of Tumbling Creek, its tributaries, and associated springs occupied by the cavesnail. Such activities could include, but are not limited to, alteration or maintenance of pool levels on Bull Shoals Reservoir that significantly reduces the movement of water through occupied cavesnail habitat. Such activities occurring within the recharge area of Tumbling Creek Cave may also impact the designated critical habitat.
(3) Actions that would significantly alter water chemistry or water quality (for example, changes to temperature or pH, introduced contaminants, excess nutrients) in Tumbling Creek, its tributaries, and associated springs. Such activities could include, but are not limited to, the release of chemicals, biological pollutants, or heated effluents that are then introduced into Tumbling Creek, its tributaries, and associated spring occupied by the cavesnail through backwater flooding. Such activities occurring within the recharge area of Tumbling Creek Cave may also impact the designated critical habitat. These activities could alter water conditions that are beyond the tolerances of the species and result in direct or cumulative adverse effects on the species and its life cycle. These activities could eliminate or reduce habitats necessary for the growth and reproduction of the species by causing eutrophication, leading to excessive filamentous algal growth. Excessive filamentous algal growth can cause extreme decreases in nighttime dissolved oxygen levels through vegetation respiration, and cover the bottom substrates and the interstitial spaces needed by cavesnails.
(4) Actions that could accidentally introduce nonnative species into Tumbling Creek, its tributaries, and associated springs occupied by the cavesnail via backwater flooding from Bull Shoals Reservoir. Such activities occurring within the recharge area of Tumbling Creek Cave may also impact the designated critical habitat. These activities could introduce a potential predator or outcompeting aquatic invertebrate (for example, another species of cavesnail or troglobitic invertebrate) or aquatic parasite.
(5) Actions that could significantly alter the prey base of bats. Energy input from bat guano is essential to the Tumbling Creek cavesnail, such that adverse impacts to gray bat populations in Tumbling Creek Cave could indirectly impact the cavesnail. Such activities could include, but are not limited to, alteration or maintenance of pool levels on Bull Shoals Reservoir that significantly reduces the life cycles of the aquatic insects that are needed by gray bats for food and the potential use of insecticides for mosquito control.
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete an integrated natural resource management plan (INRMP) by November 17, 2001. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation, including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and applicable, provide for fish and wildlife management; fish and wildlife habitat enhancement or modification; wetland protection, enhancement, and restoration where necessary to support fish and wildlife; and enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) amended the Act to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.”
There are no Department of Defense lands within the critical habitat designation for the Tumbling Creek cavesnail. Therefore, we are not exempting any lands owned or managed by the Department of Defense from this designation of critical habitat for the Tumbling Creek cavesnail pursuant to section 4(a)(3)(B)(i) of the Act.
Section 4(b)(2) of the Act states that the Secretary shall designate or make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impacts of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific
Under section 4(b)(2) of the Act, we may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise his discretion to exclude the area only if such exclusion would not result in the extinction of the species.
Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. In order to consider economic impacts, we prepared a draft economic analysis of the proposed critical habitat designation and related factors (Industrial Economics Incorporated 2010). The draft analysis, dated December 6, 2010, was made available for public review from January 12, 2011, through February 11, 2011 (76 FR 2076). Following the close of the comment period, a final analysis, dated March 11, 2011, of the potential economic effects of the designation was developed, taking into consideration the public comments and any new information (Industrial Economics Incorporated 2011).
The intent of the final economic analysis (FEA) is to quantify the economic impacts of all potential conservation efforts for the Tumbling Creek cavesnail; some of these costs will likely be incurred regardless of whether we designate critical habitat (baseline). The economic impact of the final critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, considering protections already in place for the species (
The FEA also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on government agencies, private businesses, and individuals. The FEA measures lost economic efficiency associated with residential and commercial development and public projects and activities, such as economic impacts on water management and transportation projects, Federal lands, small entities, and the energy industry. Decision-makers can use this information to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, the FEA looks retrospectively at costs that have been incurred since 2002 (67 FR 52879), and considers those costs that may occur in the 20 years following the designation of critical habitat, which was determined to be the appropriate period for analysis because limited planning information was available for most activities to forecast activity levels for projects beyond a 20-year timeframe. The FEA quantifies economic impacts of the Tumbling Creek cavesnail conservation efforts associated with the following categories of activity: water management and any activities that may affect water quality.
Because any baseline impacts would be those associated with already existing regulations absent critical habitat designation, and such actions will not be affected by the regulation, no new baseline costs were identified. The primary focus on the FEA was on monetizing the projected incremental impacts forecast from the designation. Incremental impacts are estimated to be $50,100 between 2011 and 2030, assuming a 7 percent discount rate. Estimated incremental costs are forecast to be entirely administrative costs of section 7 consultations involving projects that could potentially adversely modify the water management and water quality of Tumbling Creek.
Our economic analysis did not identify any disproportionate costs that are likely to result from the designation. Consequently, the Secretary is not exerting his discretion to exclude any areas from this designation of critical habitat for the Tumbling Creek cavesnail based on economic impacts.
A copy of the FEA with supporting documents may be obtained by contacting the Columbia Fish and Wildlife Office (see
Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense where a national security impact might exist. In preparing this final rule, we have determined that the lands within the designation of critical habitat for the Tumbling Creek cavesnail are not owned or managed by the Department of Defense, and, therefore, we anticipate no impact on national security. Consequently, the Secretary is not exerting his discretion to exclude any areas from this final designation based on impacts on national security.
Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors, including whether landowners have developed any conservation plans or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of lands for, or exclusion of lands from, critical habitat. In addition, we look at any Tribal issues, and consider the government-to-government relationship of the United States with Tribal entities. We also consider any social impacts that might occur because of the designation.
In preparing this final rule, we have determined that there are currently no conservation plans or other management plans for the Tumbling Creek cavesnail, and the designation does not include any Tribal lands or trust resources. We anticipate no impact to Tribal lands, partnerships, or management plans from this critical habitat designation. There are no areas proposed for exclusion
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 on the following four criteria:
(1) 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.
(2) Whether the rule will create inconsistencies with other Federal agencies' actions.
(3) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
(4) Whether the rule raises novel legal or policy issues.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
According to the Small Business Administration, small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; as well as small businesses. Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts on these small entities are significant, we consider the types of activities that might trigger regulatory impacts under this rule, as well as the types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
To determine if the rule could significantly affect a substantial number of small entities, we consider the number of small entities affected within particular types of economic activities (
Designation of critical habitat only affects activities authorized, funded, or carried out by Federal agencies. Some kinds of activities are unlikely to have any Federal involvement and so will not be affected by critical habitat designation. In areas where the species is present, Federal agencies already are required to consult with us under section 7 of the Act on activities they authorize, fund, or carry out that may affect the Tumbling Creek cavesnail. Federal agencies also must consult with us if their activities may affect critical habitat. Designation of critical habitat, therefore, could result in an additional economic impact on small entities due to the requirement to reinitiate consultation for ongoing Federal activities (see
In our FEA of the critical habitat designation, we evaluated the potential economic effects on small business entities resulting from conservation actions related to the listing of the Tumbling Creek cavesnail and the designation of critical habitat. The analysis is based on the estimated impacts associated with the rulemaking as described in Chapters 1 through 3 and Appendix A of the analysis and evaluates the potential for economic impacts related to water management and any activities that may affect water quality. As outlined in the distributional analyses in chapter 3 of the FEA and Appendix A, it is not anticipated that there will be any economic impact to any small entities including any city, county, or privately owned businesses.
In summary, we considered whether this designation would result in a significant economic effect on a substantial number of small entities. Based on the above reasoning and currently available information, we concluded that this rule would not result in a significant economic impact on a substantial number of small entities. Therefore, we are certifying that the designation of critical habitat for the Tumbling Creek cavesnail will not have a significant economic impact on a substantial number of small entities, and a regulatory flexibility analysis is not required.
Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. OMB has provided guidance for implementing this Executive Order that outlines nine outcomes that may constitute “a significant adverse effect” when compared to not taking the regulatory action under consideration. The economic analysis finds that none of these criteria are relevant to this analysis. Thus, based on information in the economic analysis, energy-related impacts associated with Tumbling Creek cavesnail conservation activities within critical habitat are not expected. As such, the designation of critical habitat is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or Tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or Tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely affect small governments because it would not produce a Federal mandate of $100 million or greater in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The FEA concludes incremental impacts may occur due to administrative costs of section 7 consultations for actions that impact the water management or water quality of Tumbling Creek; however, these are not expected to significantly affect small governments. Thus, we do not believe that the critical habitat designation would significantly or uniquely affect small government entities, and as such, a Small Government Agency Plan is not required.
In accordance with Executive Order 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the Tumbling Creek cavesnail in a takings implications assessment. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. The takings implications assessment concludes that this designation of critical habitat for the Tumbling Creek cavesnail does not pose significant takings implications for lands within or affected by the designation.
In accordance with E.O. 13132 (Federalism), the rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this critical habitat designation with, appropriate State resource agencies in Missouri. The designation of critical habitat in areas currently occupied by the Tumbling Creek cavesnail imposes no additional restrictions to those currently in place and, therefore, has little incremental impact on State and local governments and their activities. The designation may have some benefit to this government in that the areas that contain the physical and biological features essential to the conservation of the species are more clearly defined, and the elements of the habitat features necessary for the conservation of the species are specifically identified. This information does not alter where and what Federally sponsored activities may occur. However, it may assist local governments in long-range planning (rather than having them wait for case-by-case section 7 consultations to occur). Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) of the Act would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
In accordance with E.O. 12988 (Civil Justice Reform), the regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of the Order. We are designating critical habitat in accordance with the provisions of the Act. This final rule uses standard property descriptions and identifies the elements of the physical and biological features essential to the conservation of the Tumbling Creek cavesnail within the designated areas to assist the public in understanding the habitat needs of the species.
This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses as defined by the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes.
We have determined that there are no Tribal lands occupied at the time of listing that contain the features essential for the conservation of the Tumbling Creek cavesnail, and no Tribal lands unoccupied by the Tumbling Creek cavesnail that are essential for the conservation of the species. Therefore, we are not designating critical habitat for the Tumbling Creek cavesnail on Tribal lands.
In developing this rule, we did not conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act (Pub. L. 106-554).
A complete list of all references cited is available on the Internet at
The primary authors of this document are the staff members of the Columbia Fish and Wildlife Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we 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) * * *
(f)
(1) The critical habitat unit is depicted for Taney County, Missouri, on the map at paragraph (f)(5)(ii) of this section.
(2) Within this area, the primary constituent elements of the physical and biological features essential to the conservation of the Tumbling Creek cavesnail consist of five components:
(i) Geomorphically stable stream bottoms and banks (stable horizontal dimension and vertical profile) in order to:
(A) Maintain bottom features (riffles, runs, and pools) and transition zones between bottom features;
(B) Continue appropriate habitat to maintain essential riffles, runs, and pools; and
(C) Promote connectivity between Tumbling Creek and its tributaries and associated springs to maintain gene flow throughout the population.
(ii) Instream flow regime with an average daily discharge between 0.07 and 150 cubic feet per second (cfs), inclusive of both surface runoff and groundwater sources (springs and seepages).
(iii) Water quality with temperature 55-62 °F (12.78-16.67 °C), dissolved oxygen 4.5 milligrams or greater per liter, and turbidity of an average monthly reading of no more than 200 Nephelometric Turbidity Units (NTU; units used to measure sediment discharge) for a duration not to exceed 4 hours.
(iv) Bottom substrates consisting of fine gravel with coarse gravel or cobble, or bedrock with sand and gravel, with low amounts of fine sand and sediments within the interstitial spaces of the substrates.
(v) Energy input from guano that originates mainly from gray bats
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on the effective date of this rule.
(4)
(5) Tumbling Creek Cavesnail Critical Habitat Unit.
(i) U.S. Geological Survey 7.5′ Topographic Protem Quad. Land bounded by the following UTM Zone 15N, North American Datum of 1983 (NAD83) coordinates (W, N): from the emergence of Tumbling Creek within Tumbling Creek Cave at Lat. 36°33′37.41″ N, Long. 92°48′27.23″ W to its confluence with Bear Cave Hollow and Owens Spring upstream of Big Creek at at Lat. 36°33′15.2″ N, Long. 92°47′51.74″ W.
(ii)
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of proposed determination of coverage.
The U.S. Department of Energy (DOE) proposes to determine that commercial and industrial fans, blowers, and fume hoods meet the criteria for covered equipment under Part A-1 of Title III of the Energy Policy and Conservation Act (EPCA), as amended. DOE proposes that classifying equipment of such type as covered equipment is necessary to carry out the purpose of Part A-1 of EPCA, which is to improve the efficiency of electric motors and pumps and certain other industrial equipment to conserve the energy resources of the nation.
DOE will accept written comments, data, and information on this notice, but no later than July 28, 2011.
Interested persons may submit comments, identified by docket number EERE-2011-BT-DET-0045 or RIN 1904-AC55), by any of the following methods:
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Mr. Charles Llenza, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies, EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121,
In the Office of General Counsel, contact Ms. Elizabeth Kohl, U.S. Department of Energy, Office of the General Counsel, GC-71, 1000 Independence Avenue, SW., Washington, DC 20585.
Title III of the Energy Policy and Conservation Act of 1975 (EPCA), as amended (42 U.S.C. 6291
EPCA specifies a list of equipment that constitutes covered commercial and industrial equipment. (42 U.S.C. 6311(1)(A)-(L). The list includes 11 types of equipment and a catch-all provision for certain other types of industrial equipment classified as covered the Secretary of Energy (Secretary). EPCA also specifies the types of equipment that can be classified as covered in addition to the equipment enumerated in 42 U.S.C. 6311(1). This equipment includes fans and blowers. (42 U.S.C. 6311(2)(B)). Industrial equipment must also:
(1) Consume, or be designed to consume, energy in operation;
(2) To any significant extent, be distributed in commerce for industrial or commercial use;
(3) Not be a covered product as defined in 42 U.S.C. 6291(a)(2) of EPCA, other than a component of a covered product with respect to which there is in effect a determination under 42 U.S.C. 6312(c).
To classify equipment as covered commercial or industrial equipment, the
DOE has not previously conducted an energy conservation standard rulemaking for fans, blowers, and fume hoods. If after public comment, DOE issues a final determination of coverage for this equipment, DOE would consider both test procedures and energy conservation standards for this equipment.
With respect to test procedures, DOE would consider proposed test procedures for measuring the energy efficiency, energy use, or estimated annual operating cost of fans, blowers, and fume hoods during a representative average use cycle or period of use that are not unduly burdensome to conduct. (42 U.S.C. 6314(a)(2)) In a test procedure rulemaking, DOE initially prepares a test procedure notice of proposed rulemaking (NOPR) and allows interested parties to present oral and written data, views, and arguments with respect to such procedures. In prescribing new test procedures, DOE takes into account relevant information including technological developments relating to energy use or energy efficiency of fans, blowers, and fume hoods.
With respect to energy conservation standards, DOE typically prepares initially an energy conservation standards rulemaking framework document (the framework document). The framework document explains the issues, analyses, and process that it is considering for the development of energy conservation standards for fans, blowers, and fume hoods. After DOE receives comments on the framework document, DOE typically prepares an energy conservation standards rulemaking preliminary analysis and technical support document (the preliminary analysis). The preliminary analysis typically provides initial draft analyses of potential energy conservation standards on consumers, manufacturers, and the nation. Neither of these steps is legally required.
DOE is required to publish an energy conservation standards NOPR setting forth DOE's proposed energy conservations standards and a summary of the results of DOE's supporting technical analysis. The details of DOE's energy conservation standards analysis are provided in a technical support document (TSD) that describes the details of DOE's analysis of both the burdens and benefits of potential standards, pursuant to 42 U.S.C. 6295(o). DOE affords interested persons an opportunity during a period of not less than 60 days after the publication of the NOPR to provide oral and written comment. After receiving and considering the comments on the NOPR and not less than 90 days after the publication of the NOPR, DOE would issue the final rule prescribing any new energy conservation standards for fans, blowers, and fume hoods.
DOE is considering a definition for “Commercial and Industrial Fans, Blowers, and Fume Hoods” to clarify coverage of any potential test procedure or energy conservation standard that may arise from today's proposed determination. Fans typically have a specific ratio, the ratio of discharge pressure to suction pressure, less than 1.11. Blowers typically have a specific ratio ranging from 1.11 to 1.20. Fume hoods are cabinets connected to a ventilation system, where the fan is either separated from the enclosed workspace or is part of the enclosure. There is currently no statutory definition of fans, blowers, or fume hoods, and DOE is considering the following definition of fans, blowers, and fume hoods to provide clarity for interested parties as it continues its analyses:
A fan is an electrically powered device used in commercial or industrial systems to provide a continuous flow of a gas, typically air, for ventilation, circulation, or other industrial process requirements. Fans are classified as axial or centrifugal. Axial fans move an airstream along the axis of the fan. Centrifugal fans generate airflow by accelerating the airstream radially. A fan may include some or all of the following components: motor and motor controls, rotor or fan blades, and transmission and housing.
A blower is a type of centrifugal fan.
A fume hood is an enclosed workspace that uses an exhaust fan. Fume hoods are used in commercial or industrial laboratories or facilities to capture, contain, or exhaust hazardous fumes, vapors, or particulate matter generated inside the enclosed workspace. The fan energy use is primarily determined by the design and operating characteristics of the enclosed workspace.
DOE seeks feedback from interested parties on these definition(s) of fans, blowers, and fume hoods.
The following sections describe DOE's evaluation of whether fans, blowers, and fume hoods fulfill the criteria for being added as covered equipment pursuant to 42 U.S.C. 6311(2) and 42 U.S.C. 6312.
Fans and blowers are listed as types of industrial equipment under 42 U.S.C. 6311(2)(B), and fans are an integral part of a fume hood. The following discussion addresses DOE's consideration of the three requirements of 42 U.S.C. 6311(2)(A) and the requirement of 42 U.S.C. 6312.
DOE proposes to define fans, blowers, and fume hoods as `electrically powered'; fans, blowers, and fume hoods that meet DOE's definition consume energy in operation.
DOE estimates that commercial fans and blowers consume 139,533 million kWh of electricity per year, industrial fans and blowers consume 90,057 million kWh of electricity per year, and laboratory fume hoods consume 26,153 million kWh of electricity per year. The total amounts to 255,743 million kWh per year.
For commercial fans and blowers, DOE used the 2009 Annual Energy Outlook to find the 2006 value for the total energy consumption of commercial ventilation equipment
For fume hoods, DOE used a Lawrence Berkeley National Laboratory study, which determined the energy use based on conservative estimates on number of fume hood units and their
Fans, blowers and fume hoods are distributed in commerce for both the industrial and commercial sectors. Based on 2002 U.S. Census Data, DOE estimated that 650,000 motors are shipped annually to drive fans and blowers in the commercial and industrial sectors.
Shipments of fume hoods were estimated by an industry source to be approximately 25,000 to 30,000 units/yr.
Fans, blowers and fume hoods are not currently included as covered products under 10 CFR Part 430.
The purpose of Part A-1 of EPCA is to improve the energy efficiency of electric motors, pumps and certain other industrial equipment to conserve the energy resources of the nation. Coverage of fans, blowers, and fume hoods is necessary to carry out the purposes of Part A-1 of EPCA because coverage will promote the conservation of energy supplies. DOE estimates that technologies exist which can reduce the electricity consumption of fans and blowers by as much as 20%.
Based on the information in section IV of this notice, DOE proposes to determine that commercial and industrial fans, blowers, and fume hoods qualify as covered equipment under Part A-1 of Title III of EPCA, as amended (42 U.S.C. 6311
The Office of Management and Budget has determined that coverage determination rulemakings do not constitute “significant regulatory actions” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this proposed action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB).
The Regulatory Flexibility Act (5 U.S.C. 601
DOE reviewed today's proposed determination under the provisions of the Regulatory Flexibility Act and the policies and procedures published on February 19, 2003. If adopted, today's proposed determination would set no standards and would only positively determine that future standards may be warranted and should be explored in an energy conservation standards rulemaking. The proposed determination also does not establish any test procedures. If a positive determination is made, DOE would consider test procedures in a subsequent rulemaking. Economic impacts on small entities would be considered in the context of such rulemakings. On the basis of the foregoing, DOE certifies that the proposed determination, if adopted, would have no significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this proposed determination. DOE will transmit this certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).
This proposed determination, which proposes to determine that fans, blowers, and fume hoods meet the criteria for classification as covered equipment, will impose no new information or recordkeeping requirements. Accordingly, the Office of Management and Budget (OMB) clearance is not required under the Paperwork Reduction Act. (44 U.S.C. 3501
In this notice, DOE proposes to positively determine that fans, blowers and fume hoods meet the criteria for classification as covered equipment. Environmental impacts would be explored in any future energy conservation standards rulemaking for fans, blowers and fume hoods. DOE has determined that review under the National Environmental Policy Act of 1969 (NEPA), Public Law 91-190, codified at 42 U.S.C. 4321
Executive Order (E.O.) 13132, “Federalism” 64 FR 43255 (August 10, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of E.O. 12988, “Civil Justice Reform” 61 FR 4729 (February 7, 1996), imposes on Federal agencies the duty to: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. Section 3(b) of E.O. 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation specifies the following: (1) The preemptive effect, if any; (2) any effect on existing Federal law or regulation; (3) a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) the retroactive effect, if any; (5) definitions of key terms; and (6) other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of E.O. 12988 requires Executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether these standards are met, or whether it is unreasonable to meet one or more of them. DOE completed the required review and determined that, to the extent permitted by law, this proposed determination meets the relevant standards of E.O. 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4, codified at 2 U.S.C. 1501
Section 654 of the Treasury and General Government Appropriations Act of 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This proposed determination would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
Pursuant to E.O. 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights” 53 FR 8859 (March 15, 1988), DOE determined that this proposed determination would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
The Treasury and General Government Appropriation Act of 2001 (44 U.S.C. 3516, note) requires agencies to review most disseminations of information they make to the public under guidelines established by each agency pursuant to general guidelines issued by the Office of Management and Budget (OMB). The OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed today's proposed determination under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
E.O. 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OMB a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates a final rule or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under E.O. 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of the Office of Information and Regulatory Affairs (OIRA) as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use if the proposal is implemented, and of reasonable alternatives to the proposed action and their expected benefits on energy supply, distribution, and use.
DOE has concluded that today's regulatory action proposing to determine that fans, blowers, and fume hoods meet the criteria for classification as covered equipment would not have a significant adverse effect on the supply, distribution, or use of energy. This action is also not a significant regulatory
On December 16, 2004, OMB, in consultation with the Office of Science and Technology Policy (OSTP), issued its Final Information Quality Bulletin for Peer Review (the Bulletin). 70 FR 2664 (January 14, 2005). The Bulletin establishes that certain scientific information shall be peer reviewed by qualified specialists before it is disseminated by the Federal government, including influential scientific information related to agency regulatory actions. The purpose of the Bulletin is to enhance the quality and credibility of the Government's scientific information. DOE has determined that the analyses conducted for this rulemaking do not constitute “influential scientific information,” which the Bulletin defines as “scientific information the agency reasonably can determine will have or does have a clear and substantial impact on important public policies or private sector decisions.” 70 FR 2667 (January 14, 2005). The analyses were subject to pre-dissemination review prior to issuance of this rulemaking.
DOE will determine the appropriate level of review that would be applicable to any future rulemaking to establish energy conservation standards for fans, blowers and fume hoods.
DOE will accept comments, data, and information regarding this notice of proposed determination no later than the date provided at the beginning of this notice. After the close of the comment period, DOE will review the comments received and determine whether fans, blowers, fume hoods is covered equipment under EPCA.
Comments, data, and information submitted to DOE's e-mail address for this proposed determination should be provided in WordPerfect, Microsoft Word, PDF, or text (ASCII) file format. Submissions should avoid the use of special characters or any form of encryption, and wherever possible comments should include the electronic signature of the author. No telefacsimiles (faxes) will be accepted.
According to 10 CFR Part 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two copies: One copy of the document should have all the information believed to be confidential deleted. DOE will make its own determination as to the confidential status of the information and treat it according to its determination.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include (1) a description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known or available from public sources; (4) whether the information has previously been made available to others without obligations concerning its confidentiality; (5) an explanation of the competitive injury to the submitting persons which would result from public disclosure; (6) a date after which such information might no longer be considered confidential; and (7) why disclosure of the information would be contrary to the public interest.
DOE welcomes comments on all aspects of this proposed determination. DOE is particularly interested in receiving comments from interested parties on the following issues related to the proposed determination for fans, blowers, and fume hoods:
• Definition of fans;
• Definition of blowers;
• Definitions of fume hoods;
• Whether classifying fans, blowers, and fume hoods as covered equipment is necessary to carry out the purposes of Part A-1 of EPCA; and
• Availability or lack of availability of technologies for improving the energy efficiency of fans, blowers, and fume hoods.
DOE invites all interested parties to submit, in writing and by July 28, 2011, comments and information on matters addressed in this notice and on other matters relevant to a determination for fans, blowers, and fume hoods. DOE is also interested in receiving views concerning other issues relevant to establishing test procedures and energy conservation standards for fans, blowers, and fume hoods.
After the expiration of the period for submitting written statements, DOE will consider all comments and additional information that is obtained from interested parties or through further analyses, and it will prepare a final determination. If DOE determines that fans, blowers, and fume hoods qualify as covered equipment, DOE will consider a test procedure and energy conservation standards for fans, blowers, and fume hoods. Members of the public will be given an opportunity to submit written and oral comments on any proposed test procedure and standards.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede an existing airworthiness directive (AD) that applies to certain TCM and R-RM series reciprocating engines. The existing AD currently requires replacement of certain magnetos if they fall within the specified serial number (S/N) range, inspection of the removed magneto to verify that the stop pin is still in place, and, if the stop pin is not in place, inspection of the engine gear train, crankcase, and accessory case. Since we issued that AD, we became aware of an error in the previous AD applicability in the range of magneto S/Ns affected, and of the need to include certain engines made by R-RM, under license of TCM. This proposed AD would correct the range of S/Ns affected, require the same replacement and inspections, and would add R-RM C-125, C-145, O-300, IO-360, TSIO-360, and LTSIO-520-AE series reciprocating engines to the applicability. We are proposing this AD to correct the unsafe condition on these products.
We must receive comments on this proposed AD by August 12, 2011.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
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For service information identified in this AD, contact Teledyne Continental Motors, Inc., PO Box 90, Mobile, AL 36601; phone (251) 438-3411, or go to:
You may examine the AD docket on the Internet at
Neil Duggan, Aerospace Engineer, Propulsion, Atlanta Aircraft Certification Office, FAA, Small Airplane Directorate; 1701 Columbia Avenue, College Park, Georgia, 30337; phone: (404) 474-5576; fax: (404) 474-5606; e-mail:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On June 17, 2002, we issued AD 2002-13-04, Amendment 39-12792 (FR 67 43230, June 27, 2002), for TCM C-125, C-145, O-300, IO-360, TSIO-360, and LTSIO-520-AE series reciprocating engines. That AD requires, within 10 flight hours after the effective date of that AD, replacement of certain magnetos if they fall within the specified S/N range, inspection of the removed magneto to verify that the stop pin is still in place, and, if the stop pin is not in place, inspection of the engine gear train, crankcase, and accessory case. That AD resulted from reports of engine failures on certain TCM reciprocating engines. We issued that AD to prevent engine failure and loss of control of the airplane due to migration of the magneto impulse coupling stop pin out of the magneto frame and into the gear train of the engine.
