Forest Service
National Agricultural Statistics Service
Census Bureau
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Foreign-Trade Zones Board
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National Institute of Standards and Technology
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National Institutes of Health
Coast Guard
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U.S. Citizenship and Immigration Services
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U.S. Immigration and Customs Enforcement
Bureau of Ocean Energy Management, Regulation and Enforcement
Fish and Wildlife Service
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Drug Enforcement Administration
Federal Bureau of Investigation
National Institute of Corrections
National Agricultural Statistics Service
Federal Aviation Administration
National Highway Traffic Safety Administration
Surface Transportation Board
Comptroller of the Currency
Internal Revenue Service
Thrift Supervision Office
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Privacy Office, DHS.
Final rule; correction.
The Department of Homeland Security published in the
This final rule is effective July 6, 2011.
For general questions please contact Marilyn Scott-Perez (202–475–3515), Privacy Officer, U.S. Coast Guard. For privacy issues please contact Mary Ellen Callahan (703–235–0780), Chief Privacy Officer, Privacy Office, U.S. Department of Homeland Security, Washington, DC 20528.
The Department of Homeland Security published a document in the
Accordingly, 6 CFR part 5, appendix C is corrected as follows:
Pub L. 107–296, 116 Stat. 2135; (6 U.S.C. 101 et seq.); 5 U.S.C. 301.
Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy.
Direct final rule; correction.
This document corrects the preamble to a direct final rule (DFR) which was published in the
Effective October 25, 2011.
Mr. Mohammed Khan (furnaces) or Mr. Wesley Anderson (central air conditioners and heat pumps), U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE–2J, 1000 Independence Avenue, SW., Washington, DC 20585–0121. Telephone: (202) 586–7892 or (202) 586–7335. E-mail:
Mr. Eric Stas or Ms. Jennifer Tiedeman, U.S. Department of Energy, Office of the General Counsel, GC–71, 1000 Independence Avenue, SW., Washington, DC 20585–0121. Telephone: (202) 586–9507 or (202) 287–6111. E-mail:
In direct final rule document FR 2011–14557 appearing on page 37408, in the issue of Monday, June 27, 2011, the following corrections should be made:
1. On page 37540, in the third column, the first two paragraphs under section B, “Review Under the Regulatory Flexibility Act,” are corrected to read as follows:
The Regulatory Flexibility Act (5 U.S.C. 601
DOE reviewed today's direct final rule and corresponding NOPR pursuant to the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. 68 FR 7990. Set forth below is DOE's initial regulatory flexibility analysis for the standards proposed in the NOPR, published elsewhere in today's
Office of the Comptroller of the Currency, Treasury (OCC); Federal Deposit Insurance Corporation (FDIC).
Joint notice.
The Dodd-Frank Wall Street Reform and Consumer Protection Act (Act), transfers to the OCC the functions of the Office of Thrift Supervision (OTS) relating to Federal savings associations and also transfers to the OCC rulemaking authority of the OTS and the Director of the OTS, respectively, relating to all savings associations. Functions of the OTS relating to State savings associations are transferred to the FDIC. Section 316(c) of the Act requires the OCC and the FDIC, after consultation with one another, to identify those regulations of the OTS that are continued under Section 316(b) of the Act that the OCC, with respect to Federal savings associations, and the FDIC, with respect to State savings associations, will enforce, and to publish a list of those regulations in the
OCC: Andra Shuster, Senior Counsel, Heidi Thomas, Special Counsel, or Mary Gottlieb, Regulatory Specialist, Legislative and Regulatory Activities Division, (202) 874–5090, Office of the Comptroller of the Currency, 250 E Street, SW., Washington, DC 20219.
FDIC: Ann Johnson Taylor, Counsel, (202) 898–3573; Rodney D. Ray, Counsel, (202) 898–3556; or Martin P. Thompson, Senior Review Examiner, (202) 898–6767, Federal Deposit Insurance Corporation, 550 17 St. NW., Washington, DC 20429.
The Act, signed into law on July 21, 2010,
Section 316(b) of the Act provides for the continuation of OTS regulations and enforcement of such regulations that have been issued in performance of the functions transferred by Title III of the Act. Section 316(c) of the Act requires the OCC and FDIC, after consultation with each other, to identify those regulations of the OTS that are continued under Section 316(b) of the Act that will be enforced by each agency and publish a list of those regulations in the
This joint notice sets out both the OCC's and the FDIC's lists of OTS regulations that each agency will enforce beginning on the transfer date: The OCC, with respect to Federal savings associations; and the FDIC, with respect to State savings associations.
On June 14, 2011, the FDIC's Board of Directors approved an interim rule with request for comment to revise a number of existing FDIC administrative and procedural rules to reflect the FDIC's supervision of State savings associations and to make other clarifying amendments to those rules.
By order of the Board of Directors.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
An operator of an A300–600 aeroplane reported finding a cracked pylon fuel drain pipe on engine #1. * * *
* * * The pipe drains the double wall of the wing-to-pylon junction in the event of fuel leakage.
After investigation, it was concluded that the damage of the pylon fuel drain pipe had been caused by chafing of the pipe against over-length screws that had been installed in accordance with the Illustrated Parts Catalogue (IPC) during a maintenance phase of the Lower Aft Pylon Fairing (LAPF).
This condition, if not detected and corrected, could, in combination with fuel leakage in the pylon, lead to an accumulation of fuel in the lowest point of the LAPF. As high temperatures are present within the
We are issuing this AD to require actions to correct the unsafe condition on these products.
This AD becomes effective August 10, 2011.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of August 10, 2011.
You may examine the AD docket on the Internet at
Dan Rodina, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057–3356; telephone (425) 227–2125; fax (425) 227–1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the
An operator of an A300–600 aeroplane reported finding a cracked pylon fuel drain pipe on engine #1.The pipe, Part Number (P/N) A71715020, had separated and the end was found 5.5 inches from the pylon aft bulkhead. A similar case was also reported on an A300F4–608ST aeroplane.
The affected pylon fuel drain pipe runs from the top of the pylon primary structure to the aft part of the pylon rear secondary structure and is partly attached under the pylon lower spar. The pipe drains the double wall of the wing-to-pylon junction in the event of fuel leakage.
After investigation, it was concluded that the damage of the pylon fuel drain pipe had been caused by chafing of the pipe against over-length screws that had been installed in accordance with the Illustrated Parts Catalogue (IPC) during a maintenance phase of the Lower Aft Pylon Fairing (LAPF).
This condition, if not detected and corrected, could, in combination with fuel leakage in the pylon, lead to an accumulation of fuel in the lowest point of the LAPF. As high temperatures are present within the LAPF, and without ventilation, this could result in fuel (vapour) ignition and consequent fire.
To address and correct this unsafe condition, EASA * * * required an inspection [for missing pipes, or distortions or holes] of the pylon fuel drain pipe and the attachment screws and, depending on findings, the necessary corrective actions. In case over-length screws are found to be installed, depending on location and aeroplane configuration, these must be replaced.
Required actions also include visually inspecting to determine the length and part number of the drain pipe attachment screws on the LAPF on the left- and right-hand pylons. Corrective actions include replacing or repairing the pipe, or replacing screws with incorrect part numbers with new screws. You may obtain further information by examining the MCAI in the AD docket.
We gave the public the opportunity to participate in developing this AD. We considered the comments received.
UPS requested that we extend the compliance time from 30 days to 30 months after the effective date of the AD. Per the commenter, the NPRM stated that the over-length screws installed on the affected aircraft were installed in accordance with the illustrated parts catalog (IPC), and that the correct attachment screws are clearly identified in the UPS A300–600 IPC, so there is a minimal probability of installing an over-length screw. The commenter stated that the compliance time of 30 days is too restrictive and believes that extending the threshold to 30 months for those operators whose IPC does not list an over-length fastener would provide an equivalent level of safety and better fit within an operator's routine maintenance program and eliminate any undue burden associated with a restrictive timetable.
We do not agree to extend the compliance time. The FAA received information confirming that over-length screws could have been introduced in production due to some erroneous drawings. Further, before 2007, not all IPCs were correct. Some of the IPCs for aircraft fitted with Pratt & Whitney engines were corrected in 2007. All IPCs were checked in 2010, and remaining erroneous IPCs were corrected. Although UPS may have the correct IPC, since some over-length screws could have been installed during production, a fleet inspection is needed to address the identified unsafe condition. However, under the provisions of paragraph (k) of this AD, we will consider requests for approval of an extension of the compliance time if sufficient data are submitted to substantiate that the new compliance time would provide an acceptable level of safety. We have not changed the AD in this regard.
UPS requested FAA concurrence that using an alternative washer, P/N NSA5149–3, as recommended by Airbus in Service Information Letter 54–035, Revision 01, dated July 9, 2010, will not have an impact on the AD. This washer would be used in lieu of P/N NSA5149–4 under the head of the attachment screws, to prevent cracking of the LAPF.
We partially agree with the commenter's request. The alternative washer is a recommended improvement, but not a modification addressing an unsafe condition/airworthiness issue. As the Service Information Letter mentions, both washers are fully interchangeable; the last IPC update (2010) also reflects this interchangeability. Therefore, we confirm that use of either washer is adequate. In this regard, and to avoid the need for an alternative method of compliance (AMOC) on this issue in the future, we have added the washer having P/N NSA5149–3 to paragraphs (g)(1) and (g)(2) of this AD.
We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the change described previously. We determined that this change will not increase the economic burden on any operator or increase the scope of the AD.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a NOTE within the AD.
We estimate that this AD will affect 168 products of U.S. registry. We also estimate that it will take about 4 work-
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this 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 this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
You may examine the AD docket on the Internet at
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 airworthiness directive (AD) becomes effective August 10, 2011.
(b) None.
(c) This AD applies to Airbus Model A300 B4–601, B4–603, B4–620, and B4–622 airplanes; Model A300 B4–605R and B4–622R airplanes; Model A300 F4–605R and F4–622R airplanes; Model A300 C4–605R Variant F airplanes; and Model A310–203, –204, –221, –222, –304, –322, –324, and –325 airplanes; certificated in any category; all serial numbers.
(d) Air Transport Association (ATA) of America Code 54: Nacelles/pylons.
(e) The mandatory continuing airworthiness information (MCAI) states:
An operator of an A300–600 aeroplane reported finding a cracked pylon fuel drain pipe on engine #1. * * *
* * * The pipe drains the double wall of the wing-to-pylon junction in the event of fuel leakage.
After investigation, it was concluded that the damage of the pylon fuel drain pipe had been caused by chafing of the pipe against over-length screws that had been installed in accordance with the Illustrated Parts Catalogue (IPC) during a maintenance phase of the Lower Aft Pylon Fairing (LAPF).
This condition, if not detected and corrected, could, in combination with fuel leakage in the pylon, lead to an accumulation of fuel in the lowest point of the LAPF. As high temperatures are present within the LAPF, and without ventilation, this could result in fuel (vapour) ignition and consequent fire.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) Within 30 days after the effective date of this AD, do a general visual inspection for missing pipes, or distortions or holes, of the fuel drain pipes of the LAPF, and if no missing pipes, distortions, and holes are found, do a general visual inspection to determine the length and part number of the drain pipe attachment screws on the LAPF on the left-hand and right-hand pylons, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A300–54A6039, Revision 01, dated March 11, 2010 (for Model A300–600 series airplanes); or A310–54A2040, Revision 02, dated June 10, 2010 (for Model A310 series airplanes).
(1) If missing pipes, distortions, or holes of the fuel drain pipes are detected during any inspection required by paragraph (g) of this AD, before further flight, replace the drain pipe, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A300–54A6039, Revision 01, dated March 11, 2010 (for Model A300–600 series airplanes); or A310–54A2040, Revision 02, dated June 10, 2010 (for Model A310 series airplanes); or contact Airbus for repair instructions and do the repair; except where the applicable service bulletin specifies using washers having part number (P/N) NSA5149–4, washers having P/N NSA5149–3 may alternatively be used.
(2) If screw length is outside the measurement specified in the Accomplishment Instructions of Airbus Mandatory Service Bulletin A300–54A6039, Revision 01, dated March 11, 2010 (for Model A300–600 series airplanes); or A310–54A2040, Revision 02, dated June 10, 2010 (for Model A310 series airplanes); or screws having incorrect part numbers are found during any inspection required by paragraph (g) of this AD, before further flight, replace the screws with screws having P/N NAS1102E3–10, NAS1102E3–12, or NAS560HK3–2, as applicable to location and airplane (engine) configuration, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A300–54A6039, Revision 01, dated March 11, 2010 (for Model A300–600 series airplanes); or A310–54A2040, Revision 02, dated June 10, 2010 (for Model A310 series airplanes); except where the applicable service bulletin specifies using washers having P/N NSA5149–4, washers having P/N NSA5149–3 may alternatively be used.
(h) As of the effective date of this AD, do not install screws on the LAPF, other than screws having P/N NAS1102E3–10, NAS1102E3–12, or NAS560HK3–2, as applicable to location and airplane (engine) configuration, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A300–54A6039,
(i) Actions accomplished before the effective date of this AD in accordance with the service bulletins identified in table 1 of this AD are considered acceptable for compliance with the corresponding actions specified in this AD.
(j) Although Airbus Mandatory Service Bulletins A300–54A6039, Revision 01, dated March 11, 2010; and A310–54A2040, Revision 02, dated June 10, 2010; specify to submit certain information to the manufacturer, this AD does not include that requirement.
This AD differs from the MCAI and/or service information as follows: Although the MCAI or service information tells you to submit information to the manufacturer, paragraph (j) of this AD does not require that information.
(k) The following provisions also apply to this AD:
(1)
(2)
(l) Refer to MCAI European Aviation Safety Agency Airworthiness Directive 2010–0085, dated May 3, 2010; Airbus Mandatory Service Bulletin A300–54A6039, Revision 01, dated March 11, 2010; and Airbus Mandatory Service Bulletin A310–54A2040, Revision 02, dated June 10, 2010; for related information.
(m) You must use Airbus Mandatory Service Bulletin A300–54A6039, Revision 01, excluding Appendix 01 and including Appendices 02 and 03, dated March 11, 2010; or Airbus Mandatory Service Bulletin A310–54A2040, Revision 02, excluding Appendix 01 and including Appendices 02 and 03, dated June 10, 2010; as applicable; to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact Airbus SAS—EAW (Airworthiness Office), 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; e-mail:
(3) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington. For information on the availability of this material at the FAA, call 425–227–1221.
(4) You may also review copies of the service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for the products listed above. This AD requires repetitive inspections for cracking of the left and right upper center skin panels of the horizontal stabilizer, and corrective action if necessary. This AD was prompted by a report of a crack found in the upper center skin panel at the aft inboard corner of a right horizontal stabilizer. We are issuing this AD to detect and correct cracks in the horizontal stabilizer upper center skin panel. Uncorrected cracks might ultimately lead to the loss of overall structural integrity of the horizontal stabilizer.
This AD is effective August 10, 2011.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of August 10, 2011.
For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, 3855 Lakewood Boulevard, MC D800–0019, Long Beach, California 90846–0001; phone: 206–544–5000, extension 2; fax: 206–766–5683; e-mail:
You may examine the AD docket on the Internet at
Roger Durbin, Aerospace Engineer, Airframe Branch, ANM–120L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712–4137; phone: 562–627–5233; fax: 562–627–5210; e-mail:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to the specified products. That NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal and the FAA's response to each comment.
Several commenters requested clarification of the term “serviceable.”
American Airlines stated that the term “serviceable” applies to used and new aircraft parts. American commented that if a used skin plank that has been determined to be serviceable has been installed, then the part has accumulated fatigue damage and should be inspected using the repetitive method and the interval used prior to installation.
Aeropostal Hangars stated that the word “serviceable” can be associated with “removed in serviceable condition” from another aircraft. The commenter stated that although the manufacturing tolerances of fastener holes allow the installation of a removed panel from one aircraft to another, it is not always possible considering oversized fasteners, etc. We infer that this commenter wants us to change paragraph (g)(2) of the NPRM to require replacement with a new, rather than serviceable, skin panel assembly.
We agree to change paragraph (g)(2) in this final rule to require replacement with a new skin panel because it is not generally possible to install a used skin panel assembly due to the difficulty in matching drill holes and because the AD does not include a provision for identifying and tracking the accumulated time on the used part. We revised paragraph (g)(2) of this AD accordingly.
Several commenters requested additional options for temporary repairs of certain crack configurations rather than replacement of skin panel assemblies before further flight.
American Airlines stated that it has accomplished temporary cracking repairs on 21 airplanes based on the manufacturer's instructions and have not had any crack propagation from the repaired parts. American stated that doing a temporary repair results in the operation of a safe airplane, which can then be scheduled for permanent repair at a time that causes the least disruption for the airline and the flying public. This commenter requested that we allow temporary repairs to a cracked skin panel assembly.
Delta Airlines presumed that skin panel cracks likely were caused by contributions from errors in removing or installing the skin panels because of the way the skin panels overlap. Some of Delta's cracked production skin panels were not adequately shimmed where cracks occurred. This commenter cited evidence that trim-out skin panel repairs would provide some reduction in stress concentration and allow skin panels to remain in service until a planned opportunity to change the panels occurs, which would reduce airplane out-of-service time. Delta stated that trim-out repairs should be allowed on skin panels and that the airplane should be allowed to stay in service until at least the next heavy maintenance visit.
Aeropostal Hangars stated that the finding of a crack in an in-service revenue aircraft that is not allowed temporary repairs could lead to a non-scheduled down time for the affected aircraft. We infer that this commenter wants us to allow temporary repairs.
We disagree. We have determined that it will be difficult to evaluate the effect of all temporary repairs on safety, particularly since other temporary repairs allowed on the aft horizontal skin panel by AD 2007–10–04, Amendment 39–15045 (72 FR 25960, May 8, 2007), might already be present. We stated in the NPRM that a crack in the upper center skin panel might transfer the load to the upper aft skin panel, which might result in the upper aft skin panel cracking before reaching the existing inspection interval. Additionally, Aeropostal Hangars provided no data or information that would show that temporary repairs would provide an adequate level of safety.
In this case, we have determined that the alternative method of compliance (AMOC) process is more appropriate for temporary repair approval. Under the provisions of paragraph (h) of this AD, we will consider requests for approval of an AMOC if sufficient data are submitted to substantiate that temporary repairs would provide an acceptable level of safety. Early field data indicate that substantially fewer center panel cracks than aft panel cracks will be detected; therefore, the AMOC process should not represent a substantial burden to operators. We have not changed this AD in this regard.
Several commenters requested the option of replacing the whole horizontal stabilizer instead of replacing a cracked center skin panel because replacing the stabilizer would require only a few days of airplane out-of-service time instead of several weeks.
We disagree. Horizontal stabilizer assemblies do not meet the criteria for serialized, rotable life-limited parts. Further, additional tracking information that is specific to a maintenance facility might be needed to ensure that inspections are occurring at the required times for swapped parts. However, under the provisions of paragraph (h) of this AD, we will consider requests for approval of an AMOC if sufficient data are submitted to substantiate that replacing the whole horizontal stabilizer
American Airlines requested that this proposed AD allow the use of later revisions of the service bulletin. American stated that allowing later versions would eliminate the need for AMOC approval for future service bulletin revisions.
We disagree. We cannot use the phrase, “or later FAA-approved revisions,” in an AD when referring to the service document because doing so violates Office of the Federal Register (OFR) policies for approval of materials “incorporated by reference.” However, affected operators may request approval to use a later revision as an AMOC with this AD under the provisions of paragraph (h) of this AD. We have not changed this AD in this regard.
We have revised the applicability of this AD to identify The Boeing Company as the type certificate holder for the affected models.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We also determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.
We estimate that this AD will affect 668 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We estimate the following costs to do any necessary repairs that would be required based on the results of the inspection. We have no way of determining the number of aircraft that might need these repairs.
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.
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 August 10, 2011.
(b) None.
(c) This AD applies to all The Boeing Company Model DC–9–81 (MD–81), DC–9–82 (MD–82), DC–9–83 (MD–83), DC–9–87 (MD–87) and MD–88 airplanes, certificated in any category.
(d) Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 55: Stabilizers.
(e) This AD was prompted by a report of a crack found in the upper center skin panel at the aft inboard corner of a right horizontal stabilizer. We are issuing this AD to detect and correct cracks in the horizontal stabilizer upper center skin panel. Uncorrected cracks might ultimately lead to the loss of overall structural integrity of the horizontal stabilizer.
(f) Comply with this AD within the compliance times specified, unless already done.
(g) Before the accumulation of 20,000 total flight cycles, or within 4,379 flight cycles after the effective date of this AD, whichever occurs later, do eddy current inspections to detect cracking of the left and right upper center skin panels of the horizontal stabilizer, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin MD80–55A068, dated July 16, 2010.
(1) If no crack is found during any inspection required by paragraph (g) of this AD, repeat the applicable inspections thereafter at the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin MD80–55A068, dated July 16, 2010.
(2) If any crack is found during any inspection required by paragraph (g) of this AD, before further flight, replace the skin panel with a new skin panel, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin MD80–55A068, dated July 16, 2010. Within 20,000 flight cycles after the replacement, do eddy current inspections as required by paragraph (g) of this AD.
(h)(1) The Manager, Los Angeles 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.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane and 14 CFR 25.571, Amendment 45, and the approval must specifically refer to this AD.
(i) For more information about this AD, contact Roger Durbin, Aerospace Engineer, Airframe Branch, ANM–120L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Blvd., Lakewood, California 90712–4137; phone: 562–627–5233; fax: 562–627–5210; e-mail:
(j) You must use Boeing Alert Service Bulletin MD80–55A068, dated July 16, 2010, to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, 3855 Lakewood Boulevard, MC D800–0019, Long Beach, California 90846–0001; phone: 206–544–5000, extension 2; fax: 206–766–5683; e-mail:
(3) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington. For information on the availability of this material at the FAA, call 425–227–1221.
(4) You may also review copies of the service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at an NARA facility, call 202–741–6030, or go to
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are superseding an existing emergency airworthiness directive (EAD) for the specified Schweizer model helicopters that was previously sent to all known U.S. owners and operators. That EAD currently requires removing each locknut and verifying sufficient drag torque and retorquing, or if the locknut does not have sufficient drag torque, replacing the locknut with an airworthy locknut. This AD retains the existing EAD requirements but also requires within a specified time, modifying the expandable bolts and installing a cotter pin. This AD is prompted by a locknut working loose from a bolt attaching the tailboom support strut at the aft cluster fitting because the locknut installed on the expandable bolt did not have the proper threads. We are issuing this AD to modify each expandable bolt to allow adding a cotter pin to prevent the strut and driveshaft separating from the helicopter and subsequent loss of control of the helicopter.
This AD is effective July 21, 2011.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in the AD as of July 21, 2011.
We must receive any comments on this AD by September 6, 2011.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Schweizer Aircraft Corporation, Elmira/Corning Regional Airport, 1250 Schweizer Road, Horseheads, NY 14845, telephone (607) 739–3821,
You may examine the AD docket on the Internet at
Stephen Kowalski, Aviation Safety Engineer, FAA, Airframe and Propulsion Branch, ANE–171, 1600 Stewart Ave., Suite 410, Westbury, New York 11590, telephone (516) 228–7327, fax (516) 794–5531.
On December 20, 2010, we issued EAD 2011–01–52, Directorate Identifier 2010–SW–111–AD, for the specified Schweizer model helicopters. That EAD requires, before further flight, removing the locknut and reinstalling the locknut while determining the locknut drag torque. If the drag torque is a minimum of 2 in-lbs, retorquing the locknut to 23 in-lbs is required. If the drag torque is not at least 2 in-lbs, replacing the locknut with an airworthy locknut is required. That AD resulted from a locknut working loose from a bolt attaching the tailboom support strut at the aft cluster fitting. Further investigation revealed that the locknut installed on the expandable bolt did not have the proper threads. We issued that EAD to prevent the strut and driveshaft separating from the helicopter and subsequent loss of control of the helicopter.
Since we issued AD 2011–01–52, the manufacturer has introduced a modification of the expandable bolts to allow the addition of a cotter pin.
We reviewed Schweizer Service Bulletins No. B–295 for Model 269A, A–1, B, and C helicopters, and No. C1B–032 for Model 269C–1 helicopters, both dated December 21, 2010. The service information specifies verifying sufficient drag torque on each locknut and applying the proper torque to each locknut. The service information also specifies modifying both expandable bolts to allow the addition of a cotter pin.
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 on other helicopters of these same type designs.
This AD retains the requirements in the existing EAD. This AD also requires, within 10 hours time-in-service (TIS), modifying both expandable bolts by drilling a hole through each bolt to allow the addition of a cotter pin. Thereafter, you may not install an expandable bolt unless that bolt has been modified in accordance with this AD. Modifying both expandable bolts in accordance with this AD is terminating action for the requirements of paragraphs (e)(1) and (e)(2) of this AD.
We refer to flight hours as hours TIS.
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 this condition, if not corrected, could result in the strut and driveshaft separating from the helicopter and subsequent loss of control of the helicopter. Therefore, we find that notice and opportunity for prior public comment are impracticable because of the short compliance time 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 we did not provide notice and an opportunity to comment before it becomes effective. 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 this AD affects 585 helicopters of U.S. registry. We estimate the following costs to comply with this AD:
We estimate the total cost impact of this AD to be $100,035.
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.
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 to the extent that it justifies making any regulatory distinctions, 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 Part 39 of the Federal Aviation Regulations (14 CFR Part 39) as follows:
49 U.S.C. 106(g), 40113, 44701.
(a) This AD is effective July 21, 2011.
(b) This AD supersedes Emergency AD 2011–01–52, issued December 20, 2010; Directorate Identifier 2010–SW–111–AD.
(c) Schweizer Model 269A, A–1, B, C helicopters (serial number (S/N) 1846 and larger); C–1 helicopters (S/N 0156 and larger); and TH–55 series helicopters with an Aft Cluster Fitting Modification Kit, part number (P/N) SA–269K–106, installed; certificated in any category.
(d) This AD was prompted by a locknut working loose on the tailboom aft cluster fitting strut because the locknut installed on one expandable bolt did not have the proper threads. This AD contains terminating action to require modifying each expandable bolt to allow installing a cotter pin to prevent the strut and driveshaft separating from the helicopter and subsequent loss of control of the helicopter.
(e) Required as indicated, unless already done.
(1) Before further flight, remove both the left-hand and right-hand locknuts, P/N MS21043–3. Reinstall the locknuts while determining the locknut drag torque. If the drag torque is a minimum of 2 in-lbs., retorque the locknut to 23 in-lbs. If the drag torque is not at least 2 in-lbs, replace the locknut with an airworthy locknut.
(2) Within 10 hours time-in-service, modify each expandable bolt, P/N ADB221–1A, torque locknut, P/N MS21043–3, and install cotter pin, P/N MS24665–132 or MS24665–151, in accordance with the Procedure Section, Part II, of Schweizer Service Bulletin (SB) No. B–295, dated December 21, 2010, for Model 269A, A–1, B, C, and TH–55 series helicopters or SB No. C1B–032, dated December 21, 2010, for Model 269C–1 helicopters.
(3) Before installing an expandable bolt, P/N ADB221–1A, to secure the tailboom support strut to the tailboom aft cluster fitting, modify the expandable bolt in accordance with paragraph (e)(2) of this AD.
(f) Modifying both expandable bolts by torquing the locknuts and installing the cotter pins as required by this AD is terminating action for the requirements of paragraph (e)(1) and (e)(2) of this AD.
(g) Special flight permits will not be issued.
(h) The Manager, New York Aircraft Certification Office (NYACO), 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 NYACO, send it to the attention of the Program Manager, Continuing Operational Safety.
Before using any approved AMOC, we request that you notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office.
(i) For more information about this AD, contact Stephen Kowalski, Aviation Safety Engineer, FAA, Airframe and Propulsion Branch, ANE–171, 1600 Stewart Ave., Suite 410, Westbury, New York 11590, telephone (516) 228–7327, fax (516) 794–5531.
(j) Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 5302: Rotorcraft Tailboom.
(k) You must use the specified portions of the service information contained in Schweizer Service Bulletins B–295 or C1B–032, both dated December 21, 2010, for your model helicopter to do the actions required by this AD.
(2) For service information identified in this AD, contact Schweizer Aircraft Corporation, Elmira/Corning Regional Airport, 1250 Schweizer Road, Horseheads, NY 14845, telephone (607) 739–3821, fax: (607) 796–2488, e-mail address
(3) You may also review copies of the service information that is incorporated by reference at the FAA, Office of the Regional Counsel, 2601 Meacham Blvd., Room 663, Fort Worth, Texas, or at the National Archives and Records Administration (NARA). For information on the availability of this material at an NARA facility, call 202–741–6030, or go to
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
On some Falcon 7X aeroplanes, it has been determined potential low clearance between electrical wiring or hydraulic pipe and nearby structure.
Although no in service incident has been reported, there is no certainty that the minimum clearances would be maintained over time. In the worst case, interference or contact with structure might occur and lead to electrical short circuits or fluid leakage, potentially resulting in loss of several functions essential for safe flight.
We are issuing this AD to require actions to correct the unsafe condition on these products.
This AD becomes effective August 10, 2011.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of August 10, 2011.
You may examine the AD docket on the Internet at
Tom Rodriguez, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057–3356; telephone (425) 227–1137; fax (425) 227–1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the
On some Falcon 7X aeroplanes, it has been determined potential low clearance between electrical wiring or hydraulic pipe and nearby structure.
Although no in service incident has been reported, there is no certainty that the minimum clearances would be maintained over time. In the worst case, interference or contact with structure might occur and lead to electrical short circuits or fluid leakage, potentially resulting in loss of several functions essential for safe flight.
Dassault Aviation has developed two Service Bulletins (SB) that provide corrective actions to ensure the minimum required clearance, as well as adequate protection between hydraulic pipe (SB n° 0 92) and electrical wiring (SB n° 006) and the aeroplane structure.
This [European Aviation Safety Agency (EASA)] AD requires the implementation of both SBs on the affected aeroplanes.
Since issuance of EASA AD 2010–0029, Dassault Aviation has developed modifications M1036 and M1037. M1036 is equivalent to M1007 while M1037 is equivalent to M1020. These modifications are embodied during production on new aeroplanes.
This [EASA] AD has been revised to exclude from the AD applicability the aeroplanes on which those modifications are embodied.
Required actions include general visual inspections for damage of wiring bundles and feeders. Damage includes, but is not limited to: Signs of overheat, discoloration, or damaged and cut strands on the cables and insulating sleeves. Corrective actions for damage of wiring bundles and feeders include repairing damage. Other required actions include modifying the applicable wiring and layout, a general visual inspection for absence of marks of the rear tank wall at the contact area, installing a protective plate on the rear tank wall, and installing a hydraulic pipe if necessary. If contact marks are found, required actions include an eddy current inspection or a penetrant inspection for cracks, and repair if necessary. You may obtain further information by examining the MCAI in the AD docket.
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.
We have made a minor editorial change to paragraph (g)(3)(ii)(A) of this AD.
We reviewed the available data and determined that air safety and the public interest require adopting the AD with the change described previously. We determined that this change will not increase the economic burden on any operator or increase the scope of the AD.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a NOTE within the AD.
We estimate that this AD will affect 21 products of U.S. registry. We also estimate that it will take about 65 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $0 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $116,025, or $5,525 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this 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 this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
You may examine the AD docket on the Internet at
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 airworthiness directive (AD) becomes effective August 10, 2011.
(b) None.
(c) This AD applies to Dassault Aviation Model FALCON 7X airplanes, certificated in any category; having serial numbers 2 through 22 inclusive, 24 through 26 inclusive, 29, 30, 32 and subsequent; except those on which modifications M964, M937, M976, M1007 or M1036, M1020 or M1037, and M1022 have all been implemented.
(d) Air Transport Association (ATA) of America Code 20: Air Frame Wiring; and ATA Code 29: Hydraulic Power.
(e) The mandatory continuing airworthiness information (MCAI) states:
On some Falcon 7X aeroplanes, it has been determined potential low clearance between electrical wiring or hydraulic pipe and nearby structure.
Although no in service incident has been reported, there is no certainty that the minimum clearances would be maintained over time. In the worst case, interference or contact with structure might occur and lead to electrical short circuits or fluid leakage, potentially resulting in loss of several functions essential for safe flight.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) Within 10 months or 650 flight hours after the effective date of this AD, whichever occurs first, do the actions specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD.
(1) Do a general visual inspection for damage of wiring bundles and feeders, in accordance with the Accomplishment Instructions of Dassault Mandatory Service Bulletin 7X–006, Revision 1, dated March 3, 2010. If any damage is found, before further flight, repair, in accordance with Dassault Mandatory Service Bulletin 7X–006, Revision 1, dated March 3, 2010.
(2) Modify the applicable wiring and layout, in accordance with the Accomplishment Instructions of Dassault Mandatory Service Bulletin 7X–006, Revision 1, dated March 3, 2010.
(3) Do a general visual inspection for absence of marks on the rear tank wall at the contact area, in accordance with the Accomplishment Instructions of Dassault Mandatory Service Bulletin 7X–092, Revision 1, dated January 4, 2010.
(i) If no contact marks are found during the inspection required by paragraph (g)(3) of this AD, before further flight, modify the protective plate, and install a hydraulic pipe as applicable, in accordance with the Accomplishment Instructions of Dassault Mandatory Service Bulletin 7X–092, Revision 1, dated January 4, 2010.
(ii) If any contact marks are found during the inspection required by paragraph (g)(3) of this AD, before further flight, do either an eddy current inspection for cracks or a penetrant inspection for cracks, in accordance with the Accomplishment Instructions of Dassault Mandatory Service Bulletin 7X–092, Revision 1, dated January 4, 2010.
(A) If no crack is detected during any inspection required by paragraph (g)(3)(ii) of this AD, before further flight, do the actions specified in paragraph (g)(3)(i) of this AD.
(B) If any crack is detected during any inspection required in paragraph (g)(3)(ii) of this AD, before further flight, repair the crack using a method approved by either the Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA) (or its delegated agent); and modify the protective plate, and install a hydraulic pipe as applicable, in accordance with the Accomplishment Instructions of Dassault Mandatory Service Bulletin 7X–092, Revision 1, dated January 4, 2010.
(h) Doing a general visual inspection for damage, repairing wiring bundles and feeders, and modifying the applicable wiring and layout, in accordance with Dassault Mandatory Service Bulletin 7X–006, dated December 18, 2009; and doing a general visual inspection for absence of marks on the rear tank wall at the contact area, modifying the protective plate, installing a hydraulic pipe as applicable, and doing either an eddy current inspection for cracks or a penetrant inspection for cracks, in accordance with Dassault Mandatory Service Bulletin 7X–092, dated July 17, 2009; before the effective date of this AD is acceptable for compliance with the corresponding actions required by paragraphs (g)(1), (g)(2), and (g)(3) of this AD.
This AD differs from the MCAI and/or service information as follows: No differences.
(i) The following provisions also apply to this AD:
(1)
(2)
(j) Refer to MCAI EASA Airworthiness Directive 2010–0029R1, dated November 25, 2010; Dassault Mandatory Service Bulletin 7X–006, Revision 1, dated March 3, 2010; and Dassault Mandatory Service Bulletin 7X–092, Revision 1, dated January 4, 2010; for related information.
(k) You must use Dassault Mandatory Service Bulletin 7X–006, Revision 1, dated March 3, 2010; and Dassault Mandatory Service Bulletin 7X–092, Revision 1, dated January 4, 2010; as applicable; to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact Dassault Falcon Jet, P.O. Box 2000, South Hackensack, New Jersey 07606; telephone 201–440–6700; Internet
(3) You may review copies of the service information at the FAA, Transport Airplane
(4) You may also review copies of the service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule; correction.
This action corrects the effective date of a final rule that was published in the
The effective date is moved from 0901 UTC, August 25, 2011, to 0901 UTC, July 28, 2011.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305–6364.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class E airspace at Brunswick Executive Airport, Brunswick, ME.
In final rule FR Doc 2011–15305, on page 36285 in the Federal Register of June 22, 2011 (76 FR 36285), make the following correction:
On page 36285, in the third column, in the
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
Federal Aviation Administration, DOT.
Final rule; technical amendment.
The Federal Aviation Administration (FAA) is making a minor technical change to a final rule published in the
Kim Barnette, Flight Standards Service, Aircraft Maintenance Division, AFS–300, Federal Aviation Administration, 950 L'Enfant Plaza North, SW., Washington, DC 20024; telephone (202) 385–6403; facsimile (202) 385–6474; e-mail
The FAA published a final rule entitled “Certification of Aircraft and Airmen for the Operation of Light-Sport Aircraft,” in the
Reporting and recordkeeping requirements.
Accordingly, Title 14 of the Code of Federal Regulations (CFR) part 91 is amended as follows:
49 U.S.C. 106(g), 1155, 40103, 40113, 40120, 44101, 44111, 44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506–46507, 47122, 47508, 47528–47531, articles 12 and 29 of the Convention on International Civil Aviation (61 Stat.1180).
(a) * * *
(2) * * *
(vi) Copies of the forms prescribed by § 43.9(d) of this chapter for each major alteration to the airframe and currently installed engines, rotors, propellers, and appliances.
Bureau of Economic Analysis, Commerce.
Final rule.
This final rule amends regulations of the Bureau of Economic Analysis (BEA) related to direct investment surveys. Specifically, BEA is eliminating reporting requirements for several direct investment surveys that are no longer necessary because the information is collected on other surveys of direct investment conducted by BEA. The surveys that are eliminated from the regulations are: A survey of foreign direct investment in the U.S. seafood industry, two schedules of expenditures for property, plant, and equipment of U.S. direct investment abroad, and two industry classification questionnaires. In addition, BEA is eliminating the reporting requirements for two surveys of new foreign direct investment in the United States. BEA suspended collection of these surveys in 2009 in order to align its international survey program with available resources. BEA is also making other minor revisions to its regulations to eliminate outdated information.
This final rule will be effective August 5, 2011.
David H. Galler, Chief, Direct Investment Division (BE–50), Bureau of Economic Analysis, U.S. Department of Commerce, Washington, DC 20230; e-mail
On April 7, 2011, BEA published a notice of proposed rulemaking to align its regulations for direct investment surveys with current practices. No comments on the proposed rule were received. Thus the proposed rule is adopted without change. This final rule amends 15 CFR Part 806 by revising §§ 806.14, 806.15, and 806.18 to remove the reporting requirements for several direct investment surveys. The surveys are:
BEA is removing the reporting requirements for the BE–13 and the BE–14 surveys which were suspended in 2009 in order to align its international survey program with available resources. The surveys had been used to collect identification information on the U.S. business being established or acquired and on the new foreign owner, information on the cost of the investment and source of funding, and limited financial and operating data for the newly established or acquired entity. The data had been used to measure the amount of new foreign direct investment in the United States and assess its impact on the U.S. economy. BEA continues to identify newly acquired or established U.S. affiliates of foreign investors and bring them into its international survey program through the BE–12, BE–15, and BE–605 surveys, which are the benchmark, annual, and quarterly surveys of foreign direct investment in the United States, respectively, but they are not separately identified in BEA's published statistics.
BEA is eliminating the regulations for the BE–21, BE–133B, BE–133C, BE–507, and BE–607 surveys since they have not been conducted in many years and are no longer necessary because the information is collected on other surveys of direct investment conducted by BEA.
In addition, BEA is making other minor revisions to its regulations to eliminate outdated information. These revisions eliminate references to outdated information regarding BE–10 survey forms and inactive OMB control numbers.
This final rule has been determined to be not significant for purposes of E.O. 12866.
This final rule does not contain policies with Federalism implications as that term is defined in E.O. 13132.
The Office of Management and Budget (OMB) approvals under the Paperwork Reduction Act for the seven surveys that BEA is eliminating have expired. The information collection approval for the BE–13 and BE–14 (under OMB control number 0608–0035) expired on August 31, 2009; the BE–21 approval (OMB control number 0608–0050) expired September 30, 1983; the BE–133B and BE–133C (OMB control number 0608–0024) expired December 31, 1994; the BE–507 approval (OMB control number 0608–0032) expired April 30, 1997; and the BE–607 approval (OMB control number 0608–0030) expired on May 31, 1991.
The Chief Counsel for Regulation, Department of Commerce, has certified to the Chief Counsel for Advocacy, Small Business Administration, under the provisions of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that this final rule will not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding the certification or the economic impact of the rule more
Economic statistics, Foreign investment in the United States, International transactions, Penalties, Reporting and recordkeeping requirements.
For reasons set forth in the preamble, BEA amends 15 CFR part 806 as follows:
5 U.S.C. 301; 22 U.S.C. 3101–3108; E.O. 11961 (3 CFR, 1977 Comp., p. 86), as amended by E.O. 12318 (3 CFR, 1981 Comp., p. 173), and E.O. 12518 (3 CFR, 1985 Comp., p. 348).
(g) * * *
(2) BE–10–Benchmark Survey of U.S. Direct Investment Abroad: Section 4(b) of the Act (22 U.S.C. 3103) provides that a comprehensive benchmark survey of U.S. direct investment abroad will be conducted in 1982, 1989, and every fifth year thereafter. Exemption levels, specific requirements for, and the year of coverage of, a given BE–10 survey may be found in § 806.16.
(b) Display.
Tennessee Valley Authority (TVA).
Final rule.
The Tennessee Valley Authority is amending its regulations which currently contain TVA's procedures for the Freedom of Information Act (FOIA), the Privacy Act, and the Government in the Sunshine Act. TVA is adding procedures related to classified national security information.
Mark R. Winter, Senior Information Security Specialist, 1101 Market Street (MP 3C), Tennessee Valley Authority, Chattanooga, Tennessee 37402, (423) 751–6004. E-mail:
This rule was not published in proposed form since it relates to agency procedure and practice. TVA considers this rule to be a procedural rule which is exempt from notice and comment under 5 U.S.C. 533(b)(3)(A). This rule is not a significant rule for purposes of Executive Order 12866 and has not been reviewed by the Office of Management and Budget. As required by the Regulatory Flexibility Act, TVA certifies that these regulatory amendments will not have a significant impact on small business entities. This rule does not impose any new reporting or record-keeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35, as amended.
On December 29, 2009, Executive Order 13526, Classified National Security Information, was published in the
Since this rule is non-substantive, it is being made effective July 6, 2011.
Freedom of information, Government in the sunshine, Privacy.
For the reasons stated in the preamble, TVA amends 18 CFR part 1301 by adding Subpart E, Protection of National Security Classified Information, as follows:
(a)
(b)
The following definitions apply to this part:
(a) “Original classification” is the initial determination that certain information requires protection against unauthorized disclosure in the interest of national security (i.e., national defense or foreign relations of the United States), together with a designation of the level of classification.
(b) “Classified national security information” or “classified information” means information that has been determined pursuant to Executive Order 13526 or any predecessor order to require protection against unauthorized disclosure and is marked to indicate its classified status when in documentary form.
(a) The Executive Order requires that each agency that originates or handles classified information designate a senior agency official to direct and administer its information security program. TVA's senior agency official is the Director, Enterprise Information Security & Policy.
(b) Questions with respect to the Information Security Program, particularly those concerning the classification, declassification, downgrading, and safeguarding of classified information, shall be directed to the Senior Agency Official.
(a) Original classification authority is granted by the Director of the Information Security Oversight Office. TVA does not have original classification authority.
(b) If information is developed that appears to require classification, or is received from any foreign government information as defined in section 6.1(s) of Executive Order 13526, the individual in custody of the information shall immediately notify the Senior Agency Official and appropriately protect the information.
(c) If the Senior Agency Official believes the information warrants classification, it shall be sent to the appropriate agency with original classification authority over the subject matter, or to the Information Security Oversight Office, for review and a classification determination.
(d) If there is reasonable doubt about the need to classify information, it shall be safeguarded as if it were classified pending a determination by an original classification authority. If there is reasonable doubt about the appropriate level of classification, it shall be safeguarded at the higher level of classification pending a determination by an original classification authority.
(a) In accordance with Part 2 of Executive Order 13526 and directives of the Information Security Oversight Office, the incorporation, paraphrasing, restating or generation in new form of information that is already classified, and the marking of newly developed material consistent with the classification markings that apply to the source information, is derivative classification.
(1) Derivative classification includes the classification of information based on classification guidance.
(2) The duplication or reproduction of existing classified information is not derivative classification.
(b) Authorized individuals applying derivative classification markings shall:
(1) Observe and respect original classification decisions; and
(2) Carry forward to any newly created documents the pertinent classification markings.
(3) For information derivatively classified based on multiple sources, the authorized individuals shall carry forward:
(i) The date or event for declassification that corresponds to the longest period of classification among the sources; and
(ii) A listing of these sources on or attached to the official file or record copy.
(c) Documents classified derivatively shall bear all markings prescribed by 32 CFR 2001.20 through 2001.23 and shall otherwise conform to the requirements of 32 CFR 2001.20 through 2001.23.
(a) TVA does not have original classification authority.
(b) TVA personnel may not declassify information originally classified by other agencies.
(a) Reviews and referrals in response to requests for mandatory declassification shall be conducted in compliance with section 3.5 of Executive Order 13526, 32 CFR 2001.33, and 32 CFR 2001.34.
(b) Any individual may request a review of classified information and material in possession of TVA for declassification. All information classified under Executive Order 13526 or a predecessor Order shall be subject to a review for declassification by TVA, if:
(1) The request describes the documents or material containing the information with sufficient specificity to enable TVA to locate it with a reasonable amount of effort. Requests with insufficient description of the material will be returned to the requester for further information.
(2) The information requested is not the subject of pending litigation.
(c) Requests shall be in writing, and shall be sent to: Director, Enterprise Information Security & Policy, Tennessee Valley Authority, 1101 Market St., Chattanooga, TN 37402.
(a) Classified information shall be marked pursuant to the standards set forth in section 1.6, Identification and Marking, of the Executive Order; Information Security Oversight Office implementing directives in 32 CFR part 2001, subpart B; and internal TVA procedures.
(b) Foreign government information shall retain its original classification markings or be marked and classified at a U.S. classification level that provides a degree of protection at least equivalent to that required by the entity that furnished the information. Foreign government information retaining its original classification markings need not be assigned a U.S. classification marking provided the responsible agency determines that the foreign government markings are adequate to meet the purposes served by U.S. classification markings.
(c) Information assigned a level of classification under predecessor executive orders shall be considered as classified at that level of classification.
(a) All classified information shall be afforded a level of protection against unauthorized disclosure commensurate with its level of classification.
(b) The Executive Order and the Information Security Oversight Office implementing directive provides information on the protection of classified information. Specific controls on the use, processing, storage, reproduction, and transmittal of classified information within TVA to provide protection for such information and to prevent access by unauthorized persons are contained in internal TVA procedures.
(c) Any person who discovers or believes that a classified document is lost or compromised shall immediately report the circumstances to their supervisor and the Senior Agency Official, who shall conduct an immediate inquiry into the matter.
Import Administration, International Trade Administration, Department of Commerce.
Final rule.
The Department of Commerce (“the Department”) is amending its regulations governing the submission of information to the Department in antidumping duty (“AD”) and countervailing duty (“CVD”) proceedings. These amendments will incorporate changes resulting from the Department's implementation of an electronic filing and documents management program. More detailed procedures for electronic filing are set forth in a document separate from the regulations that is entitled “IA ACCESS Handbook On Electronic Filing Procedures” (“IA ACCESS Handbook”), which the Department has published on its Web site at
Evangeline Keenan, Director of APO/Dockets Unit, Import Administration at (202) 482–3354; or Brian Soiset, Attorney, Office of the General Counsel, Office of Chief Counsel for Import Administration at (202) 482–1284.
On September 28, 2010, the Department published proposed amendments to the rules governing the submission of information to the Department in antidumping duty (“AD”) and countervailing duty (“CVD”) proceedings and requested comments from the public. 75 FR 44163 (September 28, 2010) (“Proposed Rule”). The Proposed Rule included changes resulting from the Department's implementation of an electronic filing and documents management program named Import Administration Antidumping and Countervailing Duty Centralized Electronic Service System, or IA ACCESS. The Department conducted a pilot program to test IA ACCESS from July 1, 2010 through September 30, 2010. 75 FR 32341 (June 8, 2010);
The Department received numerous comments on its Proposed Rule and pilot program. The Proposed Rule, the comments received, and this notice can be accessed using the Federal eRulemaking Portal at
Sections 351.103(a) and 351.103(b) describe the functions of Import Administration's Central Records Unit (CRU) and Administrative Protective Order and Dockets Unit (APO/Dockets Unit), as well as their location and office hours. The prior regulation stated that one function of the CRU is to maintain the Subsidies Library. The new regulation states that the Subsidies Library is maintained by Import Administration's Subsidies Enforcement Office. The Department also amended § 351.103(a) to reflect that CRU is now located in Room 7046 of the Herbert C. Hoover Building. The Department also amended sections 351.103(a) and 351.103(b) to specify that the office hours pertain to Eastern Time and to clarify that the Department's official address is 14th Street and Constitution Avenue, NW. Additionally, the Department deleted an extraneous period in “NW” in the addresses of the CRU and the APO/Dockets Unit.
The prior regulation provided, in § 351.103(c), that although a party is free to provide the Department with a courtesy copy of a document, a document is not considered to be officially received by the Department unless it is submitted to the Import Administration's APO/Dockets Unit in Room 1870 and stamped with the date and, where necessary, the time of the receipt. To implement electronic filing procedures, the Department is amending the regulation so that the Department will consider a document to be officially received by the Department only when it is filed electronically in its entirety using IA ACCESS, in accordance with § 351.303(b)(2)(i), or, where applicable, filed manually in the APO/Dockets Unit in accordance with § 351.303(b)(2)(ii). The Department also deleted the reference to courtesy copies of a document in the final rule. Because the Department will now require that documents be filed electronically, Import Administration staff will have faster access to filed submissions, thus reducing the need for courtesy copies.
With regard to manual filing, the Department had stated in the Proposed Rule that it would provide exceptions to the electronic filing requirement, but if a submitter experiences difficulty in filing a document electronically under circumstances for which “an” exception applies, the Department will consider the ability of the submitter and may modify the electronic filing requirement on a case-by-case basis. One commenter stated that this explanatory language in the Proposed Rule stood in contrast with the actual language in proposed § 351.303(b)(2), which stated that “if a submitter is unable to comply with the electronic filing requirement under certain circumstances for which no exception applies, the submitter must notify the Department promptly of any difficulties encountered in filing the document electronically.”
Section 351.103(d)(1) of the prior regulation required each interested party to file a letter of appearance separately from any other document filed with the Department, with the exception of a petitioner filing a petition in an investigation. The Department is amending the regulation to specify that it is this letter of appearance that triggers the interested party's inclusion in the public service list for the segment of the proceeding. The new regulation also refers to the definition of “interested party” under § 351.102(b)(29) to improve and clarify the explanation of how an interested party is placed on the public service list.
One commenter suggested that the notice of appearance should also indicate whether that person prefers to or consents to electronic service (
Section 351.104(a) pertains to the official record of AD and CVD proceedings. The prior regulation stated that the CRU will maintain an official record of each proceeding. The Department is deleting the reference to the CRU because the official record will not be located in the CRU for documents filed after IA ACCESS is implemented. Instead, for those documents, IA ACCESS will comprise the official record. However, the CRU will continue to maintain the official record in paper form for those documents that were filed prior to the implementation of IA ACCESS.
In addition, § 351.104(a) previously stated that the Secretary will not use factual information, written argument, or other material that the Secretary returns to the submitter. The regulation also specifies the circumstances under which the official record will include a copy of a returned document. Sections 351.302(a) and 351.302(d) also previously set forth the procedures for requesting an extension of time limits and procedures for returning untimely filed submissions. The Department is amending these sections by replacing the term “return” with “reject.” Because the Department will use an electronic filing system, rather than physically returning inadmissible electronic submissions, the Department will reject such submissions and send written notice of the rejection to the submitter.
Section 351.104(b) pertains to the public record of AD and CVD proceedings. The prior regulation specified that the public record of each proceeding will be maintained by the CRU. In the Proposed Rule, the Department proposed adding a statement that the public record will also be accessible online at
Section 351.302(c) addresses procedures for requesting an extension of a specific time limit. The Department proposed amending the regulation by including a reference to § 351.303 in order to specify that an extension request be made in writing and properly filed using IA ACCESS. One commenter stated that the Department should clarify whether its proposed amendment to require extension requests to be made in writing suggests that telephonic or written requests by e-mail will never be accepted under the new regulations. The commenter stated that the Department must recognize that under certain circumstances, such as a power outage or a service outage on the part of an Internet service provider, it may be impossible to timely and properly file a written extension request with the Department through electronic filing. The Department has not changed the requirement that an extension request must be in writing and properly filed. The only change in the final regulation is a reference to the requirement that the extension request must be filed consistent with § 351.303, which contains the electronic filing requirement as well as provisions for when manual filing may be appropriate. In addition, as discussed below, if a user experiences difficulty in electronically filing an extension request or any other submission, a Help Desk line will be available during business hours to assist the user.