Since we issued AD 2002-13-04, we became aware of an error in the applicability paragraph of that AD, in the range of S/Ns affected. That AD applicability listed magneto S/Ns of 99110001 through 9912999 inclusive. This proposed AD supersedure would correct the applicability to state magneto S/Ns of 99110001 through 99129999 inclusive, and add R-RM C-125, C-145, O-300, IO-360, TSIO-360, and LTSIO-520-AE series reciprocating engines built under license of TCM, to the applicability.
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would retain all requirements of AD 2002-13-04. This proposed AD would also correct the range of S/Ns affected, and would add R-RM C-125, C-145, O-300, IO-360, TSIO-360, and LTSIO-520-AE series reciprocating engines to the applicability. Since AD 2002-13-04 was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, the corresponding paragraph identifiers have changed in this proposed AD, as listed in the following table:
We estimate that this proposed AD would affect 100 R-RM C-125, C-145, O-300, IO-360, TSIO-360, and LTSIO-520-AE series reciprocating engines installed on airplanes of U.S. registry. We also estimate that it would take about 2 work-hours per engine to perform the inspections, and that the average labor rate is $85 per work-hour. Based on these figures, we estimate the total cost of the proposed AD to U.S. operators to be $17,000. Our cost estimate is exclusive of possible warranty coverage.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing airworthiness directive (AD) 2002-13-04, Amendment 39-12792 (67 FR 43230, June 27, 2002), and adding the following new AD:
The FAA must receive comments on this AD action by August 12, 2011.
This AD supersedes AD 2002-13-04, Amendment 39-12792.
This AD applies to TCM and R-RM C-125, C-145, O-300, IO-360, TSIO-360, and LTSIO-520-AE series reciprocating engines with Champion Aerospace (formerly Unison Industries) Slick Magnetos, models 6314, 6324, and 6364, with magneto serial numbers (S/Ns) of 99110001 through 99129999 inclusive.
This AD was prompted by an error in the previous AD applicability in the range of magneto S/Ns affected, and by the need to include certain engines made by R-RM, under license of TCM. We are issuing this AD to prevent engine failure and loss of control of the airplane due to migration of the magneto impulse coupling stop pin out of the magneto frame and into the gear train of the engine.
Comply with this AD within 10 flight hours after the effective date of this AD, unless already done.
Replace any magneto that has a S/N of 99110001 through 99129999, inclusive, with a magneto that does not have a serial number in that range. If magneto is not in this S/N range, no further action is required by this AD.
Inspect each removed magneto to verify that the impulse coupling stop pin is present. If the pin is missing, do the following:
(1) For C-125, C-145, O-300, IO-360, and TSIO-360 series engines, do the following:
(i) Remove magnetos, alternator or generator, and starter adapter from the accessory case.
(ii) Remove the accessory case from the crankcase and oil sump.
(iii) Visually inspect the entire engine gear train for damaged or broken gears and gear teeth.
(iv) Inspect visible portions of the engine crankcase and accessory case for damage due to the stop pin becoming lodged between the engine gear train and the crankcase or accessory case.
(v) If the accessory case is damaged, repair or replace the accessory case.
(vi) If the engine crankcase is damaged, disassemble the engine, and repair or replace the crankcase.
(vii) Inspect the oil pump drive gear teeth and inner cam gear teeth for damage. Replace any engine drive train component that has been damaged.
(viii) Replace any damaged gear, and magnaflux the mating gears using the applicable engine overhaul manual.
(2) For LTSIO-520-AE series engines, do the following:
(i) Remove the starter adapter, fuel pump, vacuum pumps, accessory drive pads, and both magnetos.
(ii) Visually inspect the entire engine gear train for damaged or broken gears and gear teeth.
(iii) If any damage has occurred, remove the engine from the airplane, disassemble the engine, and inspect it for damage. If any damage is found, repair as necessary.
(iv) Replace any damaged gear, and magnaflux the mating gears using the applicable engine overhaul manual.
(v) Inspect the interior portions of the engine crankcase for damage due to the stop pin becoming lodged between the gear train and the crankcase. If the crankcase is damaged, repair or replace the crankcase.
After the effective date of this AD, do not install any Champion Aerospace (formerly Unison Industries) Slick magnetos, model 6314, 6324, or 6364 that have a S/N of 99110001 through 99129999 inclusive, on any engine.
The Manager, Atlanta Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(1) A cross-reference for part numbers (P/Ns) for Champion Aerospace (formerly Unison Industries) Slick magneto model 6314 (TCM P/N 653271), model 6324 (TCM P/N 653292), and model 6364 (TCM P/N 649696) can be found in TCM Mandatory Service Bulletin MSB00-6D, dated November 19, 2010.
(2) For more information about this AD, contact Neil Duggan, Aerospace Engineer, Propulsion, Atlanta Aircraft Certification Office, FAA, Small Airplane Directorate; 1701 Columbia Avenue, College Park, Georgia, 30337; phone: (404) 474-5576; fax: (404) 474-5606; e-mail:
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 would require deactivation and removal of the vapor cycle system (VCS) installed per STC SA03674AT held by Premier Aircraft Services (originally held by DER Services) following DER Services Master Document List MDL-2006-020-1, Revision C, dated February 3, 2009; Revision D, dated April 22, 2009; Revision E, dated May 12, 2010; or Revision F, dated July 6, 2010. This proposed AD would also require revision to the airplane weight and balance. This proposed AD was prompted by reports of damage around the VCS compressor mounting areas found during maintenance inspections. We are proposing this AD to remove the VCS mount, which could result in the air conditioner compressor
We must receive comments on this proposed AD by August 12, 2011.
You may send comments by any of the following methods:
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For service information identified in this proposed AD, contact Premier Aircraft Service, 5540 NW. 23 Avenue Hangar 14, Ft. Lauderdale, FL 33309,
You may examine the AD docket on the Internet at
Hal Horsburgh, Aerospace Engineer, FAA, Atlanta Aircraft Certification Office, 1701 Columbia Avenue, College Park, Georgia 30337;
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We received reports of damage found during maintenance inspections of the Diamond Model DA 40 airplanes equipped with a VCS installed per Premier Aircraft Service STC SA03674AT held by Premier Aircraft Services (originally held by DER Services) following DER Services Master Document List MDL-2006-020-1, Revision C, dated February 3, 2009; Revision D, dated April 22, 2009; Revision E, dated May 12, 2010; or Revision F, dated July 6, 2010. The damage included excessive wear in the VCS compressor mounting holes, mounting brackets, and the mounting bolt, and denting was found around the mounting bracket and compressor due to unintended relative motion. We are proposing this AD to remove the VCS mount, which could result in the air conditioner compressor disconnecting in the engine compartment. This condition could result in engine stoppage or additional damage to the engine.
We reviewed Premier Aircraft Service Work Instruction PAS-WI-MSB-40-2011-001, dated March 4, 2011; and Premier Aircraft Service Mandatory Service Bulletin No. PAS-MSB-40-2011-001, dated March 4, 2011. The service information describes procedures for deactivation of the VCS Compressor and associated mounting hardware and the removal of the VCS installed per Premier Aircraft Service STC SA03674AT.
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require deactivation of the VCS Compressor and removal of the VCS and the associated mounting hardware, except as discussed under “Differences Between the Proposed AD and the Service Information.”
The service information requires compliance prior to flight after effectivity of the service information. The service information also includes a reporting requirement.
This proposed AD requires a compliance time of within the next 100 hours time-in-service after installation of the STC or 30 days after the effective date of this proposed AD, whichever occurs later. We are not including the reporting requirement.
We estimate that this proposed AD affects 11 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
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,
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD):
(a) We must receive comments by August 12, 2011.
(b) None.
(c) This AD applies to Diamond Aircraft Industries GmbH Model DA 40 airplanes, all serial numbers that:
(1) Are equipped with vapor cycle system (VCS) cabin air conditioning systems installed per Premier Aircraft Services Supplemental Type Certificate (STC) SA03674AT following DER Services Master Document List MDL-2006-020-1, Revision C, dated February 3, 2009; Revision D, dated April 22, 2009; Revision E, dated May 12, 2010; or Revision F, dated July 6, 2010; and
(2) Are certificated in any category.
(d) Joint Aircraft System Component (JASC) Code 2150, Cabin Cooling System.
(e) This AD was prompted by reports of damage around the VCS compressor mounting area found during maintenance inspections. We are proposing this AD to remove the VCS compressor and mount, as a result of excessive wear, which could result in the air conditioner compressor disconnecting in the engine compartment. This condition could result in engine stoppage or additional damage to the engine.
(f) Comply with this AD within the compliance times specified, unless already done.
(g) Within the next 100 hours time-in-service after installation of the VCS installed per STC SA03674AT held by Premier Aircraft Services (originally held by DER Services) following DER Services Master Document List MDL-2006-020-1, Revision C, dated February 3, 2009; Revision D, dated April 22, 2009; Revision E, dated May 12, 2010; or Revision F, dated July 6, 2010, or within 30 days after the effective date of this AD, whichever occurs later, do the following actions following Premier Aircraft Service Work Instruction PAS-WI-MSB-40-2011-001, dated March 4, 2011; and Premier Aircraft Service Mandatory Service Bulletin No. PAS-MSB-40-2011-001, dated March 4, 2011:
(1) Deactivate the VCS system.
(2) Pull and collar the compressor breaker and place a placard above the breaker stating “INOP.”
(3) Remove the VCS compressor and associated mounting hardware.
(4) Revise the airplane weight and balance.
(h) The compressor drive belt must be cut and removed before the airplane may be moved for one ferry flight to an approved repair facility to comply with the remainder of this proposed AD.
(i)(1) The Manager, Atlanta Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD.
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(j) For more information about this AD, contact Hal Horsburgh, Aerospace Engineer, FAA, Atlanta ACO, 1701 Columbia Avenue, College Park, Georgia 30337;
(k) For service information identified in this AD, contact Premier Aircraft Service, 5540 NW. 23 Avenue Hangar 14, Ft. Lauderdale, FL 33309,
Employment and Training Administration, Labor.
Proposed rule; request for comments.
The Department of Labor (the Department or DOL) proposes to amend the effective date of Wage Methodology for the Temporary Non-agricultural Employment H-2B Program; Final Rule, 76 FR 3452, January 19, 2011, (the Wage Rule). The Wage Rule revised the methodology by which the Department calculates the prevailing wages to be
Interested persons are invited to submit written comments on the proposed rule on or before July 8, 2011.
You may submit comments, identified by Regulatory Information Number (RIN) 1205-AB61, by any one of the following methods:
•
•
Please submit your comments by only one method. Because of the short timeframe for this rulemaking, as discussed in further detail below, the Department will not review comments received by means other than those listed above or that are received after the comment period has closed. While the Department is soliciting comments on the proposed effective date of the Wage Rule, we are not seeking comments relating to the merits of the provisions contained in the Wage Rule which already has been subjected fully to the notice and comment process. We will deem any such comments out of scope and will not consider them. Additionally, as the U.S. District Court for the Eastern District of Pennsylvania ruled in
The Department will post all comments received on
Postal delivery in Washington, DC may be delayed due to security concerns. Therefore, the Department encourages the public to submit comments through the
William L. Carlson, Ph.D., Administrator, Office of Foreign Labor Certification, ETA, U.S. Department of Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210; Telephone (202) 693-3010 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1-877-889-5627 (TTY/TDD).
On January 19, 2011, the Department published the Wage Rule. Under the Wage Rule, the prevailing wage for the H-2B program is based on the highest of the following: wages established under an agreed-upon collective bargaining agreement; a wage rate established under the Davis-Bacon Act (DBA) or the McNamara O'Hara Service Contract Act (SCA) for that occupation in the area of intended employment; or the arithmetic mean wage rate established by the Occupational Employment Statistics (OES) wage survey for that occupation in the area of intended employment. The Wage Rule also permits the use of private wage surveys in very limited circumstances. Lastly, the Wage Rule requires the new wage methodology to apply to all work performed on or after January 1, 2012. The Department selected the January 1, 2012 effective date because “many employers already may have planned for their labor needs and operations for this year in reliance on the existing prevailing wage methodology. In order to provide employers with sufficient time to plan for their labor needs for the next year and to minimize the disruption to their operations, the Department is delaying implementation of this Final Rule so that the prevailing wage methodology set forth in this Rule applies only to wages paid for work performed on or after January 1, 2012.” 76 FR 3462, Jan. 19, 2011.
On January 24, 2011, the plaintiffs in
The Department proposes that the Wage Rule take effect 60 days from the date of publication of a final rule resulting from this rulemaking. The Department anticipates the date of publication of the final rule to be on or about August 1, 2011; thus, the effective date of the Wage Rule would be on or about October 1, 2011. Because the Wage Rule, which was published on January 19, 2011, would have required at least a 60-day delayed effective date from the date of publication since it is considered to be a major rule under the Congressional Review Act (CRA), 5 U.S.C. 801,
As mentioned above, the purpose of this rulemaking is to solicit comments on the proposed effective date of the Wage Rule; therefore, any comments relating to the merits of the provisions contained in the Wage Rule will be deemed out of scope and will not be considered. Furthermore, pursuant to the district court's order, the Department cannot consider specific examples of employer hardship to delay the effective date of a new wage rule. See
Under Executive Order (E.O.) 12866 and E.O. 13563, the Department must determine whether a regulatory action is significant and therefore, subject to the requirements of the E.O. 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 that: (1) Has an annual effect on the economy of $100 million or more or adversely and materially affects 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) creates serious inconsistency or otherwise interferes with an action taken or planned by another agency; (3) materially alters the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the E.O. The Department has determined that this NPRM is not an economically significant regulatory action under sec. 3(f)(1) of E.O. 12866. The Department, however, has determined that this NPRM is a significant regulatory action under sec. 3(f)(4) of the E.O. and, accordingly, OMB has reviewed this NPRM.
The Regulatory Flexibility Act (RFA) at 5 U.S.C. 603 requires agencies to prepare a regulatory flexibility analysis to determine whether a regulation will have a significant economic impact on a substantial number of small entities. Section 605 of the RFA allows an agency to certify a rule in lieu of preparing an analysis if the regulation is not expected to have a significant economic impact on a substantial number of small entities. Further, under the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801 (SBREFA), an agency is required to produce a compliance guidance for small entities if the rule has a significant economic impact. In the Wage Rule, the Department stated that it believed that the Wage Rule was not likely to impact a substantial number of small entities; however, in the interest of transparency, the Department prepared a Final Regulatory Flexibility Analysis (FRFA) to assess the impact of this regulation on small entities, as defined by the applicable Small Business Administration (SBA) size standards. See 76 FR 3473, Jan. 19, 2011. While the change in the effective date of the Wage Rule that is being proposed in this NPRM may change the
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531) directs agencies to assess the effects of Federal regulatory actions on State, local, and Tribal governments, and the private sector. The proposed rule has no Federal mandate, which is defined in 2 U.S.C. 658(6) to include either a “Federal intergovernmental mandate” or a “Federal private sector mandate.” A Federal mandate is any provision in a regulation that imposes an enforceable duty upon State, local, or Tribal governments, or imposes a duty upon the private sector which is not voluntary.
The Department has determined that this rulemaking does not impose a significant impact on a substantial number of small entities under the RFA; therefore, the Department is not required to produce any compliance guides for small entities as mandated by the SBREFA. The Department has similarly concluded that this proposed rule is not a major rule requiring review by the Congress under the SBREFA because it will not likely result in: (1) An annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, Federal, State or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of U.S.-based enterprises to compete with foreign-based enterprises in domestic or export markets.
The Department has reviewed this proposed rule in accordance with E.O. 13132 regarding federalism and has determined that it does not have federalism implications. The proposed rule does not have substantial direct effects on States, on the relationship between the States, or on the distribution of power and responsibilities among the various levels of government as described by E.O. 13132. Therefore, the Department has determined that this proposed rule will not have a sufficient federalism implication to warrant the preparation of a summary impact statement.
This proposed rule was reviewed under the terms of E.O. 13175 and determined not to have Tribal implications. The proposed rule does not have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. As a result, no Tribal summary impact statement has been prepared.
Section 654 of the Treasury and General Government Appropriations Act, enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat. 2681) requires the Department to assess the impact of this proposed rule on family well-being. A rule that is determined to have a negative effect on families must be supported with an adequate rationale.
The Department has assessed this proposed rule and determines that it will not have a negative effect on families.
The proposed rule is not subject to E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, because it does not involve implementation of a policy with takings implications.
The proposed rule has been drafted and reviewed in accordance with E.O. 12988, Civil Justice Reform, and will not unduly burden the Federal court system. The Department has developed the proposed rule to minimize litigation and provide a clear legal standard for affected conduct, and has reviewed the proposed rule carefully to eliminate drafting errors and ambiguities.
The Department drafted this NPRM in plain language.
As part of its continuing effort to reduce paperwork and respondent burden, the Department conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)). This process helps to ensure that the public understands the Department's collection instructions; respondents provide requested data in the desired format; reporting burden (time and financial resources) is minimized; collection instruments are clearly understood; and the Department properly assesses the impact of collection requirements on respondents.
The PRA requires all Federal agencies to analyze proposed regulations for potential time burdens on the regulated community created by provisions within the proposed regulations that require the submission of information. These information collection (IC) requirements must be submitted to the OMB for approval. Persons are not required to respond to a collection of information unless it displays a currently valid OMB control number as required in 5 CFR 1320.11(l) or it is exempt from the PRA.
The majority of the IC requirements for the current H-2B program are approved under OMB control number 1205-0466 (which includes ETA Form 9141 and ETA Form 9142). There are no burden adjustments that need to be made to the analysis. For an additional explanation of how the Department calculated the burden hours and related costs, the PRA package for information collection OMB control number 1205-0466 may be obtained at
The Department therefore proposes to amend the “
Food and Drug Administration, HHS.
Notice of petitions.
The Food and Drug Administration (FDA) is announcing that CooperVision, Inc., has filed two petitions proposing that the color additive regulations be amended to provide for the safe use of 1,4-bis[4-(2-methacryloxyethyl)phenlyamino] anthraquinone (C.I. Reactive Blue 246) and 1,4-bis[(2-hydroxyethyl)amino]-9,10-anthracenedione bis(2-methyl-2-propenoic)ester (C.I. Reactive Blue 247). The color additives are intended to be copolymerized with various monomers for use as colored contact lens materials.
Under the Federal Food, Drug, and Cosmetic Act (section 721(d)(1) (21 U.S.C. 379e(d)(1))), notice is given that two color additive petitions (CAP 1C0291, Docket No. FDA-2011-C-0344 and CAP 1C0292, Docket No. FDA-2011-C-0463) have been filed by CooperVision, Inc., 6150 Stoneridge Mall Rd., Suite 370, Pleasanton, CA 94588. The petitions propose to amend the color additive regulations in 21 CFR part 73, subpart D,
The Agency has determined under 21 CFR 25.32(l) 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.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to amend special local regulations (SLR) and to establish permanent safety zones in the Coast Guard Sector Boston Captain of the Port (COTP) Zone for annual recurring marine events. When these SLRs or safety zones are activated, and thus subject to enforcement, this rule would restrict persons and vessels from portions of waterway during annual events listed in TABLES 1 and 2 that pose a hazard to public safety. The revised SLRs and safety zones are proposed to reduce administrative overhead, expedite public notification of events, and to ensure the protection of the maritime public and event participants from the hazards associated with firework displays, boat races, and other marine events.
Comments and related material must be received by the Coast Guard on or before July 28, 2011.
Requests for public meetings must be received by the Coast Guard on or before July 5, 2011.
You may submit comments identified by docket number USCG-2011-0109 using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call or e-mail Petty Officer (PO) David Labadie of the Waterways Management Division, U.S. Coast Guard Sector Boston; telephone 617-223-3010, e-mail
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking (USCG-2011-0109), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via
To submit your comment online, go to
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union,
We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under
For information on facilities or services for individuals with disabilities or to request special assistance at the public meeting, contact PO David Labadie at the telephone number or e-mail address indicated under the
The legal basis for the proposed rule is 33 U.S.C. 1226, 1231, 1233; 46 U.S.C. Chapter 454, 701, 3306, 3703; 50 U.S.C. 191, 195; Public Law 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to define regulatory safety zones and SLRs.
Marine events are annually held on a recurring basis on the navigable waters within the Coast Guard COTP Boston Zone. These events include fireworks displays, swim events, and other marine events. In the past, the Coast Guard has established SLRs, regulated navigation areas, and safety zones for these events on a case by case basis to ensure the protection of the maritime public and event participants from the hazards associated with these marine events. Issuing individual regulations annually has proved to be administratively cumbersome.
This proposed rule will significantly relieve administrative overhead and consistently apprise the public in a timely manner through permanent publication in Title 33 of the Code of Federal Regulations. The TABLES in this proposed regulation list each recurring marine event requiring a regulated area as administered by the Coast Guard.
By establishing a permanent regulation containing these events, the Coast Guard will eliminate the need to establish temporary rules for events that occur on an annual basis. This provides opportunity for the public to comment while limiting the unnecessary burden of continually establishing temporary rules every year.
This rulemaking will amend, remove, and add regulations that better meet the Coast Guard's intended purpose of ensuring safety during these events.
The Coast Guard has also identified a number of events in 33 CFR 100 which would be more appropriately located in 33 CFR 165. This rule will amend local regulations contained in 33 CFR Part 100 to move firework displays to Part 165, a citation that better meets the Coast Guard's intended purpose of ensuring safety during these events.
The Coast Guard has promulgated safety zones or SLRs for these areas in the past, and has not received public comments or concerns regarding the impact to waterway traffic from these annually recurring events.
The Coast Guard proposes to revise section 33 CFR 100.114, and to add sections 33 CFR 100.130, and 33 CFR 165.118. The proposed changes will remove nine outdated regulated areas and establish 43 new permanent regulated areas. The proposed rule will apply to each recurring marine event listed in the attached TABLES in the Coast Guard COTP Boston Zone. The TABLES provide the event name, sponsor, and type, as well as approximate dates and locations of the events. Additionally, the specific times, dates, regulated areas, and enforcement period for each event will be provided in a Notice of Enforcement published in the
This proposed regulation would prevent persons and vessels from transiting areas specifically designated as SLRs or safety zones during the periods of enforcement to ensure the protection of the maritime public and event participants from the hazards associated with listed marine events. Only event sponsors, designated participants, and official patrol vessels will be allowed to enter safety zones and SLR areas. Spectators and other vessels not registered as event participants may not enter the regulated areas without the permission of the COTP or the designated representatives.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that
We expect the economic impact of this proposed rule to be minimal. Although this regulation may have some impact on the public, the potential impact will be minimized for the following reasons: Vessels will only be restricted from safety zones and SLR areas for a short duration of time unless otherwise noted; vessels may transit in portions of the affected waterway except for those areas covered by the proposed safety zones; the Coast Guard has promulgated safety zones or SLRs in accordance with 33 CFR Parts 100 and 165 for all event areas in the past and has not received notice of any negative impact caused by any of the safety zones or SLRs; notifications will also be made to the local maritime community by LNM and BNTM well in advance of the events.
The effect of this proposed action simply establishes locations or the approximate dates on which the existing regulations would be enforced and consolidates them within one regulation. No new or additional restrictions would be imposed on vessel traffic.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
This proposed rule will affect the following entities, some of which may be small entities: owners or operators of vessels intending to transit, fish, or anchor in the areas where marine events are being held. For the reasons outlined in the Regulatory Planning and Review section above, this rule would not have a significant impact on a substantial number of small entities.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact PO David Labadie at the telephone number or e-mail address indicated under the
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment.
A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under
We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
Marine safety, Navigation (water), Reporting and record-keeping requirements, Waterways.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR Parts 100 and 165 as follows:
1. The authority citation for Part 100 continues to read as follows:
33 U.S.C. 1233.
2. In
3. Add a new § 100.130 to read as follows:
The following regulations apply to the marine events listed in TABLE 1. These regulations will be enforced for the duration of each event, on or about the dates indicated in TABLE 1. Annual notice of the exact dates and times of the effective period of the regulations with respect to each event, the geographical description of each regulated area, and details concerning the nature of the event and the number of participants and type(s) of vessels involved will be provided in a Notice of Enforcement published in the
(a) The Coast Guard may patrol each event area under the direction of a designated Coast Guard Patrol Commander (PATCOM). PATCOM may be contacted on Channel 16 VHF-FM (156.8 MHz) by the call sign “PATCOM.” Official patrol vessels may consist of any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement vessels assigned or approved by the Captain of the Port, Sector Boston.
(b) Vessels may not transit the regulated areas without PATCOM approval. Vessels permitted to transit must operate at a no wake speed, in a manner which will not endanger participants or other crafts in the event.
(c) Spectators or other vessels shall not anchor, block, loiter, or impede the transit of event participants or official patrol vessels in the regulated areas during the effective dates and times, or dates and times as modified through LNM, unless authorized by an official patrol vessel.
(d) PATCOM may control the movement of all vessels in the regulated area. When hailed or signaled by an official patrol vessel, a vessel shall come to an immediate stop and comply with the lawful directions issued. Failure to comply with a lawful direction may result in expulsion from the area, citation for failure to comply, or both.
(e) PATCOM may delay or terminate any marine event in this subpart at any time it is deemed necessary to ensure the safety of life or property. Such action may be justified as a result of weather, traffic density, spectator operation or participant behavior.
(f) For all power boat races listed, vessels operating within the regulated area must be at anchor within a designated spectator area or moored to a waterfront facility in a way that will not interfere with the progress of the event.
(g) For all regattas, boat parades, and rowing and paddling boat races, vessels not associated with the event shall maintain a separation of at least 50 yards from the participants.
4. The authority citation for Part 165 continues to read as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
5. Add a new
The Coast Guard is establishing safety zones for the events listed in TABLE 2 below. These regulations will be enforced for the duration of each event, on or about the dates indicated in TABLE 2. Annual notice of the exact dates and times of the effective period of the regulations with respect to each event, the geographical description of each regulated area, and details concerning the nature of the event and the number of participants and type(s) of vessels involved will be provided in a Notice of Enforcement published in the
(a) The Coast Guard may patrol each event area under the direction of a designated Coast Guard Patrol Commander. The Patrol Commander may be contacted on Channel 16 VHF-FM (156.8 MHz) by the call sign “PATCOM.” Official patrol vessels may consist of any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement vessels assigned or approved by the Captain of the Port, Sector Boston.
(b) Vessels may not transit the regulated areas without Patrol Commander approval. Vessels permitted to transit must operate at a no wake speed, in a manner which will not endanger participants or other crafts in the event.
(c) Spectators or other vessels shall not anchor, block, loiter, or impede the movement of event participants or official patrol vessels in the regulated areas during the effective dates and times, or dates and times as modified through the LNM, unless authorized by an official patrol vessel.
(d) The Patrol Commander may control the movement of all vessels in the regulated area. When hailed or signaled by an official patrol vessel, a vessel shall come to an immediate stop and comply with the lawful directions issued. Failure to comply with a lawful direction may result in expulsion from the area, citation for failure to comply, or both.
(e) The Patrol Commander may delay or terminate any marine event in this subpart at any time it is deemed necessary to ensure the safety of life or property. Such action may be justified as a result of weather, traffic density, spectator operation or participant behavior.
(f) For all fireworks displays listed below, the regulated area is that area of navigable waters within a 350-yard radius of the launch platform or launch site for each fireworks display, unless modified in the LNM at:
(g) For all swimming events listed, vessels not associated with the event shall maintain a distance of at least 100 yards from the participants.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary safety zone on the Atlantic Intracoastal Waterway in Myrtle Beach, South Carolina during the Myrtle Beach Triathlon. The Myrtle Beach Triathlon, which is comprised of a series of triathlon races, is scheduled to take place on Saturday, October 8, 2011 and Sunday, October 9, 2011. The temporary safety zone is necessary for the safety of race participants, participant vessels, spectators, and the general public during the swim portions of the triathlon races. Persons and vessels would be prohibited from entering, transiting through, anchoring in, or remaining within the safety zone unless authorized by the Captain of the Port Charleston or a designated representative.
Comments and related material must be received by the Coast Guard on or before August 5, 2011. Requests for public meetings must be received by the Coast Guard on or before July 14, 2011.
You may submit comments identified by docket number USCG-2011-0001 using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call or e-mail Chief Warrant Officer Robert B. Wilson, Sector Charleston Office of Waterways Management, Coast Guard; telephone 843-740-3180, e-mail
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking (USCG-2011-0001), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via
To submit your comment online, go to
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union,
We do not now plan to hold a public meeting. But you may submit a request for one on or before July 14, 2011 using one of the four methods specified under
The legal basis for the proposed rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1226, 1231; 46 U.S.C. chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
The purpose of the proposed rule is to ensure the safety of race participants, participant vessels, spectators, and the general public during the swim portion of the triathlon races.
On October 8 and 9, 2011, the Myrtle Beach Triathlon will be held in Myrtle Beach, South Carolina. This event will be comprised of a series of triathlon races. Approximately 2,500 individuals are scheduled to compete in the event.
The proposed rule would establish a temporary safety zone around the swim area of the Myrtle Beach Triathlon on the Atlantic Intracoastal Waterway in Myrtle Beach, South Carolina. The temporary safety zone would be enforced daily from 6 a.m. until 11:59 a.m. on October 8, 2011 through October 9, 2011. Persons and vessels would be prohibited from entering, transiting through, anchoring in, or remaining within the safety zone unless specifically authorized by the Captain of the Port Charleston or a designated representative. Persons and vessels would be able to request authorization to enter, transit through, anchor in, or remain within the safety zone by contacting the Captain of the Port Charleston via telephone at 843-740-7050, or a designated representative via VHF radio on channel 16.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
The economic impact of this proposed rule is not significant for the following reasons: (1) The safety zone would only be enforced for a total of 12 hours; (2) the safety zone would encompass only a small portion of the navigable waterway; (3) although persons and vessels would not be able to enter, transit through, anchor in, or remain within the safety zone without authorization from the Captain of the Port Charleston or a designated representative, they would be able to operate in the surrounding area during the enforcement period; (4) persons and vessels would still be able to enter, transit through, anchor in, or remain within the safety zone if authorized by the Captain of the Port Charleston or a designated representative; and (5) the Coast Guard would provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to enter, transit through, anchor in, or remain within that portion of the Atlantic Intracoastal Waterway encompassed within the safety zone from 6 a.m. on October 8, 2011 through 11:59 a.m. on October 9, 2011. For the reasons discussed in the Executive Order 12866 and Executive Order 13563 section above, this proposed rule would not have a significant economic impact on a substantial number of small entities.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Chief Warrant Officer Robert B. Wilson, Sector Charleston Office of Waterways Management, Coast Guard; telephone 843-740-3180, e-mail
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
1. The authority citation for part 165 continues to read as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
2. Add a temporary § 165.T07-0001 to read as follows:
(a)
(b)
(c)
(2) Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated area may contact the Captain of the Charleston by telephone at 843-740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted by the Captain of the Port Charleston or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Charleston or a designated representative.
(3) The Coast Guard will provide notice of the regulated area by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
(d)
Environmental Protection Agency (EPA).
Announcement of public hearing.
The EPA is announcing a public hearing to be held for the proposed rule “Regulation of Fuels and Fuel Additives: 2012 Renewable Fuel Standards,” which EPA intends to publish separately in the
In a separate notice of proposed rulemaking EPA will be proposing amendments to the renewable fuel standard program regulations to establish annual standards for cellulosic biofuel, biomass-based diesel, advanced biofuel, and renewable fuels that would apply to all gasoline and diesel produced in the U.S. or imported in the ear 2012. In addition, the separate proposal includes a proposed cellulosic biofuel applicable volume for 2012 and an applicable volume of biomass-based diesel that would apply in 2013.
The public hearing will be held on July 12, 2011 at the location noted below under
The hearing will be held at the following location: Washington Marriott at Metro Center, 775 12th Street NW., Washington, DC 20005-3901.
When the proposed rule is published in the
Julia MacAllister, Office of Transportation and Air Quality, Assessment and Standards Division, Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105; telephone number: (734) 214-4131; Fax number: (734) 214-4816; E-mail address:
The proposal for which EPA is holding the public hearing will be published separately in the
The public hearing will be held on July 12, 2011 at the location noted under
A verbatim transcript of the hearing and copies of written statements will be included in the rulemaking docket.
The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2010-0133. The EPA has also developed a Web site for the RFS program, including the notice of proposed rulemaking, at the address given above. Please refer to the notice of proposed rulemaking for detailed information on accessing information related to the proposal.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Proposed rule.
DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to provide Governmentwide standardized past performance evaluation factors and performance ratings, and to require all past performance information be entered into the Contractor Performance Assessment Reporting System (CPARS), the Governmentwide past performance feeder system.
Interested parties should submit written comments to the Regulatory Secretariat at one of the addressees shown below on or before August 29, 2011 to be considered in the formation of the final rule.
Submit comments in response to FAR Case 2009-042 by any of the following methods:
•
•
•
Mr. Curtis E. Glover, Sr., Procurement Analyst, at (202) 501-1448 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at (202) 501-4755. Please cite FAR Case 2009-042.
DoD, GSA, and NASA are proposing to amend the FAR because the Office of Federal Procurement Policy (OFPP) requested that FAR parts 8, 12, 15, 42, and 49 be revised to include recommendations from the Government Accountability Office Report GAO-09-374,
The proposed FAR revisions include the following:
(1) Addition of language in FAR 42.1501 to provide for the use of CPARS as the Governmentwide past performance information feeder system into PPIRS.
(2) Revision of FAR 42.1502 to move the language in paragraph (a) “The content of the evaluations should be tailored to the size, content, and complexity of the contractual requirements”, to FAR 42.1503(b).
(3) Addition of language in FAR 42.1503 to provide for Governmentwide standard evaluation factors and a five scale rating system, which reflects the rating definitions contained in the CPARS Policy Guide. Also, incentive-fee and award-fee contract performance ratings will be entered into CPARS.
(4) References to FAR part 42 changes in FAR part 8, 12, and 15.
This proposed rule is a follow on to two previous FAR rules FAR Case 2006-022, Contractor Performance Information (74 FR 31557) published July 1, 2009, and FAR Case 2008-016, Termination for Default Reporting (75 FR 60258) published September 29, 2010. FAR Case 2006-022 established thresholds for contractor performance assessments. FAR Case 2008-016 required the submission of contractor performance assessments for defective cost or pricing data and terminations for default or cause.
Executive Orders (E.O.s) 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
DoD, GSA, and NASA do not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
Therefore, an Initial Regulatory Flexibility Analysis has not been performed. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2009-042), in correspondence.
The proposed rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 8, 12, 15, 42, and 49 as set forth below:
1. The authority citation for 48 CFR parts 8, 12, 15, 42, and 49 continues to read as follows:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
2. Amend section 8.406 by removing from the last sentence of paragraph (e) “42.1503(f)” and adding “42.1503(h)” in its place.
3. Amend section 8.406-7 by removing “evaluation” and adding “annual evaluation” in its place.
4. Amend section 12.403 by removing from the last sentence of paragraph (c)(4) “42.1503(f)” and adding “42.1503(h)” in its place.
5. Amend section 15.407-1 by removing from the fifth sentence of paragraph (d) “42.1503(f)” and adding “42.1503(h) in its place.
6. Amend section 42.1500 by removing from the last sentence “However,” and adding “See subpart 16.4. However,” in its place.
7. Revise section 42.1501 to read as follows:
(a) Past performance information (including the ratings and supporting narratives) is relevant information, for future source selection purposes, regarding a contractor's actions under previously awarded contracts. It includes, for example, the contractor's record of—
(1) Conforming to contract requirements and to standards of good workmanship;
(2) Forecasting and controlling costs;
(3) Adherence to contract schedules, including the administrative aspects of performance;
(4) History of reasonable and cooperative behavior and commitment to customer satisfaction;
(5) Reporting into databases (see subparts 4.14 and 4.15, and reporting requirements of 9.104-7);
(6) Integrity and business ethics; and
(7) Business-like concern for the interest of the customer.
(b) All past performance information shall be entered into the Contractor Performance Assessment Reporting System (CPARS), the Governmentwide assessment reporting tool for all past performance reports. Instructions for submitting assessments into CPARS are available at
(c) Agencies shall monitor their compliance with the past performance reporting requirements in 42.1502.
8. Amend section 42.1502 by—
a. Removing the last sentence from paragraph (a);
b. Revising paragraph (b);
c. Revising the first sentence of paragraph (c);
d. Removing from paragraph (d) the words “task order and delivery order” and adding “task-order and delivery-order” in its place; and
e. Removing from paragraph (i) “42.1503(f)” and adding “42.1503(h)” in its place.
The revised text reads as follows:
(b) Except as provided in paragraphs (e), (f) and (h) of this section, agencies shall prepare, at a minimum, an annual evaluation of contractor performance for each contract that exceeds the simplified acquisition threshold.
(c) Agencies shall prepare an annual evaluation of contractor performance for each order that exceeds the simplified acquisition threshold placed against a Federal Supply Schedule contract, or under a task-order contract or a delivery-order contract awarded by another agency (
9. Revise section 42.1503 to read as follows:
(a) Agency procedures for the past performance evaluation system shall generally provide for input to the evaluations from the technical office, contracting office and, where appropriate, end users of the product or service. Agency procedures shall identify and assign past performance
(b)(1) The evaluation report should reflect how the contractor performed. The report should include clear relevant information that accurately depicts the contractor's performance, and be based on objective facts supported by program and contract performance data. The evaluations should be tailored to the contract type, size, content, and complexity of the contractual requirements.
(2) Evaluation factors for each assessment shall include, at a minimum, the following:
(i) Technical or Quality.
(ii) Cost Control (as applicable).
(iii) Schedule/Timeliness.
(iv) Management or Business Relations.
(v) Small Business Subcontracting (as applicable).
(3) These evaluation factors, including subfactors, may be tailored, however, each factor and subfactor shall be evaluated and supporting narrative provided.
(4) Each evaluation factor, as listed in paragraph (b)(2) of this section, shall be rated in accordance with a five scale rating system (
(c)(1) When the contract provides for incentive fees, the incentive-fee contract performance evaluation shall be entered into CPARS. (See 16.401(f).)
(2) When the contract provides for award fee, the award fee-contract performance adjectival rating as described in 16.401(e)(3) shall be entered into CPARS.
(d) Agency evaluations of contractor performance, including both negative and positive evaluations, prepared under this subpart shall be provided to the contractor as soon as practicable after completion of the evaluation.
(e) Agencies shall require—
(1) Performance issues be documented promptly during contract performance to ensure critical details are included in the evaluation;
(2) The award fee determination, if required, align with the contractor's performance and be reflected in the evaluation;
(3) Timely assessments and quality data (see the quality standards in the CPARS Policy Guide at
(4) Frequent assessment (
(f) Agencies shall prepare and submit all past performance reports electronically into the CPARS at
(g) Agencies shall use the past performance information in PPIRS that is within the last three years (six for construction and architect-engineer contracts) and information contained in the Federal Awardee Performance and Integrity Information System (FAPIIS),
(h)
(2) Agencies shall establish CPARS focal points who will register users to report data into the FAPIIS module of CPARS (available at
(3) The primary duties of the CPARS focal point is to administer CPARS and FAPIIS access. Agencies must also establish PPIRS group managers. The primary duties of the PPIRS group managers are to grant or deny access to PPIRS. The CPARS Reference Material, on the Web site, includes reporting instructions.
10. Amend section 49.402-8 by removing “42.1503(f)” and adding “42.1503(h)” in its place.
Fish and Wildlife Service, Interior.
Notice of 12-month petition finding.
We, the U.S. Fish and Wildlife Service, announce a 12-month finding on a petition to list
The finding announced in this document was made on June 28, 2011.
This finding is available on the Internet at
Jim Boggs, Field Supervisor, Arkansas Ecological Services Field Office, 110 South Amity Road, Suite 300, Conway, AR 72032 (see
Section 4(b)(3)(B) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531
On July 1, 1975 (40 FR 27823),
On January 6, 2004, we received a petition, dated December 28, 2003, from Mr. Joe Glenn of Hodgen, OK, requesting that the Ozark chinquapin be listed under the Act as a candidate species. We interpreted the request to mean threatened or endangered. The petition clearly identified itself as such and included the requisite identification information for the petitioner, as required by the Code of Federal Regulations (CFR) at 50 CFR 424.14(a). The petition contained supporting information regarding the species' ecology, threats to the species, and survey and occurrence data for a portion of the Ouachita Highlands in southeastern Oklahoma. We acknowledged receipt of the petition in a February 2, 2004, letter to Mr. Glenn. In that letter, we advised the petitioner that, due to a significant number of court orders and settlement agreements in Fiscal Year 2004, we would not be able to address the petitioned request at that time.
On June 1, 2010, we published a 90-day finding that the petition presented substantial information that listing the Ozark chinquapin may be warranted and initiated a status review of the species (75 FR 30313). This notice constitutes the 12-month finding on the December 28, 2003, petition to list Ozark chinquapin as threatened or endangered.
Ozark chinquapin is a tree in the beech family (Fagaceae). Ozark chinquapin has leaves 10 to 25 centimeters (cm) (4 to 10 inches (in)) long, broadly lanceolate (tapering to a point at the apex and sometimes at the base) to elliptical, with coarse teeth that are 2.5 to 9 millimeters (mm) (0.1 to 0.35 in) long with whitish or yellowish-cream stellate (star-shaped) hairs on the lower surfaces. The bark is light brown to reddish brown or grayish, with broad flat ridges that break into loose plate-like scales. The fruits are subglobose (round but not perfectly spherical) to ovoid nuts up to approximately 20 mm (0.8 in) long, enclosed in a spiny burr. Burrs are solitary or in groups of two or three. The subspecies is distinguished from
Ozark chinquapin was historically a medium-sized tree species that once grew to 20 meters (m) (65 feet (ft)), although usually much shorter, but now, as a result of chestnut blight, it rarely reaches heights of more than 9 m (30 ft). Trunks develop from stump sprouts as well as from seeds, but in recent years, new growth is generally from sprouts. Trees reaching the age to produce fruit (4 to 5 years; Paillet 1993, p. 262) are still common (Arkansas Natural Heritage Commission (ANHC) 2010, personal communication (pers. comm.)). Ecologically the tree has taken on the character of an understory shrub similar to
Ozark chinquapin has been described as historically common in thin woods, edges of woods, and mid-successional woods (Tucker 1983, pp. 8-9). Turner (1935, p. 419) describes Ozark chinquapin as “fairly common” on north, east, and west facing slopes, ravines, gullies, or narrow valleys, and less frequently in the deep, narrow south-facing gullies or ravines in the white oak, red oak, red maple, hard maple hickory association of northwest Arkansas. It historically occupied canopy and subcanopy positions on a variety of habitats, including dry upland (the higher ground of a region or district; an elevated region) deciduous or mixed hardwood-pine communities on acid soils of ridge-tops, upper slopes adjacent to ravines and gorges, and the tops of sandstone bluffs (C. McDonald 1987, pers. comm.). It is well documented that fire frequency had a major role in shaping landscape and regional vegetation patterns in the Interior Highlands (Batek
Ozark chinquapin occupy sandstone areas in Alabama, but occupy limestone, sandstone, chert rock, and possibly a combination in the Interior Highlands of Arkansas, Missouri, and Oklahoma (Johnson 1988, p. 43). Associated trees in these habitats include
Faber-Langendoen (2001, pp. 444, 446, and 449) describe three forest types that Ozark chinquapin is associated with in the Interior Highlands. These include: (1) Short-leaf pine, white oak,
The first of these forest types is reported from Missouri and Arkansas, where it is known from the Ozark and Ouachita Mountains, and may extend into Oklahoma (this forest type is synonymous (the same or similar) with acid bedrock savanna in Missouri and dry mesic slope Woodland (Smith
The second of these forest types white oak ranges from eastern Oklahoma to the southwestern corner of Illinois, but may have been widespread prior to excessive harvest of shortleaf pine. It is synonymous with the dry acid bedrock forest in Missouri (Faber-Langendoen 2001, p. 446) and (in part) dry shortleaf pine-oak-hickory forest (Allard 1990 in Faber-Langendoen 2001, p. 446) and dry south slope woodland (Smith
The third forest type (little bluestem woodland) is known from the South-Central United States, particularly the Ozark and Ouachita Mountain regions in Arkansas, Missouri, and Oklahoma. It is synonymous with the mesic forest, mesic limestone-dolomite forest, acid bedrock forest (mesic sandstone forest and mesic igneous forest) in Missouri, and mesic oak-hickory forest (Tucker 1989 in Faber-Langendoen 2001, p. 469). The canopy is dominated by oaks, sugar maple, and hickories, while the understory closure varies with moisture status at the site, being more closed under greater moisture conditions. Ozark chinquapin comprises a portion of the shrub layer in moderately well-drained soils.
Ozark chinquapin is located throughout the Interior Highlands in Arkansas, Missouri, and Oklahoma (Kartesz 1994; ANHC 2010, pers. comm.; USDA Forest Service (USFS) 2010, pers. comm.; Missouri Department of Conservation 2010, pers. comm.). In Arkansas, it is in 39 counties, represented by thousands of elements of occurrence (known locations of individual(s) based on field observation). In Missouri, it is found in 9 counties, including but not limited to 48 elements of occurrence representing multiple individuals on the Mark Twain National Forest, Big Sugar Creek State Park, and Roaring River State Park. In Oklahoma, the species is in 8 counties.
Ozark chinquapin currently is widespread and abundant within the Interior Highlands of Arkansas, but is less common and widespread within the uplands of southwestern Missouri and eastern Oklahoma. For example, Waterfall and Wallis (1963, p. 14) report Ozark chinquapin occurrence in only three of seven Oklahoma counties (Adair, Cherokee, and Delaware) in the Ozark uplift portion of the Interior Highlands.
Localities with seed-producing trees are common on public and private lands in the Interior Highlands. Based on a detailed reconstruction of Ozark chinquapin in the pre-blight forests of northwest Arkansas, almost none of the original trees survived the arrival of blight circa 1957. Most Ozark chinquapin sprouts form after the blight infestation and represent old seedlings, which may represent an extreme case of a reproductive strategy based on advanced regeneration (Paillet 2010, pers. comm.). Ozark chinquapin populations still occur throughout the tree's historical core distribution in the Interior Highlands.
Herbarium specimens are all that remains to support the existence of Ozark chinquapin in Alabama (in Bibb, Lawrence, Tuscaloosa, Walker, and Winston Counties in the Appalachian Mountains). Data to support the abundance and distribution of Ozark chinquapin in the Appalachian Mountains is lacking, and researchers have been unable to find extant populations in this region. While it is the opinion of tree experts that Ozark chinquapin is the best taxonomic classification (see Taxonomy and Species Description), the Ozark Chinquapin Foundation reports Ozark chinquapin co-occurrence with
At present, there are thousands of element occurrences in the Interior Highlands. Individual site records commonly report multiple Ozark chinquapin sprout clumps and trees producing fruit. These vary from tens to hundreds of individual sprout clumps at an element occurrence record site (Kartesz 1994; ANHC 2010, pers. comm.; USFS 2010, pers. comm.; Missouri Department of Conservation 2010, pers. comm.).
Section 4 of the Act (U.S.C. 1533
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 to the species, we must look beyond the exposure of the species to a factor to evaluate whether the species may respond to the factor in a way that causes actual effects to the species. If there is exposure to a factor and the species responds negatively, the factor may be a threat and, during the status review, we attempt to determine how significant a threat it is. The threat is significant if it drives, or contributes to, the risk of extinction of the species such that the species may warrant listing as endangered or threatened as those terms are defined in the Act.
Under Factor A, we evaluated the following threats: Habitat loss and/or fragmentation; and forest composition, structure conversions, and forest and fire management (fire use, fire suppression, and forest silvicultural practices; timber harvest, salvage logging, forest thinning, and forest restoration projects).
Johnson (1988, pp. 41-45) recognized Ozark chinquapin records from the Interior Highlands and Appalachian Mountains. Herbarium specimens are all that remain to support the existence of Ozark chinquapin in Alabama (in five counties in the Appalachian Mountains; Johnson 1988, p. 43). Data to support the abundance and distribution of the Ozark chinquapin in the southern Appalachian Mountains are lacking, and researchers have been unable to find extant populations in this region. While there is support for an Appalachian-Ozarkian floristic (relating to flowers) relationship by other taxa such as
Ashe (1923) described the range of the species as “north of the Arkansas River and westward from Center Ridge, Arkansas, northward to southwestern Missouri and westward to the Valley of the White River.” Tucker (1983, p. 16) reported a large number of populations of Ozark chinquapin in the Interior Highlands of Arkansas, Missouri, and Oklahoma. Nearly 20 years later, the distribution and abundance of populations remain similar. The largest populations occur on public lands (such as the Ouachita National Forest (AR and OK), Ozark National Forest (AR), Mark Twain National Forest (MO), State Wildlife Management Areas and Parks (AR, MO, and OK), Buffalo National River (AR), Hot Springs National Park (AR), and Pea Ridge National Military Park (AR). Thousands of elements of occurrences represented by numerous individuals occur in the Interior Highlands (ANHC 2010, pers. comm.; USFS 2010, pers. comm.; Missouri Department of Conservation 2010, pers. comm.; and Oklahoma Natural Heritage 2010; National Park Service (NPS) 2010 and 2011).
The Ozark-Ouachita Highlands Assessment (OOHA) 1999 Terrestrial Vegetation and Wildlife Report, prepared by a collaborative team of natural resource specialists and research scientists, examined historical and existing forest conditions throughout the Interior Highlands of Arkansas, Missouri, and Oklahoma (USFS 1999, section 5). The area of analysis overlaps much of the range of Ozark chinquapin. The upland oak-hickory forest type provided the dominant cover within the region at the time of the OOHA. It covered 15 million acres (6.1 million hectares) or about 36 percent of the area. The oak-pine forest type provided the second most extensive cover. It covered 4.4 million acres (1.8 million hectares) or 11 percent of the area. In 1999, clear-cutting had declined by 97.5 percent over a 10-year period in National Forests within the planning area. Additionally, herbicide application in the National Forests experienced an 83 percent decline over the same period (USFS 1999, p. 73; UUSFS 2005a, pp. 2-5, 2-6 and 2-27; USFS 2005b, pp. 176-178). Oak-hickory and oak-pine forest types continue to be common forest types in the Interior Highlands. OOHA descriptions of vegetation cover or silvicultural practices do not indicate significant reductions in suitable habitat for
Moreover, the majority of Ozark chinquapin habitat is located on State and Federally managed lands. Ozark chinquapin is designated as a USFS sensitive species. Land and resource management plans have recently been revised for National Forests within the range of the species. Revisions of these plans include development of standards to protect the species while allowing normal forest management activities, including the use of prescribed fire, thinning, and natural gas development. These standards further demonstrate that management activities (for example, prescribed fire and thinning) on public lands enhance sprouting, flowering, and fruit production of this species, thus enhancing stewardship for the species. The general direction within these plans is for the National Forests to manage habitat to move species toward recovery and delisting and to prevent the listing of proposed or sensitive species (USFS 2005a, p. 2-13; USFS 2005b, p. 76).
Private property development and land use activities may threaten Ozark
It is generally accepted that climate, topography, and substrate place fundamental constraints on vegetation at many different spatial and temporal scales, but at the landscape scale, vegetation patterns also may be controlled by disturbance histories (Zedler
Historically, the Interior Highlands landscape consisted of a mosaic of prairies, savannas, woodlands, and forests maintained by fires and adapted to disturbance. Based on Government Land Office (GLO) survey records interpreted by the ANHC, only 33 percent of the Ozark Mountains was described as closed forest (much in steep slopes). The remaining 67 percent at the time of the GLO surveys had average tree densities ranging from 38 to 76 trees per acre.
European settlement brought changes to the ecosystem that led to extensive timber harvest and fire suppression. As a result, the average tree density per acre (ha) increased from 52 to 148 (21 to 60) trees. Even more staggering was the increase from 300 to 1,000 stems per acre (121 to 405 stems per ha) in the sapling and shrub layers. Increased trees per acre competing for the same amount of nutrients and water put the ecosystem under stress. There is nothing in the post-glacial record that suggests that the Interior Highlands have been previously affected by changes of this magnitude or rapidity (Spetich 2004, pp. 28 and 304). Despite this forest conversion after European settlement, Ozark chinquapin remained a prized source of edible nuts, fence posts, and railroad ties in the Interior Highlands until its rapid ecological and socioeconomic demise in the mid-1940s from chestnut blight (Tucker 1983, p. 7). Canopy closure in undisturbed woods did not seem to have a major effect on Ozark chinquapin populations (Paillet 2010, pers. comm.).
Hyatt (1993, pp. 116-118) recounts the floristic history of Baxter County in north central Arkansas from the earliest floristic survey in 1818 to present day. Ecologically and floristically, Baxter County was very different during Hyatt's 1987-1988 surveys, as compared with the county's surveys from the early 19th century, when many upland areas were once prairie. Much of this prairie had disappeared by 1880 and was replaced with “upland hardwood” and “pine-hardwood” forest. By the late 19th century, nearly all of the existing forest land was logged for railroad ties and lumber (Hyatt and Moren 1990 in Hyatt 1993, p. 117). Hyatt (1993, pp. 119 and 127) describes Ozark chinquapin as “common, diseased, [and] rarely reproductive,” and from only “Deciduous Forest.”
Chapman
Spetich (2004, p. 49) evaluated fire-scarred trees and stumps at the Big Piney Ranger District (formerly Bayou and Pleasant Hill Ranger Districts), Ozark National Forest, north central Arkansas, for the three time periods 1747 to 1764, 1804 to 1906, and 1916 to 1954. From 1747 to 1764, the fire return interval ranged from 1 to 3 years, with a mean return interval of 2.4 years. From 1804 to 1906, the fire interval ranged from 1 to 9 years, with a mean return interval of 4.4 years. From 1916 to 1954, the fire return interval ranged from 1 to 12 years, with a mean return interval of 5.3 years. This validates what other researchers have found to be a positive correlation between fire frequency and low levels of human population and a negative correlation between fire frequency and high levels of human population density. Thus, increasing human settlement and fragmentation of the landscape resulted in a decrease of fire return interval (Spetich 2004, pp. 49, 463, 469-473).