The Department is amending § 351.303 to require electronic filing of all documents and to specify when manual filing will be accepted as an alternative. The Department is also clarifying the identification of documents and correcting minor typographical errors in this section.
The Department is amending the heading for § 351.303 to add the term “Document Identification.” The Department is also amending § 351.303(a) to include “documentation identification” in the list of procedural rules covered by this regulation.
The Department is amending § 351.303(b) to add subparagraphs (1) through (4). Section 351.303(b) previously required all documents to be addressed and submitted to the APO/Dockets Unit, Room 1870 between the hours of 8:30 a.m. and 5 p.m. on business days. The Department is amending this section by designating it as subparagraph (1). The Department is also including in § 351.303(b)(1) the term “Eastern Time” to clarify the time a submission is due when the submitter may be filing the submission from a different time zone. The Department is also omitting the period after “NW” in the Department's address, which was a typographical error.
In the Proposed Rule, the Department proposed specifying that manually filed submissions must be submitted between the hours of 8:30 a.m. and 5 p.m. Eastern Time on business days, but that electronically filed submissions must be
Two commenters requested clarification of whether electronically filed submissions will be due by 5 p.m. on the original due date, even if it falls on a weekend, holiday or non-business day. The commenters stated that parties whose deadlines do not fall on a business day will be at a disadvantage to parties whose deadlines fall on a business day and that there is no reason why the Department should grant less time for electronically filed documents on days when the Department is closed. Another commenter stated that electronic filing largely eliminates the rationale for a 5 p.m. deadline and suggested that the Department should require that documents to be filed prior to midnight on that date. The same commenter proposed, alternatively, that if the Department will maintain its requirement that different filing events be used for files that exceed the system's file size limit, then the Department should adopt other procedures to avoid harsh results. For example, the commenter suggested setting the deadline for such large documents at 6 p.m.
In response to the first two comments, the Department is amending the language in § 351.303(b)(1) to clarify that where the due date for either an electronic or manual filing falls on a non-business day, the Secretary will accept documents filed on the next business day. With regard to the proposals to change the filing deadline to midnight or, alternatively, 6 p.m. for submissions requiring multiple filing events, the Department has not adopted either proposal. The APO/Dockets Unit, which will continue to process manually filed documents, will maintain its current hours of operation, 8:30 a.m. through 5 p.m. Eastern Time, in order to provide equal treatment for both electronic and manual submissions. In addition, the Department's technical support for electronic filing will not be available after 5 p.m., so the Department believes that a 5 p.m. deadline is appropriate.
The Department is adding § 351.303(b)(2), which sets forth the electronic filing requirement using IA ACCESS and the exemptions to that requirement. This regulation also refers to the IA ACCESS Handbook, which contains detailed filing procedures that a submitter must follow. The IA ACCESS Handbook is available on the Department's Web site at
In the Proposed Rule, the Department stated that exceptions to the electronic filing requirement will be set forth in the IA ACCESS Handbook. Proposed § 351.303(b)(2)(i) stated that if a submitter were unable to comply with the electronic filing requirement under certain circumstances for which no exception in the IA ACCESS Handbook applies, in accordance with section 782(c) of the Tariff Act, as amended, the Department will consider the ability of the submitter and may modify the electronic filing requirements on a case-by-case basis.
The Department received numerous comments with regard to this regulation. Several commenters expressed the need for the Department to disclose the specific exceptions to or exemptions from the electronic filing requirement. One commenter stated that exceptions to the electronic filing requirement should be set forth in the regulations themselves, despite the commenter's agreement with the Department's rationale that the exceptions may evolve over time. The commenter stated that at a minimum, the initial list of exceptions should be inserted in the regulations with a notice that the list be amended as changes are made and that, until such time as the regulations can be updated, unpublished changes may be temporarily found on the Department's Web site. Another commenter requested that the Department establish a standard set of exemptions which do not require a case-by-case decision. In addition, the commenter proposed the development of a bulky document standard, whereby documents over a certain size would be routinely filed manually, without the need to request prior authorization on a case-by-case basis.
After considering these comments, the Department is including in § 351.303(b)(2)(ii)(A) two exemptions from the electronic filing requirement. First, as proposed by one commenter, the Department has adopted a bulky document standard, whereby documents exceeding 500 pages may be filed manually, with the inclusion of a cover sheet and separator sheets generated using IA ACCESS. The Department finds that giving parties the option of manually filing bulky documents will facilitate the processing and review of such documents as parties make the transition to an electronic filing system. Manual filing is optional for such documents, and the Department anticipates that parties will prefer to electronically file bulky documents as they become more accustomed to electronic filing.
In determining whether a document qualifies as bulky, a submitter must not include database printouts in the page count, and as stated in § 351.303(c)(3), and further discussed below, database printouts need not be submitted to the Department. The Department has included detailed instructions regarding such manual filings in the IA ACCESS Handbook, and parties must follow those instructions.
The Department has also exempted large database files from the electronic filing requirement in § 351.303(b)(2)(ii)(A). As explained in detail in the IA ACCESS Handbook, the Department requires database files exceeding the maximum file size (currently 20 MB) to be filed manually in the APO/Dockets Unit on a CD or DVD as a separate submission accompanied with a cover sheet generated in IA ACCESS. Detailed instructions regarding the filing of database files are included in the IA ACCESS Handbook and parties must follow those instructions. Unlike the bulky document exemption, the large data file exemption is mandatory.
One commenter stated that the IA ACCESS system should have flexibility to allow exceptions to mandatory electronic filing and that the Department should make accommodations for technical difficulties.
In response to these comments, in § 351.303(b)(2)(ii)(B), the Department has specified that if the IA ACCESS system is unable to accept filings continuously or intermittently over the course of any period of time greater than one hour between 12 noon and 4:30 p.m. Eastern Time, or for any duration of time between 4:31 p.m. and 5 p.m. Eastern Time, then a person may manually file the document in the APO/Dockets Unit. The Department will provide notice of such technical failures on its Help Desk line. Procedures for manual filing in this situation are provided in the IA ACCESS Handbook.
Apart from the two exemptions specified in § 351.303(b)(2)(ii)(A) and the IA ACCESS technical failures described in § 351.303(b)(2)(ii)(B), the Department has also specified in § 351.303(b)(2)(ii)(C) that if a submitter is unable to comply with the electronic filing requirement, as provided in § 351.103(c) and in accordance with section 782(c) of the Act, the submitter must notify the Department promptly of the reasons the submitter is unable to file the document electronically, and
One commenter stated that prior to finalizing any regulations applicable to the electronic filing process, the Department should disclose its entire list of exceptions and allow the public to comment on them. This commenter stated that doing so would allow parties to work with the Department in reducing or expanding the list of exceptions based on parties' experiences with other electronic filing systems.
Although the Department indicated in the Proposed Rule that it wanted the flexibility to amend the list of exceptions on an ongoing basis, the Department has determined that it is more appropriate to explicitly include the above exemptions in the regulations, subject to amendment through the notice and comment rulemaking process. Should the Department determine that additional exemptions are appropriate, it will amend the regulations as needed and solicit comments at that time.
One commenter suggested that the Department should create exceptions for petitions for the initiation of an AD or CVD investigation,
One commenter recommended the Department consider a larger file size limitation, citing examples to the file size limits of the U.S. International Trade Commission and the Court of International Trade. Another commenter stated that if file size limits are imposed, they should be no less restrictive than the U.S. International Trade Commission's limits: 50 separate attachments of 25 MB each in a single filing event. Another commenter noted that because documentation is often submitted to a legal representative in its original form and needs to be submitted to the Department in Adobe portable document format (“PDF”) or JPEG format, the memory size of such files is much larger than those prepared in Microsoft Word or Excel. This could result in possibly dozens of electronic submissions, requiring the Department to piece together multiple sets of files. Thus, the commenter recommended increasing the memory limitation of the size of files to the largest possible under the electronic filing system being proposed, including both for the overall memory threshold and the individual attachment threshold. Another commenter stated that to avoid the need for separate filing events, the Department should impose limits only on the size of the individual attachments, without limits on the total file size. The commenter further stated that repetitive entry of identical information is burdensome and may lead to error. Finally, two commenters recommended including the ability to link documents, so that the Department can more easily piece together submissions where the individual sections exceed the size limitation.
With respect to the comment on setting limits on file size, the Department has set the individual document file (
The Department has determined 4 MB to be the appropriate individual document file size limit and 20 MB to be the appropriate individual data file size limit based on numerous factors, each of which have been considered and balanced. Such factors include the ability of the IA ACCESS system to accommodate the high volume of anticipated submissions based on current server resources, the difficulty for Department personnel to work with larger files, and the available Internet bandwidth to users throughout the world, which may limit their ability to upload larger documents. The Department has also determined that because data files are submitted less frequently than document submissions, the IA ACCESS system is capable of accepting individual data files of 20 MB in size. In addition, the larger individual file size for data meets the important need of keeping databases intact.
Although the Department has determined 4 MB and 20 MB to be the appropriate individual file sizes for documents and data files, respectively, at this time, the Department anticipates that the attachment and overall file size requirement may change over time as Internet resources expand throughout the world and the Department gains experience in administering the IA ACCESS system and using larger files.
As for the commenter's statement that documentation must be submitted in JPEG format, IA ACCESS does not currently accept files in JPEG format.
The Department acknowledges that the U.S. International Trade Commission and Court of International Trade have different file size limitations for electronic filing. However, the Department must base the individual file size limitation for IA ACCESS upon the specific needs of the Department's AD/CVD proceedings, such as the
One commenter noted that the Department did not propose to require submitters who notify the Department promptly of any difficulties encountered in submitting information to the Department to also provide a suggested alternative method for submitting the information, which seems to be required under section 782(c) of the Act. The commenter suggested that the Department specifically reference this obligation in its new regulation, particularly when the failure to comply with the requirement could substantially harm the submitter in relation to its respective proceeding and the “burden” on the Department of including notification of the requirement in its regulation is minimal.
In its explanation of § 351.303(b)(2), which addresses these requirements of section 782(c) of the Act, the Department noted that it did not discuss the requirement to propose an alternative method of submission in the regulations because it anticipates that the alternative suggestion would be for the submitter to file the submission manually. However, the Department stated that this omission does not affect a submitter's obligation to satisfy such a requirement. The Department agrees with the commenter that the language in section 782(c) of the Act should be included in § 351.303(b)(2)(ii)(C) of the new regulations to put the public on notice of the requirement. Accordingly, the Department has amended § 351.303(b)(2)(ii)(C) to include the statutory requirement under section 782(c) of the Act that the submitter suggest alternative forms in which it is able to submit the requested information.
The Department is adding § 351.303(b)(2)(ii)(D) to provide the number of hardcopies required if a document is filed manually. Specifically, a submitter must manually file in the APO/Dockets Unit one hardcopy of each document, with the exception of a business proprietary document filed under the bulky document exemption, which requires two copies. This regulation also specifies that a manual filing requires submission of a cover sheet generated in IA ACCESS in accordance with § 351.303(b)(3).
The Department is adding § 351.303(b)(3) to specify that a cover sheet is required for manual submissions. A submitter must generate the cover sheet online at
The Department is adding § 351.303(b)(4) to identify and distinguish among the five document classifications that may be submitted to the Department. The Department has observed confusion among interested parties with regard to the identification and labeling of documents, especially with regard to documents containing double-bracketed information. Thus, the Department finds it necessary to standardize the identification and labeling of all documents. In addition, a submitter will need to identify the document properly when inputting the document information in IA ACCESS before filing the document. The document identification will determine who will have access to the document. Misidentification of a document may result in the unauthorized disclosure of business proprietary information. The Department is also moving the definition of “business proprietary version” from § 351.303(c)(2)(i) to § 351.303(b)(4). In addition, the Department is using the phrase “business proprietary document or business proprietary/APO version, as applicable” rather than only “business proprietary version” to make the terminology consistent with that in proposed § 351.303(b)(4)(i), (ii), and (iii).
Accordingly, the Department is adding sections 351.303(b)(4)(i), (ii), and (iii) to identify and define the three types of business proprietary submissions. The document described in § 351.303(b)(4)(i) is called “Business Proprietary Document—May Be Released Under APO.” This business proprietary document contains only single-bracketed business proprietary information which a party agrees to release under administrative protective order (“APO”).
The document classifications described in § 351.303(b)(4)(ii) and (iii) are business proprietary documents that use double-bracketing. The document described in § 351.303(b)(4)(ii) is called “Business Proprietary Document–May Not Be Released Under APO.” This document may contain both single and double-bracketed business proprietary information, but the submitter does not agree to the release of the double-bracketed information under APO. In this document, the information inside the double brackets is included.
The third document classification described in § 351.303(b)(4)(iii) is called “Business Proprietary/APO Version—May Be Released Under APO.” It must contain only single-bracketed business proprietary information. The submitter must omit the double-bracketed business proprietary information from this version because this version will be released under APO. This is why the term “APO Version” is included in the name of the document.
The Department is adding § 351.303(b)(4)(iv) and (v), which identify the two types of public submissions. The first is the “Public Version,” which corresponds to a business proprietary document, except it omits all business proprietary information, whether single or double-bracketed. This section also refers to the specific filing requirements for filing the public version, which is found in § 351.304(c). The second is the “Public Document,” which contains only public information. In the Proposed Rule, the Department had stated that there is no corresponding business proprietary version for a public document. For the final rule, the Department is amending § 351.303(b)(4)(v) to change the term “business proprietary version” to “business proprietary document” in order to make the terminology
One commenter disagreed with the renaming of “business proprietary version” to “business proprietary document.” The commenter stated that the term “business proprietary version” implies that a public version will be filed on the next business day, while “business proprietary document” implies that no public version will be filed. The commenter also stated that the change will generate more confusion for a term that has become standard at both the Department and the U.S. International Trade Commission and that the existing confusion will be rectified by the inclusion of the definition of “APO version” in the amended regulations. Finally, the commenter stated that differing terminology may create unintended confusion regarding documents that must be filed at both agencies.
The Department does not agree that the proposed amendment will generate confusion. A public version of a business proprietary document must always be filed in accordance with § 351.304(c), and it therefore must correspond to the business proprietary document. It is possible that the commenter meant that when a business proprietary document is filed on the first day, in accordance with the one-day lag rule, it is in fact filed without the public version. However, the Department is not basing the document classifications on when the documents/versions are filed relative to one another. The Department's reasoning stems from the content of the submissions. When compared to the other document classifications, the business proprietary document is the complete document and contains all business proprietary information enclosed in brackets. Thus, it should be referred to as a “document” and not a “version.” The public version and APO version are versions of that document and are therefore named as such.
In § 351.303(c)(1), 351.303(c)(2)(ii), and 351.303(c)(2)(iii), the Department is deleting the requirement that a person must file multiple copies of each submission with the Department (
Section 351.303(c)(2)(i) of the prior regulation stated that a person must file one copy of the business proprietary version of any document with the Department within the applicable time limit. The Department is deleting the reference to the copy and changing “business proprietary version” to “business proprietary document” to make the terminology consistent with that in 351.303(b)(4)(i) and (ii). The Department is also clarifying that the one-day lag rule does not apply to a petition, amendments to a petition, or any other submission filed prior to the initiation of an investigation. This amendment reflects the Department's practice not to apply the one-day lag rule during the 20-day pre-initiation period. This practice ensures that a business proprietary document and public version are filed simultaneously in their final form. When the Department has only 20 days to initiate an investigation, waiting one business day for the final version of a document further shortens an already short deadline, especially when petitioners may be required to file responses to requests for additional information. In addition, because of the Department's obligation to provide a copy of the public version of the petition and all amendments to the petition to embassies of exporting countries named in a petition under § 351.202(f), the Department does not allow submissions under the one-day lag rule so that the embassies may obtain their copies as expeditiously as possible.
Section 351.303(c)(2)(ii) of the prior regulation stated that, although a person must file the final business proprietary version of a document with the Department, the person may serve only those pages containing bracketing corrections on other persons. The Department is amending this regulation to replace “business proprietary version of a document” with “business proprietary document” to make the terminology consistent with that in § 351.303(b)(4)(i) and (ii). This amendment will not change the requirement that a person must file a complete, final business proprietary document on the first business day after the business proprietary document is filed. The Department is also amending this regulation to specify that the final business proprietary document must be identical in all respects to the business proprietary document filed on the previous day, except for any bracketing corrections and the omission of the warning “Bracketing of Business Proprietary Information Is Not Final for One Business Day After Date of Filing,” in accordance with § 351.303(d)(2)(v). We believe emphasizing that the two documents must be identical with the exception of bracketing corrections and the requisite warning pertaining to bracketing is necessary because, in our experience, there appears to be some confusion about whether the dates or the content of the cover letters of the two documents should remain unchanged. With this amendment, the Department hopes to clarify that, except as discussed above, the two documents must be identical.
The Department is also amending this regulation to require persons to serve the complete final business proprietary document on other persons only if there are bracketing corrections. One commenter expressed agreement with this proposed change in its comments on the Proposed Rule. The new regulation also makes explicit that if there are no bracketing corrections, a person need not serve a copy of the final business proprietary document on persons on the APO service list. The reason service is not required in the absence of bracketing corrections is that in accordance with § 351.303(f), a person will have already served the business proprietary document filed on the due date. If there are no bracketing corrections, then there is no need to serve the business proprietary document again.
Section 351.303(c)(2)(iv) of the prior regulation stated that if a person serves authorized applicants with a business proprietary version of a document that excludes information in double brackets pursuant to § 351.304(b)(2), the person must simultaneously file with the Department one copy of those pages in which information in double brackets has been excluded. The Department is amending this section by adding a reference to § 351.303(b)(4)(iii) and correctly identifying the document type as the “Business Proprietary/APO Version.” The Department now requires
In addition to the foregoing amendments to § 351.303(c)(1) and 351.303(c)(2)(i)–(iv), the Department replaced the term “business proprietary version” with “business proprietary document” in these sections, as well as in the title of § 351.303(c). These amendments make the terminology consistent with that in § 351.303(b)(4)(i), (ii), and (iii).
Section 351.303(c)(3) previously required that if factual information is submitted on computer media at the request of the Secretary, it must be accompanied by the number of copies of any computer printout specified by the Secretary. This regulation also required that information on computer media must be releasable under APO, consistent with § 351.305. The Department is deleting the statement that the Secretary may require submission of factual information on computer media because it implies that the Secretary may make such requests only occasionally. Over time, the Department has requested with increasing frequency the submission of sales and cost databases to accompany questionnaire responses. This practice has become the norm rather than the exception. In order to clarify how such electronic databases should be submitted in conjunction with the electronic filing requirement, the Department is amending this section to require that all sales files, cost files, or other electronic databases submitted to the Department be filed electronically in the format specified by the Department. For the final rule, the Department has revised this language to clarify the situation in which a submitter would file a database manually, citing to § 351.303(b)(2)(ii)(A), which requires large data files to be filed manually. The Department is also amending § 351.303(c)(3) to remind submitters that all electronic database information must be releasable under APO regardless of whether it is filed electronically or manually.
The Department wants to emphasize that the complete databases submitted by the parties will now be maintained in an electronic format in the official and public files. Previously, parties submitted only one electronic copy of the database, which became the working copy used by the Department in performing its calculations. The official and public records only contained hardcopy printouts of the databases, and oftentimes, the printouts reflected only a portion of the databases if they were voluminous. Because the Department will have the capability to accept the databases in an electronic format, the Department has had to consider how parties can bracket or seek business proprietary treatment for information on the databases when the format in which the data is presented does not allow for the use of brackets to indicate the information for which the submitter is requesting business proprietary treatment. Thus, the Department has determined that it will deem all databases containing business proprietary information that are submitted in electronic format as business proprietary submissions. Brackets will not be required on the electronic databases. However, the Department urges submitters to include, where possible, headers or footers requesting business proprietary treatment of the information on the databases. For public versions of databases, the Department requires submitters to submit the public version in a PDF format. The public version of the database must still be publicly summarized and ranged in accordance with § 351.304(c). The public version of the database, together with the narrative portion of a questionnaire response, will indicate the fields and values for which the submitter requests business proprietary treatment. Deeming the entire electronic database as business proprietary will not render each and every field and value submitted in the database as eligible for business proprietary treatment.
One commenter stated that the Department already envisions that databases may be filed electronically, where possible, therefore IA ACCESS should accommodate the filing of electronic files other than PDF files, where appropriate. The Department has selected PDF as the appropriate file format for documents because the Department seeks a uniform format that is widely available, acceptable by users, and compatible with most computer systems. Furthermore, as a PDF, the content of the submissions cannot be altered and the PDF format ensures that the Department will be able to open the submissions in the future. With regard to databases, submitters should refer to the questionnaire or specific request for information by the Department to determine the acceptable formats for the requested databases. The Department has also made available in the IA ACCESS Handbook additional information as to file types accepted in IA ACCESS and specific instructions which parties must follow when filing databases.
The Department is amending § 351.303(d) to make references to the filing terminology consistent with the other terminology used in the rest of this section. Specifically, the Department has replaced the term “copies” with “submissions” because, as stated above, the Department will no longer require a person to file multiple copies of a submission.
Section 351.303(d)(2) provides the specifications and markings required for filing documents with the Department. Paragraph (d)(2) specifies that a person must submit documents on letter-size paper, single-sided, and double-spaced, and that the first page of each document must contain information in the formats described in subparagraphs (i) through (vi). The Department amended paragraph (d)(2) to specify the dimensions of letter-size paper (8
Section 351.303(d)(2)(iii) of our prior regulation required submitters to indicate on the third line of the upper
The Department is also amending § 351.303(d)(2)(v) to make it consistent with the terminology in § 351.303(b)(4). Specifically, the prior regulation required that, on the fifth and subsequent lines of each submission, a submitter must indicate whether any portion of the document contains business proprietary information and, if so, to list the applicable page numbers and state either “Document May Be Released Under APO” or “Document May Not Be Released Under APO.” The Department is changing the terminology so that the term “Document” is replaced with either “Business Proprietary Document –” or “Business Proprietary/APO Version,” as applicable, so that it is consistent with the terminology in § 351.303(b)(4). The Department is also capitalizing the first letter in the words “is” and “be” to correct typographical errors. The prior version of 351.303(d)(2)(v) also stated that the warning “Bracketing of Business Proprietary Information Is Not Final for One Business Day After Date of Filing” must not be included in “the copies of the final business proprietary version filed on the next business day.” The Department is deleting the term “the copies of” because a submitter will no longer be filing multiple copies of a submission, in accordance with proposed § 351.303(b)(2)(v). The Department is also replacing the term “business proprietary version” with “business proprietary document” to make the terminology consistent with that in § 351.303(b)(4).
Section 351.303(d)(2)(vi) of the prior regulation required that public versions of business proprietary documents contain the marking requirements in paragraphs (d)(2)(i)–(v) of this section and that the first page is conspicuously marked “Public Version.” The Department is amending this section to refer to both the public version and the business proprietary document in the singular. This amendment clarifies that there is only one public version of a business proprietary document. The Department is also adding subparagraph 351.303(d)(2)(vii) to this section to require the same markings for a “Public Document” as for a “Public Version,” with the exception being use of the word “Document” instead of “Version.” These amendments bring the language in this section into conformity with the document classifications in paragraph (b)(4).
Section 351.303(f) of the prior regulation stated that except as provided in sections 351.202(c), 351.207(f)(1), and paragraph (f)(3) of this section, a person filing a document with the Department simultaneously must serve a copy of the document on all other persons on the service list by personal service or first class mail. The Department is changing the reference to § 351.207(f)(1) to § 351.208(f)(1) to correct a typographical error.
Section 351.303(f)(1)(ii) of the prior regulation stated that a party may serve a public version or a business proprietary version of a document containing only the server's own business proprietary information on persons on the service list by facsimile or other electronic transmission process, with the consent of the person to be served. The Department is changing the reference to “business proprietary version of a document” to “business proprietary document” to make the terminology consistent with that used in § 351.303(b)(4). The Department is also specifying that the business proprietary document may be served on persons on the APO service list and that the public version of such a document may be served on persons on the public service list by facsimile transmission or other electronic transmission process, with the consent of the person to be served.
One commenter asked the Department to clarify in § 351.303(f) that public documents may also be served electronically. The Department has amended this regulation to include public documents in the types of documents that may be served by facsimile or other electronic transmission with the consent of the party being served.
One commenter stated that changes affecting service of business proprietary information should be introduced gradually, subject to extensive comment. Another commenter stated that the Department should mandate electronic service to parties on the respective service list (where allowed under the Department's regulations). That commenter noted that electronic service is consistent with the Department's stated goal of creating efficiencies in both the process and costs associated with filing and maintaining documents, and that electronic service would be consistent with the Court of International Trade's filing system currently in place. The commenter stated that the Department could expressly state that electronic service will not be mandatory where a document is filed manually.
The Department agrees that changes affecting service of business proprietary information should be introduced gradually and be subject to comment. With the exception of service of APO applications, which were previously required to be served by the same means as they were filed with the Department (§ 351.305(b)(2)), and the requirement that parties serve the complete final business proprietary document when bracketing corrections are made under the one-day lag rule (§ 351.303(c)(2)(ii)), the Department has not changed any of the service requirements in the regulations. The Department has decided to focus on electronic filing, rather than electronic service, at this time. However, parties may continue to consent to electronic service in accordance with § 351.303(f)(1)(ii).
Although the Department had proposed correcting a typographical error in § 351.303(g), that regulation is currently the subject of another rulemaking.
Section 351.304(b)(2)(iii) of the prior regulation stated that “the submitting person may exclude the information in double brackets from the business proprietary information version of the submission served on authorized
In addition, the Department is amending § 351.304(b)(1) by creating two subsections. Subsection 351.304(b)(1)(i) addresses the identification of business proprietary information in general, and subsection 351.304(b)(1)(ii) addresses the identification of business proprietary information with regard to electronic databases. The Department is specifying in the latter subsection that in accordance with § 351.303(c)(3), an electronic database containing business proprietary information need not contain brackets for the submitter to request proprietary treatment for its information. Instead, the submitter must select the security classification “Business Proprietary Document—May Be Released Under APO” at the time of filing to request business proprietary treatment of the information contained in the database.
Section 351.304(c) of the prior regulation provided requirements for filing the public version of a business proprietary document. Section 351.304(c)(1) specified, among other things, that the public version must be filed on the first business day after the filing deadline for the “business proprietary version of the submission.” The Department is amending this section to replace “business proprietary version of the submission” with “business proprietary document” to make the terminology consistent with that in § 351.303(b)(4)(i) and (ii).