In 2003, an administrative study designed to monitor the immediate and short-term effects of prescribed fire on individual Ozark chinquapin stems was implemented north of the Crystal Mountain Recreation Area on the Caddo-Womble Ranger District, Ouachita National Forest, AR. Three areas were studied: An area thinned in previous years, an area with no harvest, and an area that served as a reference site. The monitoring was designed to capture the current stand conditions and health and abundance of individual Ozark chinquapin stems. The harvest/burn area showed the widest range of variability and the greatest increase in number of Ozark chinquapin sprouts; there was also an increase in the number of Ozark chinquapin sprouts in the burned area, which had no previous harvest treatments and little to no change in the reference area (USFS 2003, pp. 4-5).
Historical descriptions of vegetation and flora of the Ouachita Mountains (a portion of the Interior Highlands) in
Crandall and Tyrl (2006, p. 65) and Smith
In summary, the OOHA recognized Ozark chinquapin as a species of viability concern, the habitat description being “woodland, fire maintained” (USFS 1999, p. 137). Loss of natural fire regimes is recognized as a threat to the health and sustainability of oak-hickory and oak-pine ecosystems in which Ozark chinquapin occurs (Spetich 2004, pp. 49-50 and 65-66). Given the current understanding of fire as it relates to ecosystem health and sustainability within most of the habitats where Ozark chinquapin is known to occur, we cannot conclude that fire, whether natural or prescribed, is negatively influencing the species. Fire plays a vital role in the management of Ozark chinquapin by maintaining open habitat, encouraging both seed germination and vegetative regeneration. While fire may injure or kill individuals, long-term effects on sustaining viable populations are beneficial. It is well documented that fire suppression adversely effects reproduction of Ozark chinquapin. In contrast, prescribed fire reduces fuel availability in the forest, which reduces the threat of catastrophic wildfires that are likely a greater threat to Ozark chinquapin than prescribed fire.
Scientific literature supports widespread forest composition and structure changes throughout the Interior Highlands beginning in the late 1800s and extending over one century. Tucker (1983, p. 15) stated that Ozark chinquapin formerly was a member of the climax (the highest or most intense point in the development) community, but presently is one of the first species to regenerate following a disturbance (for example, clear-cut and prescribed fire). Paillet (1991, p. 10; 1993, pp. 261-262) noted an area on the Ozark National Forest that was cut 4 to 5 years previously that was full of broad chinquapin crowns, with the ground littered with burrs from the summer's nut crop. Despite these changes, Ozark chinquapin remains common throughout its historical distribution in the Interior Highlands. Current land management efforts, particularly on State and Federal lands, favor Ozark chinquapin persistence in this region.
We evaluated habitat loss, fragmentation, forest composition, structure conversions, forest management, and fire management as threats to the Ozark chinquapin. We found that habitat loss and fragmentation may be happening on private lands, but that its effect on Ozark chinquapin is minimal due to widespread distribution and vast amounts of contiguous habitats afforded the species on State and Federal lands. Forest composition and structure conversions have occurred throughout the species' range, but despite these changes, Ozark chinquapin remains common throughout its historical distribution in the Interior Highlands. Additionally, current forest management efforts, particularly on State and Federal lands, favor Ozark chinquapin persistence in this region. Fire management was the last threat we evaluated. Fire plays a vital role in the management of Ozark chinquapin by maintaining open habitat, encouraging both seed germination and vegetative regeneration. While fire may injure or kill individuals, long-term effects on sustaining viable populations is beneficial.
Based on our review of the best available scientific and commercial information, we conclude that the Ozark chinquapin is not threatened by the present or threatened destruction, modification, or curtailment of its habitat or range now or in the foreseeable future. Additionally, for these reasons, we conclude that alterations to forest composition and structure and forest and fire management do not pose an imminent threat to Ozark chinquapin now or in the foreseeable future.
We do not have any evidence of risks to the Ozark chinquapin from overutilization for commercial, recreational, scientific, or educational purposes, and we have no reason to believe this factor will become a threat to the species in the future. Therefore, based on a review of the best available scientific and commercial information, we find that overutilization for commercial, recreational, scientific, or educational purposes is not a threat to Ozark chinquapin now or in the foreseeable future.
Under Factor C, we evaluated the following diseases: ink disease (
Ink disease, caused by the fungus
Chestnut blight, caused by the fungal parasite
The ability of Ozark chinquapin to produce a mast crop after 4 to 5 years of age increases the likelihood of cross pollination (fertile individuals) and subsequent seed production. This allows for a significant but short lived pulse of cross pollination and seed production in the decade following a release response (release of seeds and pollination) (Paillet 2010, pers. comm.). Although most Ozark chinquapin specimens now found are infertile multi-stemmed understory shrubs due to chestnut blight, it is not exceedingly rare to find fertile specimens in a variety of Arkansas habitats or to find young specimens with single trunks and no evidence of chestnut blight-killed older trunks, indicating recent seed production (ANHC 2010, pers. comm.). In one Arkansas locality, the sprouts produced seeds within a few years of release (Paillet, 1993, p. 267). This indicates there is some level of reproduction (cross pollination and subsequent seed production and germination) (ANHC 2010, pers. comm.), albeit degraded by chestnut blight (Tucker, 1983, pp. 9, 16).
Ozark chinquapin, like American chestnut, also has suppressed sprout clumps that reside on the forest floor. Almost all sprout clumps represent “old seedlings” that never grew to tree size. Many of these suppressed Ozark chinquapin sprouts are small and inconspicuous, escaping notice by the casual observer (Paillet 2010, pers. comm.). Nibbs (1983 in Paillet 2002, p. 1527) showed that suppressed seedlings of several New England tree species are capable of sprouting and that sprouts from seedlings established before tree harvest were more successful in regenerating forests in Massachusetts than were either stump sprouts or new seedlings. Much of the adaptive character of American chestnut as an understory shrub applies as well to Ozark chinquapin.
The Ozark-St. Francis National Forest, Wedington Unit, is involved in a detailed reconstruction of Ozark chinquapin in the pre-chestnut blight forests of northwest Arkansas. Although in modern forests we think of Ozark chinquapin growing in clumps of sprouts, most of the original trees had a single, upright dominant trunk. Most of these original trees did not survive by resprouting. Most surviving Ozark chinquapin sprouts, as in the case of the American chestnut, represent “old seedlings.” This may represent an extreme case of a reproductive strategy based on advanced regeneration (Paillet 2010, pers. comm.), but limited information is available to support or refute this hypothesis.
An understanding of adaptive genetic differentiation among populations is of primary importance in the conservation of
Dane and Hawkins (1999) characterize the genetic diversity within and between populations of the Ozark chinquapin to provide an understanding of overall genetic composition and its relationship to the vulnerability of the species to chestnut blight. The proportion of genetic diversity found among the studied Ozark chinquapin populations was slightly greater than that observed for other
There are high levels of outcrossing and gene flow among Ozark chinquapin populations. Indirect estimates of outcrossing rates suggest that most populations are highly outcrossed (Dane and Hawkins 1999, p. 9). Johnson (1988, pp. 37-40) found the
Knowles and Grant (1981, p. 4, in Stillwell
The high mortality of American chestnut stems in conjunction with near total elimination of reproduction through cross pollination could have resulted in the loss of some (mostly rare) alleles (one of two or more alternative forms of a gene that arise by mutation and are found at the same place on a chromosome) (Loveless and Hamrick 1984; Leberg 1992 in Stillwell
Grenate (1965 in Anagnostakis 1987 p. 27) isolated forms of the chestnut blight fungus that had a different appearance and reduced virulence in
Success at bringing chestnut blight into balance in Europe (Italy and France) demonstrates that the fungus might be controlled in North America (Anagnostakis 1987 p. 33). Brewer (1995, pp. 54-55) found that certain ecological factors may explain differential success of hypovirulence in different Michigan soil types: (1) American chestnut has a better competitive advantage on well-drained sandy soils, (2) hypovirulence originates from sandy textured hypovirulence originates soils, and (3) sandy textured soils provide more dispersing agents for hypovirulent strains. While it remains unclear how important each of these factors is in the hypovirulence phenomenon and how chestnut blight, double-stranded RNA, and American chestnut interact, it should enable researchers, foresters, and conservationists the opportunity to better assess hypovirulence as a biological control that also may favor restoration of Ozark chinquapin populations.
Despite the shift in reproductive strategy (seed production/germination versus vegetative regeneration) and a shorter life span for the stems, chestnut blight has not affected the distribution and abundance of Ozark chinquapin in the Interior Highlands of Arkansas, Missouri, and Oklahoma (see “Distribution”). Tucker (1983, p. 25) states that chestnut blight is responsible for the mortality of extant reproductive populations (those capable of cross pollination and seed production), reducing populations to primarily reproduction via regeneration, and that populations capable of cross pollination and seed production are increasingly rare. However, there are numerous references in the scientific literature and from personal communications with agencies and conservation groups actively involved in the conservation of Ozark chinquapin that indicate that this species is adapted to and capable of producing mast crops annually in areas with active management (such as forest management and prescribed fire) (Paillet 1993, p. 267; Paillet 2002, p. 1528; Paillet 2010, pers. comm.; ANHC 2010, pers. comm.; USFS 2010, pers. comm.; Ozark Chinquapin Foundation 2010, pers. comm.; Missouri Department of Natural Resources 2010, pers. comm.). While not done as extensively as for American chestnut, genetic studies indicate that Ozark chinquapin has greater genetic diversity than American chestnut and similar genetic diversity to Allegheny chinquapin, both of which are more geographically widespread than Ozark chinquapin (Dane and Hawkins 1999, p. 2-9; Stillwell
Ink disease does not pose an imminent threat now or in the foreseeable future to the continued existence of extant Ozark chinquapin populations; however, chestnut blight has posed a long-term, imminent threat to mature Ozark chinquapins for the past 70 years and will for the foreseeable future. However, chestnut blight does not threaten the continued existence of Ozark chinquapin at this time or in the foreseeable future. Our conclusion is based on the following: (1) The documented widespread distribution and abundance of Ozark chinquapin is more complex than the picture presented by chestnut blight alone and may represent combined effects of changes in disturbance regime, climate, and land use history that extend over a prolonged period (post-glacial history) in the region; (2) it is well documented that the Ozark chinquapin remains widespread and abundant within the Interior Highlands; and (3) due to the life history traits of Ozark Chinquapin, it appears that cross pollination and production of seeds, while rare, does occur, which may allow for a significant, albeit greatly diminished, short pulse of seed production and germination in the decade after a disturbance (release) response. Based on our review of the best available scientific and commercial information, we conclude that the Ozark chinquapin is not threatened by the disease or predation now or in the foreseeable future.
The majority of Ozark chinquapin populations occur on public land. Populations that occur on these lands are protected by State and Federal laws and regulations.
The NPS, under its National Park Service Organic Act (16 U.S.C. 1
Hot Springs National Park (HSNP) does not specifically manage for Ozark chinquapin. HSNP's current General Management Plan (GMP) was approved in the 1980s and did not specifically address the Ozark chinquapin. However, HSNP does manage for the entire ecosystem that includes the Ozark chinquapin. For instance, in May 2005, HSNP abandoned its practice of total fire suppression regardless of ignition source and has since utilized fire as an ecosystem restoration tool on Sugarloaf Mountain (the only site in the park with an extant population of Ozark chinquapin). As a result of the new fire regime, young Ozark chinquapin sprouts have responded favorably at sites with suitable habitat. Furthermore, HSNP is currently in the process of developing a new GMP, which will incorporate ecosystem restoration that will prove valuable to Ozark chinquapin restoration at HSNP, with expertise from other agencies and researchers (for example, USFS Southeast Research Station; S. Rudd, NPS, pers. comm. 2011). Similarly, Pea Ridge National Military Park does not currently have a GMP that specifically addresses the conservation needs of Ozark chinquapin, but it actively utilizes fire as an ecosystem restoration tool (K. Eads, NPS, pers. comm. 2011).
Finally, Buffalo National River (BNR) is developing a predictive geographic information system (map) model based on soil types and aspects associated with Ozark chinquapin populations at BNR. This work also includes a better delineation (survey) of Ozark chinquapin populations to aid in a better understanding of its health and spatial distribution, important modeling parameters. This information will be available in summer 2011 and will further help guide Ozark chinquapin habitat restoration efforts at BNR. BNR also began work in 2009 with an arborist to gather seeds from trees at BNR seemingly unaffected by chestnut blight for propagation (B. Wilson, NPS, pers. comm. 2011).
Ozark chinquapin is currently designated as a USFS sensitive species (see Distribution section and Factor A for USFS lands with extant Ozark chinquapin populations). The National Forest Management Act of 1976 (16 U.S.C. 1600
Additionally, the Ozark chinquapin currently receives protection on State park and natural heritage owned lands (see Distribution section and Factor A) in Arkansas, Missouri, and Oklahoma. State parks in Missouri, similar to Arkansas and Oklahoma, are acquired and managed to protect a well-balanced system of areas with outstanding scenic, recreational, and historic significance (10 CSR 100-1.010). Missouri State parks currently track resiliency and recovery of Ozark chinquapin with implementation of prescribed fire to manage for ecosystem health (such as fire-mediated woodlands that support Ozark chinquapin) and monitor distribution with aid from the Natural Heritage Program (A. Vaughn, Missouri State Parks, pers. comm. 2010). Arkansas Game and Fish Commission (AGFC) has no specific management strategy for Ozark chinquapin on Wildlife Management Areas; similar to other State properties throughout the species range, they maintain a species list for inventory purposes and elements of occurrence and have prescribed fire management plans that benefit Ozark chinquapin (M. Blaney, AGFC, pers. comm. 2011).
The ANHC System of Natural Areas provides long-term protection to some of Arkansas' most ecologically significant lands. ANHC rules and regulations prohibit the collection and/or removal of plants (including fruits, nuts, or edible plant parts), animals, fungi, rocks, minerals, fossils, archaeological artifacts, soil, downed wood, or any other natural material, alive or dead. Natural areas are managed according to an established management
In summary, we do not consider the inadequacy of existing regulatory mechanisms to be a threat to the populations of Ozark Chinquapin in the national forests and parks and State parks and natural areas in Arkansas, Missouri, and Oklahoma. The regulatory mechanisms discussed above allow the Federal and State agencies to prevent collection or take of Ozark chinquapin and implement management practices to ensure long-term population viability and promote natural ecosystem restoration and health on public property. Furthermore, we do not consider development outside these Federal and State lands to be a threat to Ozark chinquapin populations within these Federal lands. Therefore, based on a review of the available information, we find that inadequacy of existing regulatory mechanisms is not a threat to Ozark chinquapin now or in the foreseeable future.
Habitat is dynamic, and species may move from one area to another over time. Climate change will be a particular challenge for biodiversity, because the interaction of additional stressors associated with climate change and current stressors may push species beyond their ability to survive (Lovejoy 2005, pp. 325-326). The synergistic (combined or cooperative action or force) implications of climate change and habitat fragmentation are the most threatening facet of climate change for biodiversity (Hannah
Therefore, we do not have any information of risks to the Ozark chinquapin from other natural or manmade factors, and we have no reason to believe this factor will become a threat to the species in the foreseeable future. Based on a review of the available information, we find that other natural or manmade factors are not a threat to the Ozark chinquapin now or in the foreseeable future.
As required by the Act, we considered the five factors in assessing whether Ozark chinquapin is threatened or endangered throughout all or a significant portion of its range. We examined the best scientific and commercial information available regarding the past, present, and future threats faced by Ozark chinquapin. We reviewed the petition, information available in our files, and other available published and unpublished information, and we consulted with recognized Ozark chinquapin experts and other Federal, State, and Tribal agencies.
Based on our review of the best available scientific and commercial information pertaining to the five factors, we find that the threats are not of sufficient imminence, intensity, or magnitude to indicate that Ozark chinquapin is in danger of extinction (endangered), or likely to become endangered within the foreseeable future (threatened), throughout all of its range. Therefore, we find that listing Ozark chinquapin as a threatened or endangered species is not warranted throughout all of its range at this time.
Having determined that Ozark chinquapin does not meet the definition of a threatened or endangered species throughout all of its range, we must next consider whether there are any significant portions of the range where Ozark chinquapin is in danger of extinction or is likely to become endangered in the foreseeable future.
In determining whether Ozark chinquapin is threatened or endangered in a significant portion of its range, we first addressed whether any portions of the range of Ozark chinquapin warrant further consideration. We evaluated the current range of Ozark chinquapin to determine if there is any apparent geographic concentration of the primary stressors potentially affecting the species including habitat management, development, climate change, regulation, disease, and genetics. This species' range suggests that stressors are not likely to affect it in a uniform manner throughout its range. As we explained in detail in our analysis of the status of the species, none of the stressors faced by the species are sufficient to place it in danger of extinction now (endangered) or in the foreseeable future (threatened). Therefore, no portion is likely to warrant further consideration, and a determination of significance is not necessary.
We do not find that Ozark chinquapin is in danger of extinction now, nor is it likely to become endangered within the foreseeable future throughout all or a significant portion of its range. Therefore, listing Ozark chinquapin as threatened or endangered under the Act is not warranted at this time.
We request that you submit any new information concerning the status of, or threats to, Ozark chinquapin to our Arkansas Ecological Services Field Office (see
A complete list of references cited is available on the Internet at
The primary authors of this notice are the staff members of the Arkansas Ecological Services Field Office (see
The authority for this section is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule.
The National Marine Fisheries Service (NMFS) publishes its proposed List of Fisheries (LOF) for 2012, as required by the Marine Mammal Protection Act (MMPA). The proposed LOF for 2012 reflects new information on interactions between commercial fisheries and marine mammals. NMFS must classify each commercial fishery on the LOF into one of three categories under the MMPA based upon the level of serious injury and mortality of marine mammals that occurs incidental to each fishery. The classification of a fishery in the LOF determines whether participants in that fishery are subject to certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan (TRP) requirements.
Comments must be received by July 28, 2011.
Send comments by any one of the following methods.
(1) Electronic Submissions: Submit all electronic comments through the Federal eRulemaking portal:
(2) Mail: Chief, Marine Mammal and Sea Turtle Conservation Division, Attn: List of Fisheries, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.
Comments regarding the burden-hour estimates, or any other aspect of the collection of information requirements contained in this proposed rule, should be submitted in writing to Chief, Marine Mammal and Sea Turtle Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910, or to Nathan Frey, OMB, by fax to 202-395-7285 or by e-mail to
Information regarding the LOF and the Marine Mammal Authorization Program, including registration procedures and forms, current and past LOFs, information on each Category I and II fishery, observer requirements, and marine mammal injury/mortality reporting forms and submittal procedures, may be obtained at:
NMFS, Northeast Region, 55 Great Republic Drive, Gloucester, MA 01930-2298, Attn: Allison Rosner;
NMFS, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701, Attn: Laura Engleby;
NMFS, Southwest Region, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213, Attn: Charles Villafana;
NMFS, Northwest Region, 7600 Sand Point Way NE., Seattle, WA 98115, Attn: Protected Resources Division;
NMFS, Alaska Region, Protected Resources, P.O. Box 22668, 709 West 9th Street, Juneau, AK 99802, Attn: Bridget Mansfield; or
NMFS, Pacific Islands Region, Protected Resources, 1601 Kapiolani Boulevard, Suite 1100, Honolulu, HI 96814-4700, Attn: Lisa Van Atta.
Melissa Andersen, Office of Protected Resources, 301-713-2322; David Gouveia, Northeast Region, 978-281-9280; Laura Engleby, Southeast Region, 727-551-5791; Elizabeth Petras, Southwest Region, 562-980-3238; Brent Norberg, Northwest Region, 206-526-6733; Bridget Mansfield, Alaska Region, 907-586-7642; Lisa Van Atta, Pacific Islands Region, 808-944-2257. Individuals who use a telecommunications device for the hearing impaired may call the Federal Information Relay Service at 1-800-877-8339 between 8 a.m. and 4 p.m. Eastern time, Monday through Friday, excluding Federal holidays.
Section 118 of the MMPA requires NMFS to place all U.S. commercial fisheries into one of three categories based on the level of incidental serious injury and mortality of marine mammals occurring in each fishery (16 U.S.C. 1387(c)(1)). The classification of a fishery on the LOF determines whether participants in that fishery may be required to comply with certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan requirements. NMFS must reexamine the LOF annually, considering new information in the Marine Mammal Stock Assessment Reports (SAR) and other relevant sources, and publish in the
The definitions for the fishery classification criteria can be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2). The criteria are also summarized here.
The fishery classification criteria consist of a two-tiered, stock-specific approach that first addresses the total impact of all fisheries on each marine mammal stock, and then addresses the impact of individual fisheries on each stock. This approach is based on consideration of the rate, in numbers of animals per year, of incidental mortalities and serious injuries of marine mammals due to commercial fishing operations relative to the potential biological removal (PBR) level for each marine mammal stock. The MMPA (16 U.S.C. 1362 (20)) defines the PBR level as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. This definition can also be found in the
While Tier 1 considers the cumulative fishery mortality and serious injury for a particular stock, Tier 2 considers fishery-specific mortality and serious injury for a particular stock. Additional details regarding how the categories were determined are provided in the preamble to the final rule implementing section 118 of the MMPA (60 FR 45086, August 30, 1995).
Because fisheries are classified on a per-stock basis, a fishery may qualify as one Category for one marine mammal stock and another Category for a different marine mammal stock. A fishery is typically classified on the LOF at its highest level of classification (
There are several fisheries on the LOF classified as Category II that have no recent documented injuries or mortalities of marine mammals, or fisheries that did not result in a serious injury or mortality rate greater than 1 percent of a stock's PBR level based on known interactions. NMFS has classified these fisheries by analogy to other Category I or II fisheries that use similar fishing techniques or gear that are known to cause mortality or serious injury of marine mammals, or according to factors discussed in the final LOF for 1996 (60 FR 67063, December 28, 1995) and listed in the regulatory definition of a Category II fishery, “In the absence of reliable information indicating the frequency of incidental mortality and serious injury of marine mammals by a commercial fishery, NMFS will determine whether the incidental serious injury or mortality is “frequent,” “occasional,” or “remote” by evaluating other factors such as fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, and the species and distribution of marine mammals in the area, or at the discretion of the Assistant Administrator for Fisheries” (50 CFR 229.2). Further, eligible commercial fisheries not specifically identified on the LOF are deemed to be Category II fisheries until the next LOF is published (50 CFR 229.2).
The LOF includes a list of marine mammal species or stocks incidentally killed or injured in each commercial fishery. To determine which species or stocks are included as incidentally killed or injured in a fishery, NMFS annually reviews the information presented in the current SARs. The SARs are based upon the best available scientific information and provide the most current and inclusive information on each stock's PBR level and level of interaction with commercial fishing operations. NMFS also reviews other sources of new information, including observer data, stranding data, and fisher self-reports.
In the absence of reliable information on the level of mortality or injury of a marine mammal stock, or insufficient observer data, NMFS will determine whether a species or stock should be added to, or deleted from, the list by considering other factors such as: changes in gear used, increases or decreases in fishing effort, increases or decreases in the level of observer coverage, and/or changes in fishery management that are expected to lead to decreases in interactions with a given marine mammal stock (such as a TRP or a fishery management plan (FMP)). NMFS will provide case-specific justification in the LOF for changes to the list of species or stocks incidentally killed or injured.
Data obtained from the observer program and observer coverage levels are important tools in estimating the level of marine mammal mortality and serious injury in commercial fishing operations. The best available information on the level of observer coverage, and the spatial and temporal distribution of observed marine mammal interactions, is presented in the SARs. Starting with the 2005 SARs, each SAR includes an appendix with detailed descriptions of each Category I and II fishery on the LOF, including observer coverage in those fisheries. The SARs generally do not provide detailed information on observer coverage in Category III fisheries because, under the MMPA, Category III fisheries are not required to accommodate observers aboard vessels due to the remote likelihood of mortality and serious injury of marine mammals. Fishery information presented in the SARs' appendices includes: Level of observer coverage, target species, levels of fishing effort, spatial and temporal distribution of fishing effort, characteristics of fishing gear and operations, management and regulations, and interactions with marine mammals. Copies of the SARs are available on the NMFS Office of Protected Resources' Web site at:
This proposed rule includes three tables that list all U.S. commercial fisheries by LOF Category. Table 1 lists all of the commercial fisheries in the Pacific Ocean (including Alaska); Table 2 lists all of the commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean; and Table 3 lists all U.S.-authorized commercial fisheries on the high seas. A fourth table, Table 4, lists all commercial fisheries managed under applicable TRPs or take reduction teams (TRT).
Beginning with the 2009 LOF, NMFS includes high seas fisheries in Table 3 of the LOF, along with the number of valid High Seas Fishing Compliance Act (HSFCA) permits in each fishery. As of 2004, NMFS issues HSFCA permits only for high seas fisheries analyzed in accordance with the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The authorized high seas fisheries are broad in scope and encompass multiple specific fisheries identified by gear type. For the purposes of the LOF, the high seas fisheries are subdivided based on gear type (
HSFCA permits are valid for five years, during which time FMPs can change. Therefore, some vessels/participants may possess valid HSFCA permits without the ability to fish under the permit because it was issued for a gear type that is no longer authorized under the most current FMP. For this reason, the number of HSFCA permits displayed in Table 3 is likely higher than the actual U.S. fishing effort on the high seas. For more information on how NMFS classifies high seas fisheries on the LOF, see the preamble text in the final 2009 LOF (73 FR 73032; December 1, 2008).
Starting with the 2010 LOF, NMFS developed summary documents, or fishery fact sheets, for each Category I and II fishery on the LOF. These fishery fact sheets provide the full history of each Category I and II fishery, including: when the fishery was added to the LOF, the basis for the fishery's initial classification, classification changes to the fishery, changes to the list of species or stocks incidentally killed or injured in the fishery, fishery gear and methods used, observer coverage levels, fishery management and regulation, and applicable TRPs or TRTs, if any. These fishery fact sheets are updated after each final LOF and can be found under “How Do I Find Out if a Specific Fishery is in Category I, II, or III?” on the NMFS Office of Protected Resources' Web site:
Owners of vessels or gear engaging in a Category I or II fishery are required under the MMPA (16 U.S.C. 1387(c)(2)), as described in 50 CFR 229.4, to register with NMFS and obtain a marine mammal authorization to lawfully take non-endangered and non-threatened marine mammals incidental to commercial fishing operations. Owners of vessels or gear engaged in a Category III fishery are not required to register with NMFS or obtain a marine mammal authorization.
NMFS has integrated the MMPA registration process, implemented through the Marine Mammal Authorization Program (MMAP), with existing state and Federal fishery license, registration, or permit systems for Category I and II fisheries on the LOF. Participants in these fisheries are automatically registered under the MMAP and are not required to submit registration or renewal materials directly under the MMAP. In the Pacific Islands, Southwest, Northwest, and Alaska regions, NMFS will issue vessel or gear owners an authorization certificate and/or injury/mortality reporting forms via U.S. mail or with their state or Federal license at the time of renewal. In the Northeast region, NMFS will issue vessel or gear owners an authorization certificate via U.S. mail automatically at the beginning of each calendar year; but vessel or gear owners must request or print injury/mortality reporting forms by contacting the NMFS Northeast Regional Office at 978-281-9328 or by visiting the Northeast Regional Office Web site (
The authorization certificate, or a copy, must be on board the vessel while it is operating in a Category I or II fishery, or for non-vessel fisheries, in the possession of the person in charge of the fishing operation (50 CFR 229.4(e)). Although efforts are made to limit the issuance of authorization certificates to only those vessel or gear owners that participate in Category I or II fisheries, not all state and Federal permit systems distinguish between fisheries as classified by the LOF. Therefore, some vessel or gear owners in Category III fisheries may receive authorization certificates even though they are not required for Category III fisheries. Individuals fishing in Category I and II fisheries for which no state or Federal permit is required must register with NMFS by contacting their appropriate Regional Office (see
In Pacific Islands, Southwest, Alaska or Northeast regional fisheries, registrations of vessel or gear owners are automatically renewed and participants should receive an authorization certificate by January 1 of each new year. In Northwest regional fisheries, vessel or gear owners receive authorization with each renewed state fishing license, the timing of which varies based on target species. Vessel or gear owners who participate in these regions and have not received authorization certificates by January 1 or with renewed fishing licenses must contact the appropriate NMFS Regional Office (see
In Southeast regional fisheries, vessel or gear owners may receive an authorization certificate by contacting the Southeast Regional Office or visiting the Southeast Regional Office Web site (
In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, any vessel owner or operator, or gear owner or operator (in the case of non-vessel fisheries), participating in a fishery listed on the LOF must report to NMFS all incidental injuries and mortalities of marine mammals that occur during commercial fishing operations, regardless of the category in which the fishery is placed (I, II or III) within 48 hours of the end of the fishing trip. “Injury” is defined in 50 CFR 229.2 as a wound or other physical harm. In addition, any animal that ingests fishing gear or any animal that is released with fishing gear entangling, trailing, or perforating any part of the body is considered injured, regardless of the presence of any wound or other evidence of injury, and must be reported. Injury/mortality reporting forms and instructions for submitting forms to NMFS can be downloaded from:
Individuals participating in a Category I or II fishery are required to accommodate an observer aboard their vessel(s) upon request from NMFS. MMPA section 118 states that an observer will not be placed on a vessel if the facilities for quartering an observer or performing observer functions are inadequate or unsafe; thereby, exempting vessels too small to accommodate an observer from this requirement. However, observer requirements will not be exempted, regardless of vessel size, for U.S. Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline vessels operating in special areas designated by the Pelagic Longline Take Reduction Plan implementing regulations (50 CFR 229.36(d)). Observer requirements can be found in 50 CFR 229.7.
Table 4 in this proposed rule provides a list of fisheries affected by TRPs and TRTs. TRP regulations can be found at 50 CFR 229.30 through 229.36. A description of each TRT and copies of each TRP can be found at:
NMFS reviewed the marine mammal incidental serious injury and mortality information presented in the SARs for all fisheries to determine whether changes in fishery classification were warranted. The SARs are based on the best scientific information available at the time of preparation, including the level of serious injury and mortality of marine mammals that occurs incidental to commercial fishery operations and the PBR levels of marine mammal stocks. The information contained in the SARs is reviewed by regional Scientific Review Groups (SRGs) representing Alaska, the Pacific (including Hawaii), and the U.S. Atlantic, Gulf of Mexico, and Caribbean. The SRGs were created by the MMPA to review the science that informs the SARs, and to advise NMFS on marine mammal population status, trends, and stock structure, uncertainties in the science, research needs, and other issues.
NMFS also reviewed other sources of new information, including marine mammal stranding data, observer program data, fisher self-reports, reports to the SRGs, conference papers, FMPs, and ESA documents.
The proposed LOF for 2012 was based, among other things, on information provided in the NEPA and ESA documents analyzing authorized high seas fisheries; stranding data; fishermen self-reports through the MMAP; and the final SARs for 1996 (63 FR 60, January 2, 1998), 2001 (67 FR 10671, March 8, 2002), 2002 (68 FR 17920, April 14, 2003), 2003 (69 FR 54262, September 8, 2004), 2004 (70 FR 35397, June 20, 2005), 2005 (71 FR 26340, May 4, 2006), 2006 (72 FR 12774, March 19, 2007), 2007 (73 FR 21111, April 18, 2008), 2008 (74 FR 19530, April 29, 2009), 2009 (75 FR 12498, March 16, 2010), and 2010 (76 FR 34054, June 10, 2011). The SARs are available at:
Beginning with the final 2008 LOF (72 FR 66048, November 27, 2007), NMFS describes each Category I and II fishery on the LOF. Below, NMFS describes the fisheries classified as Category I or II on the 2012 LOF that were not classified as such on a previous LOF (and therefore have not yet been defined on the LOF). Additional details for Category I and II fisheries operating in U.S. waters are included in the SARs, FMPs, and TRPs, through state agencies, or through the fishery summary documents available on the NMFS Office of Protected Resources Web site (
The “HI charter vessel” fishery is primarily a troll fishery targeting large pelagic species including billfish (
Hawaii state law allows sales of fish caught during sportfishing charter boat trips provided that the seller (usually, but not always, the captain) possesses a valid Commercial Marine License (CML) from the Hawaii Department of Land and Natural Resources (DLNR), Division of Aquatic Resources (DAR). Every licensee must provide DLNR/DAR with a monthly trip report. Based on survey results of charter boat operators (Hamilton, 1998), the majority of charter fishing operators in Hawaii sell at least some portion of their catch. There has not been observer coverage in this fishery.
The “HI trolling, rod and reel” fishery used troll gear to target yellowfin tuna, blue marlin, mahi mahi, ono, and skipjack tuna, and also lands bycatch of sailfish, spearfish, kawakawa, albacore, rainbow runner, and sharks. Bigeye tuna make up a very minor proportion of total reported troll catch. Compared to the “HI charter vessel” described above fishery, which also uses troll gear and methods, the “HI trolling, rod and reel” fishery targets and catches more yellowfin tuna (about 80 percent by weight), compared to charter vessels' catch of marlin (40-50 percent by weight). Troll fishing is conducted by towing lures or baited hooks from a moving vessel, using big game-type rods and reels as well as hydraulic haulers, outriggers and other gear. Up to six lines rigged with artificial lures or live bait may be trolled when outrigger poles are used to keep gear from tangling. When using live bait, trollers move at slower speeds to permit the bait to swim “naturally.” Small boat trolling is Hawaii's largest commercial fishery in terms of participation, although it catches a relatively modest volume of fish amounting to about 3,000 mt annually. The fishery operates year-round in the MHI, with vessels tending to fish within 25-50 miles of land and trips lasting only one day. Troll vessels fish in areas where water masses converge and where the underwater topography changes dramatically, such as near submarine cliffs or oceanic seamounts. Troll vessels also fish near anchored FADs, or search for drifting logs or flotsam that aggregate tuna, mahi mahi, and ono. Additionally, troll vessels are also known to troll through groups of dolphins to target tuna associated with the dolphins (Baird unpublished data cited in Courbis
The small-vessel troll fishery includes poorly differentiated commercial, recreational, and subsistence components. Many fishermen who are fishing primarily for recreation may sell their fish to cover their expenses. All fishery participants who fish, or land at least one fish with an intent to sell, within 3 miles of the shoreline (
The “Southeastern U.S. Atlantic, Gulf of Mexico stone crab trap/pot” fishery operates primarily nearshore in the State of Florida. Stone crab fishing outside of this area is likely very minimal. In 2010, the State of Florida issued 1,282 commercial stone crab licenses and 1,190,285 stone crab trap tags. Florida state regulations limit recreational stone crab trap/pot numbers to five per person. The season for commercial and recreational stone crab harvest is from October 15 to May 15. Traps are the exclusive gear type used for the commercial and recreational stone crab fishery. Commercial traps must be designed to conform to the specifications established under U.S. 50 CFR 654.22, as well as State of Florida statutes. Baited traps are frequently set in waters of 65 ft (19.8 m) depth or less in a double line formation, generally 100-300 ft (30.5-91.4 m) apart, running parallel to a bottom contour. The margins of seagrass flats and bottoms with low rocky relief are also favored areas for trap placement. Buoys are attached to the trap/pot via float line. In Florida, commercial trap/pot buoys are required to be marked with the letter “X,” but there are no specific marking requirements for recreational crab traps.
The following summarizes changes to the LOF for 2012 in fishery classification, fisheries listed in the LOF, the estimated number of vessels/participants in a particular fishery, and the species or stocks that are incidentally killed or injured in a particular fishery. The classifications and definitions of U.S. commercial fisheries for 2012 are identical to those provided in the LOF for 2011 with the proposed changes discussed below. State and regional abbreviations used in the following paragraphs include: AK (Alaska), CA (California), DE (Delaware), FL (Florida), GMX (Gulf of Mexico), HI (Hawaii), MA (Massachusetts), ME (Maine), NC (North Carolina), NY (New York), OR (Oregon), RI (Rhode Island), SC (South Carolina), VA (Virginia), WA (Washington), and WNA (Western North Atlantic).
NMFS proposes to elevate the “CA thresher shark/swordfish drift gillnet” fishery from Category III to Category II. NMFS observed this fishery from 2004 through 2009 at coverage levels ranging from 13.3 percent to 20.9 percent. NMFS reclassified this fishery from Category I to Category III on the 2011 LOF (75 FR 68468; November 8, 2010), because NMFS Southwest Observer Program reports indicated there were no serious injuries or mortalities of any marine mammal stock for which the average total fishery mortality and serious injury exceeded 10 percent of the stock's PBR (2010 SARs). However, NMFS received a mortality/injury self-report through the MMAP from a fisherman indicating a humpback whale was entangled in 2009 during operations of this fishery. Based on the information in this self-report and follow-up discussion with the reporting fisherman, NMFS Science Center staff determined this whale to be seriously injured because the animal was cut loose and released alive with entangling and trailing gear. The location of the entanglement off of Southern CA indicates the animal was most likely part of the CA/OR/WA stock of humpback whales. The total annual mortality and serious injury of humpback whales (CA/OR/WA stock) in all fisheries exceeds 10 percent of the stock's PBR (Tier 1 analysis). This single serious injury results in an average mortality and serious injury rate of 0.2 humpback whales per year (when averaged over the last 5 years of data) in this fishery (Tier 2 analysis), or 1.8 percent PBR of 11.3 (2010 SAR), warranting a Category II classification. This fishery is currently observed under the authority of the Highly Migratory Species FMP (50 CFR 660.719) and must comply with Pacific Offshore Cetacean TRP regulations (50 CFR 229.31).
NMFS proposes to elevate the “HI charter vessel” and “HI trolling, rod and reel” fisheries from Category III to Category II based their fishing techniques and anecdotal reports of hookings of Pantropical spotted dolphins (HI stock) (Rizutto 2007, Courbis
Charter and commercial trolling vessels in HI frequently troll multiple lines through groups of spotted dolphins to target schools of tunas that aggregate below the dolphins. Eighteen of 47 (38%) opportunistic sightings of Pantropical spotted dolphins near the Main Hawaiian Islands between November 2006 and July 2008 included one or more (with a maximum of six) troll fishing vessels actively “fishing on” groups of the dolphins (Baird unpublished data cited in Courbis
As stated above, quantitative information on the level of serious injury or mortality is not available for these fisheries. However, NMFS can project the likely level of serious injury and mortality in these fisheries based on the available information presented in the previous paragraph. The PBR for Pantropical spotted dolphins (HI stock) is 61; however, NMFS may split this stock into several smaller, island-associated stocks in the future (2010 SAR), which would result in lower PBRs for each new stock. Given the fishing techniques, evidence of takes from eyewitness reports, and the level of effort in these two fisheries (2,305 vessels combined), NMFS projects that each fishery will have at least one incidental serious injury or mortality of a Pantropical spotted dolphin (HI stock) per year. This level of take represents a minimum of 1.6 percent of PBR of 61 in each fishery; therefore, Category II classification is warranted for both the “HI charter vessel” and “HI trolling, rod and reel” fisheries.
NMFS proposes to update the estimated number of persons/vessels in the following HI fisheries to reflect the number of licensees reporting landings in 2010.
Category I: “HI deep-set (tuna target) longline/set line” from 127 to 124.
Category II: “American Samoa longline” from 60 to 26; “HI shortline” from 21 to 13; and “HI trolling, rod and reel” from 2,210 to 2,191.
Category III: “HI inshore gillnet” from 39 to 44; “HI crab net” from 8 to 5; “HI Kona crab loop net” from 41 to 46; “HI opelu/akule net” from 20 to 16; “HI hukilau net” from 36 to 27; “HI lobster tangle net” from 2 to 1; “HI inshore purse seine” from 8 to 5; “HI throw net, cast net” from 28 to 22; “HI crab trap” from 9 to 5; “HI fish trap” from 11 to 13; “HI lobster trap” from 3 to 1; “HI shrimp trap” from 1 to 2; “HI kaka line” 28 to 24; “HI vertical longline” from 18 to 10; “HI aku boat, pole, and line” from 6 to 2; “HI inshore handline” from 460 to 416; “HI tuna handline” from 531 to 445; “HI handpick” from 53 to 61; “HI lobster diving” from 36 to 39; “HI spearfishing” from 163 to 144; “HI fish pond” from N/A to 16; and “HI Main Hawaiian Islands deep-sea bottomfish handline from 580 to 569.
NMFS proposes to add humpback whale (CA/OR/WA stock) to the list of species or stocks incidentally killed or injured in the “CA thresher shark/swordfish drift gillnet” fishery (proposed to be elevated to Category II in this proposed rule). NMFS further proposes to include the notation “
NMFS proposes to add Pantropical spotted dolphin (HI stock) to the list of species or stocks incidentally killed or injured in the “HI charter vessel” and “HI trolling, rod and reel” fisheries (both proposed to be elevated to Category II in this proposed rule). NMFS further proposes to include a superscript “
NMFS proposes to elevate the “Southeastern U.S. Atlantic, Gulf of Mexico stone crab trap/pot” fishery from Category III to Category II based on analogy to the Category II “Atlantic blue crab trap/pot” fishery, and serious injury and mortality to bottlenose dolphins (multiple stocks) reported in stranding data. As stated in the preamble of this proposed rule, in the absence of reliable or quantitative information, NMFS must determine if a
Marine mammal stranding data from 2002-2010 suggest the stone crab trap/pot fishery interacts with the following strategic marine mammal stocks, resulting in serious injury or mortality: (1) Bottlenose dolphin, Central FL coastal; (2) bottlenose dolphin, Jacksonville estuarine system; (3) bottlenose dolphin, Indian River Lagoon estuarine system; (4) bottlenose dolphin, Biscayne Bay ; (5) bottlenose dolphin, Lemon Bay estuarine system; and (6) bottlenose dolphin, Pine Sound [sic], Charlotte Harbor, Gasparilla Sound estuarine system. This fishery also interacts with the non-strategic bottlenose dolphin, Eastern GMX coastal stock. The PBR level is known for two of the seven bottlenose dolphin stocks interacting with this fishery: Central FL coastal stock (51) and Eastern GMX coastal stock (66) (2010 SARs). PBR is unknown or undetermined for the remaining five stocks. Therefore, a LOF classification based on serious injury and mortality as a percentage of PBR cannot be directly calculated for most of these stocks.
NMFS proposes to add the “RI floating trap” fishery as Category III. The “RI floating trap” fishery is described as a maze of vertical nets anchored to the bottom and stretched to the water's surface by attached buoys. The nets are anchored to the bottom and may be secured to the shore. These nets are set similar to weir/pound nets. At least four reflective buoys (high-flyers) mark the traps. One buoy is located at the shoreward end of the leader, one at the seaward end of the leader adjacent to the head of the trap, and two buoys at the seaward side of the head of the trap. Nets are set seasonally between May and October and primarily target scup, striped bass, and squid. Floating fish traps are executed only in RI state waters. There is currently no observer coverage for this fishery. No marine mammal interactions have been reported for this gear type and strandings data do not provide evidence for interactions. Given this fishery's close proximity to shore and the absence of evidence for marine mammal injury or mortality resulting from this gear, a Category III classification is warranted. There are currently nine companies that hold state permits for participating in this fishery. NMFS is soliciting public comment to obtain more information on this fishery and whether or not similar floating trap fisheries exist elsewhere.
NMFS proposes to clarify the spatial boundary of the Category II “Northeast bottom trawl” fishery. In the 2011 LOF, NMFS modified the trawl fishery boundary definitions to more accurately depict the boundaries used for calculating marine mammal bycatch estimates. Currently the Northeast bottom trawl fishery boundary is defined as: “from the Maine-Canada border through waters east of 70° W. long.” NMFS proposes to clarify this boundary to read as follows: “The Northeast bottom trawl fishery includes all U.S. waters south of Cape Cod, MA that are east of 70° W and extending south to the intersection of the Exclusive Economic Zone (EEZ) and 70° W (approximately 37° 54′ N), as well as all U.S. waters north of Cape Cod to the Maine-Canada border.”
NMFS proposes to clarify the spatial boundary of the Category II “Mid-Atlantic bottom trawl” fishery. In the 2011 LOF, NMFS modified the trawl fishery boundary definitions to more accurately depict the boundaries used for calculating marine mammal bycatch estimates. Currently the Mid-Atlantic bottom trawl fishery boundary is defined as: “Cape Cod, MA, to Cape Hatteras, NC, in waters west of 70° W. long. and north of a line extending due east from the North Carolina/South Carolina border.” NMFS proposes to clarify this boundary to read as follows: “all waters due east from the NC/SC border to the EEZ and north to Cape Cod, MA in waters west of 70° W. long.”
NMFS proposes to update the spatial boundary of the Category II “Northeast mid-water trawl” fishery. Currently, this fishery's spatial boundary is defined as “occurs primarily in ME State waters, Jeffrey's Ledge, southern New England, and Georges Bank during the winter months when the target species continues its southerly migration from the Gulf of ME/Georges Bank, into mid-Atlantic waters” (72 FR 35393, June 28, 2007). As a result of reviewing trip locations from vessel trip report data, the NMFS Northeast Fisheries Science Center (NEFSC) separates the Northeast and Mid-Atlantic trawl fisheries at 70° W. long. in marine mammal bycatch analyses. Therefore, to maintain consistency with how the NEFSC defines these fisheries, NMFS proposes to further clarify the spatial boundary for this fishery. NMFS proposes to add the following to the spatial distribution: “The Northeast mid-water trawl fishery includes all U.S. waters south of Cape Cod, MA that are east of 70° W and extending south to the intersection of the EEZ and 70° W (approximately 37° 54′N), as well as all U.S. waters north of Cape Cod to the Maine-Canada border.”
NMFS proposes to update the spatial boundary for the Category II “Mid-Atlantic mid-water trawl” fishery. Currently, this fishery's spatial boundary is defined as: “The fishery for Atlantic mackerel occurs primarily from southern New England through the mid-Atlantic from January to March and in the Gulf of Maine during the summer and fall (May to December). This fishery is managed under the federal Atlantic Mackerel, Squid, and Butterfish FMP using an annual quota system.” As noted in the paragraph above, the NEFSC separates the Northeast and Mid-Atlantic trawl fisheries at 70° W. long. Therefore, to further clarify the spatial distribution of this fishery, NMFS proposes to add the following to the spatial distribution: “The Mid-Atlantic mid-water trawl fishery includes all waters due east from the NC/SC border to the EEZ and north to Cape Cod, MA in waters west of 70° W. long.”
NMFS proposes to update the estimated number of vessels/persons in the “Southeastern U.S. Atlantic, Gulf of Mexico stone crab trap/pot” fishery (proposed to be elevated to Category II in this proposed rule) from 4,453 to 1,282.
NMFS proposes to update the estimated number of vessels/persons in the Category III “FL spiny lobster trap/pot” fishery from 2,145 to 1,268.
NMFS proposes to update the estimated number of vessels/persons for several Mid-Atlantic and New England fisheries in order to reflect the potential state and Federal permit effort. NMFS acknowledges that these estimations are inflations of actual effort; however, they represent the potential effort for each fishery, given the multiple gear types state permits may allow for. These changes do not necessarily represent a change in industry effort. Federal permit information was collected through Federal Vessel Trip Report and by querying Federal permit databases. State permit information was collected through the MMAP registration process.
Category I: “Mid-Atlantic gillnet” from 5,495 to 6,402; “Northeast sink gillnet” from 7,712 to 3,828; and “Northeast/Mid-Atlantic American lobster trap/pot” from 12,489 to 11,767.
Category II: “Chesapeake Bay inshore gillnet” from 1,167 to 3,328; “Northeast anchored float gillnet” from 662 to 414; “Northeast drift gillnet” from 608 to 414; “Mid-Atlantic mid-water trawl” from 546 to 669; “Mid-Atlantic bottom trawl” from 1,182 to 1,388; “Northeast mid-water trawl (including pair trawl)” from 953 to 887; “Northeast bottom trawl” from 1,635 to 2,584; Atlantic blue crab trap/pot from 6,479 to 10,008; “Atlantic mixed species trap/pot” from 1,912 to 3,526; “Mid-Atlantic menhaden purse seine” from 54 to 56; “Mid-Atlantic haul/beach seine” from 666 to 874; and “VA pound net” from 52 to 231.
Category III: “Gulf of Maine, U.S. Mid-Atlantic sea scallop dredge” from 258 to >230; “Northeast, Mid-Atlantic bottom longline/hook & line” from 1,183 to >1,281; “DE River inshore gillnet” from 60 to unknown; “Long Island Sound inshore gillnet” from 20 to unknown; “RI, southern MA (to Monomy Island), and NY Bight (Raritan and Lower NY Bays) inshore gillnet” from 32 to unknown; “Gulf of Maine Atlantic herring purse seine” from >7 to >6; “U.S. Mid-Atlantic eel trap/pot” from >700 to unknown; and “Atlantic shellfish bottom trawl” from > 67 to >86.
NMFS proposes to add the following stocks to the list of species or stocks incidentally killed or injured in the Category I “Atlantic Ocean, Caribbean, Gulf of Mexico large pelagic longline” fishery: Killer whale (GMX oceanic stock), sperm whale (GMX oceanic stock), and Gervais beaked whale (GMX oceanic stock). A killer whale (GMX oceanic stock) and a sperm whale (GMX oceanic stock) were each injured in this fishery in 2008, and a Gervais beaked whale (GMX oceanic stock) was injured in this fishery in 2007. Further, NMFS proposes to update the name of the Atlantic spotted dolphin stock from “Northern GMX” to “GMX continental and oceanic” to reflect the stock name in the 2010 SAR. Observer coverage in this fishery from 2004-2007 ranged from 4-7 percent, with coverage exceeding 10 percent in some areas and regions (2010 SAR).
NMFS proposes to combine bottlenose dolphin (GA coastal stock) and bottlenose dolphin (SC coastal stock) listed as incidentally killed or injured in the Category II “Southeast Atlantic gillnet” fishery and rename the stock as “bottlenose dolphin (SC/GA coastal stock)” to reflect the stock name in the 2010 SAR.
NMFS proposes to add bottlenose dolphin (Northern FL coastal stock) to the list of species or stocks incidentally killed or injured in the Category II “Southeastern U.S. Atlantic shark gillnet” fishery. There were 2 takes (level of injury undetermined) of bottlenose dolphins that occurred in drift gillnet gear in 2002 and 2003 just south of the range of the Northern FL coastal stock, and the dolphins were possibly from this stock (2010 SAR). There has been no observer coverage in this fishery in recent years.
NMFS proposes to add bottlenose dolphin (Northern GMX coastal stock) and bottlenose dolphin (GMX continental shelf stock) to the list of species or stocks incidentally killed or injured in the Category II “Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl” fishery. A bottlenose dolphin was killed in this fishery in 2003 and could have belonged to the Northern GMX coastal stock or a GMX bay, sound and estuarine stock (which is already included on the list of species or stocks killed or injured in this fishery). Additionally, 1 or more of 6 unidentified dolphins taken in this fishery from 1992-2008 could be from this stock (2010 SAR). A bottlenose dolphin (GMX continental shelf stock) was killed in this fishery in 2008. However, the PBR for this stock is undetermined, so NMFS cannot determine the exact percentage of PBR this take would represent. Additionally, 3 or 4 unidentified dolphins injured or killed in this fishery from 1992-2008 could be from this stock (2010 SAR). Further, NMFS proposes to update the name of the Atlantic spotted dolphin stock from “Northern GMX” to “GMX continental and oceanic,” and combine the bottlenose dolphin (GA coastal stock) and bottlenose dolphin (SC coastal stock) and rename the stock as “bottlenose dolphin (SC/GA coastal stock),” to reflect the stock names in the 2010 SAR. Observer coverage currently averages about 1 percent of the total fishery effort (2010 SAR).
NMFS proposes to combine bottlenose dolphin (GA coastal stock) and bottlenose dolphin (SC coastal stock) on the list of species or stocks incidentally killed or injured in the Category II “Atlantic blue crab trap/pot” fishery and rename the stock as “bottlenose dolphin (SC/GA coastal stock)” to reflect the stock name in the 2010 SAR.
NMFS proposes to add bottlenose dolphin (Southern NC estuarine system stock) to the list of species or stocks incidentally killed or injured in the Category II “NC long haul seine” fishery. Three bottlenose dolphins were caught and released alive in this fishery; however, the level of injury for these three dolphins was undetermined. The 2010 SAR states that this fishery is known to interact with this stock. There has been no observer coverage in this fishery.
NMFS proposes to add bottlenose dolphin (Northern NC estuarine system stock) to the list of species or stocks incidentally killed or injured in the Category II “VA pound net” fishery. Stranding data for 2004-2008 indicate 17 bottlenose dolphins (Northern NC estuarine system stock) were killed in pound net gear and 3 were released alive. The level of injury for the 3 dolphins released alive was undetermined. These interactions occurred primarily inside estuarine waters near the mouth of the Chesapeake Bay in summer months. Nine of these mortalities occurred during the summer (July-September) and, therefore, could be from the Northern NC estuarine system stocks. The 2010 SAR states that this fishery is known to interact with this stock. There has not been formal observer coverage in this fishery; however, the Northeast Fishery Observer Program (NEFOP) has monitoring and characterization that occurs sporadically in this fishery.
NMFS proposes to add bottlenose dolphin (Central FL coastal stock) to the list of species or stocks incidentally killed or injured in the Category III “FL spiny lobster trap/pot” fishery. From 2002-2010, 4 bottlenose dolphin serious injuries or mortalities (multiple stocks) were confirmed to result from interactions with a southeast trap/pot fishery, plausibly the spiny lobster fishery because of its spatial and
NMFS proposes to add the following stocks to the list of species or stocks incidentally killed or injured in the “Southeastern U.S. Atlantic, Gulf of Mexico stone crab trap/pot” fishery (proposed to be elevated to Category II in this proposed rule): Bottlenose dolphin (Central FL coastal stock), bottlenose dolphin (Eastern GMX coastal stock), bottlenose dolphin (FL Bay stock), bottlenose dolphin (GMX bay, sound, estuarine stock, FL west coast portion), bottlenose dolphin (Indian River Lagoon estuarine system stock), bottlenose dolphin (Jacksonville estuarine system stock), and bottlenose dolphin (Northern GMX coastal stock). From 2002-2010, 3 bottlenose dolphin serious injuries or mortalities were confirmed to result from interactions with the stone crab fishery, and 7 bottlenose dolphin serious injuries or mortalities were confirmed to result from interactions with a southeast trap/pot fishery, plausibly the stone crab fishery based on spatial and temporal overlap with these strandings (2010 SAR). The 2010 SARs indicate that the serious injuries or mortalities were confirmed and/or could have been from the stocks listed above. This fishery has not been observed.