Section 351.304(c)(2) of the prior regulation specified, among other things, that if a submitting party discovers that it failed to bracket information correctly, the submitter may file a complete, corrected “business proprietary version of the submission” along with the public version. The Department is amending this section to replace “business proprietary version of the submission” with “business proprietary document” to make the terminology consistent with that in § 351.303(b)(4)(i) and (ii).
One commenter asked the Department to amend § 351.304(c), which currently states that if an individual portion of the numerical data is voluminous, at least one percent representative of that portion must be summarized. The commenter proposed limiting the amount of information to be summarized from one percent of the portion of the data to one percent of the entire submission because the ranging of data takes a considerable amount of time and increases the cost of compliance with the regulation. The Department did not propose any changes to this section of the regulations in the Proposed Rule. Further, the Department continues to find that requiring public summarization of one percent of each portion of data best implements section 777(b)(1)(B) of the Act, which requires public summaries of information submitted to the Department, and best serves the ability of the public to participate in the Department's proceedings. Thus, the Department has not made the requested change in the final rule.
Section 351.304(d)(1) of the prior regulation stated that the Secretary will return a submission that does not meet the requirements of section 777(b) of the Act, which governs the Department's APO rules of practice and procedure. Section 351.304(d)(1) of the prior regulation further specified that the submitting person may take any of four enumerated actions within two business days of the Secretary's explanation of its reasons for returning the submission. Prior § 351.304(d)(1)(iv) also specified that one of those enumerated actions is the submission of other material concerning the subject matter of the returned information and that, if the submitting person takes none of the enumerated actions, the Secretary will not consider the returned submission. As discussed above, because the Department will be using an electronic filing system, rather than physically return an electronic submission, the Department will instead reject the submission. The Department will follow the same procedure for manually filed submissions. Thus, the Department is amending the regulations to change the term “return” with “reject” in sections 351.304(d)(1) and 351.304(d)(1)(iv).
Section 351.305(b)(2) of the prior regulation required the applicant for access to business proprietary information under APO to serve the APO application in the same manner and at the same time as it serves the application on the Department. The Department is amending this regulation because an applicant cannot currently serve other parties electronically using IA ACCESS. Although an applicant may serve other parties electronically with the consent of the parties being served, the Department will not require electronic service. The Department recognizes that a party being served an APO application has a limited time period in which to serve its previously-filed business proprietary submissions on a newly-approved applicant; therefore, the Department is requiring that the applicant serve the other parties in the most expeditious manner possible, simultaneously with the filing of the APO application with the Department.
One commenter stated that it supports the Department's plans to conduct additional pilot programs and strongly suggests that the Department consider a mechanism by which the experiences gained in the first pilot program can be shared with the larger user public. The commenter stated that the Department should conduct additional focus groups and public meetings for Release 2 and 3 Pilots and that the Department should consider holding larger scale public meetings. With regard to implementation of IA ACCESS, one commenter proposed a staggered implementation process, such that the Department would first require electronic filing of only public documents for a period of time before requiring electronic filing of business proprietary documents. The commenter stated that users may not have experience with the electronic filing of business proprietary documents, and the staggered implementation would allow users time to implement new internal procedures, including security measures, or seek guidance from the Department on particular matters, based on practical prior experience with public filings. In addition, the commenter stated that the Department should consider providing training sessions prior to the start of Release 1, noting that the training sessions conducted by the Court of International Trade for its electronic filing system were helpful. The commenter also stated that the Department should consider a “recall” procedure to enable users to promptly remove electronically filed documents if business proprietary information has been inadvertently disclosed or other problems are discovered after filing.
The Department disagrees with the proposal to stagger the implementation of the electronic filing requirement such that only public filings will first be required for a period of time before requiring the filing of business proprietary documents. Staggering the implementation for public and business proprietary submissions is not practicable because it would require the Department to operate under two filing systems, one for public documents and one for proprietary documents, and such a bifurcated process would create the potential for confusion and inconsistency. Furthermore, requiring parties to manually file business proprietary submissions while electronically filing public versions of the corresponding submission will create additional work for parties and reduce the efficiencies inherent in electronic filing.
To alleviate the concerns associated with learning to use IA ACCESS, the Department will provide an IA ACCESS online training site one month prior to implementing Release 1. On the training site, users will be able to familiarize themselves with IA ACCESS by filing test documents and navigating the system. The Department has already provided and will continue to provide training prior to implementing Release 1, including online demonstrations, webinars and classes. Such training will provide users opportunities to confer with the Department regarding any questions pertaining to the system, including the implementation of any necessary procedures for the user, such as security measures.
With regard to a “recall” procedure, the Department did not adopt this proposal. The Department believes that the continuation of its current practice of providing assistance to those parties wishing to correct errors discovered after filing is the most effective way to address inadvertent disclosures. Where problems are discovered after filing, the user should contact the Department for assistance. Detailed procedures are included in the IA ACCESS Handbook. Where business proprietary information is inadvertently disclosed and only discovered after filing, the user should contact the APO/Dockets Unit as soon as possible.
One commenter proposed a three-month grace period whereby the Department allows users to file submissions manually, at the option of the user.
One commenter requested that the Department provide an opportunity to submit additional comments prior to publication of the final rule, including comments on other parties' comments on the proposed rule and on the views of the participants to the Release 1 pilot program. In addition, the commenter stated that the Department should make the IA ACCESS Handbook available prior to the start of Release 1 to allow users to become familiar with the new electronic filing rules and procedures before introduction of mandatory electronic filing. Two commenters requested that the Department provide an opportunity to submit comments on the upcoming IA ACCESS Handbook.
The Department received the following technical comments based on the commenters' experiences during the pilot program: (1) The case name should be automatically populated by case number; segments should show up in drop-down menu; (2) the Department should expand the number of characters for document title and file name; (3) “document type” and “subject” options have not been appropriate to the filings, so “Other” was often selected; (4) the Department should refine the “document type” and “subject” options and provide the ability to customize by typing in words prior to or after the standard types/subjects; (5) the Department should provide an “approval” or confirmation screen prior to submission; and (6) one commenter wished to confirm that the Department personnel have the ability to review and print documents in color.
One commenter recommended the Department to establish a help line that has relevant personnel available after 5 p.m. Eastern Time to assist with electronic submissions.
One commenter stated that it understood that IA ACCESS will host only documents received after the launch of the electronic document system, and that the Department currently does not envision scanning older documents already in the Official File. Currently, the Department is destroying or in the process of destroying files from proceedings that have been terminated for five years or more. This destruction practice would appear inconsistent with the goal of expanding public access to information. If older documents are destroyed as a matter of course, then parties are at a disadvantage in preparing for ongoing proceedings because some documentation relied upon is only available in paper form. The commenter recommended that the Department reconsider its destruction practice and work towards making all existing paper documentation and submissions from prior proceedings available to the public as part of a docket for that proceeding.
In the Proposed Rule, the Department stated that it was considering providing for the implementation of electronic APO release as part of the overall transition to IA ACCESS. The Department requested comments on the APO release process, the adequacy of providing for electronic release in the APO, and the necessity of additional security requirements in the APO application.
In response to the Department's request for comments, one commenter expressed its support for the Department's approach. Another commenter recommended a system whereby the lead attorney for service and any other designated authorized individuals will be notified via e-mail that a new document has been posted to a particular record and that the authorized user would be able to access the document by logging into the secure database to upload the document on the authorized user's secure server. The commenter also requested that the same release process apply to documents filed by parties or placed on the record by Department personnel, thereby effecting service via electronic notification. Another commenter stated that the Proposed Rule did not specify whether, in addition to APO release, the Department also plans public electronic release to authorized representatives of interested parties who have entered an appearance. The commenter encouraged the Department to adopt this practice, either as part of formal rulemaking or under its IA ACCESS procedures.
In addition to the electronic APO release process through IA ACCESS, the Department plans to release public Department-generated documents and public versions of Department-generated business proprietary documents using IA ACCESS. The Department plans to notify the lead attorney for service and any other designated authorized individuals via e-mail that a new document has been posted to a particular segment. The authorized individual would then be able to securely access the document.
The Department has not implemented a similar release process to effect service of documents filed by interested parties on one another. As discussed above, with the exception of service of APO applications in § 351.305(b)(2) and the requirement that parties serve the complete final business proprietary document when bracketing changes have been made in § 351.303(c)(2)(ii), the Department has not changed the service requirements in the regulations. However, parties may continue to consent to electronic service in accordance with 19 CFR 351.303(f)(1)(ii) and continue to serve one another in accordance with this provision.
One commenter stated that it supports the Department's approach to electronic release under APO using the IA ACCESS system, but it urges the Department to impose conditions on such document releases, such as prohibiting access to another party's business proprietary information using file servers, networks and other electronic data storage and transmission devices located overseas or accessible to the public (such as computers in libraries and Internet cafes). The commenter stated that use of such systems would greatly increase the likelihood of unauthorized interception of and access to the business proprietary information of another party.
The commenter also encouraged the Department to retain the requirement that authorized applicants certify that they will “ensure that business proprietary information in an electronic format will not be accessible to parties not authorized to receive business proprietary information” in all future APOs. The commenter proposed requiring, as an additional safeguard, that all applicants for access to business proprietary information under an APO further specify (as part of their APO applications) each location from which they will access electronic documents containing business proprietary information of another interested party. According to the commenter, other interested parties should be permitted to comment on such applications and have their comments considered by the Department as part of its review of the APO application.
The Department is committed to securing the business proprietary information of parties participating in its proceedings. The Department has determined that it is not necessary for applicants for APO access to specify the location from which they will access electronic documents containing business proprietary information of another interested party. The Department already requires parties to use diligence in protecting other interested parties' business proprietary information and will continue to allow the firms to develop their own internal procedures to ensure that business proprietary information is downloaded in a secure manner. In addition, the Department will continue to address the improper release of business proprietary information through its sanctions proceedings at 19 CFR part 354.
This rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation has certified to the Chief Counsel for Advocacy of the Small Business Administration (“SBA”) under the provisions of the Regulatory Flexibility Act, 5 U.S.C. 605(b), that this rule, if promulgated, would not have a significant economic impact on a substantial number of small business entities. The factual basis for the certification was published in the Proposed Rule and is not repeated here. The Department received no comments questioning or regarding this certification.
This rule does not contain a collection of information for purposes of the Paperwork Reduction Act of 1980, as amended (44 U.S.C. 3501
Administrative practice and procedure, Antidumping, Business and industry, Cheese, Confidential business information, Countervailing duties, Freedom of information, Investigations, Reporting and recordkeeping requirements.
5 U.S.C. 301; 19 U.S.C. 1202 note; 19 U.S.C. 1303 note; 19 U.S.C. 1671
(a) Import Administration's Central Records Unit maintains a Public File Room in Room 7046, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230. The office hours of the Public File Room are between 8:30 a.m. and 5 p.m. Eastern Time on business days. Among other things, the Central Records Unit is responsible for maintaining an official and public record for each antidumping and countervailing duty proceeding (see § 351.104).
(b) Import Administration's Administrative Protective Order and Dockets Unit (APO/Dockets Unit) is located in Room 1870, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230. The office hours of the APO/Dockets Unit are between 8:30 a.m. and 5 p.m. Eastern Time on business days. Among other things, the APO/Dockets Unit is responsible for receiving submissions from interested parties, issuing administrative protective orders (APOs), maintaining the APO service list and the public service list as provided for in paragraph (d) of this section, releasing business proprietary information under APO, and conducting APO violation investigations. The APO/Dockets Unit also is the contact point for questions and concerns regarding claims for business proprietary treatment of information and proper public versions of submissions under § 351.105 and § 351.304.
(c)
(d)
(1) With the exception of a petitioner filing a petition in an investigation, all persons wishing to participate in a segment of a proceeding must file a letter of appearance. The letter of appearance must identify the name of the interested party, how that party qualifies as an interested party under § 351.102(b)(29) and section 771(9) of the Act, and the name of the firm, if any, representing the interested party in that particular segment of the proceeding. All persons who file a letter of appearance and qualify as an interested party will be included in the public service list for the segment of the proceeding in which the letter of appearance is submitted. The letter of appearance may be filed as a cover letter to an application for APO access. If the representative of the party is not requesting access to business proprietary information under APO, the letter of appearance must be filed separately from any other document filed with the Department. If the interested party is a coalition or association as defined in subparagraph (A), (E), (F) or (G) of section 771(9) of the Act, the letter of appearance must identify all of the members of the coalition or association.
(2) Each interested party that asks to be included on the public service list for a segment of a proceeding must designate a person to receive service of documents filed in that segment.
(a)
(2)
(ii) The official record will include a copy of a rejected document, solely for purposes of establishing and documenting the basis for rejecting the document, if the document was rejected because:
(A) The document, although otherwise timely, contains untimely filed new factual information (see § 351.301(b));
(B) The submitter made a nonconforming request for business proprietary treatment of factual information (see § 351.304);
(C) The Secretary denied a request for business proprietary treatment of factual information (see § 351.304);
(D) The submitter is unwilling to permit the disclosure of business proprietary information under APO (see § 351.304).
(iii) In no case will the official record include any document that the Secretary rejects as untimely filed, or any unsolicited questionnaire response unless the response is a voluntary response accepted under § 351.204(d) (see § 351.302(d)).
(b)
(a)
(c)
(d)
(i) Untimely filed factual information, written argument, or other material that the Secretary rejects, except as provided under § 351.104(a)(2); or
(ii) Unsolicited questionnaire responses, except as provided under § 351.204(d)(2).
(2) The Secretary will reject such information, argument, or other material, or unsolicited questionnaire response with, to the extent practicable, written notice stating the reasons for rejection.
(a)
(b)
(2)
(ii)
(B) If the IA ACCESS system is unable to accept filings continuously or intermittently over the course of any period of time greater than one hour between 12 noon and 4:30 p.m. Eastern Time or for any duration of time between 4:31 p.m. and 5 p.m. Eastern Time, then a person may manually file the document in the APO/Dockets Unit. The Department will provide notice of such technical failures on its Help Desk line. Procedures for manual filing in this situation are provided in the IA ACCESS Handbook on Electronic Filing Procedures.
(C) Apart from the documents and database files described in § 351.303(b)(2)(ii)(A), if a submitter is unable to comply with the electronic filing requirement, as provided in § 351.103(c), and in accordance with section 782(c) of the Act, the submitter must notify the Department promptly of the reasons the submitter is unable to file the document electronically, provide a full explanation, and suggest alternative forms in which to submit the information. The Department will consider the ability of the submitter and may modify the electronic filing requirement on a case-by-case basis.
(D)
(3)
(4)
(i) Business Proprietary Document—May be Released Under APO. This business proprietary document contains single-bracketed business proprietary information that the submitter agrees to release under APO. It must contain the statement “May be Released Under APO” in accordance with the requirements under paragraph (d)(2)(v) of this section.
(ii) Business Proprietary Document—May Not be Released Under APO. This business proprietary document contains double-bracketed business proprietary
(iii) Business Proprietary/APO Version—May be Released Under APO. In the event that a business proprietary document contains both single- and double-bracketed business proprietary information, the submitting person must submit a version of the document with the double-bracketed business proprietary information omitted. This version must contain the single-bracketed business proprietary information that the submitter agrees to release under APO. This version must be identified as “Business Proprietary/APO Version” and must contain the statement “May be Released Under APO” in accordance with the requirements under paragraph (d)(2)(v) of this section.
(iv) Public Version. The public version excludes all business proprietary information, whether single- or double-bracketed. Specific filing requirements for public version submissions are discussed in § 351.304(c).
(v) Public Document. The public document contains only public information. There is no corresponding business proprietary document for a public document.
(c) Filing of business proprietary documents and public versions under the one-day lag rule; information in double brackets.
(1)
(2)
(ii) Filing of final business proprietary document; bracketing corrections. By the close of business one business day after the date the business proprietary document is filed under paragraph (c)(2)(i) of this section, a person must file the complete final business proprietary document with the Department. The final business proprietary document must be identical in all respects to the business proprietary document filed on the previous day except for any bracketing corrections and the omission of the warning “Bracketing of Business Proprietary Information Is Not Final for One Business Day After Date of Filing” in accordance with paragraph (d)(2)(v) of this section. A person must serve other persons with the complete final business proprietary document if there are bracketing corrections. If there are no bracketing corrections, a person need not serve a copy of the final business proprietary document.
(iii)
(iv)
(3)
(d)
(2)
(i) On the first line, except for a petition, indicate the Department case number;
(ii) On the second line, indicate the total number of pages in the document including cover pages, appendices, and any unnumbered pages;
(iii) On the third line, indicate the specific segment of the proceeding, (
(iv) On the fourth line, except for a petition, indicate the Department office conducting the proceeding;
(v) On the fifth and subsequent lines, indicate whether any portion of the document contains business proprietary information and, if so, list the applicable page numbers and state either: “Business Proprietary Document—May Be Released Under APO,” “Business Proprietary Document—May Not Be Released Under APO,” or “Business Proprietary/APO Version—May Be Released Under APO,” as applicable, and consistent
(vi) For the public version of a business proprietary document required under § 351.304(c), complete the marking as required in paragraphs (d)(2)(i)–(v) of this section for the business proprietary document, but conspicuously mark the first page “Public Version.”
(vii) For a public document, complete the marking as required in paragraphs (d)(2)(i)–(v) of this section for the business proprietary document or version, as applicable, but conspicuously mark the first page “Public Document.”
(f) * * *
(1)(i)
(ii)
(b)
(ii)
(2) * * *
(iii) The submitting person may exclude the information in double brackets from the business proprietary/APO version of the submission served on authorized applicants. See § 351.303 for filing and service requirements.
(c)
(2) If a submitting party discovers that it has failed to bracket information correctly, the submitter may file a complete, corrected business proprietary document along with the public version (see § 351.303(b)). At the close of business on the day on which the public version of a submission is due under paragraph (c)(2) of this section, however, the bracketing of business proprietary information in the original business proprietary document or, if a corrected version is timely filed, the corrected business proprietary document will become final. Once bracketing has become final, the Secretary will not accept any further corrections to the bracketing of information in a submission, and the Secretary will treat non-bracketed information as public information.
(d) * * *
(1)
(iv) Submit other material concerning the subject matter of the rejected information. If the submitting person does not take any of these actions, the Secretary will not consider the rejected submission.
(b) * * *
(2) A representative of a party to the proceeding may apply for access to business proprietary information under the administrative protective order by submitting Form ITA–367 to the Secretary. Form ITA–367 must identify the applicant and the segment of the proceeding involved, state the basis for eligibility of the applicant for access to business proprietary information, and state the agreement of the applicant to be bound by the administrative protective order. Form ITA–367 may be prepared on the applicant's own wordprocessing system, and must be accompanied by a certification that the application is consistent with Form ITA–367 and an acknowledgment that any discrepancies will be interpreted in a manner consistent with Form ITA–
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect a change of address for Huvepharma AD, a sponsor of approved new animal drug applications.
This rule is effective July 6, 2011.
Steven D. Vaughn, Center for Veterinary Medicine (HFV–100), Food and Drug Administration, 7520 Standish Pl., Rockville, MD 20855, 240–276–8300, e-mail:
Huvepharma AD, 33 James Boucher Blvd., Sophia 1407, Bulgaria, has informed FDA that it has changed its address to 5th Floor, 3A Nikolay Haitov Str., 1113 Sofia, Bulgaria. Accordingly, the Agency is amending the regulations in 21 CFR 510.600 to reflect this change.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801–808.
Administrative practice and procedure, Animal drugs, Labeling, Reporting and recordkeeping requirements.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 510 is amended as follows:
21 U.S.C. 321, 331, 351, 352, 353, 360b, 371, 379e.
(c) * * *
(1) * * *
(2) * * *
Internal Revenue Service (IRS), Treasury.
Final and temporary regulations.
This document contains temporary regulations that remove any reference to, or requirement of reliance on, “credit ratings” in regulations under the Internal Revenue Code (Code) and provides substitute standards of credit-worthiness where appropriate. This action is required by the Dodd-Frank Wall Street Reform and Consumer Protection Act, which requires Federal agencies to remove any reference to, or requirement of reliance on, credit ratings from their regulations and to substitute such standard of credit-worthiness as the agency deems appropriate for such regulations. These regulations affect persons subject to various provisions of the Code. The text of these temporary regulations also serves as the text of the proposed regulations set forth in the notice of proposed rulemaking on this subject in the Proposed Rules section of this issue of the
Arturo Estrada, (202) 622–3900 (not a toll-free number).
Section 939A(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111–203 (124 Stat. 1376 (2010)), (the “Dodd-Frank Act”), requires each Federal agency to review its regulations that require the use of an assessment of credit-worthiness of a security or money market instrument, and to review any references or requirements in those regulations regarding credit ratings. Section 939A(b) directs each agency to
These temporary regulations amend the Income Tax Regulations (26 CFR part 1) under sections 150, 171, 197, 249, 475, 860G, and 1001 of the Code. These sections were added to the Code during different years to serve different purposes. These temporary regulations also amend the Manufacturers and Retailers Excise Tax Regulations (26 CFR part 48) under section 4101 that provides registration requirements related to Federal fuel taxes.
These temporary regulations remove references to “credit ratings” and “credit agencies” or functionally similar terms in the existing regulations. Some changes involve simple word deletions or substitutions. Others reflect the revision of a sentence to remove the credit rating references. In some cases, multiple sentences have been modified. Where appropriate, substitute standards of credit-worthiness replace the prior references to credit ratings, credit agencies or functionally similar terms. Language revisions serve solely to remove the references prohibited by section 939A of the Dodd-Frank Act and no additional changes are intended.
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866, as
These regulations were drafted by personnel in the Office of Associate Chief Counsel (Financial Institutions and Products), the Office of Associate Chief Counsel (Income Tax and Accounting), the Office of the Associate Chief Counsel (International) and the Office of the Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the IRS and the Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Excise taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR parts 1 and 48 are amended as follows:
26 U.S.C. 7805 * * *
The additions and revisions read as follows:
(a) * * *
(4) [Reserved] For further guidance, see § 1.150–1T(a)(4).
(b) * * *
(a) through (a)(3) [Reserved]. For further guidance, see § 1.150–1(a) through (a)(3).
(4)
(5)
(b)
(c)
(f) * * *
(a) through (f)
(ii)
(iii)
(g)
(b) * * *
(7) [Reserved]. For further guidance, see § 1.197–2T(b)(7).
(a) through (b)(6) [Reserved]. For further guidance, see § 1.197–2(a) through (b)(6).
(7)
(ii)
(iii)
(b)(8) through (l) [Reserved]. For further guidance, see § 1.197–2(b)(8) through (l).
The revisions and addition read as follows:
(e) * * *
(2) * * *
(ii) [Reserved]. For further guidance, see § 1.249–1T(e)(2)(ii).
(f)
(3) [Reserved]. For further guidance, see § 1.249–1T(f)(3).
(a) through (e)(2)(i) [Reserved]. For further guidance, see § 1.249–1(a) through (e)(2)(i).
(ii) In determining the amount under § 1.249–1(e)(2)(i), appropriate consideration shall be given to all factors affecting the selling price or yields of comparable nonconvertible obligations. Such factors include general changes in prevailing yields of comparable obligations between the dates the convertible obligation was issued and repurchased and the amount (if any) by which the selling price of the nonconvertible obligation was affected by reason of any change in the issuing corporation's credit quality or the credit quality of the obligation during such period (determined on the basis of widely published financial information or on the basis of other relevant facts and circumstances which reflect the relative credit quality of the corporation or the comparable obligation).
(e)(2)(iii) through (f)(2) [Reserved]. For further guidance, see § 1.249–1(e)(2)(iii) through (f)(2).
(3)
(g) [Reserved]. For further guidance, see § 1.249–1(g).
(h)
(d) * * *
(4) * * *
(a) through (d)(4) introductory text [Reserved]. For further guidance, see § 1.475(a)–4(a) through (d)(4) introductory text.
(i) X, a calendar year taxpayer, is a dealer in securities within the meaning of section 475(c)(1). X generally maintains a balanced portfolio of interest rate swaps and other interest rate derivatives, capturing bid-ask spreads and keeping its market exposure within desired limits (using, if necessary, additional derivatives for this purpose). X uses a mark-to-market method on a statement that it is required to file with the United States Securities and Exchange Commission and that satisfies § 1.475(a)–4(d)(2) with respect to both the contracts with customers and the additional derivatives. When determining the amount of any gain or loss realized on a sale, exchange, or termination of a position, X makes a proper adjustment for amounts taken into account respecting payments or receipts. X and all of its counterparties on the derivatives have the same general credit quality as each other.
(ii) Under X's valuation method, as of each valuation date, X determines a mid-market probability distribution of future cash flows under the derivatives and computes the present values of these cash flows. In computing these present values, X uses an industry standard yield curve that is appropriate for obligations by persons with this same general credit quality. In addition, based on information that includes its own knowledge about the counterparties, X adjusts some of these present values either upward or downward to reflect X's reasonable judgment about the extent to which the true credit status of each counterparty's obligation, taking credit enhancements into account, differs from the general credit quality used in the yield curve to present value the derivatives.
(iii) X's methodology does not violate the requirement in § 1.475(a)–4(d)(3)(iii) that the same cost or risk not be taken into account, directly or indirectly, more than once.
(iv) This
(i) The facts are the same as in
(ii) X's methodology does not violate the requirement in § 1.475(a)–4(d)(3)(iii) that the same cost or risk not be taken into account, directly or indirectly, more than once.
(iii) This
(i) The facts are the same as in
(ii) X's methodology violates the requirement in § 1.475(a)–4(d)(3)(iii) that the same cost or risk not be taken into account, directly or indirectly, more than once. By using the same general credit quality discount rate, X's method takes into account the difference between risk-free obligations and obligations with that lower credit quality. By adjusting values for the difference between a higher credit quality and that lower credit quality, X takes into account risks that it had already accounted for through the discount rates that it used. The same result would occur if X judged some of its counterparties' obligations to be of a higher credit quality but X failed to adjust the values of those obligations to reflect the difference between a higher credit quality and the lower credit quality.
(iii) This
(n)
(g) * * *
(3) * * *
(ii) * * *
(B) [Reserved]. For further guidance, see § 1.860G–2T(g)(3)(ii)(B).
(C) [Reserved]. For further guidance, see § 1.860G–2T(g)(3)(ii)(C).
(D) [Reserved]. For further guidance, see § 1.860G–2T(g)(3)(ii)(D).
(a) through (g)(3)(ii)(A) [Reserved]. For further guidance, see § 1.860G–2(a) through (g)(3)(ii)(A).
(B)
(C)
(D)
(E)
(h) through (k) [Reserved]. For further guidance, see § 1.860G–2(h) through (k).
The revisions read as follows:
(d) * * *
(e) * * *
(4) * * *
(iv) * * *
(B) [Reserved]. For further guidance, see § 1.1001–3T(e)(4)(iv)(B).