NMFS proposes to add bottlenose dolphin (GMX continental shelf stock) to the list of species or stocks incidentally killed or injured in the Category III “Southeastern U.S. Atlantic, Gulf of Mexico, and Caribbean snapper-grouper and other reef fish bottom longline/hook-and-line” fishery. One bottlenose dolphin was killed and one was seriously injured in this fishery in 2010, one reported in a 2010 NMFS Observer Program report and one observed and photo documented report from a local researcher and NMFS gear expert. In 2009, the observer coverage in the fishery was 1.7 percent (5.5 percent for the longline portion, nearly 0 percent for the modified buoy portion, and .07 percent for the vertical line portion). The PBR for this stock is undetermined; therefore, NMFS cannot determine what percentage of PBR these mortalities represent.
NMFS proposes to add bottlenose dolphin (GMX bay, sound, and estuarine stock) to the list of species or stocks incidentally killed or injured in the Category III “Atlantic Ocean, Gulf of Mexico, Caribbean commercial passenger fishing vessel” fishery. Stranding data from 2002-2009 indicate 6 bottlenose dolphins stranded with recreational hook and line gear (confirmed by gear analysis) and an additional 2 bottlenose dolphins were released after disentanglement from this gear. There was also one dead bottlenose dolphin entangled in what the NMFS gear analysis team thought was recreational gear or commercial longline gear. Further, from 2002-2009 there were 29 additional strandings of bottlenose dolphins that were entangled in gear consistent with recreational hook and line gear. This gear can be attributed to either vessels operating in the “Atlantic Ocean, Gulf of Mexico, Caribbean commercial passenger fishing vessel” fishery or individual recreational fishers. Given the large number of stranding events, it is highly likely that one or more of the strandings resulted from interactions with this commercial fishery. The GMX bay, sound, and estuarine stock includes 32 distinct stocks, and for 29 of those stocks the PBR is undetermined. Given that fact, and the uncertainties surrounding the number of animals taken in this specific fishery and their exact stock assignment, NMFS cannot determine the percentage of PBR these takes represent. There has not been observer coverage in this fishery.
NMFS proposes to add Risso's dolphin (WNA stock) to the list of species or stocks incidentally killed or injured in the Category II “Mid-Atlantic bottom trawl” fishery. In 2010, fifteen Risso's dolphins were observed killed in this fishery: One was killed during a bottom otter trawl trip targeting summer flounder in April 2010; one was killed during a bottom otter trawl trip targeting monkfish in April 2010; eight were killed in a bottom otter trawl trip targeting
NMFS proposes to add harbor seal (WNA stock) to the list of species or stocks incidentally killed or injured in the Category II “Mid-Atlantic bottom trawl” fishery. In March 2009, a harbor seal was killed in a bottom trawl targeting
NMFS proposes to add bottlenose dolphin (WNA offshore stock) to the list of species or stocks incidentally killed or injured in the Category II “Northeast bottom trawl” fishery. From 2009-2010, five bottlenose dolphins (WNA offshore stock) were killed in this fishery: One bottlenose dolphin was killed during a trip targeting groundfish in April 2009; three were killed on during a trip targeting
NMFS proposes to add gray seal (WNA stock) to the list of species or stocks incidentally killed or injured in the Category II “Northeast bottom trawl” fishery. In November 2009, a gray seal was killed in a bottom trawl targeting
NMFS proposes to elevate the high seas “Pacific highly migratory species drift gillnet” fishery from Category III to Category II. This fishery is an extension of the “CA thresher shark/swordfish drift gillnet” fishery operating within the U.S. EEZ, and is not a separate fishery. NMFS proposes to elevate the component of the fishery operating in U.S. waters to Category II in this proposed rule (see above under “Commercial Fisheries in the Pacific Ocean” for details); therefore, NMFS also proposes to elevate the high seas component of the fishery because it remains the same fishery on either side of the EEZ boundary.
NMFS proposes to correct an error in the 2011 LOF by reclassifying the high seas “Pacific highly migratory species longline” fishery from Category II to Category III. This fishery is an extension of the Category III “CA pelagic longline” fishery operating within the U.S. EEZ, and is not a separate fishery. The component of the fishery operating in U.S. waters was reclassified as Category III in the final 2011 LOF. However, the high seas component of the fishery inadvertently remained listed as Category II on the 2011 LOF. Since the high seas component of the fishery is the same as the fishery operating within the U.S. EEZ, and is not a separate fishery, it should be classified in the same Category as the fishery operating within the U.S. EEZ.
NMFS proposes to remove the Category II high seas “Pacific highly migratory species trawl” fishery. There are no active HSFCA permits for this gear type in this fishery.
NMFS proposes to remove the Category II high seas “South Pacific albacore troll trawl” fishery. There are no active HSFCA permits for this gear type in this fishery.
NMFS proposes to change the name of the Category I high seas “Western Pacific pelagic (deep-set component) longline” fishery to the “Western Pacific pelagic (HI deep-set component) longline” fishery to more clearly reflect that there is one HI-based deep-set longline fishery that operates both within the U.S. EEZ and on the high seas.
NMFS proposes to change the name of the Category II high seas “Western Pacific pelagic (shallow-set component) longline” fishery to the “Western Pacific pelagic (HI shallow-set component) longline” fishery to more clearly reflect that there is one HI-based shallow-set longline fishery that operates both within the U.S. EEZ and on the high seas.
NMFS proposes to update the estimated number of HSFCA permits in multiple high seas fisheries for multiple gear types. The proposed updated numbers of HSFCA permits reflect the current number of permits in the NMFS National Permit System database.
High seas Atlantic highly migratory species fishery for the following gear types: Longline from 77 to 81; and handline/pole and line from 2 to 3.
High seas Pacific highly migratory species fishery for the following gear types: Pot from 7 to 3; longline from 75 to 85; handline/pole and line from 25 to 30; multipurpose from 7 to 5; purse seine from 8 to 7; and troll from 271 to 258.
High seas South Pacific albacore troll fishery for the following gear types: Pot from 5 to 3; and troll from 59 to 51.
High seas South Pacific tuna fishery for the following gear types: Longline from 8 to 11; and purse seine from 35 to 33.
High seas Western Pacific pelagic fishery for the following gear types: Deep-set longline from 127 to 124; pot from 7 to 3; handline/pole and line from 10 to 8; multipurpose from 5 to 4; trawl from 3 to 1; and troll from 40 to 32.
NMFS proposes to add humpback whale (CA/OR/WA stock) to the list of marine mammal stocks incidentally injured or killed in the high seas “Pacific highly migratory species gillnet” fishery (proposed to be elevated to Category II in this proposed rule). This fishery is an extension of the “CA thresher shark/swordfish drift gillnet” fishery (proposed to be elevated to Category II in this proposed rule) operating within the U.S. EEZ, and is not a separate fishery. A humpback whale was reported as seriously injured in the component of the fishery operating in U.S. waters in 2009. Since this fishery remains the same and many marine mammals species are found on either side of the EEZ boundary, the list of species or stocks incidentally killed or injured in the high seas component of the fishery is identical to the list of species or stocks killed or injured in the component operating in U.S. waters, minus coastal stocks.
NMFS proposes to correct an error in the 2011 LOF by removing Risso's dolphin (CA/OR/WA stock) from the list of marine mammal stocks incidentally injured or killed in the high seas “Pacific highly migratory species longline” fishery (proposed to be reclassified to Category III in this proposed rule). This fishery is an extension of the Category III “CA pelagic longline” fishery operating within the U.S. EEZ, and is not a separate fishery. Risso's dolphin (CA/OR/WA stock) was removed from the list of species or stocks killed or injured in the component of the fishery operating in U.S. waters in the final 2011 LOF. However, the stock inadvertently remained listed as killed or injured in the high seas component of this fishery. Since this fishery remains the same and many marine mammals species are found on either side of the EEZ boundary, the list of species or stocks incidentally killed or injured in the high seas component of the fishery is identical to the list of species or stocks killed or injured in the component operating in U.S. waters, minus coastal stocks.
NMFS proposes to add Blainville's beaked whale (unknown stock), bottlenose dolphin (unknown stock), Pantropical spotted dolphin (unknown stock), Risso's dolphin (unknown stock), short-finned pilot whale (unknown stock), and striped dolphin (unknown stock), to the list of species or stocks injured or killed in the Category I high
NMFS proposes to add bottlenose dolphin (unknown stock), Byrde's whale (unknown stock),
The following tables set forth the proposed list of U.S. commercial fisheries according to their classification under section 118 of the MMPA. Table 1 lists commercial fisheries in the Pacific Ocean (including Alaska); Table 2 lists commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean; Table 3 lists commercial fisheries on the high seas; and Table 4 lists fisheries affected by TRPs or TRTs.
In Tables 1 and 2, the estimated number of vessels/persons participating in fisheries operating within U.S. waters is expressed in terms of the number of active participants in the fishery, when possible. If this information is not available, the estimated number of vessels or persons licensed for a particular fishery is provided. If no recent information is available on the number of participants, vessels, or persons licensed in a fishery, then the number from the most recent LOF is used for the estimated number of vessels/persons in the fishery. NMFS acknowledges that, in some cases, these estimations may be inflations of actual effort, such as for many of the Mid-Atlantic and New England fisheries. However, in these cases, the numbers represent the potential effort for each fishery, given the multiple gear types several state permits may allow for. Changes made to Mid-Atlantic and New England fishery participants will not affect observer coverage or bycatch estimates as observer coverage and bycatch estimates are based on vessel trip reports and landings data. Tables 1 and 2 serve to provide a description of the fishery's potential effort (state and Federal). If NMFS is able to extract more accurate information on the gear types used by state permit holders in the future, the numbers will be updated to reflect this change. For additional information on fishing effort in fisheries found on Table 1 or 2, NMFS refers the reader to contact the relevant regional office (contact information included above in
For high seas fisheries, Table 3 lists the number of currently valid HSFCA permits held. Although this likely overestimates the number of active participants in many of these fisheries, the number of valid HSFCA permits is the most reliable data on the potential effort in high seas fisheries at this time.
Tables 1, 2, and 3 also list the marine mammal species or stocks incidentally killed or injured in each fishery based on observer data, logbook data, stranding reports, disentanglement network data, and MMAP reports. This list includes all species or stocks known to be injured or killed in a given fishery, but also includes species or stocks for which there are anecdotal records of an injury or mortality. Additionally, species identified by logbook entries, stranding data, or fishermen self-reports (
In Tables 1 and 2, there are several fisheries classified as Category II that have no recent documented injuries or mortalities of marine mammals, or fisheries that did not result in a serious injury or mortality rate greater than 1 percent of a stock's PBR level based on known interactions. NMFS has classified these fisheries by analogy to other Category I or II fisheries that use similar fishing techniques or gear that are known to cause mortality or serious injury of marine mammals, as discussed in the final LOF for 1996 (60 FR 67063, December 28, 1995), and according to factors listed in the definition of a “Category II fishery” in 50 CFR 229.2 (
There are several fisheries in Tables 1, 2, and 3 in which a portion of the fishing vessels cross the EEZ boundary, and therefore operate both within U.S. waters and on the high seas. These fisheries, though listed separately between Table 1 or 2 and Table 3, are considered the same fishery on either side of the EEZ boundary. NMFS has designated those fisheries in each table by a “*” after the fishery's name.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule would not have a significant economic impact on a substantial number of small entities. The factual basis leading to the certification is set forth below.
Under existing regulations, all individuals participating in Category I or II fisheries must register under the MMPA and obtain an Authorization Certificate. The Authorization Certificate authorizes the taking of non-endangered and non-threatened marine mammals incidental to commercial fishing operations. Additionally, individuals may be subject to a TRP and requested to carry an observer. NMFS has estimated that up to approximately 69,000 fishing vessels, most of which are small entities, may operate in Category I or II fisheries and, therefore, are required to register with NMFS. Of these, approximately 3,600 are new to a Category I or II fishery as a result of this proposed rule. The MMPA registration process is integrated with existing state and Federal licensing, permitting, and registration programs. Therefore, individuals who have a state or Federal fishing permit or landing license, or who are authorized through another related state or Federal fishery registration program, are currently not required to register separately under the MMPA or pay the $25 registration fee. Therefore, there are no direct costs to small entities under this proposed rule.
If a vessel is requested to carry an observer, individuals will not incur any direct economic costs associated with carrying that observer. Potential indirect costs to individuals required to take observers may include: lost space on deck for catch, lost bunk space, and lost fishing time due to time needed by the observer to process bycatch data. For effective monitoring, however, observers will rotate among a limited number of vessels in a fishery at any given time and each vessel within an observed fishery has an equal probability of being requested to accommodate an observer. Therefore, the potential indirect costs to individuals are expected to be minimal because observer coverage would only be required for a small percentage of an individual's total annual fishing time. In addition, section 118 of the MMPA states that an observer will not be placed on a vessel if the facilities for quartering an observer or performing observer functions are inadequate or unsafe, thereby exempting vessels too small to accommodate an observer from this requirement. As a result of this certification, an initial regulatory flexibility analysis is not required and was not prepared. In the event that reclassification of a fishery to Category I or II results in a TRP, economic analyses of the effects of that TRP would be summarized in subsequent rulemaking actions.
This proposed rule contains collection-of-information requirements subject to the Paperwork Reduction Act. The collection of information for the registration of individuals under the MMPA has been approved by the Office of Management and Budget (OMB) under OMB control number 0648-0293 (0.15 hours per report for new registrants and 0.09 hours per report for renewals). The requirement for reporting marine mammal injuries or mortalities has been approved by OMB under OMB control number 0648-0292 (0.15 hours per report). These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these reporting burden estimates or any other aspect of the collections of information, including suggestions for reducing burden, to NMFS and OMB (see
Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.
This proposed rule has been determined to be not significant for the purposes of Executive Order 12866.
An environmental assessment (EA) was prepared under the National Environmental Policy Act (NEPA) for regulations to implement section 118 of the MMPA in June 1995. NMFS revised that EA relative to classifying U.S. commercial fisheries on the LOF in December 2005. Both the 1995 EA and the 2005 EA concluded that implementation of MMPA section 118 regulations would not have a significant impact on the human environment. This proposed rule would not make any significant change in the management of reclassified fisheries, and therefore, this proposed rule is not expected to change the analysis or conclusion of the 2005 EA. The Council of Environmental Quality (CEQ) recommends agencies review EAs every five years; therefore, NMFS reviewed the 2005 EA in 2009. NMFS concluded that, because there have been no changes to the process used to develop the LOF and implement section 118 of the MMPA (including no new alternatives and no additional or new impacts on the human environment), there is no need to update the 2005 EA at this time. If NMFS takes a management action, for example, through the development of a TRP, NMFS would first prepare an environmental document, as required under NEPA, specific to that action.
This proposed rule would not affect species listed as threatened or endangered under the Endangered Species Act (ESA) or their associated critical habitat. The impacts of numerous fisheries have been analyzed in various biological opinions, and this proposed rule will not affect the conclusions of those opinions. The classification of fisheries on the LOF is not considered to be a management action that would adversely affect threatened or endangered species. If NMFS takes a management action, for example, through the development of a TRP, NMFS would conduct consultation under ESA section 7 for that action.
This proposed rule would have no adverse impacts on marine mammals and may have a positive impact on marine mammals by improving knowledge of marine mammals and the fisheries interacting with marine mammals through information collected from observer programs, stranding and sighting data, or take reduction teams.
This proposed rule would not affect the land or water uses or natural resources of the coastal zone, as specified under section 307 of the Coastal Zone Management Act.
Andersen, M.S., K.A. Forney, T.V.N. Cole, T. Eagle, R. Angliss, K. Long, L. Barre, L. Van Atta, D. Borggaard, T. Rowles, B. Norberg, J. Whaley, and L. Engleby. 2008. Differentiating Serious and Non-Serious Injury of Marine Mammals: Report of the Serious Injury Technical Workshop, 10-13 September 2007, Seattle, Washington. NOAA Technical Memorandum NMFS-OPR-39, 94p.
Courbis, S., R.W. Baird, F. Cipriano, and D. Duffield. 2009. Population structure of pantropical spotted dolphins near the main Hawaiian Islands: Evidence of multiple genetic stocks. Abstract and poster presented at the 18th Biennial Conference on the Biology of Marine Mammals, Quebec City, October 2009.
Courbis, S., R.W. Baird, F. Cipriano, and D. Duffield. 2010. Population structure of pantropical spotted dophins near the Main Hawaiian Islands: Evidence of multiple genetic stocks for management. Report to the Pacific Scientific Review Group 2010, PSRG-2010-19, 24 p.
Hamilton, M.S. 1998. Cost-earnings study of Hawaii's charter fishing industry 1996-1997. SOEST 98-08, JIMAR Contribution 98-322. 112 p. Available online:
Rizzuto, J. 2007. Big fish await HIBT teams. West Hawaii Today 39(218): 1B, 4B.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments; notice of public hearings.
This proposed rule would require that Federal Atlantic swordfish, shark, and tunas dealers report commercially harvested Atlantic sharks, swordfish, and bigeye, albacore, yellowfin, and skipjack (BAYS) tunas to NMFS through an electronic reporting system. At this time, Atlantic Highly Migratory Species (HMS) dealers would not be required to report bluefin tuna through this electronic reporting system, as a separate reporting system is currently in place for this species. This rulemaking also proposes that a dealer would only be authorized to receive commercially harvested Atlantic sharks, swordfish, and BAYS tunas if the dealer's previous reports have been submitted by the dealer and received by NMFS in a timely manner. Any delinquent reports would need to be submitted by the dealer and received by NMFS before a dealer could receive commercially harvested Atlantic sharks, swordfish, and BAYS tunas from a Federally permitted U.S. vessel. Finally, this rulemaking proposes that all first receivers of commercially harvested Atlantic sharks, swordfish, and BAYS tunas by Federally permitted U.S. vessels must obtain a corresponding Federal Atlantic swordfish, shark, and/or tunas dealer permit. First receivers must report the associated catch to NMFS through the electronic reporting system. These measures are necessary to ensure timely and accurate reporting, which is critical for quota monitoring and management of these species.
Written comments must be received on or before August 12, 2011. NMFS will hold eight public hearings on this proposed rule in July 2011. For specific dates and times, see the
The public hearings will be held in Massachusetts, New York, New Jersey, North Carolina, Florida, and Louisiana. For specific locations see the
You may submit comments, identified by “0648-BA75,” by any one of the following methods:
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NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
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 Delisse Ortiz with the Atlantic Highly Migratory Species Management Division and by e-mail to
Jackie Wilson at 240-338-3936, or Karyl Brewster-Geisz or Delisse Ortiz at 301-713-2347.
Copies of this proposed rule and related documents, including a Regulatory Impact Review (RIR) and Initial Regulatory Flexibility Analysis (IRFA), for this action are available online at the HMS Management Division Web site:
Atlantic HMS are managed under the dual authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C. 1801
On December 13, 1991 (56 FR 65007), and October 18, 1994 (59 FR 52453), NMFS published in the
On August 15, 2001 (66 FR 42801), NMFS required dealers to submit bi-weekly reports of BAYS tunas to NMFS. Prior to this rule, which became effective on September 14, 2001, NMFS required dealers to report BAYS only
To date, such reporting by Federally-permitted dealers has depended on the location of the dealer. For dealers located south of Virginia, reports have been submitted in a paper format to the Southeast Fisheries Science Center (SEFSC). These dealers have been required to provide dressed weight, price per pound, and vessel information compiled over a two-week reporting period. If no purchases of HMS products are made during a reporting period, the dealer is required to submit a “negative” report to NMFS indicating that no purchases were made. Dealer reports are scanned, and data are entered into the Pelagic Dealer Compliance (PDC) database housed within the SEFSC. As of July 24, 2008 (June 24, 2008, 73 FR 35778; corrected on July 15, 2008, 73 FR 40658), Federal Atlantic HMS dealers have been required to submit reports of Atlantic tunas, swordfish, and/or sharks received from the 1st through the 15th of each month, and have them received by NMFS not later than the 25th of that month. Reports of Atlantic tunas, swordfish, and/or sharks received on the 16th through the last day of each month must be received by NMFS not later than the 10th of the following month. As a result, assuming timely reporting by dealers, there currently is a delay of 10 to 25 days before the Federal HMS dealer data are available in the PDC database.
For dealers located north of North Carolina, prior to 2004, Federal HMS dealer reports were collected either directly from dealers through Federal field agents during dockside interviews or through a state's trip ticket program, contingent upon the data collection method of the state. In May 2004, the Northeast Regional Office (NERO) of NMFS launched the Standard Atlantic Fisheries Information System (SAFIS) for Federally-permitted seafood dealers. SAFIS is an online application that allows seafood dealers in the Northeast region to enter landings statistics. The partners of the Atlantic Coastal Cooperative Statistics Program (ACCSP) created SAFIS to meet the increasing need for real-time commercial landings data. On May 1, 2004, NERO required dealers issued a Federal dealer permit by NERO to submit all their landings data for each trip through SAFIS. Any dealer that has been issued a permit for a NERO-managed species/species complex (
These separate reporting mechanisms in the Southeast and Northeast regions have led to duplicative data submissions in both the Northeast and Southeast systems as well as delays in the receipt of landing data received through dealer reports. As the commercial harvest of HMS is monitored through data received from dealer reports, timely receipt of dealer data is critical for quota monitoring and management of these species. Thus, in this proposed rule, NMFS would require Federal Atlantic HMS dealers to report commercially-harvested Atlantic sharks, swordfish, and BAYS tunas to NMFS through one centralized HMS electronic reporting system which utilizes existing state and Federal electronic reporting programs in the different regions for dealer data entry. The HMS electronic reporting system would be housed in the existing state and Federal electronic reporting programs (
In addition to duplicative reporting, there have also been issues of late reporting by Federal Atlantic HMS dealers. This non-compliance has particularly been an issue for a small number of the Atlantic shark dealers. Over time, this pattern of late reporting has resulted in NMFS having to contact dealers regarding late reports via phone calls and certified correspondence regarding their late reports, and, in some cases, necessitated visits by local port agents and/or agents with the National Oceanic and Atmospheric Administration (NOAA) Office of Law Enforcement. These efforts to follow up on late dealer reports negatively affect timely quota monitoring and drain scarce staff resources. To ensure more timely reporting by all Atlantic HMS dealers, this rulemaking is proposing that a Federal Atlantic HMS dealer would only be authorized to receive commercially-harvested Atlantic swordfish, sharks, and BAYS tunas if the dealer has submitted all required reports to NMFS. Any delinquent reports would need to be submitted by the dealer and received by NMFS before a Federal Atlantic HMS dealer could receive commercially-harvested Atlantic swordfish, sharks, and BAYS tunas from a Federally-permitted U.S. vessel. Although submission of delinquent reports would allow a dealer to receive commercially-harvested Atlantic swordfish, sharks, and BAYS tunas from a Federally-permitted U.S. vessel, late reporting is still a violation of the regulations. The electronic dealer reporting system would track the timing and submissions of Federal Atlantic HMS dealer reports and automatically notify dealers and NMFS (the HMS Management Division and NMFS Office of Law Enforcement) via e-mail if reports are delinquent.
Per 50 CFR 635.4(g), any person that receives, purchases, trades for, or barters for Atlantic HMS for a commercial purpose from a Federally-permitted U.S. vessel must possess a valid Atlantic HMS dealer permit. As mentioned above, Federal Atlantic HMS dealers are required to report any Atlantic tunas, swordfish, and/or sharks that they receive from Federally-permitted U.S. vessels to NMFS on a bi-weekly basis (50 CFR 635.5(b)). Per § 635.4(g)(2), the first receiver of Atlantic shark product harvested by a Federally-permitted U.S. vessel must obtain a Federal Atlantic shark dealer permit, and s/he, or a suitable proxy, must have a current valid Atlantic shark identification workshop certificate per 50 CFR 635.8. For reasons articulated in detail below, the proposed rule would require any person who first receives and processes sharks (
In practice, Federal Atlantic shark dealers who purchase Atlantic sharks from Federally-permitted U.S. vessels are not always the first receiver of
While NMFS is proposing the above approach for this action, NMFS is also considering alternate scenarios regarding who should obtain a Federal HMS dealer permit in order to ensure accurate species-specific reporting. One such scenario would keep the current definition of “first receiver” and apply it to all entities that first receive Atlantic swordfish and BAYS tunas, meaning that all first receivers of Atlantic swordfish and BAYS tunas would need to obtain the appropriate Federal HMS dealer permit(s) unless they first receive Atlantic swordfish and BAYS tunas solely for the purpose of transport. NMFS has not preferred this in the proposed action because, as mentioned above, it is difficult for any Federal Atlantic shark dealer to reliably report species-specific information to NMFS based upon product that has already been packed for shipment.
The second scenario would be to modify the definition for first receiver as proposed and require first receivers as well as entities that purchase product from U.S. fishing vessels (
In summary, this rulemaking proposes that all commercially-harvested Atlantic swordfish, sharks, and BAYS tunas from a Federally-permitted U.S. fishing vessel be offloaded to a Federal Atlantic HMS dealer. All Federal Atlantic sharks, swordfish, and BAYS tunas dealers would be required to report commercially-harvested Atlantic swordfish, sharks, and BAYS tunas in a timely manner to NMFS through an electronic dealer reporting system, and Atlantic HMS dealers would only be able to receive commercially-harvested Atlantic swordfish, sharks, and BAYS tunas if the dealer has submitted timely reports to NMFS. This action is required for more timely, efficient, and accurate dealer reporting and subsequent quota monitoring of Atlantic swordfish, sharks, and BAYS tunas. Economic analyses are provided in the draft RIR and IRFA and are not repeated here in their entirety. A copy of the draft RIR and IRFA is available from NMFS (see
The harvest of sharks, tunas, and swordfish tabulated from Federal Atlantic HMS dealer reports are used to monitor commercial quotas and fishing seasons for these species. However, as outlined above, the current regulations and infrastructure of the Atlantic HMS quota-monitoring systems do not deliver data in a sufficiently timely and efficient manner to allow effective management and monitoring of small Atlantic HMS quotas and short seasons. For more effective management and monitoring of Atlantic HMS quotas, NMFS is in need of a more streamlined system where dealers can submit Atlantic HMS data in real time and include additional information regarding Atlantic HMS catch. The system must also be flexible enough to quickly adapt to any future changes in regulations in the Atlantic HMS fisheries.
NMFS is currently developing an electronic dealer reporting system consisting of a Web site-based data entry portal embedded within SAFIS to preclude Northeast dealers from having to report through an additional reporting system. To avoid creating multiple dealer reporting systems in the Southeast, NMFS would also implement the HMS dealer reporting requirements within the new electronic dealer reporting system being implemented in the Southeast. The electronic reporting requirements would be effective on February 1, 2012, in order to allow constituents additional time to learn about the new reporting system.
When the HMS electronic reporting system is implemented in 2012, Atlantic HMS dealers would be required to electronically report any shark, swordfish, or BAYS tunas offloaded from a Federally-permitted U.S. fishing vessel to a Federal Atlantic HMS dealer or to any extensions of a Federal Atlantic HMS dealer's place of business (
To better facilitate timely quota monitoring, NMFS is also proposing to increase the frequency of both positive and negative dealer reporting for Atlantic sharks, swordfish, and BAYS tunas. The reporting frequency would be flexible and could be adjusted depending on the available quota, length of fishing season, and species/species complexes, when certain triggers are met by the different fisheries, as described below. As proposed, NMFS would establish a weekly base reporting frequency. Under the proposed rule, for swordfish, an increase in reporting from a weekly to daily basis would occur when 80 percent of the directed fishery's quota is attained. For BAYS tunas, bigeye, yellowfin, and skipjack fisheries are currently not managed under quotas, and the United States has not attained the U.S. allocated albacore tuna quota, which is currently not codified. If such quotas are codified in the future, NMFS proposes to increase the required dealer reporting from a weekly to daily basis when 80 percent of the respective quotas are attained. Additionally, because shark quotas are the smallest of all HMS quotas, NMFS is proposing to require Federal Atlantic shark dealers to report sharks within 24 hours while the fishing seasons for non-sandbar large
As proposed, NMFS would announce any change in reporting frequency for HMS species by filing an adjustment of the reporting frequency with the Office of the Federal Register for publication. In no case would such an adjustment be effective less than 3 calendar days after the date of filing with the Office of the Federal Register. The public would also be informed simultaneously via the HMS Web site and e-mail notice listserve as well as through e-mail notifications to Federal HMS dealers via e-mail to an e-mail address provided to NMFS by dealers (and individual employees of dealers reporting in the electronic reporting system). NMFS anticipates that this flexibility to adjust the reporting frequency would be most critical for sharks due to small shark quotas.
In addition, because Federal Atlantic HMS dealer reports for some fisheries and some specific dealers are often late, which ultimately affects timely quota monitoring and usually requires staff resources to pursue resolutions, this rulemaking is proposing procedures to ensure that Federal Atlantic HMS dealers submit timely reports to NMFS. NMFS is proposing that Federal Atlantic HMS dealers would only be authorized to receive commercially-harvested Atlantic swordfish, sharks and BAYS tunas if the Federal Atlantic HMS dealer has submitted all required reports to NMFS. Accordingly, NMFS would require all delinquent reports to be submitted by dealers and received by NMFS before a dealer could receive commercially-harvested Atlantic swordfish, sharks, and BAYS tunas. Timely submission of reports to NMFS would allow dealers to be eligible to purchase commercially-harvested Atlantic swordfish, sharks, and BAYS tunas without interruption. The electronic dealer reporting system would track the timing and submissions of Federal Atlantic HMS dealer reports and automatically notify dealers (and individual employees of dealers reporting in the electronic reporting system) and NMFS (the HMS Management Division and NMFS Office of Law Enforcement) via e-mail if reports are delinquent. Federal Atlantic HMS dealers who fail to submit reports to NMFS in a timely manner would be in violation and subject to enforcement action, as would those who are offloading, receiving, and/or purchasing HMS product without having submitted all required reports to NMFS.
Finally, in order to ensure accurate species- and vessel-specific reporting, this rulemaking proposes that all first receivers of commercially-harvested Atlantic swordfish, sharks, and BAYS tunas by Federally-permitted U.S. vessels must obtain a Federal Atlantic HMS dealer permit. Under existing regulations, in order to obtain a Federal Atlantic shark dealer permit, the first receiver of shark products, or suitable proxy, is required to have a current and valid Atlantic shark identification workshop certificate per 50 CFR 635.8(b). Existing regulations also require that dealers, not the first receivers of Atlantic swordfish and BAYS tunas, report to NMFS on a bi-weekly basis. In the proposed action, first receivers of Atlantic sharks, swordfish, and BAYS tunas, including those that transport products to dealers, would be responsible for electronic reporting of all Atlantic sharks, swordfish, and BAYS tunas product first received from U.S. fishing vessels. NMFS is also considering alternate scenarios regarding who should obtain a Federal HMS dealer permit in order to ensure accurate species-specific reporting, as described above.
NMFS is requesting comments on any of the proposed actions in the proposed rule, RIR and IRFA. NMFS is also requesting comments on specific items related to the proposed action to clarify certain sections of the regulatory text or to help in analyzing potential impacts of the proposed actions. Specifically, NMFS requests comments on:
(1) Changes in who must obtain a Federal HMS dealer permit. NMFS is seeking information on the number of entities that would be affected by the proposed changes to the first receiver definition and the requirement that all first receivers of Atlantic swordfish, sharks, and BAYS tunas must obtain a Federal HMS dealer permit. Specifically, how common is the practice that a transporter, currently exempted under the regulations from having to obtain a dealer permit, is the first receiver of Atlantic swordfish, sharks, and BAYS tunas? Would the other first receiver alternatives described above be preferable (
(2) The amount of time proposed to provide notice of changes in the required reporting frequency. NMFS is proposing to change the required reporting frequency based on the available quota, length of fishing season, and species/species complexes, when certain triggers are met by the different fisheries. NMFS has proposed that Federal HMS dealers would be notified of changes to the required reporting frequency via e-mail to an e-mail address provided to NMFS by dealers. In addition, NMFS would announce any change to the required reporting frequency for HMS species by filing an adjustment of the reporting frequency with the Office of the Federal Register for publication. In no case would such an adjustment be effective less than 3 calendar days after the date of filing with the Office of the Federal Register. Is that an adequate amount of time for dealers to receive notice? Would a longer timeframe (
Comments on this proposed rule may be submitted online via
NMFS will hold eight public hearings as listed in the table below for fishery participants and other members of the public regarding this proposed rule. These hearings will be physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Jackie Wilson at (240) 338-3936 or Delisse Ortiz at (301) 713-2347 at least 7 days prior to the hearing date. The public is reminded that NMFS expects participants at the public hearings to conduct themselves
The NMFS Assistant Administrator has determined that this proposed action is consistent with the Magnuson-Stevens Act, 2006 Consolidated Atlantic HMS Fishery Management Plan (FMP) and its amendments, ATCA, and other applicable law, subject to further consideration after public comment.
This proposed rule would modify a collection-of-information requirement associated with dealer reporting for Atlantic HMS dealers subject to the Paperwork Reduction Act (PRA) which has been approved by the Office of Management and Budget (OMB) under control number 0648-0040. The proposed modifications are subject to review and approval by OMB under the PRA. This requirement has been submitted to OMB for approval. The public reporting burden associated with Atlantic HMS dealers having to report Atlantic swordfish, sharks, and BAYS tunas to NMFS electronically (15 minutes per positive report and 5 minutes per negative report) depends on the species/species complex, which fisheries are open, available quota, and amount of time left in the fishing season. NMFS would establish a weekly base reporting frequency and would have the flexibility to increase the reporting frequency from weekly to daily for any HMS species if more frequent reporting is deemed necessary to monitor the available quota. NMFS does not expect to use this flexibility in the near future for BAYS tunas or swordfish, but may need to for sharks. Additionally, as shark quotas are the smallest of all HMS quotas, and their associated fishing seasons have been the shortest in the past, NMFS is proposing to require Federal Atlantic shark dealers to report sharks within 24 hours while the fishing seasons for non-sandbar LCS, blacknose sharks, and non-blacknose SCS are open. When the fishing seasons for these shark species/complexes are all closed, Federal Atlantic shark dealers would be required to report sharks on a weekly basis.
Public reporting burden for Atlantic swordfish and BAYS tunas would be one hour per month (15 minutes per report each week × 4 weeks) or 12 hours per year. Based on the number of Atlantic swordfish and tunas dealer permits (that deal with BAYS tunas) in 2010 (or 711 total permits), this would result in an estimated total annual burden of 8,532 hours.
Atlantic shark dealers would spend approximately 7.5 hours/month reporting to NMFS (15 minutes per report each day × 30 days) while the non-sandbar LCS, blacknose sharks, and non-blacknose SCS fishing seasons were open, and approximately 1 hour per month when the fishing seasons for these fisheries were closed. In 2010, the non-sandbar LCS, blacknose, or non-blacknose SCS fisheries were open for 33 weeks. Similar season lengths in subsequent years would result in 57.75 hours of reporting by the Federal shark dealer to NMFS while these fisheries were open. However, the non-sandbar LCS, blacknose, or non-blacknose SCS fisheries were closed for 20 weeks during 2010, which would result in 5 hours of reporting by the Federal shark dealer to NMFS under similar fishing seasons. Based on the number of Atlantic shark dealer permits in 2010 (or 175 total permits), this rule change would result in an estimated total annual burden to all the affected entities of 10,981.25 hours and assumes that dealers would report Atlantic sharks, swordfish, and/or BAYS tunas during each reporting period. Negative reports would require less of a reporting burden as negative reports are estimated to only take 5 minutes to complete and send to NMFS. Finally, all 886 permit holders affected by this proposed rule would be considered respondents.
Public comment is sought regarding the estimated burden hours (
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.
In addition, NMFS has determined that this proposed rule would not affect the coastal zone of any state, and a negative determination pursuant to 15 CFR 930.35 is not required, therefore, pursuant to 15 CFR 930.33(a)(2), coordination with appropriate state
Ecological impacts, outside of those that have been previously analyzed for Atlantic shark dealer reporting requirements in Amendment 2 to the 2006 Consolidated HMS FMP and categorically excluded for Atlantic swordfish and BAYS tunas, are not expected as a result of this proposed rule. This action would not directly affect fishing effort, quotas, fishing gear, authorized species, interactions with threatened or endangered species, or other relevant parameters. This proposed rule is exempt from the requirement to prepare an Environmental Assessment in accordance with NAO 216-6 because it would not have significant, additional impacts on the human environment, or any environmental consequences that have not been previously analyzed or are categorically excluded in accordance with Sections 5.05b and Section 6.03.c.3(i) of NOAA's Administrative Order (NAO) 216-6. However, social and economic impacts are expected as a result of this proposed action.
An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
In compliance with § 603(b)(1) of the RFA, the purpose of this proposed rulemaking is consistent with the Magnuson-Stevens Act and the 2006 Consolidated HMS FMP and its amendments, to consider changes to the current regulations and infrastructure of the Atlantic HMS quota-monitoring system by requiring: all Federally-permitted Atlantic HMS dealers to report commercially-harvested Atlantic swordfish, sharks, and BAYS tunas to NMFS through an electronic dealer reporting system; delinquent reports be submitted by dealers and received by NMFS before a dealer could receive commercially-harvested Atlantic swordfish, sharks, and BAYS tunas; and all commercially harvested Atlantic swordfish, sharks, and BAYS tunas by Federally-permitted fishermen be offloaded to Federally-permitted HMS dealers, who must report the associated catch to NMFS. These actions are necessary to ensure timely and accurate reporting, which is critical for quota monitoring and management of these species.
In compliance with § 603(b)(2) of the RFA, the objectives of this proposed rulemaking are to achieve domestic management objectives under the MSA, and to implement the 2006 Consolidated HMS FMP and its amendments. These objectives include the goals in the Consolidated HMS FMP to monitor and control all components of fishing mortality, both directed and incidental, so as to ensure the long-term sustainability of HMS stocks, and to provide the data necessary for assessing HMS fish stocks and managing HMS, including addressing inadequacies in current data collection and the ongoing collection of social and economic data in Atlantic HMS fisheries.
Under § 603(b)(3) of the RFA, Federal agencies are required to provide an estimate of the number of small entities to which the rule would apply. NMFS considers all HMS permit holders to be small entities because they either had average annual receipts less than $4.0 million for fish-harvesting, average annual receipts less than $6.5 million for charter/party boats, 100 or fewer employees for wholesale dealers, or 500 or fewer employees for seafood processors. These are the Small Business Administration (SBA) size standards for defining a small versus large business entity in the fishing industry. NMFS estimates that this proposed rule would affect all Federal Atlantic HMS dealers who first receive Atlantic swordfish, sharks, and BAYS tunas from Federally-permitted commercial fishing vessels in the Atlantic Ocean, Gulf of Mexico, and Caribbean Sea. All of these are considered small entities. As of 2010, there were 886 Federal Atlantic HMS dealer permit holders, of which 175 had Atlantic shark, 330 were Atlantic swordfish, and 381 were Atlantic tunas (bigeye, albacore, yellowfin, and skipjack) dealer permits.
This proposed rule would modify existing reporting, recordkeeping, or other compliance requirements (5 U.S.C. 603(b)(4)). If adopted, the rule would require Federal Atlantic HMS dealers to report commercially-harvested Atlantic sharks, swordfish, and BAYS tunas to NMFS through an electronic reporting system; increase HMS dealer reporting frequency to NMFS, as needed (
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. These impacts are discussed below. Additionally, the RFA (5 U.S.C. 603(c)(1)-(4)) lists four general categories of “significant” alternatives that would assist an agency in the development of significant alternatives. These categories of alternatives are:
1. Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;
2. Clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities;
3. Use of performance rather than design standards; and
4. Exemptions from coverage of the rule for small entities.
In order to meet the objectives of this proposed rule, consistent with the MSA, 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. All Federally-permitted HMS dealers must
NMFS considered and analyzed four alternatives to ensure more timely, efficient, and accurate dealer reporting and subsequent quota monitoring of Atlantic HMS. NMFS considered the following alternatives: Alternative A1—Status quo; Alternative A2—Establish new flexible reporting requirements for all Federally-permitted HMS dealers effective 30 days after publication of the final rule; Alternative A3—Establish new flexible reporting requirements for all Federally-permitted HMS dealers and delay implementation; and Alternative A4—Establish new weekly reporting requirements for all Federally-permitted HMS dealers and delay implementation.
Alternative A1, the No Action alternative, would maintain existing regulations specifying bi-weekly dealer reporting requirements from Federal Atlantic shark, tunas, and swordfish dealers. This alternative would not result in any additional impacts to small entities. Federal HMS dealers are currently required to report any Atlantic tunas, swordfish, and/or sharks that they receive from U.S. vessels to NMFS on a bi-weekly basis. Federal dealers submit their reports in paper format to NMFS by the 10th and 25th of each month and indicate the amount of product received over a two week period, including submission of a “negative” report to NMFS indicating no purchases were made during a reporting period. The reports are mailed or faxed to the SEFSC for dealers located south of Virginia. Northeast Atlantic HMS dealers (Virginia through Maine) report HMS to the NEFSC through SAFIS or, to a lesser extent, through a manual system involving the NERO port offices with the exception of bluefin tuna, which is reported through other reporting mechanisms. Under the current regulations, a dealer permit may be revoked, suspended, or modified, and a permit application denied if recordkeeping and reporting requirements for HMS are not met. Current regulations also require any person that receives, purchases, trades for, or barters for Atlantic HMS from a U.S. vessel to possess a valid Atlantic HMS dealer permit. As mentioned above, Federal dealers are required to report any Atlantic tunas, swordfish, and/or sharks that they receive from U.S. vessels to NMFS on a bi-weekly basis. In the shark fishery, the first receiver of Atlantic shark product harvested by Federally-permitted fishermen must also obtain a Federal shark dealer permit and report the associated catch to NMFS. Under the current regulations, dealer reporting is estimated to require individual dealers to spend approximately 15 minutes to complete each report if HMS are purchased or received during the reporting period, and only about 5 minutes to complete a negative report if no HMS were purchased or received. Currently, bi-weekly reports to NMFS are sent in pre-paid NMFS envelopes. Therefore, on an annual basis, reporting HMS product has no associated mailing costs per dealer. The current dealer reporting mechanisms make it difficult to monitor small quotas, and in some cases, results in the fishery closing before the entire quota has been harvested, as is the case for Atlantic shark fisheries. Thus, receiving HMS dealer data on a more frequent basis would allow NMFS to better manage these fisheries, which could ultimately benefit fishermen.
To obtain a dealer permit, NMFS charges an administrative fee of $50 for issuing a dealer permit for the first fishery and $12.50 for each additional fishery, for a total a cost of $75 per dealer for all HMS fisheries. NMFS also requires all Federal Atlantic shark dealer permit holders to complete an Atlantic shark identification workshop every three years. Although there is no associated cost to participate in the dealer workshop certification, participation in the workshop is a time burden of approximately 4 hours per workshop for each shark dealer.
Alternative A2 proposes that all Federally-permitted Atlantic HMS dealers must report commercially-harvested Atlantic sharks, swordfish, and BAYS tunas to NMFS through an electronic reporting system, including submission of a “negative” report to NMFS indicating no purchases were made in a given reporting period. To better facilitate timely quota monitoring, NMFS is also proposing to increase the frequency of both positive and negative dealer reporting for Atlantic sharks, swordfish, and BAYS tunas. The reporting frequency would be flexible and could be adjusted depending on the available quota, length of fishing season, and species/species complexes, when certain triggers are met by the different fisheries, as described below. As proposed, NMFS would establish a weekly base reporting frequency. Under the proposed rule, for swordfish, an increase in reporting from a weekly to daily basis would occur when 80 percent of the directed fishery's quota is attained. For BAYS tunas, bigeye, yellowfin, and skipjack fisheries are not managed under quotas, and the United States has not attained the U.S. allocated albacore tuna quota, which is currently not codified. If such quotas are codified in the future, NMFS proposes to increase the required dealer reporting from a weekly to daily basis when 80 percent of the respective quotas are attained. Additionally, because shark quotas are the smallest of all HMS quotas, NMFS is proposing to require Federal Atlantic shark dealers to report sharks within 24 hours while the fishing seasons for non-sandbar LCS, blacknose sharks, and non-blacknose SCS are open. The quotas for these shark complexes/species are the smallest of all the shark quotas, and their associated fishing seasons have been the shortest in the past. When the fishing seasons for these shark species/complexes are all closed, Federal Atlantic shark dealers would be required to report sharks on a weekly basis unless otherwise notified.
As proposed, NMFS would announce any change in reporting frequency for HMS species by filing an adjustment of the reporting frequency with the Office of the Federal Register for publication. In no case would such an adjustment be effective less than 3 calendar days after the date of filing with the Office of the Federal Register. The public would also be informed simultaneously via the HMS Web site and e-mail notice listserve as well as through e-mail notifications to Federal HMS dealers to an e-mail address provided to NMFS by dealers (and individual employees of dealers reporting in the electronic reporting system). NMFS anticipates that this flexibility to adjust the reporting frequency would be most critical for sharks due to small shark quotas.
A dealer would be authorized to receive commercially-harvested Atlantic sharks, swordfish, and BAYS tunas only if the permitted dealer has submitted all required reports to NMFS. Under this alternative, NMFS would also require Federal HMS dealer permits for all first receivers of Atlantic sharks, swordfish, and BAYS tunas. The first receivers/
There may be minor social and economic impacts expected from this alternative as a result of HMS dealers having to purchase computer and Internet services in order to report the associated catch through NMFS' electronic dealer reporting system. According to the SBA, in 2010, approximately 94 percent of businesses have at least one computer. Of businesses with computers, 95 percent have Internet service. Thus, most dealers are assumed to already have a computer and Internet access as part of their regular business operations. The most inexpensive computer that would support the new system may have an average, one-time cost of $615. Internet service rates may vary depending on a variety of factors. A recent report by the SBA Office of Advocacy (2010) indicated that businesses pay an average of $110 per month for Internet service, with most paying between $50 and $99 per month. Therefore, if a dealer needed to purchase a computer it would be a one-time cost of $615. The average annual cost would be $600 for Internet services (assuming dealers would need the most basic Internet connection to support NMFS's electronic reporting system at a cost of $50 per month for Internet service; $50*12 months=$600/year). As such, during the first year, it would cost dealers $1,215 ($615 for computer + $600 for Internet service) for a computer and Internet services, assuming the dealer does not already have a computer and Internet access as part of his/her regular business operations. After the first year, it would cost $600 a year for Internet service. Under this alternative, NMFS would also revise the current dealer reporting requirements as explained above. NMFS estimates that it would take dealers the same amount of time to fill out and submit an individual electronic report as it does for the current report in a paper format (
At this time, NMFS cannot determine the number of additional individuals that would need to obtain HMS dealer permits due to the first receiver requirement in this proposed action. However, NMFS is seeking specific public comment regarding the universe that would be affected by this action. NMFS did investigate the percent change in the number of Atlantic shark dealer permits from 2007 to 2008 as first receivers of Atlantic shark products were required to obtain a Federal shark dealer permit in 2008. Federal Atlantic shark dealer permit data indicate that there was a decrease in the number of permitted shark dealer facilities from 2007 to 2008. However, because several management measures were also implemented in 2008 (
Alternative A3, the preferred alternative, proposes the same requirements as alternative A2; however, alternative A3 would delay implementation of the new regulations until February 2012. NMFS anticipates publishing the final rule for this action in November 2011. This delay would allow dealers an additional three months to learn about the new regulations, purchase a new computer and obtain Internet services, if necessary, and become familiar with the new electronic dealer reporting system before it is required for all HMS dealers in February 2012. Because the proposed action under alternative A3 would allow NMFS time to conduct outreach to HMS dealers regarding the new reporting system and its requirement, and it would allow HMS dealers additional time to learn about and prepare for the new electronic dealer reporting system, NMFS prefers this alternative at this time.
Alternative A4 proposes the same requirements as alternative A3; however, alternative A4 would have weekly dealer reporting requirements for all Atlantic swordfish, shark, and BAYS tunas dealers. Atlantic shark dealers would report on a weekly basis regardless of which shark fishery was open to simplify reporting requirements across all HMS dealers and would reduce the reporting burden on shark dealers by requiring less frequent reporting. While this proposed alternative may simplify dealer reporting, it would not allow for real time data collection of shark landings when shark fisheries with the smallest quotas (
This 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 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 § 635.2, the definition for “First receive” is added in alphabetical order and “First receiver” is revised to read as follows:
3. In § 635.4, paragraphs (g)(1)(i) and (ii) are added and paragraph (g)(3) is revised to read as follows:
(g) * * *
(1) * * *
(i) A person that receives, purchases, trades for, or barters for Atlantic bluefin tuna from a fishing vessel of the United States, as defined under § 600.10 of this chapter, must possess a valid Federal Atlantic tunas dealer permit.
(ii) A first receiver, as defined in § 635.2, of Atlantic bigeye, albacore, yellowfin, or skipjack tunas must possess a valid Federal Atlantic tunas dealer permit.
(3)
4. In § 635.5, paragraphs (b)(1)(i) through (iv) are revised and paragraph (b)(1)(v) is added to read as follows:
(b) * * *
(1) * * *
(i) Dealers that have been issued or should have been issued a Federal Atlantic tunas, swordfish, and/or shark dealer permit under § 635.4 must submit to NMFS all reports required under this section within the timeframe specified under paragraphs (b)(1)(ii) and (b)(1)(iii). Atlantic bigeye, albacore, yellowfin, or skipjack tunas, swordfish, and sharks commercially-harvested by a U.S. vessel can only be first received by dealers that have been issued or should have been issued an Atlantic tunas, swordfish, and/or sharks dealer permit under § 635.4. All reports must be species-specific and must include the required information about all Atlantic bigeye, albacore, yellowfin, or skipjack tunas, swordfish, and sharks received by the dealer, including the required vessel information, regardless of where harvested or whether the harvesting vessel is permitted under § 635.4. For sharks, each report must specify the total weight of the carcass(es) without the fins for each species, and the total fin weight by grade for all sharks combined. Dealers are also required to submit “negative” reports, reports which indicate no receipt of Atlantic bigeye, albacore, yellowfin, and skipjack tunas, swordfish, and/or sharks, within the timeframe specified under paragraphs (b)(1)(ii) and (b)(1)(iii). As stated in § 635.4(a)(6), failure to comply with these recordkeeping and reporting requirements may result in existing dealer permit(s) being revoked, suspended, or modified, and in the denial of any permit applications.
(ii)
(iii)
(iv) As of February 1, 2012, Atlantic tunas, swordfish, and shark dealers must submit and have NMFS receive reports of all Atlantic bigeye, albacore, yellowfin, and skipjack tunas and swordfish offloaded to a dealer or extensions of a dealer's place of business, through the HMS electronic reporting system in accordance with the reporting frequency specified in paragraphs (b)(1)(ii) and (iii) of this section. For the purposes of this part, trucks or other conveyances of a dealer's place of business are considered to be extensions of a dealer's place of business.
(v) Atlantic HMS dealers are not authorized to first receive Atlantic swordfish, sharks, and/or Atlantic bigeye, albacore, yellowfin, and skipjack tunas if the required reports have not been submitted and received by NMFS according to reporting requirements under this section. Delinquent reports automatically result in an Atlantic HMS dealer becoming ineligible to first receive Atlantic swordfish, sharks, and/or Atlantic bigeye, albacore, yellowfin, and skipjack tunas regardless of any notification to dealers by NMFS. Atlantic HMS dealers who become ineligible to first receive Atlantic swordfish, sharks, and/or Atlantic bigeye, albacore, yellowfin, and skipjack tunas due to delinquent reports are authorized to first receive Atlantic swordfish, sharks, and/or Atlantic bigeye, albacore, yellowfin, and skipjack tunas only once all required and delinquent reports have been submitted and received by NMFS according to reporting requirements under this section.
5. In § 635.8, paragraphs (b)(4) through (b)(6), and (c)(4) are revised to read as follows:
(b) * * *
(4) Only dealers issued a valid shark dealer permit may send a proxy to the Atlantic shark identification workshops. If a dealer opts to send a proxy, the dealer must designate at least one proxy from each place of business listed on the dealer permit, issued pursuant to § 635.4(g)(2), which first receives Atlantic shark. The proxy must be a person who is currently employed by a place of business covered by the dealer's permit; is a primary participant in the identification, weighing, and/or first receipt of fish as they are offloaded from a vessel; and fills out dealer reports as required under § 635.5. Only one certificate will be issued to each proxy. If a proxy is no longer employed by a place of business covered by the dealer's permit, the dealer or another proxy must be certified as having completed a workshop pursuant to this section. At least one individual from each place of business listed on the dealer permit which first receives Atlantic sharks must possess a valid Atlantic shark identification workshop certificate.
(5) An Atlantic shark dealer issued or required to be issued a shark dealer permit pursuant to § 635.4(g)(2) must possess and make available for inspection a valid dealer or proxy Atlantic shark identification workshop certificate issued to the dealer or proxy at each place of business listed on the dealer permit which first receives Atlantic sharks. For the purposes of this part, trucks or other conveyances of a dealer's place of business are considered to be extensions of a dealer's place of business and must possess a copy of a valid dealer or proxy Atlantic shark identification workshop certificate issued to a place of business covered by the dealer permit. A copy of a valid Atlantic shark identification workshop certificate must be included in the dealer's application package to obtain or renew an Atlantic shark dealer permit. If multiple businesses are authorized to first receive Atlantic sharks under the Atlantic shark dealer's permit, a copy of the Atlantic shark identification workshop certificate for each place of business listed on the Atlantic shark dealer permit which first receives Atlantic sharks must be included in the Atlantic shark dealer permit renewal application package.