(5) * * *
(ii) * * *
(B) * * *
(
(g) * * *
(a) through (d)
(ii) A covenant in the note is breached. The bank exercises its option to increase the rate of interest. The increase in the rate of interest occurs by operation of the terms of the note and does not result in a deferral or a reduction in the scheduled payments or any other alteration described in § 1.1001–3(c)(2). Thus, the change in interest rate is not a modification.
(iii)
(d)
(B)
(
(e)(4)(v) through (e)(5)(ii)(B)(
(
(
(e)(6) through (g) introductory text [Reserved]. For further guidance, see § 1.1001–3(e)(6) through (g) introductory text.
(ii) The holder's payment to the issuer changes the yield on the bond. Whether the change in yield is a significant modification depends on whether the yield on the modified bond varies from the yield on the original bond by more than the change in yield as described in § 1.1001–3(e)(2)(ii).
(iii) If the change in yield is not a significant modification, the elimination of the issuer's call right must also be tested for significance. Because the specific rules of § 1.1001–3(e)(2) through (e)(6) do not address
(iv)
(ii) If the purchaser's acquisition of the building does not satisfy the requirements of § 1.1001–3(e)(4)(i)(B) or (C), the substitution of the purchaser as the obligor is a significant modification under § 1.1001–3(e)(4)(i)(A).
(iii) If the purchaser acquires substantially all of the assets of the original obligor, the assumption of the debt instrument will not result in a significant modification if there is not a change in payment expectations and the assumption does not result in a significant alteration.
(iv) The change in the interest rate, if tested under the rules of § 1.1001–3(e)(2), would result in a significant modification. The change in interest rate that results from the transaction is a significant alteration. Thus, the transaction does not meet the requirements of § 1.1001–3(e)(4)(i)(C) and is a significant modification under § 1.1001–3 (e)(4)(i)(A).
(v)
(ii) Under § 1.1001–3(e)(4)(iv)(A), the substitution of a different credit enhancement contract is not a significant modification of a recourse debt instrument unless the substitution results in a change in payment expectations. While the substitution of a new letter of credit by a different bank does not itself result in a change in payment expectations, such a substitution may result in a change in payment expectations under certain circumstances (for example, if the obligor's capacity to meet payment obligations is dependent on the letter of credit and the substitution substantially enhances that capacity from primarily speculative to adequate).
(iii)
(i)
26 U.S.C. 7805 * * *
The additions read as follows:
(f) * * *
(4) * * *
(ii) * * *
(B) [Reserved]. For further guidance, see § 48.4101–1T(f)(4)(ii)(B).
(l) * * *
(5) [Reserved]. For further guidance, see § 48.4101–1T(l)(5).
The additions and revisions read as follows:
(a) through (f)(4)(ii)(A) [Reserved]. For further guidance see § 48.4104–1(a) through (f)(4)(ii)(A).
(B)
(f)(4)(iii) through (h)(3)(iii) [Reserved]. For further guidance, see § 48.4101–1(f)(4)(iii) through (h)(3)(iii).
(h)(3)(v) through (l)(4) [Reserved]. For further guidance, see § 48.4101–1(h)(3)(v) through (l)(4).
(l)(5)
(l)(6)
Occupational Safety and Health Review Commission.
Final rule.
The Occupational Safety and Health Review Commission (“OSHRC”) is revising part 2205, which it promulgated to implement section 504 of the Rehabilitation Act of 1973, as amended. These revisions account for statutory and regulatory changes, and incorporate procedures for filing complaints under section 508 of the Rehabilitation Act of 1973, as amended. OSHRC is also making various corrections and technical amendments to this part.
Effective July 6, 2011.
Ron Bailey, Attorney-Advisor, Office of the General Counsel, by telephone at (202) 606–5410, by e-mail at
OSHRC published a notice of proposed rulemaking on May 24, 2011, 76 FR 30064, which would revise 29 CFR part 2205. Interested persons were afforded an opportunity to participate in the rulemaking process through submission of written comments on the proposed rule. OSHRC received no public comments. We have reviewed the
Section 508 of the Rehabilitation Act requires Federal agencies that develop, procure, maintain, or use electronic and information technology to “ensure, unless undue burden would be imposed on the department or agency,” that this technology allows (1) Federal employees who are individuals with disabilities “to have access to and use of information and data that is comparable to the access to and use of the information and data by Federal employees who are not individuals with disabilities,” and (2) members of the public who are individuals with disabilities and are “seeking information or services from a Federal department or agency to have access to and use of information and data that is comparable to the access to and use of the information and data by such members of the public who are not individuals with disabilities.” 29 U.S.C. 794d(a)(1)(A). In the event that this requirement imposes an undue burden, Federal agencies must provide the relevant information and data using an “alternative means.” 29 U.S.C. 794(a)(1)(B). An administrative complaint filed for an alleged violation of section 508 of the Rehabilitation Act must be filed with the agency “alleged to be in noncompliance,” and must be processed by the agency using “the complaint procedures established to implement” section 504 of the Rehabilitation Act. 29 U.S.C. 794d(f)(2). Therefore, OSHRC is amending its procedures in part 2205, which effectuates section 504, to also incorporate the requirements set forth in section 508.
Exercising its statutory authority under section 508 of the Rehabilitation Act, 29 U.S.C. 794(a)(2), the Architectural and Transportation Barriers Compliance Board (“Access Board”) has issued standards for electronic and information technology, 36 CFR part 1194. These standards define electronic and information technology for purposes of section 508 and provide the technical and functional performance criteria necessary to implement the accessibility requirements specified above. As detailed below, in amending part 2205, OSHRC relies on the definitions and requirements set forth in the Access Board's standards.
Turning to the specific amendments, OSHRC is adding a sentence to § 2205.101 (“Purpose”) indicating that part 2205 effectuates section 508 and summarizing the purpose of that section. OSHRC also is adding a clause to § 2205.102 (“Application”) indicating that part 2205 applies to the agency's “development, procurement, maintenance, and use of electronic and information technology,” and a new section at § 2205.135 (“Electronic and information technology requirements”) that thoroughly explains the agency's responsibilities under section 508. The additions are consistent with language used by the Access Board. 36 CFR 1194.1, .2. Additionally, in § 2205.103 (“Definitions”), OSHRC is (1) adding a definition describing the source material for section 508—a similar sentence already exists describing the source material for section 504; (2) adding the definitions of “Electronic and Information technology” and “Information technology” set forth by the Access Board, 39 CFR 1194.4; and (3) revising the definition of “Complete complaint” to indicate its coverage of violations alleged under section 508, as well as section 504. Further, OSHRC is adding language to § 2205.111 (“Notice”) to extend the notice requirements to section 508.
OSHRC also is revising the procedures in § 2205.170 (“Compliance procedures”) to provide more detailed instructions for filing and processing complaints and appeals alleging violations of section 504, and to incorporate instructions for those who allege violations of section 508. As noted, section 508 directs agencies to use the same procedures for processing section 508 complaints as they use for section 504 complaints. The EEOC, however, recently explained in its own notice of rulemaking that “[t]he part 1614 process is reserved for complaints alleging employment discrimination,” and that an allegation under section 508 of “discrimination in access to electronic and information technology * * * is outside the scope of part 1614.” Therefore, the revisions to § 2205.170(a) and (b) make clear that part 1614 is not applicable to section 508 complaints, but that OSHRC's procedures specifically set forth in its regulations are applicable to both section 504 and 508 complaints.
In addition to amendments resulting from section 508, OSHRC is making the following deletions, and corrections and amendments to part 2205. As to the deletions, several provisions include compliance deadlines that have already expired. Section 2205.110 requires that OSHRC complete, by August 24, 1987, a self-evaluation of policies and practices that do not or may not meet the requirements of the regulation. It further requires that a description of areas examined, problems identified, and modifications made be kept on file for at least three years. Also, paragraph (c) of § 2205.150 requires OSHRC to “comply with the obligations established under [paragraphs (a) and (b)] by October 21, 1986, except that where structural changes in facilities are undertaken, such changes shall be made by August 22, 1989, but in any event as expeditiously as possible”; and paragraph (d) of that provision requires OSHRC to “develop, by February 23, 1987, a transition plan setting forth the steps necessary to complete [structural changes to facilities]” in the event that such changes are required. Because the latest of these given time frames has long passed, § 2205.110 and paragraphs (c) and (d) of § 2205.150 are deleted.
Also, the cross-references in several provisions are outdated. The fourth definition of “qualified handicapped person,” found at § 2205.103, cross-references 29 CFR 1613.702(f), and two other provisions—§§ 2205.140 and .170(b)—cross-reference 29 CFR part 1613. Part 1613, however, was superseded by part 1614 in 1992. Federal Sector Equal Employment Opportunity, 57 FR 12634 (Apr. 10, 1992) (final rule). The current version of § 1614.203(b) cross-references and adopts all definitions in part 1630, and the definition of “qualified individual with a disability” is at 29 CFR 1630.2(m). Therefore, the cross-reference in § 2202.103 is changed to 29 CFR 1630.2(m), and the cross-reference to part 1613 in §§ 2205.140 and .170(b) is changed to part 1614. Further, § 2205.151 cross-references 41 CFR 101–19.600 to 101–19.607, which previously set forth the standard for the Architectural Barriers Act, 42 U.S.C. 4151–4157. In 2002, the regulatory provisions pertaining to the standard were re-designated as 41 CFR 102–76.60 to 102–76.95. Real Property Policies, 67 FR 76882 (Dec. 13, 2002) (final rule). Section 2205.151 is therefore amended to reflect this re-designation.
Additionally, only the acronym for “telecommunication devices for deaf persons” is now used in § 2205.160, as both the phrase and acronym already appear in § 2205.103; the head of the agency is now referred to as the “Chairman” throughout the part, as this term is used in the OSH Act itself, 29 U.S.C. 661(a); and, in § 2205.103, additional legislative history is added to the definition of “Section 504.” Finally, the 1992 amendments to the Rehabilitation Act, Public Law 102–569, 106 Stat. 4344, which replaced the term “handicap” with the term “disability,” has resulted in the amendment of all such references in part 2205.
Administrative practice and procedure, Civil rights, Equal employment opportunity, Federal buildings and facilities, Individuals with disabilities, Access to electronic and information technology.
For the reasons set forth in the preamble, Chapter XX, Part 2205 of Title 29, Code of Federal Regulations, is revised to read as follows:
29 U.S.C. 794; 29 U.S.C. 794d.
This part effectuates section 119 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, which amended section 504 of the Rehabilitation Act of 1973 to prohibit discrimination on the basis of disability in programs or activities conducted by Executive agencies or the United States Postal Service. This part also effectuates section 508 of the Rehabilitation Act of 1973, as amended, with respect to the accessibility of electronic and information technology developed, procured, maintained, or used by the agency.
This part applies to all programs or activities conducted by the agency and to its development, procurement, maintenance, and use of electronic and information technology.
For purposes of this part, the term—
(1)
(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of
(ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term
(2)
(3)
(4)
(i) Has a physical or mental impairment that does not substantially limit major life activities but is treated by the agency as constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(iii) Has none of the impairments defined in subparagraph (1) of this definition but is treated by the agency as having such an impairment.
(1) With respect to any agency program or activity under which a person is required to perform services or to achieve a level of accomplishment, an individual with a disability who meets the essential eligibility requirements and who can achieve the purpose of the program or activity without modifications in the program or activity that the agency can demonstrate would result in a fundamental alteration in its nature;
(2) With respect to any other program or activity, an individual with a disability who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity; and
(3)
The agency shall make available to employees, applicants, participants, beneficiaries, and other interested persons such information regarding the provisions of this part and its applicability to the programs or activities conducted by the agency, and make such information available to them in such manner as the Chairman finds necessary to apprise such persons of the protections against discrimination assured them by section 504 or the access to technology provided under section 508 and this regulation.
(a) No qualified individual with a disability shall, on the basis of disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability—
(i) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aid, benefits, or services that are as effective as those provided to others;
(v) Deny a qualified individual with a disability the opportunity to participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified individual with a disability the opportunity to participate in programs or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.
(3) The agency may not, directly or through contractual or other arrangements, utilize criteria or methods of administration the purpose or effect of which would—
(i) Subject qualified individuals with disabilities to discrimination on the basis of disability; or
(ii) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to individuals with disabilities.
(4) The agency may not, in determining the site or location of a facility, make selections the purpose or effect of which would—
(i) Exclude individuals with disabilities from, deny them the benefits of, or otherwise subject them to discrimination under any program or activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the objectives of a program or activity with respect to individuals with disabilities.
(5) The agency, in the selection of procurement contractors, may not use criteria that subject qualified individuals with disabilities to discrimination on the basis of disability.
(6) The agency may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability, nor may the agency establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability. However, the programs or activities of entities that are licensed or certified by the agency are not, themselves, covered by this part.
(c) The exclusion of individuals without disabilities from the benefits of a program limited by Federal statute or Executive order to individuals with disabilities or the exclusion of a specific class of individuals with disabilities from a program limited by Federal statute or Executive order to a different class of individuals with disabilities is not prohibited by this part.
(d) The agency shall administer programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.
(a) In accordance with section 508 and the standards published by the Architectural and Transportation Barriers Compliance Board at 36 CFR part 1194, the agency shall ensure, absent an undue burden, that the electronic and information technology developed, procured, maintained, or used by the agency allows:
(1) Individuals with disabilities who are agency employees or applicants to have access to and use of information and data that is comparable to the access to and use of information and data by agency employees who are individuals without disabilities; and
(2) Individuals with disabilities who are members of the public seeking information or services from the agency to have access to and use of information and data that is comparable to the access to and use of information and data by such members of the public who are not individuals with disabilities.
(b) When development, procurement, maintenance, or use of electronic and information technology that meets the standards at 36 CFR part 1194 would impose an undue burden, the agency shall provide individuals with disabilities covered by this section with the information and data involved by an alternative means of access that allows the individuals to use the information and data.
No qualified individual with a disability shall, on the basis of disability, be subjected to discrimination in employment under any program or activity conducted by the agency. The definitions, requirements, and procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as established by the Equal Employment Opportunity Commission in 29 CFR part 1614, shall apply to employment in federally conducted programs or activities.
Except as otherwise provided in § 2205.150, no qualified individual with a disability shall, because the agency's facilities are inaccessible to or unusable by individuals with disabilities, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
(a)
(1) Necessarily require the agency to make each of its existing facilities accessible to and usable by individuals with disabilities;
(2) In the case of historic preservation programs, require the agency to take any action that would result in a substantial impairment of significant historic features of an historic property; or
(3) Require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with this paragraph (a) would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the Chairman or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits and services of the program or activity.
(b)
(2)
(i) Using audio-visual materials and devices to depict those portions of an historic property that cannot otherwise be made accessible;
(ii) Assigning persons to guide individuals with disabilities into or through portions of historic properties that cannot otherwise be made accessible; or
(iii) Adopting other innovative methods.
Each building or part of a building that is constructed or altered by, on behalf of, or for the use of the agency shall be designed, constructed, or altered so as to be readily accessible to and usable by individuals with disabilities. The definitions, requirements, and standards of the Architectural Barriers Act (42 U.S.C. 4151–4157), as established in 41 CFR 102–76.60 to 102–76.95, apply to buildings covered by this section.
(a) The agency shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the agency shall give primary consideration to the requests of the individual with a disability.
(ii) The agency need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature.
(2) Where the agency communicates with applicants and beneficiaries by telephone, TDD's or equally effective telecommunication systems shall be used.
(b) The agency shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.
(c) The agency shall provide signage at a primary entrance to each of its inaccessible facilities, directing users to a location at which they can obtain information about accessible facilities. The international symbol for accessibility shall be used at each primary entrance of an accessible facility.
(d) This section does not require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with this section would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the Chairman or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with this section would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the benefits and services of the program or activity.
(a) Except as provided in paragraph (b) of this section, this section applies to all allegations of discrimination on the basis of disability in programs or activities conducted by the agency in violation of section 504. Paragraphs (c) through (j) of this section also apply to all complaints alleging a violation of the agency's responsibility to procure electronic and information technology under section 508, whether filed by members of the public or agency employees or applicants.
(b) The agency shall process complaints alleging violations of section 504 with respect to employment according to the procedures established by the Equal Employment Opportunity Commission in 29 CFR part 1614 pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).
(c)(1) Any person who believes that he or she has been subjected to discrimination prohibited by this part or that the agency's procurement of electronic and information technology has violated section 508, or an authorized representative of such person, may file a complaint with the Executive Director.
(2) The Executive Director shall be responsible for coordinating implementation of this section. Complaints shall be sent to Executive Director, Occupational Safety and Health Review Commission, One Lafayette Centre, 1120–20th Street NW., 9th Floor, Washington, DC 20036–3457. Complaints shall be filed with the Executive Director within 180 days of the alleged act of discrimination. A complaint shall be deemed filed on the date it is postmarked, or, in the absence of a postmark, on the date it is received by the agency. The agency may extend this time period for good cause.
(d)(1) The agency shall accept a complete complaint that is filed in accordance with paragraph (c) of this section and over which it has jurisdiction. The Executive Director shall notify the complainant and the respondent of receipt and acceptance of the complaint.
(2) If the agency receives a complaint that is not complete, the Executive Director shall notify the complainant, within 30 days of receipt of the incomplete complaint, that additional information is needed. If the complainant fails to complete the complaint within 30 days of receipt of this notice, the Executive Director shall dismiss the complaint without prejudice and shall so inform the complainant.
(3) If the agency receives a complaint over which it does not have jurisdiction, it shall promptly notify the complainant and shall make reasonable efforts to refer the complaint to the appropriate government entity.
(e) The agency shall notify the Architectural and Transportation Barriers Compliance Board upon receipt of any complaint alleging that a building or facility that is subject to the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151–4157), or section 502 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily accessible to and usable by individuals with disabilities.
(f) Within 180 days of the receipt of a complete complaint for which it has jurisdiction, the agency shall notify the complainant of the results of the investigation in a letter containing—
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(g) Appeals of the findings of fact and conclusions of law or remedies must be
(h) Timely appeals shall be accepted and decided by the Chairman. The Chairman shall notify the complainant of the results of the appeal within 60 days of the receipt of the request. If the Chairman determines that additional information is needed from the complainant, he or she shall have 60 days from the date of receipt of the additional information to make his or her determination on the appeal.
(i) The time limits cited in paragraphs (f) and (h) of this section may be extended with the permission of the Assistant Attorney General.
(j) The agency may delegate its authority for conducting complaint investigations to other Federal agencies or may contract with non-Federal entities to conduct such investigations, except that the authority for making the final determination may not be delegated.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce a local regulation for the APBA Gold Cup, Detroit, MI annual high speed boat race in the Captain of the Port Detroit zone from 7 a.m. on July 7, 2011 through 7 p.m. on July 10, 2011. This action is necessary and intended to ensure safety of life on the navigable waters immediately prior to, during, and immediately after regattas or marine parades. This rule will establish restrictions upon, and control movement of, vessels in specified areas immediately prior to, during, and immediately after regattas or marine parades. During the enforcement periods, no person or vessel may enter the regulated areas without permission of the Captain of the Port.
The regulations in 33 CFR 100.918 will be enforced on July 7, 2011 through July 10, 2011 from 7 a.m. to 7 p.m. daily.
If you have questions on this notice, call or e-mail LT Katie Stanko, Prevention Department, Sector Detroit, Coast Guard; telephone (313)568–9508, e-mail
The Coast Guard will enforce the following special local regulations at the following times:
This special local regulation will be enforced daily from 7 a.m. to 7 p.m. on July 7, 8, 9 and 10, 2011.
(2) This regulated area is closed to all vessel traffic, except as may be permitted by the Captain of the Port Detroit or his designated on-scene representative.
(3) The “designated on-scene representative” of the Captain of the Port is any Coast Guard commissioned, warrant, or petty officer who has been designated by the Captain of the Port to act on his behalf. The designated on-scene representative of the Captain of the Port will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port or his designated on scene representative may be contacted via VHF Channel 16.
(4) Vessel operators desiring to enter or operate within the regulated area shall contact the Captain of the Port Detroit or his designated on-scene representative to obtain permission.
(5) Vessel operators given permission to enter or operate in the regulated area must comply with all directions given to them by the Captain of the Port or his designated on-scene representative.
Coast Guard, DHS.
Interim rule with request for comments.
The Coast Guard proposes to amend the enforcement period of the permanent Special Local Regulation established in 33 CFR 100.918. This action is necessary and intended to ensure safety of life on the navigable waters immediately prior to, during, and immediately after the Detroit APBA Gold Cup boat race. This special local regulation will establish restrictions upon, and control movement of vessels in a portion of the Detroit River. During the enforcement period, no person or vessel may enter the regulated areas without permission of the Captain of the Port.
This interim rule is effective July 6, 2011. Comments and related material must reach the Coast Guard on or before August 5, 2011.
You may submit comments identified by docket number USCG–2011–0614 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 interim rule, call or e-mail LT Katie Stanko, Prevention Department, Sector Detroit, Coast Guard; telephone (313) 568–9508, 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–2011–0614), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via
To submit your comment online, go to
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under
The Coast Guard is issuing this interim rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because waiting for a notice and comment period to be completed would be impracticable and contrary to the public interest as it would inhibit the Coast Guard's ability to protect the public from the hazards associated with a high speed boat race. In addition, rescheduling the race for the purpose of accommodating a comment period would mean that the race could not happen this summer. Not having this annual summer spectator event is contrary to the public interest of the people of Detroit. Furthermore, delaying this event to accommodate a comment period is unnecessary because of the non-controversial history of the regulation: When the Final Rule for this event was published in 2008 (Docket number USCG–2008–0220), no comments were received at all.
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
This interim rule will amend the entry found in 33 CFR 100.918, Detroit APBA Gold Cup, Detroit, MI. Currently, the regulations located at 33 CFR 100.918 state that the respective enforcement period will occur each year in the first or second week of June. However, the annual occurrence of this marine event has been pushed back from June to July.
Because of the aforementioned rescheduling of the annual Detroit APBA Gold Cup, the Captain of the Port Detroit finds it necessary to amend the respective enforcement period. Accordingly, this interim rule will amend the special local regulation found in 33 CFR 100.918 so that the new enforcement period will take place during the first or second week of July.
We developed this interim rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues.
We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. The Coast Guard's use of this special local regulation will be periodic in nature, of short duration, and designed to minimize the impact on navigable waters. The Coast Guard expects insignificant adverse impact to mariners from the amendment of the enforcement period of this special local regulation.
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 would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in this portion of the Detroit River, Detroit, MI during an enforcement period in the first or second week in July each year.
The new enforcement period for this special local regulation will not have a significant economic impact on a substantial number of small entities for the following reasons: The enforcement period will be short in duration and will only occur once per year; the special local regulation has been designed to allow traffic to pass safely around its bounds whenever possible; and vessels will be allowed to pass through the regulated area with the permission of the Captain of the Port Detroit.
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 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)(h), of the Instruction. This rule involves a special local regulation issued in conjunction with a regatta or marine parade, therefore (34)(h) of the Instruction applies. An environmental analysis checklist and a categorical exclusion determination are not required for this rule.
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
33 U.S.C. 1233.
(c) Enforcement Period. The first or second week in July. The exact dates and times for this event will be determined annually.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing fourteen temporary special local regulations and safety zones for marine events and fireworks displays within the Captain of the Port (COTP) Long Island Sound Zone. This action is necessary to provide for the safety of life on navigable waters during the events. Entry into, transit through, mooring or anchoring within these zones is prohibited unless authorized by the COTP Sector Long Island Sound.
This rule is effective in the CFR on July 6, 2011 through 6 p.m. on October 2, 2011. This rule is effective with actual notice for purposes of enforcement beginning at 8:30 p.m. on June 25, 2011.
Documents indicated in this preamble as being available in the docket are part of docket USCG–2011–0550 and are available online by going to
If you have questions on this temporary rule, call or e-mail Petty Officer Joseph Graun, Prevention Department, Coast Guard Sector Long Island Sound, (203) 468–4544,
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 any delay encountered in this regulation's effective date by publishing an NPRM would be contrary to public interest since immediate action is needed to protect both spectators and participants from the safety hazards created by these events including powerboats traveling at high speeds, unexpected pyrotechnics detonation and burning debris. We spoke with each event sponsor and each indicated they were unable and unwilling to move their event date to a later time for the following reasons.
The sponsor for Salute to Veterans fireworks display (the Town of Hempstead) stated they are unwilling to reschedule their event to a later date because the town expended funds on advertising the current event date. Changing the date would require the town to spend more of their limited funds on advertising. The town was not aware of the requirements for submitting a recurring marine event application 60 days in advance resulting in a late notification to the Coast Guard. The town is now aware of this reporting requirement.
The sponsors for the town of Islip and Port Jefferson fireworks displays stated they are unwilling to reschedule their events because they are held in conjunction with the Fourth of July holiday and holiday festivities. Since announced, community members have made holiday plans based on these fireworks displays. Rescheduling these events would not be a viable option because most event venues, entertainers and venders have fully booked summer schedules making rescheduling nearly impossible. This year's fireworks displays were originally canceled due to lack of funding; however, funding became available late in May allowing the fireworks displays to take place.
The Sponsor for Battle on the Bay Powerboat Race is unwilling to reschedule the event because the powerboats that will be racing in the event are part of a traveling circuit with a schedule established more than a year ahead of time, the earliest opportunity to reschedule the event is 2012. In spring the event's host town for the past several years unexpectedly decided not to host this year's event. The event sponsor was surprised and rushed to find a new host town. After a month of meetings with towns and filing permits the sponsors made an agreement with a new town. When that agreement was reached the Coast Guard was provided less than 90 days notice an insufficient amount of time to publish an NPRM for a new event. This unique host town situation which was unpredictable caused the late notification to the Coast Guard. The sponsor is aware of the requirements for submitting a new marine event application 135 days in advance.
The sponsors for Xirinachs Family Foundation Fireworks; Icim's 40th Birthday Party Fireworks and Berman Wedding Fireworks are unwilling to move their events to a later date because they are held in conjunction with other events that cannot be moved. The sponsors were not aware of the requirements for submitting a marine event application 135 days in advance resulting in a late notification to the Coast Guard. The sponsors are now aware of the reporting requirements.
The sponsors for Riverfront US title Series Powerboat Race; Head of the Riverfront Regatta; Fairfield Aerial Fireworks; Town of Babylon Fireworks; East Hampton Fire Department Fireworks; Village of Island Park Fireworks and Ports Washington Sons of Italy Fireworks all submitted marine event applications with sufficient notice to the Coast Guard. These fireworks displays and marine events are all recurring with a proposed permanent rule currently in a public comment period under docket number USCG–2008–0384, titled: Special Local Regulations; Safety and Security Zones; Recurring Events in Captain of the Port Long Island Sound Zone. The Coast Guard is establishing these temporary special local regulations and safety zones to provide for safety of life during this year's events. Additionally, the Coast Guard has ordered special local regulations or safety zones for all of these areas during past events and has received no public comments or concerns regarding the impact to waterway traffic from those events. For the same reasons, 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 legal basis for this rule is 33 U.S.C. 1225, 1226, 1231, 1233; 46 U.S.C. Chapter 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 special local regulations and safety zones. This regulation carries out two related actions: (1) Establishing special local regulations, and (2) establishing safety zones. Marine events are frequently held on the navigable waters within the COTP Long Island Sound Zone. Based on accidents that have occurred in the past and the explosive hazards of fireworks, the COTP Long Island has determined that regattas and fireworks launches proximate to watercrafts pose significant risk to public safety and property.
To protect the safety of all waterway users including event participants and spectators, this rule establishes temporary special local regulations or safety zones for the time and location of each marine event.
This rule prevents vessels from entering, transiting, mooring or anchoring within areas specifically designated as regulated areas during the periods of enforcement unless authorized by the COTP, or designated representative.
This temporary rule establishes special local regulations for all navigable waters around each powerboat race and regatta and safety zones for all navigable waters within a 1000 foot zone around each fireworks display.
These events are listed below in the text of the regulation.
Because large numbers of spectator vessels are expected to congregate around the location of these events, these regulated areas are needed to protect both spectators and participants from the safety hazards created by them including powerboats traveling at high speeds, unexpected pyrotechnics detonation, and burning debris. During the enforcement periods, persons and vessels are prohibited from entering, transiting through, remaining, anchoring or mooring within the regulated areas unless stipulated otherwise or specifically authorized by the COTP or the designated representative. The Coast Guard may be assisted by other Federal, state and local agencies in the enforcement of these regulated areas.
The Coast Guard determined that these regulated areas will not have a significant impact on vessel traffic due to their temporary nature, limited size, and the fact that vessels are allowed to transit the navigable waters outside of the regulated areas.
The Coast Guard has published an NPRM proposing permanent regulated areas for each of these events. The NPRM can be viewed and comments can be submitted by following the procedure under
Advanced public notifications will also be made to the local maritime community by the Local Notice to Mariners as well as Broadcast Notice to Mariners.
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.
The Coast Guard determined that these regulated areas will not have a significant impact on vessel traffic due to their temporary nature, limited size, and the fact that vessels are allowed to transit the navigable waters outside of the regulated areas. Additionally, The Coast Guard has ordered special local regulations or safety zones for all fourteen areas during past events and has received no public comments or concerns regarding impact to waterway traffic from events.
Advanced public notifications will also be made to the local maritime community by the Local Notice to Mariners as well as Broadcast Notice to Mariners.
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.
The Coast Guard determined that this rule is not a significant regulatory action for the following reasons: the regulated areas will be of limited duration, they cover only a small portion of the navigable waterways, and the events are designed to avoid, to the extent possible, deep draft, fishing, and recreational boating traffic routes.
The Coast Guard has previously promulgated safety zones or special local regulations, in accordance with 33 CFR Parts 165 and 100, for all event areas contained within this proposed regulation and has not received notice of any negative impact caused by any of the safety zones or special local regulations.
No new or additional restrictions will be imposed on vessel traffic.
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 or anchor in the designated regulated area during the enforcement periods stated for each event list below in the regulatory text.
The temporary special local regulations and safety zones will not have a significant economic impact on a substantial number of small entities for the following reasons: the regulated areas will be of limited size and of short duration, and vessels that can safely do so may navigate in all other portions of the waterways except for the areas designated as regulated areas. Additionally, before the effective period, notifications will be made to the local maritime community through the Local Notice to Mariners and Broadcast Notice to Mariners well in advance of the events.
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
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2–1, paragraph (34)(g)&(h), of the Instruction. This rule involves the establishment of temporary special local regulations and safety zones.
An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Marine safety, Navigation (water), Reporting and recording requirements, Waterways.
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 parts 100 and 165 as follows:
33 U.S.C. 1233.
(a)
The following regulations apply to the marine events listed in the Table to § 100.T01–0550. These regulations will be enforced for the duration of each event, on or about the dates indicated.
These regulations will be enforced for the duration of each event. Notifications will be made to the local maritime community through the Local Notice to Mariners and Broadcast Notice to Mariners in advance of the events. First Coast Guard District Local Notice to Mariners can be found at
(b)
(1) Designated Representative. A “designated representative” is any Coast Guard commissioned, warrant or petty officer of the U.S. Coast Guard who has been designated by the Captain of the Port, Sector Long Island Sound (COTP), to act on his or her behalf. The designated representative may be on an official patrol vessel or may be on shore and will communicate with vessels via VHF–FM radio or loudhailer. In addition, members of the Coast Guard Auxiliary may be present to inform vessel operators of this regulation.
(2) Official Patrol Vessels. Official patrol vessels may consist of any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement vessels assigned or approved by the COTP.
(3) Spectators. All persons and vessels not registered with the event sponsor as participants or official patrol vessels.
(c) Vessel operators desiring to enter or operate within the regulated areas shall contact the COTP or the designated representative via VHF channel 16 or by telephone at (203) 468–4404 to obtain permission to do so.
(d) 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 the Local Notice to Mariners, unless authorized by COTP or designated representative.
(e) The COTP or designated representative 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.
(f) The COTP or designated representative 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.
(g) For all events listed, vessels not participating in this event, swimmers, and personal watercraft of any nature are prohibited from entering or moving within the regulated area unless stipulated otherwise or authorized by the COTP or a designated representative. Vessels 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.
33 U.S.C. 1226, 1231; 46 U.S.C. Chapters 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)
The general regulations contained in 33 CFR 165.23 as well as the following regulations apply to the fireworks displays listed in Table 1 of T01–0550.
These regulations will be enforced for the duration of each event. Notifications will be made to the local maritime community through the Local Notice to Mariners and Broadcast Notice to Mariners in advance of the events. First Coast Guard District Local Notice to Mariners can be found at
(b)
(1) Designated Representative. A “designated representative” is any Coast Guard commissioned, warrant or petty officer of the U.S. Coast Guard who has been designated by the Captain of the Port, Sector Long Island Sound (COTP), to act on his or her behalf. The designated representative may be on an official patrol vessel or may be on shore and will communicate with vessels via VHF–FM radio or loudhailer. In addition, members of the Coast Guard Auxiliary may be present to inform vessel operators of this regulation.
(2) Official Patrol Vessels. Official patrol vessels may consist of any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement vessels assigned or approved by the COTP.
(3) Spectators. All persons and vessels not registered with the event sponsor as participants or official patrol vessels.
(c) Vessel operators desiring to enter or operate within the regulated areas should contact the COTP or the designated representative via VHF channel 16 or by telephone at (203) 468–4404 to obtain permission to do so.
(d) 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 the Local Notice to Mariners, unless authorized by COTP or designated representative.
(e) The COTP or the designated representative 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.
(f) The COTP or designated representative 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.
(g) The regulated area for all fireworks displays listed in Table 1 of T01–0550 is that area of navigable waters within a 1000 foot radius of the launch platform or launch site for each fireworks display.
(h) Fireworks barges used in these locations will also have a sign on their port and starboard side labeled “FIREWORKS—STAY AWAY.” This sign will consist of 10 inch high by 1.5 inch wide red lettering on a white
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, Fifth Coast Guard District has issued a temporary deviation from the regulations governing the operation of the Walnut Street Bridge, across the Christina River, at mile 2.8, in Wilmington, DE. The deviation restricts the operation of the draw span in order to facilitate the inspection of the operational equipment.
This deviation is effective from 8 a.m. June 23, 2011 until 5 p.m. July 22, 2011.
Documents mentioned in this preamble as being available in the docket are part of docket USCG–2011–0561 and are available online by going to
If you have questions on this rule, call or e-mail Terrance Knowles, Environmental Protection Specialist, Fifth Coast Guard District, at telephone 757–398–6587, e-mail
The Delaware Department of Transportation (DELDOT), who owns and operates this bascule type drawbridge, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.237(c) to facilitate the inspection of the operational equipment within the structure.
The Walnut Street Bridge, at mile 2.8, across the Christina River in Wilmington, DE has a vertical clearance in the closed position to vessels of 13 feet above mean high water.
Under the regular operating schedule the bridge opens on signal as required by 117.237(c).
Under this temporary deviation, the Walnut Street Bridge will be closed to vessels and will require two hours advance notice to open each day from 8 a.m. to 5 p.m., on June 23, 2011 until July 1, 2011, and on July 18, 2011 until July 22, 2011. At all other times, the Walnut Street Bridge will open on signal.
Vessels that can pass under the closed span without an opening may do so at all times. There are no alternate routes for vessels transiting this section of the Christina River.
There are three vessels that travel through the bridge several times per week whose vertical clearance surpasses the closed bridge position, requiring an opening of the draw span. DELDOT has coordinated this replacement work with these three waterway users and the Coast Guard will inform the other users of the waterway through our Local and Broadcast Notices to Mariners of the closure periods for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation. The bridge may be delayed when opening for an emergency during the proposed equipment inspections.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
By direction of the Commander.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, Fifth Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Cape Fear River Memorial Bridge across the Cape Fear River, mile 26.8, and the Isabel S. Holmes Bridge across Northeast Cape Fear River, at mile 1.0, both in Wilmington, NC. The deviation restricts the operation of the draw spans to accommodate the 29th Annual Wilmington Family YMCA Tri-Span race.
This deviation is effective from 7 a.m. to 9 a.m. on July 9, 2011.
Documents mentioned in this preamble as being available in the docket are part of the docket USCG–2011–0566 and are available online by going to
If you have questions on this rule, call or e-mail Mr. Waverly W. Gregory, Jr., Bridge Program Manager, Fifth Coast Guard District; telephone 757–398–
The Wilmington Family YMCA, on behalf of the North Carolina Department of Transportation, who owns and operates the Cape Fear River Memorial Bridge across the Cape Fear River, mile 26.8, and the Isabel S. Holmes Bridge across Northeast Cape Fear River, at mile 1.0, both in Wilmington, NC, requested a temporary deviation from the current operating schedules to accommodate the 29th Annual Wilmington Family YMCA Tri-Span race scheduled for July 9, 2011.
The Cape Fear Memorial Bridge is a vertical-lift drawbridge with a vertical clearance of 65 feet above mean high water in the closed position to vessels and the Isabel S. Holmes Bridge is a double-leaf bascule drawbridge with a vertical clearance of 40 feet above mean high water in the closed position to vessels.
Under the regular operating schedules during the requested period for the Cape Fear Memorial Bridge and the Isabel S. Holmes Bridge, the draws need not open for the passage of vessels from 8 a.m. to 10 a.m. on the second Saturday of July of every year set out at 33 CFR 117.823 and at 33 CFR 117.829(a)(4), respectively.
Due to the extreme high temperatures expected for Saturday July 9, 2011 (the second Saturday of July 2011), the Wellness Director for the Wilmington Family YMCA requested to change the closure times to vessels for the aforementioned drawbridges from 8 a.m. to 10 a.m. to 7 a.m. to 9 a.m.
Under this temporary deviation, the drawbridges will be closed to vessels from 7 a.m. to 9 a.m. on Saturday July 9, 2011.
Typical vessel traffic on the Cape Fear River and Northeast Cape Fear River includes a variety of vessels from freighters, tug and barge traffic, and recreational vessels. Vessels that can pass under the bridges without a bridge opening may continue to do so at anytime.
The Coast Guard has carefully coordinated the restrictions with commercial and recreational waterway users. The Coast Guard will use Local and Broadcast Notice to Mariners to inform all users of the waterways of the closure periods for the bridges so that vessels can arrange their transits to minimize any impacts caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the draw must return to its regular operating schedule immediately at the end of the designated time period.
This deviation from the operating regulations is authorized under 33 CFR 117.35.
By direction of the Commander.
Postal Service
Final rule.
The Postal Service will revise
Effective September 6, 2011.
Carla Sherry at 703–280–7068, or Carol A. Lunkins at 202–268–7262.
On February 22, 2011, the Postal Service published the
One commenter raised concerns about the ability of customers who pay postage with IBI postage meters to use an existing account and/or payment method in lieu of a credit card to pay revenue deficiencies. At the present time, the Postal Service will not permit customers to use existing accounts and/or payment methods in lieu of credit cards to pay revenue deficiencies, but this may be a future consideration.
One commenter expressed concern regarding the Postal Service's proposal to use an electronic notification process to recover revenue deficiencies from customers using IBI postage meters. Only customers who pay postage with postage evidencing systems with e-mail addresses either on file with the Postal Service or with whom the Postal Service has an agreement and a process in place to obtain e-mail addresses will receive an electronic notification. If a customer's e-mail address is not available, the Postal Service will use other existing processes to recover revenue deficiencies.
One commenter asked for clarification of “other non-electronic processes” that will be used to identify shortpaid and unpaid postage. In the event that the new electronic processes are unavailable, the Postal Service will use existing methods to collect unpaid and shortpaid IBI postage. The Postal Service is making a minor change in the language to state, “In the event that electronic processes are unavailable, other existing processes may be used to recover revenue deficiency as required.”
One commenter asked for clarification regarding the procedures for remedying postage deficiencies generated from Click-N-Ship. The Postal Service is making a minor change to further clarify that the new automated procedures for detecting and recovering postage deficiencies apply to shortpaid and unpaid postage generated from Click-N-Ship. However, this does not preclude the use of existing processes to identify or recover postage deficiencies. For items with shortpaid IBI postage that is generated from Click-N-Ship, the Postal Service will continue to allow mailers to remit payments for such postage deficiencies via Click-N-Ship and follow the existing postage deficiency process.
With this final rule, the Postal Service implements new procedures to manage shortpaid Express Mail postage and a new process to detect mailpieces with shortpaid and unpaid IBI postage generated from the following postage evidencing systems: Click-N-Ship®, IBI postage meters, and PC Postage® products.
The Postal Service also implements a new USPS Web-based resolution process to remedy shortpaid and unpaid IBI postage payment deficiencies; a process to dispute shortpaid and unpaid IBI postage deficiency assessments; and a process to appeal USPS decisions relative to shortpaid and unpaid IBI postage. During this process, customers will be notified electronically of the postage deficiency and be provided a link to a specific USPS Web-based customer payment portal to resolve the shortage. In addition to this new process, the Postal Service will continue to use the existing postage deficiency payment process for shortpaid and
For an Express Mail Next Day, Second Day, Military, or Custom Designed Service item received at the origin office of mailing with insufficient postage, the mailer is contacted to correct the postage deficiency prior to dispatch of the Express Mail item. If the mailer cannot be contacted before dispatch from the origin office, or if the Express Mail item with insufficient postage is identified during processing operations or at the destination Post Office, the Express Mail item is endorsed “Postage Due”, marked to show the total deficiency of postage and fees, and then dispatched to the destination Post Office for delivery to the addressee upon payment of the deficiency.
If the addressee refuses to pay the postage due amount, the Express Mail item is endorsed “Return to Sender—Refused.” The postage deficiency is then collected when the Express Mail item is returned to the original sender. If the original sender chooses to remail the item, a new Express Mail label and new postage and fees must be affixed.
Postage meters, PC Postage products, and Click-N-Ship are collectively identified as “postage evidencing systems.” A postage evidencing system is a device or system of components a customer uses to print evidence that postage required for mailing has been paid.
Information-Based Indicia (IBI) are digitally generated indicia that include a two-dimensional barcode.
Revenue deficiency includes both shortpaid and unpaid postage which occurs when any mailpiece has less postage than required for the applicable price category and associated class, weight, shape, zone, and extra services.
Shortpaid postage is revenue deficiency for which the valid postage on a mailpiece is less than the amount due.
Unpaid postage is a revenue deficiency for which postage is deficient due to the lack of affixed postage or the use of counterfeited, replicated, duplicated, falsified, or otherwise modified postage.
When potential shortpaid or unpaid IBI postage is detected on a mailpiece, the Postal Service will subsequently verify the postage to ensure its validity and determine whether the amount is sufficient. When the IBI postage on a mailpiece is confirmed to be shortpaid or unpaid, the corrective measures outlined below will be taken to recover the applicable revenue deficiency.
In most cases, the Postal Service will electronically notify both the mailer and the postage evidencing system service provider of the revenue deficiency and deliver the mailpiece to the addressee. The electronic notification provides a link to the USPS® Web-based customer payment portal that will enable the mailer to pay or dispute the revenue deficiency. In the event that electronic means are unavailable, other existing processes may be used to recover revenue deficiencies as required.
Where applicable, the Postal Service will provide a resolution process that will be accessible through the USPS Web-based customer payment portal to enable mailers to pay, dispute or appeal revenue deficiencies for IBI postage generated from postage evidencing systems. These processes are outlined below.
The mailer has 14 days from the date that the Postal Service sends the revenue deficiency electronic notification to pay the deficiency. The payment process is as follows:
• During the 14-day resolution period, the mailer must remit the payment for the revenue deficiency by accessing the USPS Web-based customer payment portal or through an otherwise authorized Postal Service payment method as indicated in the electronic notification.
• After 14 days, if a mailer has not paid or taken action to dispute a revenue deficiency, the Postal Service may notify the mailer's postage evidencing system service provider to temporarily suspend the mailer's account.
• When an electronic notification sent to a mailer is undeliverable, the Postal Service may notify the mailer's postage evidencing system service provider to temporarily suspend the mailer's account prior to the end of the 14-day period.
• When a mailer's cumulative revenue deficiency continues to increase during the 14-day period, the Postal Service may notify the mailer's postage evidencing system service provider to temporarily suspend the mailer's account prior to the end of the 14-day period.
• If the mailer feels the revenue deficiency is in error, the mailer may dispute the revenue deficiency during this 14-day period.
The mailer has 14 days from the date the Postal Service sends the revenue deficiency electronic notification to dispute the deficiency. The Postal Service will also send an electronic notification of the approved (upheld) or denied dispute to the mailer. If the Postal Service upholds the mailer's dispute, then the mailer is required to take no further action. The dispute process is as follows:
• During this 14-day period, the mailer must take action to dispute the revenue deficiency by accessing the USPS Web-based customer payment portal or through an otherwise authorized Postal Service dispute method as indicated in the electronic notification.
• The mailer must provide information to substantiate that the postage affixed was valid and sufficient for the postage and service fees associated with the mailpiece.
• After 14 days, if a mailer has not taken action to pay or dispute a revenue deficiency, the Postal Service will notify the mailer's postage evidencing system service provider to temporarily suspend the mailer's account.
• When an electronic notification that is sent to a mailer is undeliverable, the Postal Service may notify the mailer's postage evidencing system service provider to temporarily suspend the mailer's account prior to the end of the 14-day period.
• When a mailer's cumulative revenue deficiency continues to increase during this 14-day period, the Postal Service may notify the mailer's postage evidencing system service provider to temporarily suspend the mailer's account prior to the end of the 14-day period.
When a dispute is denied, the mailer has 7 days from the date that the Postal Service sends the electronic notification of the denial to pay the revenue deficiency or to file an appeal. The mailer may pay the deficiency or appeal the decision by accessing the USPS Web-based customer payment portal or through an otherwise authorized Postal Service payment or appeal method as indicated in the electronic notification. The Postal Service will make a final
• The appeal process requires that the mailer provide additional evidence to substantiate that the postage affixed was valid and sufficient for the postage and service fees associated with the mailpiece.
• After 7 days, if a mailer has not taken action to pay or appeal the revenue deficiency denied in the dispute request, the Postal Service may notify the mailer's postage evidencing system service provider to temporarily suspend the mailer's account.
• When an electronic notification that is sent to a mailer is undeliverable, the Postal Service may notify the mailer's postage evidencing system service provider to temporarily suspend the mailer's account prior to the end of the 7-day period.
• When a mailer's cumulative revenue deficiency continues to increase during this 7-day period, the Postal Service may notify the mailer's postage evidencing system service provider to temporarily suspend the mailer's account prior to the end of the 7-day period.
When the Postal Service denies the appeal request, the mailer will be notified of the decision. The mailer must then pay the revenue deficiency, within 7 days from the date that of the electronic notification of appeal denial, by accessing the USPS Web-based customer payment portal or through an otherwise authorized Postal Service payment method as indicated in the electronic notification. The process for denied appeals is as follows:
• If a mailer has not taken action to pay the revenue deficiency within 7 days, the Postal Service notifies the mailer's postage evidencing system service provider to suspend the mailer's account.
• If the electronic notification to a mailer is undeliverable, the Postal Service may notify the mailer's postage evidencing system service provider to suspend the mailer's account prior to the end of the 7-day period.
• If a mailer's cumulative revenue deficiency continues to increase during this 7-day period, the Postal Service may notify the mailer's postage evidencing system service provider to suspend the mailer's account prior to the end of the 7-day period.
When a mailer fails to meet the standards, submits false or incomplete information, or deposits shortpaid and unpaid mailpieces in the mailstream, the Postal Service may deny a mailer use of a postage evidencing system.
Any mailer who deposits mailpieces with shortpaid or unpaid IBI postage or fees may be subject to some or all of the following proposed actions:
• Collection of the shortpaid or unpaid postage.
• Revocation of the mailer's account privileges.
• Civil and criminal fines and penalties pursuant to existing Federal law.
The Postal Service adopts the following changes to
Administrative practice and procedure, Postal Service.
Accordingly, 39 CFR part 111 is 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.
* * * The primary characteristics of postage meters and PC Postage products are described below.
b. PC Postage products allow mailers to purchase and print postage with Information-Based Indicia (IBI) directly onto mailpieces, shipping labels, and USPS-approved customized labels.
c. Click-N-Ship and USPS-approved commercial providers offer PC Postage products for mailers through subscription service agreements.
The mailer authorized to use a postage evidencing system may be denied use when the mailer:
a. Fails to comply with mailing standards.
b. Submits false or incomplete information.
c. Enters shortpaid or unpaid mailpieces into the mailstream.
If authorization to use a Postage Evidencing System is denied, the mailer must surrender the systems, upon request, to the service provider, USPS, or USPS authorized agent.
Appeals regarding standards in this section or on the basis of noncompliance may be filed as follows:
a. IBI postage mailers must appeal under 4.4.8.
b. All other appeals must be in writing to the manager, Postage Technology Management (see 608.8.1 for address).
The value of the postage on each mailpiece must be equal to or greater than the amount due for the applicable price and any extra service fees, or another amount permitted by mailing standards. * * *
Mailpieces bearing shortpaid postage are those for which the total postage and
For mailpieces with shortpaid or unpaid postage found in the mailstream, manual and automated processes are used to detect and verify the revenue deficiencies.
For confirmed shortpaid or unpaid IBI postage, corrective measures may include:
a. Delivering the mailpiece to the addressee and collecting the revenue deficiency as postage due.
b. Collecting the revenue deficiency from the sender as described in 4.4.4 through 4.4.9.
c. Returning the mailpiece to the sender.
Upon confirmation of a revenue deficiency with IBI postage, the Postal Service electronically notifies both the mailer and the postage evidencing system service provider of the revenue deficiency and delivers the mailpiece to the addressee. The notification provides a link to the Web-based customer payment portal that permits the mailer to pay or dispute the revenue deficiency.
A resolution process is provided through the Web-based customer payment portal.
The mailer must make payment within 14 days from the date the Postal Service sends the electronic notification by accessing the Web-based customer payment portal or choose another method identified in the notification. Any mailer disputes regarding the revenue deficiency must be made during this 14-day period. The postage evidencing system service provider may be notified to temporarily suspend the mailer's account under the following conditions:
a. After 14 days, if a mailer has not paid or disputed a revenue deficiency.
b. When an electronic notification to a mailer is undeliverable.
c. When a mailer's cumulative revenue deficiency increases during the 14-day period due to additional mailpieces being identified as shortpaid or unpaid.
Mailers wishing to dispute the deficiency payment must do so within 14 days by accessing the Web-based customer payment portal or other method identified in the electronic notification and substantiate that the postage affixed was valid and sufficient for the postage and applicable fees. An electronic notification is sent to the mailer of the decision to uphold or deny the dispute. If the Postal Service upholds the dispute, the mailer is not required to take further action.
If a dispute of a revenue deficiency is denied, the mailer has 7 days from the date of the electronic notification to file an appeal, by accessing the Web-based customer payment portal or choosing another method identified in the notification. The mailer must provide additional evidence to substantiate that the postage affixed was valid and sufficient for the postage and fees. If the appeal decision is upheld, the mailer takes no further action. The Postal Service may notify the postage evidencing system service provider to temporarily suspend the mailer's account under the following conditions:
a. After 7 days, if a mailer has not paid or appealed the revenue deficiency.
b. When an electronic notification to a mailer is undeliverable.
c. When a mailer's cumulative revenue deficiency increases during the 7-day period due to additional mailpieces being identified as shortpaid or unpaid.
If the appeal is denied, the mailer must pay the revenue deficiency within 7 days from the date of the electronic notification by accessing the Web-based customer payment portal or choosing another USPS-authorized method identified in the notification. The postage evidencing system service provider may be notified to suspend the mailer's account under the following conditions:
a. After 7 days, if a mailer has not paid the revenue deficiency.
b. When an electronic notification to a mailer is undeliverable.
c. When a mailer's cumulative revenue deficiency increases during the 7-day period due to additional mailpieces being identified as shortpaid or unpaid.
* * * Such individual pieces (or quantities fewer than 10) are delivered to the addressee on payment of the charges marked on the mail. For mailings of 10 or more pieces, the mailer is notified so that the postage charges may be paid before dispatch. For any mailpiece with insufficient postage generated by postage evidencing systems, the USPS may follow the process in 4.4.4 through 4.4.9.
Express Mail Corporate accounts and Federal government accounts that use a “Postage and Fees Paid” indicia are debited for the correct amount of postage and fees at the time of mailing.
When Express Mail items are received at the office of mailing with insufficient postage, the Postal Service will contact the mailer to correct the postage deficiency prior to dispatch of the item. If the mailer cannot be contacted prior to dispatch, the deficiency is handled under 8.1.9.
For Express Mail items with insufficient postage that are identified during processing operations or at the destination Post Office, the Postal Service will:
a. Endorse the item “Postage Due.”
b. Mark the item to show the total deficiency of postage and fees.
c. Deliver the item to the addressee upon payment of the postage due.
d. If payment is refused by addressee, endorse the item “Return to Sender—Refused” and return the item to the sender, upon collection of the postage deficiency.