(6) Persons holding an expired Atlantic shark dealer permit and persons who intend to apply for a new Atlantic shark dealer permit will be issued a participant certificate in their name upon successful completion of the Atlantic shark identification workshop. A participant certificate issued to such persons may be used only to apply for an Atlantic shark dealer permit. Pursuant to § 635.8(c)(4), an Atlantic shark dealer may not first receive Atlantic shark without a valid dealer or proxy Atlantic shark identification workshop certificate issued to the dealer or proxy. After an Atlantic shark dealer permit is issued to a person using an Atlantic shark identification workshop participant certificate, such person may obtain an Atlantic shark identification workshop dealer certificate for each location which first receives Atlantic sharks by contacting NMFS at an address designated by NMFS.
(c) * * *
(4) An Atlantic shark dealer may not first receive Atlantic shark without a valid dealer or proxy Atlantic shark identification workshop certificate issued to the dealer or proxy. A valid dealer or proxy Atlantic shark identification workshop certificate issued to the dealer or proxy must be maintained on the premises of each place of business listed on the dealer permit which first receives Atlantic sharks. An Atlantic shark dealer may not renew a Federal dealer permit issued pursuant to § 635.4(g)(2) unless a copy of a valid dealer or proxy Atlantic shark identification workshop certificate issued to the dealer or proxy has been submitted with the permit renewal application. If the dealer is not certified and opts to send a proxy or proxies to a workshop, the dealer must submit a copy of a valid proxy certificate for each place of business listed on the dealer permit which first receives Atlantic sharks.
6. In § 635.27, paragraph (b)(1)(iv)(C) is revised to read as follows:
(b) * * *
(1) * * *
(iv) * * *
(C) Except for non-sandbar LCS landed by vessels issued a valid shark research permit with a NMFS-approved observer onboard, any non-sandbar LCS reported as harvested in the Florida Keys areas or in the Gulf of Mexico will be counted against the non-sandbar LCS Gulf of Mexico regional quota. Except for non-sandbar LCS landed by vessels issued a valid shark research permit with a NMFS-approved observer onboard, any non-sandbar LCS reported as harvested in the Atlantic region will be counted against the non-sandbar LCS Atlantic regional quota. Non-sandbar LCS landed by a vessel issued a valid shark research permit with a NMFS-approved observer onboard will be counted against the non-sandbar LCS research fishery quota using scientific observer reports.
7. In § 635.28, paragraph (b)(4) is revised to read as follows:
(b) * * *
(4) When the fishery for a shark species group and/or region is closed, a fishing vessel, issued a Federal Atlantic commercial shark permit pursuant to § 635.4, may not possess or sell a shark of that species group and/or region, except under the conditions specified in § 635.22(a) and (c) or if the vessel possesses a valid shark research permit under § 635.32 and a NMFS-approved observer is on board. During the closure period, an Atlantic shark dealer, issued a permit pursuant to § 635.4, may not first receive a shark of that species group and/or region from a vessel issued a Federal Atlantic commercial shark permit, except that a permitted Atlantic shark dealer or processor may possess sharks that were harvested, offloaded, and sold, traded, or bartered, prior to the effective date of the closure and were held in storage. Under a closure for a shark species group, an Atlantic shark dealer, issued a permit pursuant to § 635.4 may, in accordance with State regulations, first receive a shark of that
8. In § 635.31, paragraphs (a)(1)(i), (a)(2)(i), and (a)(2)(ii) are added, paragraph (a)(1)(ii) is added and reserved, and paragraphs (c)(2), (c)(4), (c)(5), (d)(1), and (d)(2) are revised to read as follows:
(a) * * *
(1) * * *
(i) A person that owns or operates a vessel from which an Atlantic tuna is landed or offloaded may sell such Atlantic tuna only if that vessel has a valid HMS Charter/Headboat permit, or a valid General, Harpoon, Longline, Purse Seine, or Trap category permit for Atlantic tunas issued under this part. However, no person may sell a BFT smaller than the large medium size class. Also, no large medium or giant BFT taken by a person aboard a vessel with an Atlantic HMS Charter/Headboat permit fishing in the Gulf of Mexico at any time, or fishing outside the Gulf of Mexico when the fishery under the General category has been closed, may be sold (see § 635.23(c)). A person may sell Atlantic bluefin tuna only to a dealer that has a valid permit for purchasing Atlantic bluefin tuna issued under this part. A person may not sell or purchase Atlantic tunas harvested with speargun fishing gear.
(ii) [Reserved]
(2) * * *
(i) Dealers may purchase Atlantic bluefin tuna only from a vessel that has a valid Federal commercial permit for Atlantic tunas issued under this part in the appropriate category.
(ii) Dealers may first receive Atlantic bigeye, albacore, yellowfin and skipjack tunas only if they have submitted reports to NMFS according to reporting requirements of § 635.5(b)(1)(ii) and only from a vessel that has a valid Federal commercial permit for Atlantic tunas issued under this part in the appropriate category.
(c) * * *
(2) Persons that own or operate a vessel for which a valid Federal Atlantic commercial shark permit has been issued and on which a shark from the management unit is possessed, may offload such shark only to a dealer that has a valid permit for shark issued under this part.
(4) Only dealers that have a valid a Federal Atlantic shark dealer permit and who have submitted reports to NMFS according to reporting requirements of § 635.5(b)(1)(iii) may first receive a shark from an owner or operator of a U.S. fishing vessel who has a valid Federal Atlantic commercial shark permit issued under this part, except that Atlantic shark dealers may first receive a shark from an owner or operator of a vessel that does not have a Federal Atlantic commercial shark permit if that vessel fishes exclusively in state waters. Atlantic shark dealers may first receive a sandbar shark only from an owner or operator of a vessel who has a valid shark research permit and who had a NMFS-approved observer on board the vessel for the trip in which the sandbar shark was collected. Atlantic shark dealers may first receive a shark from an owner or operator of a fishing vessel that has a permit issued under this part only when the fishery for that species group and/or region has not been closed, as specified in § 635.28(b).
(5) An Atlantic shark dealer issued a permit under this part may first receive shark fins from an owner or operator of a fishing vessel only if the shark fins were harvested in accordance with the regulations found at part 600, subpart N, of this chapter and in § 635.30(c).
(d)
(2) Atlantic swordfish dealers may first receive a swordfish harvested from the Atlantic Ocean only from an owner or operator of a fishing vessel that has a valid commercial permit for swordfish issued under this part and only if the dealer has submitted reports to NMFS according to reporting requirements of § 635.5(b)(1)(ii).
9. In § 635.71, paragraphs (a)(3)(i), (a)(3)(ii), (a)(3)(iii), (a)(4)(i), (a)(4)(ii), (a)(55), and (a)(56) are added and paragraphs (d)(11), (d)(14), (d)(16) and (e)(1) are revised to read as follows:
(a) * * *
(3) * * *
(i) Purchase, receive, or transfer or attempt to purchase, receive, or transfer, for commercial purposes, Atlantic bluefin tuna landed by owners of vessels not permitted to do so under § 635.4, or purchase, receive, or transfer, or attempt to purchase, receive, or transfer Atlantic bluefin tuna without the appropriate valid Federal Atlantic tunas dealer permit issued under § 635.4.
(ii) First receive, or attempt to first receive, Atlantic bigeye, albacore, yellowfin, and skipjack tunas, swordfish, and sharks landed by owners of vessels not permitted to do so under § 635.4, except that this does not apply to a shark harvested from a vessel that has not been issued a permit under this part and that fishes exclusively within the waters under the jurisdiction of any state.
(iii) First receive, or attempt to first receive, Atlantic bigeye, albacore, yellowfin, and skipjack tunas, swordfish, or sharks without the appropriate valid Federal Atlantic HMS dealer permit issued under § 635.4 or submission of reports by dealers to NMFS according to reporting requirements of § 635.5(b)(1)(ii) and § 635.5(b)(1)(iii). This prohibition does not apply to a shark harvested by a vessel that has not been issued a permit under this part and that fishes exclusively within the waters under the jurisdiction of any state,
(4) * * *
(i) Sell or transfer or attempt to sell or transfer, for commercial purposes, an Atlantic bluefin tuna other than to a dealer that has a valid Federal Atlantic tunas dealer permit issued under § 635.4.
(ii) Offload an Atlantic bigeye, albacore, yellowfin, or skipjack tuna, swordfish, or shark other than to a dealer that has a valid Federal Atlantic HMS dealer permit issued under § 635.4, except that this does not apply to a shark harvested by a vessel that has not been issued a permit under this part and that fishes exclusively within the waters under the jurisdiction of any state.
(55) Fail to submit a dealer report if issued, or required to have obtained, a Federal Atlantic HMS dealer permit pursuant § 635.4 according to reporting
(56) Fail to electronically submit an Atlantic HMS dealer report through the HMS electronic dealer reporting system to report Atlantic bigeye, albacore, yellowfin, and skipjack tunas, swordfish, and sharks to NMFS in accordance with § 635.5(b)(1)(iv), if issued, or required to have obtained, a Federal Atlantic HMS dealer permit pursuant to § 635.4
(d) * * *
(11) First receive or attempt to first receive Atlantic sharks without a valid Federal Atlantic shark dealer or proxy Atlantic shark identification workshop certificate issued to the dealer or proxy or fail to be certified for completion of a NMFS Atlantic shark identification workshop in violation of § 635.8.
(14) First receive or attempt to first receive Atlantic sharks without making available for inspection, at each of the dealer's places of business listed on the dealer permit which first receives Atlantic sharks, an original, valid dealer or proxy Atlantic shark identification workshop certificate issued by NMFS to the dealer or proxy in violation of § 635.8(b), except that trucks or other conveyances of the business must possess a copy of such certificate.
(16) First receive or attempt to first receive a shark or sharks or part of a shark or sharks landed in excess of the retention limits specified in § 635.24(a).
(e) * * *
(1) First receive or attempt to first receive Atlantic swordfish from the north or south Atlantic swordfish stock without a Federal Atlantic swordfish dealer permit as specified in § 635.4(g).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS issues this proposed rule to implement Amendment 13 to the Coastal Pelagic Species (CPS) Fishery Management Plan (FMP). This proposed rule will implement parts of proposed Amendment 13 to the CPS FMP, which is intended to ensure the FMP is consistent with advisory guidelines published in Federal regulations. Amendment 13 revises the framework process currently in place to set and adjust fishery specifications and management measures and modifies this framework to include the specification new reference points such as annual catch limit (ACL).
Comments must be received by July 28, 2011.
You may submit comments, identified by 0648-BA68, by any one of the following methods:
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Instructions: All comments received are a 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 prefer to remain anonymous). You may submit attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
Copies of the CPS FMP as Amended through Amendment 13 and the Environmental Assessment/Regulatory Impact Review for Amendment 13, are available from Donald O. McIssac, Executive Director, Pacific Fishery Management Council, 7700 NE. Ambassador Place, Suite 200, Portland, OR 97220-1384 or the Southwest Regional Office (see
Joshua B. Lindsay, Sustainable Fisheries Division, NMFS, at 562-980-4034 or Mike Burner, Pacific Fishery Management Council, at 503-820-2280.
The CPS fishery in the U.S. exclusive economic zone (EEZ) off the West Coast is managed under the CPS FMP, which was developed by the Pacific Fishery Management Council (Council) pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (MSA). Species managed under the CPS FMP include Pacific sardine, Pacific mackerel, jack mackerel, northern anchovy, market squid and krill. The CPS FMP was approved by the Secretary of Commerce and was implemented by regulations that can be found at 50 CFR part 660, subpart I.
The MSA was amended in 2007 to include new requirements for ACLs and accountability measures (AMs) and other provisions regarding preventing and ending overfishing and rebuilding fisheries. On January 16, 2009, NMFS revised its guidelines implementing MSA National Standard 1 (74 FR 3178) in response to these changes in the MSA. The revised guidelines explain NOAA's interpretation of the new statutory requirements for specifying ACLs at such levels that overfishing does not occur and that measures be taken to ensure accountability with these limits. The purpose of Amendment 13 is to amend the CPS FMP to ensure that it is consistent with these revised advisory guidelines and to comply with the statute. Specifically, Amendment 13 would revise the framework process to set and adjust fishery specification and management measures, and would establish a framework for specifying new reference points such as ACLs and AMs, as well as other provisions for preventing overfishing such as the potential setting of annual catch targets (ACTs).
Additionally, Amendment 13 would amend the FMP through the following measures that are designed to better
• Modify the existing harvest control rules for actively managed species to include a buffer or reduction in acceptable biological catch (ABC) relative to overfishing limit (OFL) to account for scientific uncertainty. This buffer will be recommended during the annual management cycle through a combination of scientific advice from the Scientific and Statistical Committee (SSC) and a policy determination of the Council.
• Maintain the default harvest control rules for monitored stocks but modified to specify the new management reference points. ACLs would likely be specified for multiple years until such time as the species becomes actively managed or new scientific information becomes available. The current buffer of a 75-percent reduction in the ABC control rule (ABC equals 25 percent of OFL/MSY) will remain in use until recommended for modification by the SSC and approved by the Council through the annual harvest and management specification process.
• Add a mechanism for the use of sector-specific ACLs, ACTs and AMs.
Although not a change to the FMP, the Council reaffirmed that all management unit species (MUS) currently in the FMP, including those species categorized as monitored species and prohibited harvest species (krill) are “in the fishery” and will remain as MUS. Amendment 13 also adds Pacific herring (
Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Amendment 13, the Magnuson-Stevens Act and other applicable law, subject to further consideration after public comment.
The Council and NMFS prepared an EA for this amendment that discusses the impact on the environment as a result of this proposed rule. A copy of the EA is available from the Council or NMFS (see
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities as follows:
The purpose of this action is to implement parts of proposed Amendment 13 to the CPS FMP which is intended to ensure the FMP is consistent with the recently revised advisory guidelines implementing MSA National Standard 1 (74 FR 3178). Amendment 13 revises the framework process currently in place to set and adjust fishery specifications and management measures and modifies this framework to include the specification new reference points such as ACL, ACT and AM, as well as other provisions for preventing overfishing.
The proposed action is not expected to have substantial direct or indirect socioeconomic impacts, because harvest limits and management measures influencing ex-vessel revenue and personal income are not established under the range of alternatives considered. Instead, the proposed action revises the framework used in developing management reference points. Additionally, for the current actively managed species within the FMP, Pacific sardine and Pacific mackerel, for which annual harvest limits have been set since 2001, the control rules used in the setting of these limits are not changing based on this action. However, this action will modify the management framework in place to further ensure that overfishing does not occur. Specific catch limits and associated management measures will continue to go through the appropriate rulemaking process with environmental and economic analysis where required.
A fishing vessel is considered a “small” business by the U.S. Small Business Administration (SBA) if its annual receipts are not in excess of $4.0 million. Since all of the vessels fishing for CPS have annual receipts below $4.0 million they would all be considered small businesses under the SBA standards. Therefore this rule will not create disproportionate costs between small and large vessels/businesses.
NMFS has determined that this rule will not result in a significant economic impact to a substantial number of small entities.
As a result, a regulatory flexibility analysis is not required, and none has been prepared.
Administrative practice and procedure, American Samoa, Fisheries, Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 660 as follows:
1. The authority citation for part 660 continues to read as follows:
16 U.S.C. 1801
2. Amend § 660.502 by removing the definition of “Monitored species (MS)” and revising the definition of “Harvest guideline” to read as follows:
3. Revise § 660.508 as follows:
(a) The Regional Administrator will determine any harvest guideline, quota, Annual
(b) Any harvest guideline, quota, ACL, or ACT, including any apportionment between the directed fishery and set-aside for incidental harvest, will be published in the
(c) The announcement of each harvest guideline, quota, ACL or ACT will contain the following information if available or applicable:
(1) The estimated biomass or MSY proxy on which the harvest guideline, quota, ACL or ACT was determined;
(2) The portion, if appropriate, of the harvest guideline, quota, ACL or ACT
(3) The estimated level of the incidental trip limit that will be allowed after the directed fishery is closed; and
(4) The allocation, if appropriate, between Subarea A and Subarea B.
(d) As necessary, harvest guidelines, quotas, OFLs (defined at § 600.310(f)(2)), ABCs (defined at § 600.310(f)(2)), ACLs or ACTs, will receive public review according to the following procedure:
(1) Meetings will be held by the Council's CPSMT and AP, where the estimated biomass and/or other biological or management benchmarks will be reviewed and public comments received. Each of these meetings will be announced in the
(2) All materials relating to the estimated biomass and/or other biological or management benchmarks will be forwarded to the Council and its Scientific and Statistical Committee and will be available to the public from the Regional Administrator when available.
(3) At a regular meeting of the Council, the Council will review the estimated biomass and/or other biological or management benchmarks and offer time for public comment. If the Council requests a revision, justification must be provided.
(4) The Regional Administrator will review the Council's recommendations, justification, and public comments and base his or her final decision on the requirements of the FMP and other applicable law.
4. Revise § 660.509 to read as follows:
(a)
(b)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notification of availability of fishery management plan amendment; request for comments.
The North Pacific Fishery Management Council submitted Amendment 83 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) to NMFS for review. If approved, Amendment 83 would establish Pacific cod allocations in the Central and Western Gulf of Alaska regulatory areas among various sectors and seasonal apportionments thereof. This action also would limit access to the Pacific cod parallel fishery for Federal fishery participants. This action is necessary to reduce the uncertainty regarding the distribution of Pacific cod catch, enhance stability among the sectors, maintain processing limits to protect coastal fishing communities, and provide entry-level opportunities for the jig sector. This action is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the FMP, and other applicable laws.
Comments on the amendment must be received on or before August 29, 2011.
Send comments to Sally Bibb, Acting Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS,
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All comments received are a part of the public record. Comments will generally be posted without change. All Personal Identifying Information (for example, name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.
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.
Electronic copies of the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for this action may be obtained from
Seanbob Kelly, 907-586-7228.
The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that each regional fishery management council submit any fishery management plan amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce (Secretary). The Magnuson-Stevens Act also requires that NMFS, upon receiving a fishery management plan amendment, immediately publish a notice in the
The groundfish fisheries in the exclusive economic zone of the Gulf of Alaska are managed under the FMP. The FMP was prepared by the North Pacific Fishery Management Council (Council) under the Magnuson-Stevens Act.
Pacific cod total allowable catch (TAC) in the Gulf of Alaska is apportioned on the basis of processor component and season, as established under Amendment 23 to the FMP (57 FR 23321, June 3, 1992). Since implementation, 90 percent of the TAC is allocated to vessels catching Pacific cod for processing by the inshore
The proposed action would supersede the current 90 percent/10 percent inshore/offshore processing allocations and instead divide the Western and Central GOA Pacific cod TACs among the various gear and operation types. If approved, this action would establish sector allocations for each gear and operation type in the Western and Central GOA Pacific cod fishery, based primarily on historical catches, as well as conservation, catch monitoring, bycatch, PSC avoidance, and social objectives, including considerations for small-boat sectors and coastal communities. This action is expected to enhance stability in the fishery, reduce competition among sectors, and preserve the historical division of catch among sectors.
The Eastern GOA regulatory area would retain the current 90 percent/10 percent inshore/offshore processing allocations. In recent years, only a small proportion of the Eastern GOA TAC has been harvested, although effort and catch has increased in recent years. The potential exists that the lack of any sector allocations in the Eastern GOA would provide an incentive for increased effort in that fishery. However, the Council did not perceive a need for such an action due, in part, to the differences in the prosecution of the Pacific cod fisheries in the Eastern regulatory area, such as the extensive trawl closures effectively prohibiting trawl fishing in the Southeast Outside district of the Eastern regulatory area. As a result, the Council recommended that the Eastern GOA Pacific cod TAC would not be allocated among sectors in this action.
Two elements of Amendment 83 would apply to the entire GOA, including the Western, Central, and Eastern GOA regulatory areas. First, the hook-and-line CV and C/P halibut PSC limits would apply to the entire GOA, described in more detail below. Second, NMFS is proposing new Federal Fishing Permits (FFPs) permitting requirements that would restrict the reissue of, or amendments to, FFPs by permit holders endorsed by gear and operation type to participate in all Federal or parallel Pacific cod fisheries throughout the Western, Central, and Eastern GOA, as described in more detail below.
This proposed action would define sectors based operation type and gear type, including hook-and-line, trawl, pot, and jig. In both the Western and Central GOA, the pot catcher vessel (CV) sector and pot catcher/processor (C/P) sector would be combined. The rationale for combining these sectors is that the pot C/P sector has historically been relatively small and would receive a small, difficult-to-manage allocation. Moreover, the majority of vessels that have participated as pot C/Ps in the GOA Pacific cod fishery in recent years also have fishing history as pot CVs, and will contribute catch history to both the pot C/P and CV allocations. In the Central GOA, the hook-and-line CV sector was further split by vessel length less than 50 ft (15.2 m) length overall (LOA). Historically, the majority of catch by hook-and-line CVs has been made by vessels less than 50 ft (15.2 m) LOA (<50 ft LOA), but in recent years, there has been a substantial increase in effort by hook-and-line CVs that are greater than 50 ft (15.2 m) LOA. Dividing this sector at 50 ft (15.2 m) LOA protects smaller boats from an influx of effort by vessels greater than 50 ft (15.2 m) LOA. However, it also means that vessels greater than 50 ft (15.2 m) LOA that are long-time participants in the fishery will share an allocation with these new entrants. This action would expand opportunities for jig vessels, by providing an initial allocation that is above the sector's historical catch in the fishery, and the opportunity for incremental increases to the jig allocation, if it is fully harvested. Any increases in the jig allocation would result in proportional reductions to the allocations to the other sectors.
This proposed action would not preclude operators from participating in the Western or Central GOA Pacific cod fishery using more than one gear type during a given season or year. For example, an operator could use both trawl and pot gear in the Western or Central GOA Pacific cod fishery during a given season or year, as long as they have the required License Limitation Program (LLP) license endorsements. However, the action does preclude operators from fishing off both the C/P and CV allocations to hook-and-line and trawl gear. The rationale for this restriction is that C/P operators could fish off the hook-and-line C/P or trawl C/P allocation until it is fully harvested, and then could opportunistically continue to fish as CVs, if the hook-and-line or trawl CV allocation has not yet been fully harvested. The purpose of establishing separate C/P and CV allocations is to shield CVs and C/Ps from competing against each other for access to the Pacific cod TAC. Allowing C/Ps to fish off both the C/P and CV allocations for their respective gear type would not meet this intent.
Allocations were calculated by taking each sector's `best option' from four options in the Western GOA and 6 options in the Central GOA for calculating catch history, and then scaling allocations so that they sum to 100 percent. In the Western GOA, the four options for calculating catch history included the 1995 through 2005 time period. This time period includes 6 years of catch history prior to implementation of the Steller sea lion (SSL) protection measures in 2001 (66 FR 7276, January 22, 2001). In the Western GOA, the SSL protection measures resulted in a dramatic shift of catch from trawl gear to pot gear, and including this earlier time period accounts for the catch history of the trawl sector prior to this shift. The options in the Central GOA do not include the 1995 through 2000 time period and were based on participation from 2000 through 2008. While there was a reduction in trawl catch concurrent with implementation of the SSL protection measures in the Central GOA, the shift was less dramatic than in the Western GOA because, historically, less of the trawl catch occurred in the Central GOA A season.
This proposed action is intended to protect historical processing and community delivery patterns, established in the GOA groundfish fisheries. NMFS would establish a mothership processing cap at 2 percent of the Western GOA Pacific cod TAC, and prohibit mothership activity in the Central GOA. In the Central GOA, no mothership has processed groundfish since 2000. In the Western GOA, there has been limited mothership activity. In addition, NMFS would establish separate processing caps for floating processors that do not harvest groundfish or act as a stationary floating processor in a given year. Eligible vessels would be allowed to process up to 3 percent of the respective Western and Central GOA TACs, provided that they operate within the municipal boundaries of Community Quota Entity (CQE) communities. Although the proposed action provides additional mothership processing opportunities, NMFS would tie this activity to Western and Central GOA CQE communities,
If approved, this action would preclude Federally-permitted vessels that do not have LLP licenses from participating in the Western or Central GOA Pacific cod parallel fishery. If Western or Central GOA Pacific cod sector allocations are established, parallel waters activity by Federally-permitted vessel operators who do not hold LLPs could erode the catches of historical participants who contributed catch history to the sector allocations and depend on the Western or Central GOA Pacific cod resource. Vessels fishing in Federal waters are required to hold an LLP license with the appropriate area, gear, and species endorsements, but vessels fishing in parallel State waters are not required to hold an LLP license. This action would be necessary to prevent vessels without LLPs from fishing within State waters for Federal TAC allocations of Pacific cod.
The EA/RIR/IRFA prepared for this action contains a complete description of the alternatives and a comparative analysis of the potential impacts of the alternatives (see
Similarly, vessel owners that fish for Pacific cod in the Federal waters have surrendered their FFP before fishing in State waters to avoid NMFS observer, VMS, and recordkeeping and reporting requirements, only to have the FFPs reissued for the opening of the Federal waters fishery. To prevent operators from circumventing these requirements, this action would limit vessel operators throughout the GOA to one FFP reactivation during the 3-year term of the permit.
The EA/RIR/IRFA also analyzed revisions to related provisions governing inseason reallocations of unused Pacific cod allocations, seasonal apportionments, and prohibited species bycatch allowances.
Public comments are being solicited on proposed Amendment 83 to the GOA FMP through the end of the comment period (see DATES). NMFS intends to publish in the
16 U.S.C. 1801
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.
Agricultural Marketing Service, USDA.
Request for comments.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501), this document announces the Agricultural Marketing Service's (“AMS”) intention to request an extension for the forms currently used by importers of commodities that are exempt from section 8e import regulations.
Comments on this document must be received by August 29, 2011.
Interested persons are invited to submit written comments concerning this document. Comments should 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:
Sasha Nel, Marketing Specialist, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., Stop 0237, Room 1406-S, Washington, DC 20250-0237; Tel: (202) 205-2829; 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:
Currently, the following commodities are subject to section 8e import regulations: Avocados; grapefruit; kiwifruit; olives; oranges; fresh prunes; table grapes; potatoes; onions; tomatoes; dates (other than dates for processing); walnuts; dried prunes (suspended); raisins; and hazelnuts. Imports of these commodities are exempt from section 8e requirements if they are imported for such outlets as processing, charity, animal feed, seed, and distribution to relief agencies when those outlets are exempt under the applicable marketing orders.
Safeguard procedures in the form of importer and receiver reporting requirements are used to ensure that the imported commodities are, in fact, shipped to authorized, exempt outlets. Reports required under the safeguard procedure are similar to the reports currently required by most domestic marketing orders, and are required of importers and receivers under the following import regulations: (1) Fruits; import regulations (7 CFR 944.350); (2) vegetables; import regulations (7 CFR 980.501); and (3) specialty crops; import regulations (7 CFR 999.500).
Under these regulations, importers wishing to import commodities for exempt purposes must complete form FV-6, the “Importer's Exempt Commodity Form,” prior to importation, through the Marketing Order Online System (MOLS). Launched in August 2008, MOLS is an Internet-based application, managed by the USDA, which allows importers and receivers of fruit, vegetable, and specialty crops to review and search for FV-6 certificates online. If an importer correctly inputs his ship