For Express Mail items with insufficient IBI postage generated by postage evidencing systems, USPS may follow the process in 4.4.4 through 4.4.9.
Express Mail items with insufficient postage are returned to the sender after collecting the postage deficiency when an effort to contact the sender before dispatch fails and when the addressee refuses to pay the postage due. If the item is remailed as Express Mail, the sender must affix a new Express Mail label with new postage and any applicable fees.
Except as provided in 4.4.4 through 4.4.9, 10.2, and 703.1.0, a mailer may appeal a revenue deficiency assessment by sending a written appeal to the postmaster or manager in 10.1.2a through 10.1.2c within 30 days of receipt of the notification. * * *
We will publish an appropriate amendment to 39 CFR Part 111 to reflect these changes.
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action to approve revisions to the Imperial County Air Pollution Control District (ICAPCD), Kern County Air Pollution Control District (KCAPCD), and Ventura County Air Pollution Control District (VCAPCD) portions of the California State Implementation Plan (SIP). These revisions concern volatile organic compound (VOC) emissions from architectural coating operations. We are approving local rules that regulate these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act).
This rule is effective on September 6, 2011 without further notice, unless EPA receives adverse comments by August 5, 2011. If we receive such comments, we will publish a timely withdrawal in the
Submit comments, identified by docket number EPA–R09–OAR–2011–0198, by one of the following methods:
1.
2.
3.
David Grounds, EPA Region IX, (415) 972–3019,
Throughout this document, “we,” “us,” and “our” refer to EPA.
Table 1 lists the rules we are approving with the dates that they were adopted by the local air agencies and submitted by the California Air Resources Board.
On August 25, 2010, EPA determined that the submittals for ICAPCD Rule 424, KCAPCD Rule 410.1A, and VCAPCD Rule 74.2 met the completeness criteria in 40 CFR Part 51, Appendix V, which must be met before formal EPA review.
We approved an earlier version of ICAPCD Rule 424 into the SIP on 01/04/07 (72 FR 267). We approved an earlier version of KCAPCD Rule 410.1 into the SIP on 02/06/98 (63 FR 6073). We approved an earlier version of VCAPCD Rule 74.2 into the SIP on 01/02/04 (69 FR 34).
VOCs help produce ground-level ozone and smog, which harm human health and the environment. Section 110(a) of the CAA requires States to submit regulations that control VOC emissions. ICAPCD Rule 424, KCAPCD Rule 410.1A, and VCAPCD Rule 74.2 all impose more stringent requirements on VOC emissions from architectural coating operations. EPA's technical support documents (TSD) have more information about these rules.
Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for each category of sources covered by a Control Techniques Guidelines (CTG) document as well as each major source in nonattainment areas (see section 182(a)(2) and (b)(2)), and must not relax existing requirements (see sections 110(l) and 193). The ICAPCD (moderate) and VCAPCD (serious) regulate ozone nonattainment areas (see 40 CFR part 81), so these areas must implement RACT. KCAPCD (non-attainment subpart 1) does not need to fulfill RACT. Guidance and policy documents that we use to evaluate enforceability and RACT requirements consistently include the following:
1. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook).
2. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).
3. National VOC Emission Standards for Architectural Coatings (40 CFR part 59 Subpart D, 9/11/98).
4. Control of Volatile Organic Emissions from Existing Stationary Sources, Volume I: Control Methods for Surface Coating Operations (EPA–450/2–76–028, 11/76).
We believe these rules are consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. The TSDs have more information on our evaluations.
The TSDs describe additional rule revisions that we recommend for the next time the local agencies modify the rules.
As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this
Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not interfere with Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) because EPA lacks the discretionary authority to address environmental justice in this rulemaking.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 6, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of today's
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
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Federal Emergency Management Agency, DHS.
Final rule.
Base (1% annual-chance) Flood Elevations (BFEs) and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
The date of issuance of the Flood Insurance Rate Map (FIRM) showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the maps are available for inspection as indicated in the table below.
The final BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646–4064, or (e-mail)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Federal Insurance and Mitigation Administrator has resolved any appeals resulting from this notification.
This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
Accordingly, 44 CFR part 67 is amended as follows:
42 U.S.C. 4001
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS announces that the directed fishery for butterfish in the Exclusive Economic Zone (EEZ) will be closed effective 0001 hours, July 6, 2011. Vessels issued a Federal permit to harvest butterfish may not retain or land more than 250 lb (0.11 mt) of butterfish per trip for the remainder of the year (through December 31, 2011). This action is necessary to prevent the fishery from exceeding its domestic annual harvest (DAH) of 495 mt, and to allow for effective management of this stock.
Effective 0001 hours, July 6, 2011, through 2400 hours, December 31, 2011.
Lindsey Feldman, Fishery Management Specialist, 978–675–2179, Fax 978–281–9135.
Regulations governing the butterfish fishery are found at 50 CFR part 648. The regulations require specifications for maximum sustainable yield, initial optimum yield, allowable biological catch, domestic annual harvest (DAH), domestic annual processing, joint venture processing, and total allowable levels of foreign fishing for the species managed under the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan (FMP). The procedures for setting the annual initial specifications are described in § 648.21. The 2011 specification of DAH for butterfish is 495 mt (76 FR 8306, February 14, 2011).
Section 648.22 requires NMFS to close the directed butterfish fishery in the EEZ when 80 percent of the total annual DAH has been harvested. If 80 percent of the butterfish DAH is projected to be landed prior to October 1, a 250-lb (0.11-mt) incidental butterfish possession limit is put in effect for the remainder of the year, and if 80 percent of the butterfish DAH is projected to be landed on or after October 1, a 600-lb (0.27-mt) incidental butterfish possession limit is put in effect for the remainder of the year. NMFS is further required to notify, in advance of the closure, the Executive Directors of the Mid-Atlantic, New England, and South Atlantic Fishery Management Councils; mail notification of the closure to all holders of butterfish permits at least 72 hr before the effective date of the closure; provide adequate notice of the closure to recreational participants in the fishery; and publish notification of the closure in the
The Administrator, Northeast Region, NMFS, based on dealer reports and other available information, has determined that 80 percent of the DAH for butterfish in 2011 fishing year will be harvested. Therefore, effective 0001 hours, July 6, 2011, the directed fishery for the butterfish fishery is closed and vessels issued Federal permits for butterfish may not retain or land more than 250 lb (0.11 mt) of butterfish per trip or calendar day. The directed fishery will reopen effective 0001 hours, January 1, 2012, when the 2012 DAH becomes available.
This action is required by 50 CFR part 648, and is exempt from review under Executive Order 12866.
The Assistant Administrator for Fisheries, NOAA (AA), finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for
16 U.S.C. 1801
Department of the Treasury.
Notice of availability; request for comments.
The Department of the Treasury announces the availability of its Preliminary Plan for Retrospective Analysis of Existing Rules and invites interested members of the public to submit comments on the plan. Issued pursuant to Executive Order 13563, “Improving Regulation and Regulatory Review,” Treasury developed its preliminary plan to facilitate the review of existing regulations through the use of retrospective review.
Interested persons are invited to submit comments on all aspects of the preliminary plan. You may submit comments, identified by docket number TREAS–DO–2011–0003 through the Federal eRulemaking Portal:
Office of the Assistant General Counsel for General Law, Ethics, and Regulation at
On January 18, 2011, the President issued Executive Order 13563, “Improving Regulation and Regulatory Review,” to ensure that federal regulations seek less burdensome means to achieve policy goals and that agencies give careful consideration to the benefits and costs of those regulations. The Executive Order requires each agency to develop a preliminary plan to periodically review its existing significant regulations to determine whether any regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving its regulatory objectives.
On March 30, 2011 (76 FR 17572), the Department published a notice and request for comment in the
Privacy Office, DHS.
Notice of proposed rulemaking.
The Department of Homeland Security is giving concurrent notice of a newly established system of records pursuant to the Privacy Act of 1974 for the “Department of Homeland Security/ALL—030 Use of the Terrorist Screening Database System of Records” and this proposed rulemaking. In this proposed rulemaking, the Department proposes to exempt portions of the system of records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.
Comments must be received on or before August 5, 2011.
You may submit comments, identified by docket number DHS–2011–0060, by one of the following methods:
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For general questions and privacy issues please contact: Mary Ellen Callahan (703–235–0780), Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the Department of Homeland Security (DHS) proposes to establish a new system of records titled, “DHS/ALL—030 Use of the Terrorist Screening Database (TSDB) System of Records.” DHS is maintaining a mirror copy of the Department of Justice (DOJ)/Federal Bureau of Investigation (FBI)—019 Terrorist Screening Records System of Records (August 22, 2007, 72 FR 47073) in order to automate and simplify the current method for transmitting the TSDB to DHS and its components.
Homeland Security Presidential Directive 6 (HSPD–6), issued in September 2003, called for the establishment and use of a single consolidated watchlist to improve the identification, screening, and tracking of known or suspected terrorists and their supporters. The FBI/TSC maintains and distributes the TSDB as the U.S. government's consolidated terrorist watchlist. DHS and the FBI/TSC, working together, have developed the DHS Watchlist Service (WLS) in order to automate and simplify the current method for transmitting TSDB records from the FBI/TSC to DHS and its components.
The WLS will allow the FBI/TSC and DHS to move away from a manual and cumbersome process of data transmission and management to an automated and centralized process. The WLS will replace multiple data feeds from the FBI/TSC to DHS and its components, as documented by information sharing agreements, with a single feed from the FBI/TSC to DHS and its components. The WLS is a system to system secure connection with no direct user interface.
DHS and its components are authorized to access TSDB records via the WLS pursuant to the terms of information sharing agreements with FBI/TSC. DHS is publishing this SORN and has published privacy impact assessments to provide additional transparency into how DHS has implemented WLS. DHS will review and update this SORN no less then biennially as new DHS systems come online with the WLS and are approved consistent with the terms of agreements with FBI/TSC. There are five DHS systems that currently receive TSDB data directly from the FBI/TSC and will use the WLS. These systems have existing SORNs that cover the use of the TSDB:
(1) Transportation Security Administration (TSA), Office of Transportation Threat Assessment and Credentialing: DHS/TSA—002 Transportation Security Threat Assessment System (May 19, 2010, 75 FR 28046);
(2) TSA, Secure Flight Program: DHS/TSA—019 Secure Flight Records System (November 9, 2007, 72 FR 63711);
(3) U.S. Customs and Border Protection (CBP), Passenger Systems Program Office for inclusion in TECS: DHS/CBP—011 TECS System (December 19, 2008 73 FR 77778);
(4) U.S. Visitor and Immigration Status Indicator Technology (US-VISIT) Program for inclusion into the DHS Enterprise Biometrics Service (IDENT): DHS/USVISIT—0012 DHS Automated Biometric Identification System (June 5, 2007, 72 FR 31080); and
In addition, two DHS components will receive TSDB data via the WLS in the form of a computer readable extract. The components' use of the TSDB data is covered by existing SORNs:
(1) Office of Intelligence and Analysis (I&A): DHS/IA–001 Enterprise Records System, (May 15, 2008 73 FR 28128), and
(2) U.S. Immigration and Customs Enforcement (ICE): DHS/ICE–009 External Investigations, (January 5, 2010 75 FR 404).
Information stored in the WLS will be shared back with the FBI/TSC in order to ensure that DHS and the FBI/TSC can reconcile any differences in the database and ensure DHS has the most up-to-date and accurate version of TSDB records. All other sharing will be conducted pursuant to the programmatic system of records notices and privacy impact assessments discussed in this SORN.
DHS is planning future enhancements to the WLS that will provide for a central mechanism to receive information from DHS components when they encounter a potential match to the TSDB and send this information to the FBI/TSC. DHS will update this SORN to reflect such enhancements to the WLS, as part of its biennial reviews of this SORN once that capability is implemented.
DHS is publishing this SORN to cover the Department's use of the TSDB in order to provider greater transparency to the process.
Concurrent with the publication of this SORN, DHS is issuing a Notice of Proposed Rulemaking to exempt this system from specific sections of the Privacy Act.
The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which the U.S. Government collects, maintains, uses, and disseminates personally identifiable information. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. As a matter of policy, DHS extends administrative Privacy Act protections to all individuals where systems of records maintain information on U.S. citizens, lawful permanent residents, and visitors.
The Privacy Act allows government agencies to exempt certain records from the access and amendment provisions. If an agency claims an exemption, however, it must issue a Notice of Proposed Rulemaking to make clear to the public the reasons why a particular exemption is claimed.
DHS is claiming exemptions from certain requirements of the Privacy Act for DHS/ALL—030 Use of the Terrorist Screening Database System of Records. Some information in DHS/ALL—030 Use of the Terrorist Screening Database System of Records relates to official DHS national security and law enforcement activities. These exemptions are needed to protect information relating to DHS activities from disclosure to subjects or others related to these activities. Specifically, the exemptions are required to preclude subjects of these activities from frustrating these processes. Disclosure of information to the subject of the inquiry could also permit the subject to avoid detection or apprehension. In addition, as a recipient of a mirror copy of the
A notice of system of records for DHS/ALL—030 Use of Terrorist Screening Database System of Records is also published in this issue of the
Freedom of information; Privacy.
For the reasons stated in the preamble, DHS proposes to amend Chapter I of Title 6, Code of Federal Regulations, as follows:
1. The authority citation for Part 5 continues to read as follows:
6 U.S.C. 101 et seq.; Pub. L. 107–296, 116 Stat. 2135; 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552. Subpart B also issued under 5 U.S.C. 552a.
2. At the end of Appendix C to Part 5, add paragraph 55 to read as follows:
55. The DHS/ALL—030 Use of Terrorist Screening Database System of Records consists of electronic and paper records and will be used by DHS and its components. The DHS/ALL—030 Use of Terrorist Screening Database System of Records is a repository of information held by DHS in connection with its several and varied missions and functions, including, but not limited to the enforcement of civil and criminal laws; investigations, inquiries, and proceedings there under; national security and intelligence activities; and protection of the President of the U.S. or other individuals pursuant to Section 3056 and 3056A of Title 18. The DHS/ALL—030 Use of Terrorist Screening Database System of Records contains information that is collected by, on behalf of, in support of, or in cooperation with DHS and its components and may contain personally identifiable information collected by other federal, state, local, tribal, foreign, or international government agencies. The Secretary of Homeland Security has exempted this system from the following provisions of the Privacy Act, subject to the limitations set forth in 5 U.S.C. 552a(c)(3) and (c)(4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (e)(12); (f); (g)(1); and (h) pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland Security has exempted this system from the following provisions of the Privacy Act, subject to the limitation set forth in 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f) pursuant to 5 U.S.C. 552a(k)(1) and (k)(2). Exemptions from these particular subsections are justified, on a case-by-case basis to be determined at the time a request is made, for the following reasons:
(a) From subsection (c)(3) and (4) (Accounting for Disclosures) because release of the accounting of disclosures could alert the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DHS as well as the recipient agency. Disclosure of the accounting would therefore present a serious impediment to law enforcement efforts and/or efforts to preserve national security. Disclosure of the accounting would also permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension, which would undermine the entire investigative process.
(b) From subsection (d) (Access to Records) because access to the records contained in this system of records could inform the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DHS or another agency. Access to the records could permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension. Amendment of the records could interfere with ongoing investigations and law enforcement activities and would impose an unreasonable administrative burden by requiring investigations to be continually reinvestigated. In addition, permitting access and amendment to such information could disclose security-sensitive information that could be detrimental to homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of Information) because in the course of investigations into potential violations of federal law, the accuracy of information obtained or introduced occasionally may be unclear, or the information may not be strictly relevant or necessary to a specific investigation. In the interests of effective law enforcement, it is appropriate to retain all information that may aid in establishing patterns of unlawful activity.
(d) From subsection (e)(2) (Collection of Information from Individuals) because requiring that information be collected from the subject of an investigation would alert the subject to the nature or existence of the investigation, thereby interfering with that investigation and related law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing such detailed information could impede law enforcement by compromising the existence of a confidential investigation or reveal the identity of witnesses or confidential informants.
(f) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency Requirements) and (f) (Agency Rules), because portions of this system are exempt from the individual access provisions of subsection (d) for the reasons noted above, and therefore DHS is not required to establish requirements, rules, or procedures with respect to such access. Providing notice to individuals with respect to existence of records pertaining to them in the system of records or otherwise setting up procedures pursuant to which individuals may access and view records pertaining to themselves in the system would undermine investigative efforts and reveal the identities of witnesses, and potential witnesses, and confidential informants.
(g) From subsection (e)(5) (Collection of Information) because with the collection of information for law enforcement purposes, it is impossible to determine in advance what information is accurate, relevant, timely, and complete. Compliance with subsection (e)(5) would preclude DHS agents from using their investigative training and exercise of good judgment to both conduct and report on investigations.
(h) From subsection (e)(8) (Notice on Individuals) because compliance would interfere with DHS's ability to obtain, serve, and issue subpoenas, warrants, and other law enforcement mechanisms that may be filed under seal and could result in disclosure of investigative techniques, procedures, and evidence.
(i) From subsection (e)(12) (Computer Matching) if the agency is a recipient agency or a source agency in a matching program with a non-Federal agency, with respect to any establishment or revision of a matching program, at least 30 days prior to conducting such program, publish in the Federal Register notice of such establishment or revision.
(j) From subsection (g)(1) (Civil Remedies) to the extent that the system is exempt from other specific subsections of the Privacy Act.
(k) From subsection (h) (Legal Guardians) the parent of any minor, or the legal guardian of any individual who has been declared to be incompetent due to physical or mental incapacity or age by a court of competent jurisdiction, may act on behalf of the individual.
Drug Enforcement Administration (DEA), Department of Justice.
Notice of proposed rulemaking.
DEA proposes adjusting the fee schedule for DEA registration and reregistration fees necessary to recover the costs of its Diversion Control Program relating to the registration and control of the manufacture, distribution, dispensing, importation and exportation of controlled substances and List I chemicals as mandated by the Controlled Substances Act.
Electronic comments must be submitted and written comments must be postmarked on or before September 6, 2011. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after midnight Eastern Time on the last day of the comment period.
To ensure proper handling of comments, please reference “Docket No. DEA–346” on all electronic and written correspondence. DEA encourages all comments be submitted electronically through
Imelda L. Paredes, Office of Diversion Control, Drug Enforcement Administration, 8701 Morrissette Drive, Springfield, Virginia 22152; Telephone (202) 307–7165.
If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online or made available in the public docket, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also place all the personal identifying information you do not want posted online or made available in the public docket in the first paragraph of your comment and identify what information you want redacted.
If you want to submit confidential business information as part of your comment, but do not want it to be posted online or made available in the public docket, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted online or made available in the public docket.
Personal identifying information and confidential business information identified and located as set forth above will be redacted, and the comment, in redacted form, will be posted online and placed in the DEA's public docket file. Please note that the Freedom of Information Act applies to all comments received. If you wish to inspect the agency's public docket file in person by appointment, please see the “For Further Information” paragraph.
The Drug Enforcement Administration (DEA) is a component of the Department of Justice and is the primary agency responsible for coordinating the drug law enforcement activities of the United States. DEA also assists in the implementation of the President's National Drug Control Strategy. DEA's mission is to enforce U.S. controlled substances laws and regulations and bring to the criminal and civil justice system those organizations and individuals involved in the growing, manufacturing or distribution of controlled substances and listed chemicals appearing in or destined for illicit traffic in the U.S., including organizations that use drug trafficking proceeds to finance terrorism. The diversion control program (DCP) is a strategic component of the DEA's law enforcement mission. The DCP carries out the mandates of the Controlled Substances and Chemical Diversion and Trafficking Acts. It is primarily the DCP within DEA that implements and enforces Titles II and III of the Comprehensive Drug Abuse Prevention and Control Act of 1970, often referred to as the Controlled Substances Act (CSA) and the Controlled Substances Import and Export Act (CSIEA) (21 U.S.C. 801–971), as amended (hereinafter, “CSA”).
Pursuant to the CSA, controlled substances are classified in one of five schedules based upon their potential for abuse, their currently accepted medical use, and the degree of dependence the substance may cause. 21 U.S.C. 812. Likewise, under the CSA, listed chemicals are separately classified based on their importance to the manufacture of controlled substances (List I chemicals) or their use in manufacturing controlled substances (List II chemicals). 21 U.S.C. 802(33)–(35). The CSA mandates that DEA register persons or entities who manufacture, distribute, dispense, import, export, or conduct research or chemical analysis with controlled substances and listed chemicals. These registrants are permitted to handle controlled substances and listed chemicals as authorized by their registration and are required to comply with the applicable requirements associated with their registration. 21 U.S.C. 822. The identification and registration of all individuals and entities authorized to handle controlled substances and listed chemicals establishes a closed system over which DEA is charged to inspect, investigate, and enforce applicable federal law.
Under the CSA, DEA is authorized to charge reasonable fees relating to the registration and control of the manufacture, distribution, dispensing, import, and export of controlled substances and listed chemicals. 21 U.S.C. 821 and 958(f). DEA must set fees at a level that ensures the recovery of the full costs of operating the various aspects of its DCP. 21 U.S.C. 886a. Each year, DEA is required by statute to transfer the first $15 million of fee revenues into the general fund of the Treasury and the remainder of the fee revenues is deposited into a separate fund of the Treasury called the Diversion Control Fee Account (DCFA). 21 U.S.C. 886a(1). On at least a quarterly basis, the Secretary of the Treasury is required to reimburse DEA an amount from the DCFA “in accordance with estimates made in the budget request of the Attorney General for those fiscal years” for the operation of the DCP.
In 1970, Congress consolidated more than 50 laws related to the control of legitimate channels of narcotics and dangerous drugs into one statute—the CSA. The statute was “designed to improve the administration and regulation of the manufacturing, distribution, and dispensing of controlled substances by providing for a ‘closed’ system of drug distribution for legitimate handlers of such drugs” with criminal penalties for transactions outside the legitimate chain.
In 1973, the BNDD was abolished and all BNDD functions were transferred to DEA, including the authority to charge registrants reasonable fees.
In the 1993 appropriations for DEA, Congress determined that the DCP would be fully funded by fees and no longer by appropriations.
Shortly after the 1993 Appropriations Act, DEA published a proposed rule proposing to increase the existing fee schedule to comply with Congress' direction to set fees at a level that ensures the recovery of the full costs of operating the DCP.
In December of 1993, the Domestic Chemical Diversion Control Act of 1993 was passed by Congress to amend the CSA to require that manufacturers, distributors, importers, and exporters of List I chemicals obtain a registration from DEA. Coincident with the new registration requirements, DEA was also authorized to charge “reasonable fees relating * * * to the registration and control of regulated persons and regulated transactions.”
The fee was finalized in 1996 with a request for further comment.
In February 2003, DEA published a proposed rule to raise registration and reregistration fees in an effort to comply with the statutory requirement to charge fees at a level that ensures the recovery of the full costs of operating the various aspects of the DCP.
In 2004, Congress provided additional guidance in the relevant 2005 Appropriations Act.
In 2005, based upon the internal organizational changes and the 2005 Appropriations Act, DEA proposed an adjusted fee schedule to appropriately reflect all costs associated with the DCP.
The OIG completed a
The scope of the DCP has evolved since its inception. In late 1971, the BNDD's Compliance Program was created to provide a specialized work force that could focus exclusively on controlled substance diversion and take full advantage of the controls and penalties established by the CSA. The program was placed under the BNDD's Office of Enforcement and staffed by compliance investigators, later called diversion investigators. In 1973, the BNDD was abolished and all BNDD functions were transferred to DEA.
From 1971 to 1983, DEA's legal authority with regard to diversion and abuse of drugs remained relatively unchanged. The CSA originally provided DEA with substantially more authority to regulate controlled substance manufacturers and distributors than retail dispensers such as medical professionals and retail pharmacies. Congress, acknowledging that registration is the cornerstone of the closed system of distribution, required DEA to find that manufacturer and distributor registrations are consistent with a specifically defined public interest and with U.S. international obligations as a prerequisite to granting such registrations.
By 1977, all 197 DEA compliance investigators (now diversion investigators) were fully occupied monitoring approximately 3,300 controlled substance manufacturers, distributors, importers, exporters, and narcotic treatment programs, where large stocks of controlled substances and the potential for large-scale diversion were present.
Shortly thereafter, many amendments to the CSA between 1984 and 1990 strengthened and expanded DEA's statutory authority. The Dangerous Drug Diversion Control Act of 1984
As discussed above, the Domestic Chemical Diversion Control Act of 1993 amended the CSA to require manufacturers, distributors, importers, and exporters of List I chemicals obtain a registration from the DEA, thus greatly expanding the authority and activities of the DCP.
On October 17, 2000, Congress passed the Drug Addiction Treatment Act, permitting qualified physicians to treat narcotic dependence with certain schedule III through V narcotic controlled substances.
Renamed from the Office of Compliance and Regulatory Affairs and then the Diversion Control Program, today, the DEA Office of Diversion Control administers the DCP.
The DCP is executed by maintaining the closed system of distribution, regulating and controlling nearly 1.4 million DEA registrants,
To ensure accountability within the closed system of distribution, the DCP administers, maintains, controls, and oversees the DEA registration system.
In addition, the DCP exercises statutory authority to determine the appropriate procedures necessary to the ordering and distribution of schedule I and II controlled substances.
One of the primary functions of the DCP is to ensure that registrants are in compliance with the safeguards inherent in the CSA. This proactive approach is designed to identify and prevent the large scale diversion of controlled substances and listed chemicals into the illicit market.
Registrant compliance is determined primarily through the conduct of pre-registration, scheduled, and complaint investigations. DCP regulatory activities have an inherent deterrent function, and they are designed to ensure that those businesses and individuals registered with DEA to handle controlled substances or listed chemicals have sufficient measures in place to prevent the diversion of these substances. These investigations also help registrants understand and comply with the CSA
Manufacturers, distributors, reverse distributors, importers, exporters, and narcotic treatment programs pose the greatest potential for large-scale diversion. Accordingly, scheduled investigations of these non-practitioner registrants are a major priority of the DCP. These investigations serve as a deterrent to diversion through the continuous evaluation of registrants' recordkeeping procedures, security, and overall adherence to the CSA. Emphasis during these investigations is given to verifying inventory, records and recordkeeping procedures, a review of customers and their ordering patterns, and security protocols.
The DCP is constantly evaluating diversion trends, patterns, routes, and techniques in order to appropriately focus its regulatory, civil and criminal enforcement activities. This is accomplished in many ways, including collecting and analyzing targeting and analysis data, conducting diversion threat assessments, working with state and local medical and pharmacy boards and state and local law enforcement agencies, and developing intelligence.
The DCP conducts criminal enforcement activities primarily through Tactical Diversion Squads (TDSs). TDSs are comprised of many DEA specialties, including DEA Special Agents and Diversion Investigators, and state and local counterparts such as state law enforcement and regulatory personnel. These groups combine varied resources and expertise in order to investigate, disrupt, and dismantle those individuals or organizations involved in diversion schemes (
In fulfillment of its function to control the import and export of controlled substances and listed chemicals, the DCP issues import and export registrations and permits, and monitors declared imports, exports, and transshipments of these substances. The DCP must ensure that all imports and exports of controlled substances and listed chemicals meet the requirements of the CSA. As such, the DCP maintains and monitors many electronic reporting systems, such as the Chemical Handlers Enforcement Management System (CHEMS), which provides information on entities manufacturing, distributing, and exporting and importing regulated chemicals, and encapsulating and tableting machines.
The DCP's authority over controlled substances and listed chemicals requires its support of domestic and foreign investigations of these substances. As such, the DCP serves as the Competent National Authority (CNA) for the United States vis-à-vis precursor chemicals and international treaties. The DCP works with the international community to identify and seize international shipments of precursor and essential chemicals destined for clandestine laboratories for use in manufacturing controlled substances. The DCP also works on a bilateral basis to urge international partners to take effective action, in cooperation with chemical companies, to prevent the diversion of precursor chemicals from legitimate trade. In addition to its other oversight and regulatory responsibilities in this area,
Not only does the DCP exercise authority and control over the registrant population, the DCP exercises authority over the classification of substances.
Another crucial function of the DCP is the annual establishment of quotas for all schedule I and II controlled substances and the List I chemicals pseudoephedrine, ephedrine, and phenylpropanolimine.
In the execution of its regulatory functions, the DCP reviews proposed legislation pertinent to the availability of controlled substances and listed chemicals for legitimate uses in the United States and controls to prevent the diversion of these substances and chemicals. The DCP constantly reviews its own regulations and develops and implements regulations designed to enhance DEA's diversion control efforts and to implement newly enacted legislation.
All DCP regulatory activities require education and outreach to ensure appreciation of and compliance with the CSA and applicable policies and regulations. Providing such guidance is also necessary to reduce the likelihood of diversion from legitimate commerce
Since implementation of the last fee rule in 2006, Congress has made several changes to the CSA that impact how the DCP operates to control controlled substances and listed chemicals and register those individuals who wish to handle these substances. Additionally, the nature of the diversion control problem has increased in size and complexity. These statutory changes, in addition to the changing scope of diversion, required the DCP to implement program and organizational changes. These changes impact DEA beyond its DCP and thus are not necessarily funded through the DCFA.
Congress has enacted a series of legislative initiatives to combat the rise in methamphetamine abuse. Methamphetamine is a highly addictive drug with potent central nervous system stimulant properties. Control as a schedule II substance and the removal of methamphetamine injectable formulations from the United States market, combined with a better appreciation for its high abuse potential, led to a drastic reduction in the abuse of this drug in 1971. However, a resurgence of methamphetamine abuse occurred in the 1980s and it is currently considered a major drug of abuse. The widespread availability of methamphetamine today is largely fueled by illicit production in large and small clandestine laboratories throughout the United States and illegal production and importation from Mexico.
Methamphetamine is abused for its stimulant and euphoric effects. High-dose chronic abuse has been associated with irritability, tremors, convulsions, anxiety, paranoia, and neurotoxic effects that cause damage to neurons and blood vessels. Aggressive and violent behavior by users, often directed at spouses and children, pose a significant risk to those individuals in contact with methamphetamine addicts. Death has resulted from extreme anorexia, hyperthermia, convulsions, and cardiovascular collapse (including stroke and heart attacks).
The methods used to manufacture methamphetamine are directly impacted by the availability of precursor chemicals and ease of synthesis. Currently, methamphetamine is primarily produced domestically by utilizing diverted pseudoephedrine combination products that are sold at retail and, to a lesser extent, ephedrine products. The manufacture of this drug poses a significant threat to the public health and safety due to the toxic waste and the risk of fire and explosion associated with the clandestine laboratories that manufacture the drug, and the fact that many individuals, including children, are at risk of exposure to toxic chemicals and waste generated during the manufacturing process.
A Rand Corporation study reported that the 2005 cost to the U.S. for overall methamphetamine-related activities including crime and criminal justice costs, health care costs, endangered children put in foster care, the loss of productivity, drug treatment, and injuries and death at methamphetamine laboratories was estimated at $23.4 billion.
In 2010, there were in excess of 10,000 clandestine laboratory incidents in the United States related to the manufacture of methamphetamine.
The Combat Methamphetamine Epidemic Act of 2005 (CMEA) was enacted on March 9, 2006. 21 U.S.C. 971. It requires retailers of non-prescription products containing pseudoephedrine, ephedrine and phenylpropanolamine to place these products behind the counter or in a locked cabinet. Consumers must show identification and sign a logbook for each purchase. An interim final rule was published to implement section 716 of the Act and require additional reporting for import, export, and international transactions involving all List I and List II chemicals.
On October 15, 2008, Congress amended the CSA with enactment of the Ryan Haight Online Pharmacy Consumer Protection Act of 2008. DEA amended its regulations accordingly by interim final rule to prevent the illegal distribution and dispensing of controlled substances by means of the Internet.
Lastly, on October 12, 2010, Congress amended the CSA with the enactment of the Secure and Responsible Drug Disposal Act of 2010 (Pub. L. 111–273). Pursuant to this amendment, DEA must promulgate new regulations that allow ultimate users and long-term care facilities to dispose of controlled substances through a variety of methods of collection and disposal. DEA is in the process of drafting these regulations.
Coincident with the above statutory changes, the increased misuse of controlled substances and listed chemicals highlights the urgency of and need for diversion control. The National Survey on Drug Use and Health (NSDUH) (formerly the National Household Survey on Drug Abuse) is an annual survey of the civilian, non-institutionalized, population of the United States aged 12 or older. The survey is conducted by the Department of Health and Human Services Office of Applied Studies, Substance Abuse and Mental Health Services Administration. Findings from the 2009 NSDUH
Abuse of prescription controlled substances among teenagers is second only to abuse of illegal marijuana. The 2010 “Monitoring the Future” survey of teenagers found that 8 percent of high school seniors reported non-medical use of Vicodin, and 5.1 percent reported non-medical use of OxyContin, both scheduled controlled substances (painkillers).
The consequences of prescription drug abuse are seen in the data collected by the Substance Abuse and Mental Health Services Administration (SAMHSA) on emergency room visits. According to their latest data, “Drug Abuse Warning Network (DAWN), 2009: National Estimates of Drug-Related Emergency Department Visits,” SAMHSA estimates that of the 4.6 million emergency department visits in 2009 associated with drug use, about 1.2 million visits involved the non-medical use of pharmaceuticals.
According to the Centers for Disease Control, overdose deaths caused by prescription drugs is the second leading cause of accidental death in the United States among young people.
As discussed above, the OIG reviewed DEA's efforts to control the diversion of controlled pharmaceuticals and in 2006 recommended that DEA incorporate law enforcement support and law enforcement authority to assist the DCP in performing criminal investigations that inherently require law enforcement authority,
DEA made other organizational changes to incorporate in the DCP those units responsible for diversion control operations. To ensure the proper utilization of DCFA resources, DEA created a Diversion Value and Analysis Unit in the Diversion Planning and Resources Section to identify and prevent duplication of effort, conduct cost benefit analyses, and develop, oversee, and review acquisitions.
In 2009, the DCP intensified its regulatory activities to help the registrant population better comply with the CSA and to identify those registrants who violated the CSA and implementing regulations. The modifications included increasing investigation cycles as well as depth of review. Scheduled investigations were increased from every five years to every three years for controlled substance manufacturers, bulk manufacturers, distributors, reverse distributors, importers, exporters, bulk importers, and Narcotic Treatment Programs; scheduled investigations for chemical manufacturers, bulk manufacturers, distributors, importers, exporters, and bulk importers were increased from two
In an effort to enhance the DCP's enforcement capabilities, to reduce costs, to streamline the regulatory compliance process for registrants, and to keep the public informed, the DCP made several improvements to its information technology capabilities. Underperforming contracts were terminated and a new unit was created within the DCP to manage all information technology projects exclusively for the DCP. This resulted in significant cost reductions and improved program efficiency and responsiveness to both registrants and the public.
The new unit successfully made cost-saving improvements to the technology infrastructure of the Controlled Substances Ordering System (CSOS) and streamlined the application process for registrants by implementing an online system for new applications and renewal applications for registrations. The DCP is also enhancing the communications system to allow interconnectivity between many different systems. The DCP is continually working to improve the quality and accessibility of its reporting systems, such as the Automated Reports and Consolidated Orders System (ARCOS) and Drug Theft/Loss (DTL). These two programs generate timely, accurate, and actionable data that improve the DCP's enforcement and control efforts as well as providing for a more efficient means by which registrants may submit such reports.
DEA's Interim Final Rule on Electronic Prescriptions for Controlled Substances (EPCS), effective June 1, 2010, will enhance diversion control as a means to protect against fraudulent prescriptions and will streamline the recordkeeping process for pharmacies (75 FR 16236, March 31, 2010). This rule provides practitioners with the option to electronically sign and transmit prescriptions for controlled substances. Likewise, with this new rule, pharmacies are permitted to receive and archive electronic prescriptions. The DCP is working to develop and implement EPCS.
As part of the requirements of the Combat Methamphetamine Epidemic Act of 2005 (CMEA), regulated sellers of scheduled listed chemical products are required to self-certify annually. Regulated sellers can self-certify and find training manuals on the Diversion Control Program Web site.
DEA last adjusted the fee schedule in August 2006, however, collections did not begin until FY 2007.
The Office of Diversion Control at DEA is focused on the supply side of this serious threat to the public health and safety. At the end of FY 2008, a reorganization within DEA expanded the use of Tactical Diversion Squads across the country to allow Diversion Investigators to focus their expertise on regulatory oversight and the deterrent effect of increased regulatory investigations. Tactical Diversion Squads incorporate the criminal investigative skills and statutory authority of Special Agents and state and local Task Force Officers to bring to the criminal justice system those organizations and individuals who violate the CSA by diverting controlled substances and listed chemicals into the illicit market. Diversion Investigators are a key asset to Tactical Diversion Squads because they lend their keen knowledge of the closed system of distribution to the Tactical Diversion Squads. Diversion Investigators' familiarity and detailed understanding of the closed system of distribution require, however, that they continue to lead the regulatory oversight of DEA registrants. DCP costs increase with an expanded number and use of Tactical Diversion Squads.
Due to the alarming rise in prescription drug abuse, as well as an increase in the production and use of chemicals that are harmful if abused, the DCP has increased scheduled investigations of registrants and drug and chemical scheduling initiatives, as well as other modifications in its control efforts. The DCP continues to draw technical expertise from Diversion Investigators, and the DCP has incorporated greater numbers of Special Agents, Chemists, Information Technology Specialists, Attorneys, Intelligence Research Specialists, and State and Local personnel. It is essential to utilize a diverse skilled workforce and constantly review and modify all aspects of the DCP to successfully execute the National Drug Control Strategy and effectively prevent, detect, and eliminate the diversion of controlled substances and listed chemicals into the illicit market while ensuring a sufficient supply of these substances for legitimate medical, scientific, research, and industrial purposes.
DEA has been and will continue to be fiscally responsible and will remain vigilant towards identifying methods to improve efficiencies or identifying other cost saving measures. As discussed above, however, a new fee calculation is needed. Without an adjustment in the annual registration fees, DEA will be unable to continue current operations and will be in violation of the statutory mandate that fees charged “shall be set at a level that ensures the recovery of the full costs of operating the various aspects of [the diversion control program].” 21 U.S.C. 886a(1)(C). For example, collections under the current fee schedule will require the DCP to significantly cut existing and planned DCP operations vital to its mission. DEA relies on the DCP to maintain the integrity of the closed system for controlled substances and listed chemicals, particularly at this time of dramatic increases in abuse and diversion.
DEA must determine the proper scope of the DCP, the projected costs for the program, a fee calculation methodology, and a new fee schedule that recovers the costs of the DCP and sets reasonable fees for the registration and control of manufacturers, distributors, importers, exporters and dispensers of controlled substances and listed chemicals.
DEA is delegated the task of determining the details of fulfilling the statutory requirements of ensuring the recovery of the full costs of operating the diversion control program (DCP) as described above, while charging registrants participating in the closed system of distribution reasonable fees relating to the registration and control “of the manufacture, distribution, dispensing” and “of importers and exporters” of controlled substances and listed chemicals. For the DCP to have funds to function, DEA must determine, in advance of actual expenditures, a reasonable fee to be charged. As a result, historical data and projections must be used rather than actual, current costs to project the annual costs of the DCP. Additionally, a reasonable fee must be calculated that will fully recover the costs of the DCP based on the variability over time of the number of registrants in the different categories of registration,
Current options to calculate fees are also limited by the feasibility and practicability of tracking and allocating detailed costs, although the agency continues to improve its capabilities on this front. DEA has made progress through reorganization and there is recognition throughout the agency of the need to separate DCP costs from other agency costs. DEA is in the process of testing a system where personnel would account for their daily hours according to whether their time is spent on DCP or other DEA mission activities. Part of the difficulty stems from the fact that the mission of DEA involves investigations and actions that may involve poly-drug organizations or that may start out as one type of investigation and result in another, based upon the way the facts develop.
To date, tracking costs within the DCP according to registrant categories or within a given registrant category has not been feasible or cost-efficient. Such detailed cost attribution may or may not be feasible in the future. However, Congress recognized that the costs of the registration and control of controlled substances and listed chemicals are not properly attributed on a per registrant basis when it differentiated among the categories of registrants for purposes of calculating a reasonable fee, e.g., manufacturers, distributors, importers, exporters, and dispensers.
As discussed in more detail below, DEA considered several methodologies to calculate the new fee. One methodology considered was a flat fee that takes projected DCP costs and divides it among all registrants regardless of their business activity/registrant group. On its face, this would not result in a “reasonable” fee for a large portion of registrants given the disparity in economic size among registrants and the different levels of control needed among the registrant categories. Registrants range from multi-billion dollar manufacturers in possession of large quantities of controlled substances or listed chemicals to canine handlers in possession of small amounts of controlled substances. Thus, the inspection, investigation and oversight costs associated with a manufacturer are much greater than for a canine handler. A flat fee methodology has been rejected since the inception of a fee.
DEA considered another fee calculation methodology called the Past-Based Option. This method is based on the principle that the cost of the DCP should be shared equally among all paying registrants, except for the cost of scheduled or regularly planned investigations and the preregistration investigation costs to determine eligibility of registrant applicants, as these additional costs vary by registrant category. Rather, these historical costs should be allocated to the registrant group receiving the scheduled and preregistration investigations. Since the direct labor costs of scheduled and preregistration investigations are historically around three percent of total DCP costs, this methodology results in concerns similar to the flat fee as the base amount is nearly as great as the flat fee amount.
DEA considered another methodology called the Future-Based Option, which takes the same approach described in the preceding paragraph, but the costs of scheduled investigations are derived from planned work, not historical work hours. This methodology results in large differences in fees among registrant groups and has been rejected by DEA as not a “reasonable” charge.
Since the inception of the fee, the agency has selected a weighted-ratio method to determine a reasonable fee for each category of registrants. Under this method, registrants are assigned to a business activity or category (
DEA continues to review possible methodologies as technology continues to afford increased tracking and
Thus, the current fees, some of which are paid annually and some of which are paid every three years, range from $184 for ratio 1 to $2,293 for ratio 12.5 depending upon the particular registrant category. Specifically, practitioners, mid-level practitioners, dispensers, researchers, and narcotic treatment programs pay an annual registration fee of $184. For administrative convenience for both the collection and the payment, practitioners pay a combined registration fee of $551 every three years. Distributors, importers and exporters pay an annual fee of $1,147 and manufacturers pay an annual fee of $2,293. 21 CFR 1301.13 and 1309.11.
In calculating fees to recover the mandated full costs of operating the DCP, DEA estimates the costs of operating the DCP for the next three fiscal years.
Total obligations for the DCP have increased from FY 2007 to FY 2010 by approximately 49 percent. For the FY 2006–2008 period, payroll expenses (staff compensation and benefits) composed the largest component of DCP costs at 55.7 to 57.6 percent per year. Between the period of FY 2006 and FY 2010, payroll constituted an average of 56.7 percent of DCP expenses. Operating expenses and capital expenditures made up the remainder of DCP costs. Operating expenses (an average of 39.3 percent for the FY 2006–2010 period) include daily operation costs such as purchase of evidence or payment for information as part of investigations, travel, and non-equipment purchases. Capital expenditures, including equipment and furniture purchases, capital leases, and land/structure improvements and purchases, averaged 4.0 percent during this same period.
For the FY 2012–2014 period covered by this rulemaking, the overall breakdown of DCP major cost categories does not depart significantly from previous years in terms of
In addition to the budget for each of the fiscal years, the cost components outlined below are also considered in determining required registration fee collections.
At times, DEA enters into an obligation to make a purchase of a product or service that is not delivered immediately, such as in a multi-year contract. Changes in obligations can occur for a variety of reasons,
In the 1993 appropriations for DEA, Congress determined that the DCP would be fully funded by registration fees and no longer by appropriations.
DEA maintains an operational continuity fund (OCF) based on the need to maintain DCP operations during historically low (or negative) collection periods (
The increase in OCF balance for FY 2012, FY 2013, and FY 2014 are $6,452,395, $1,067,428, and $800,291 respectively.
Under CMEA, DEA collects a self-certification fee for regulated sellers of scheduled listed chemical products, which is included as part of the total collections. The fee is waived for any person holding a current DEA registration in good standing such as a pharmacy to dispense controlled substances. DEA has observed an approximately 15 percent decline in self-certifications from FY 2008 to FY 2010 and anticipates that the decline will continue through FY 2014. The self-certification fee is $21. CMEA self-certification fee collection estimates for FY 2012, FY 2013, and FY 2014 for purposes of calculating the fee levels are $173,040, $146,853, and $124,635, respectively.
DEA also derives revenue from the sale/salvage of official government vehicles dedicated to DCP use. DEA's estimate for other collections is $307,153 per year. This is the actual amount for FY 2010.
Based on these figures, DEA calculated the total amount required to be collected for the FY 2012–2014 period for purposes of calculating the fee levels as follows:
Required registration fee collections for FY 2012 are $332,962,203. This figure includes the budget of $321,990,000, net of $10 million in recoveries, plus $15 million for transfer to Treasury, plus $6,452,395 for increase in OCF balance, net of $173,040 in CMEA self-certification collections, and net of $307,153 in other collections.
Required registration fee collections for FY 2013 are $362,195,745. This figure includes the budget of $356,582,322, net of $10 million in recoveries, plus $15 million for transfer to Treasury, plus $1,067,428 for increase in OCF balance, net of $146,853 in CMEA self-certification collections, and net of $307,153 in other collections.
Required registration fee collections for FY 2014 are $377,199,798. This figure includes the budget of $371,831,295, net of $10 million in recoveries, plus $15 million for transfer to Treasury, plus $800,291 for increase in OCF balance, net of $124,635 in CMEA self-certification collections, and net of $307,153 in other collections.
In total, DEA needs to collect $1,072,357,746 in registration fees over the three year period, FY 2012–FY 2014 to fully fund the DCP.
As in the past, DEA proposes to set the fee for each registrant category for a three-year period (FY 2012–2014). The vast majority of registrants are practitioners who pay a three-year registration fee. These registrants are divided into three separate groups who pay their three-year registration fees on alternate year cycles. Because registration cycles may differ from year to year, the total amount collected through fees in a given year may not exactly match the projected amount.
DEA continually reviews the DCP and its methods of operation to ensure that it is fiscally responsible. The DCP works diligently to provide the registrants with cost effective and state-of-the-art means for conducting their businesses related to manufacturing, distributing, dispensing, importing, and exporting controlled substances and listed chemicals. Some examples of this include online registration, the Controlled Substance Ordering System (CSOS) for electronic controlled substance ordering between registrants, and electronic reporting of thefts and significant losses of controlled substances.
DEA takes seriously its responsibilities to manage the DCP in an efficient and effective manner, particularly in light of the current economy. The Office of Diversion Control acknowledges the important role that the Validation Unit provides in the appropriate expenditure of the DCFA. DEA cannot foresee Congressionally-mandated changes to the DCP or diversion trends, but it is committed to managing in a fiscally responsible manner. The Office of Diversion Control is committed to reviewing the registration process to ensure efficiency and accountability as well as reviewing current regulations related to fee exempt registrants. In addition, to ensure careful decision-making at all levels of the DCP, the Office of Diversion Control is considering several measures to ensure accountability for the effective utilization of resources.
In developing this proposed rule, DEA examined alternative methodologies to calculate the registration and registration fees. DEA analyzed alternative methodology approaches keeping in mind its statutory obligations under the CSA. First, pursuant to statute, DEA is authorized to charge reasonable fees relating to the registration and control of the manufacture, distribution, dispensing, importation, and exportation of controlled substances and listed chemicals. 21 U.S.C. 821 and 958(f). Second, DEA must set fees at a level that ensures the recovery of the full costs of operating the various aspects of its diversion control program (DCP). 21 U.S.C. 886a. Accordingly, in examining each alternative methodology DEA considered whether the fee calculation (1) was reasonable and (2) could fully fund the costs of operating the various aspects of the DCP.
Moreover, the CSA establishes a specific regulatory requirement that DEA charge fees to fully fund the DCP, but that the fees collected by DEA are to be expended through the budget process only. Specifically, each year DEA is required by statute to transfer the first $15 million of fee revenues into the general fund of the Treasury and the remainder of the fee revenues is deposited into a separate fund of the Treasury called the Diversion Control Fee Account (DCFA). 21 U.S.C. 886a(1). On at least a quarterly basis, the Secretary of the Treasury is required to refund DEA an amount from the DCFA “in accordance with estimates made in the budget request of the Attorney General for those fiscal years” for the operation of the DCP. 21 U.S.C. 886a(1)(B) and (D). For that reason, DEA is only considering alternative methodologies to calculate the registration and reregistration fees, not alternative approaches to expend fees collected because those decisions are governed by the CSA and the budget process.
In developing this rule, DEA considered four methodologies to calculate registration and reregistration fees: Past-Based Option, Future-Based Option, Flat Fee Option, and Weighted-Ratio Option. Although the increase in the fees may be passed down to the registrants' customers, the alternatives are analyzed on the worst-case scenario where the increase in the fee is absorbed fully by the registrants.
For each of the alternatives considered, the calculated fees are analyzed for reasonableness by examining: (1) The absolute amount of the fee increase, (2) the change in fee as a percentage of revenue from 2007 to 2012, and (3) the relative fee increase across registrant groups. Additionally, each calculation methodology is re-evaluated for its overall strengths and weaknesses.
Option 1 is called the Past-Based Option, and is based on historic investigation work hour data to set the apportionment of cost to each registrant category. In considering Option 1, DEA used historic investigation work hour data from the Fiscal Year 2007–2009. DEA's records permit an accurate apportionment of work hours for certain types of diversion control activities (
DEA calculated the annual registrant fee for key registrant groups under Option 1 and compared this fee to the current fee. Although distributors and importers/exporters are in the same fee class in the current fee structure (Weighted-Ratio Option), in this analysis, distributors are separated from importers and exporters based on the available historic work hour data and reported work hours by type of registrant.
In the past-based option, the calculated fees increase by a factor of 1.16, 3.19, 1.10, and 1.32 for manufacturers, distributors, importers/exporters, and practitioners, respectively.
The proposed fees as a percentage of revenue is very low as indicated in Table 4 below, 0.000 to 0.019 percent, 0.005 to 0.134 percent, 0.000 to 0.005 percent, and 0.125 to 0.257 percent for manufacturers, distributors, pharmacies, and practitioners, respectively. The impact of the incremental increase in the fee from current fees as a percentage of revenue is even lower.
Finally, the largest increase, by a factor of 3.19, is incurred by distributors, largely as a consequence of their separation from exporters and importers, while the increases for other groups range from a factor of 1.10 to 1.32.
While Option 1 is based on accurate historical data, it does not allow for future needs, demands and shifting responsibilities of the DCP, such as Agency priorities, new legislation, control of substances, new investigative requirements, and other program needs.
DEA does not propose the past-based option for two key reasons. First, the fee increase is disproportionately burdensome to a small number of registrants. Distributors' fees would increase by over three fold, while the fees for the remaining registrant groups would increase from 10 percent to 32 percent. DEA deemed this option unreasonable. Second, the past-based option is backward looking and implicitly assumes that the future will be similar to the past. DEA cannot assume that future workload will reflect past DEA work hour data. For example, DEA plans to conduct more scheduled investigations in accordance with the new scheduled investigation work plan. As a result, DEA has concluded that past data is not the best basis for the calculation of proposed fees.
Option 2 is called the Future-Based Option, and is based on projected work hours for each registrant class using scheduled investigation work plan goals and anticipated/planned resources. In considering Option 2, DEA based its calculations on projected work hour data by registrant group for FY 2012–2014. The future-based option is based on DEA's projection of work plan goals and the resources required for these years—specifically, examining the direct cost of anticipated scheduled investigations.
In the future-based option, as shown in the table above, the fee increase ranges from a factor of 1.26 for practitioners to 7.67 for manufacturers of controlled substances.
The proposed fees as a percentage of revenue is very low as indicated in Table 5: 0.001 to 0.128 percent for controlled substances manufacturers, 0.001 to 0.059 percent for manufacturers of List I chemical manufacturers, 0.009 to 0.239 percent for distributors, 0.000 to 0.005 percent for pharmacies, and 0.119 to 0.245 percent for practitioners. The impact of the incremental increase in the fee from current fees as a percentage of revenue is even lower. As expected, registrant groups with a larger fee increase under this option would experience a larger increase as a percentage of revenue.
Under this option, the increases in fees vary greatly across registrant groups. For example, controlled substances manufacturers incur the largest proportional increase by a factor of 7.67 or $15,302 annually, while practitioner fees increase by a factor of 1.26 or $48 annually.
Option 2 is calculated using projected data relative to work plan goals and resources. This results in a more finely tuned analysis of anticipated work hours. The disadvantage of Option 2 is that, because the calculation is based on projected work hour data, it may not be able to adapt to the shifting priorities and demands of DCP operations. Additionally, a change in work plan can cause actual cost to be much different for some registrant groups, causing a contradiction between the rationales used to calculate the fees and actual operations.
In reviewing Option 2, DEA concluded that for most registrant categories, the large proportional increase in fees would not pass the “reasonable fee” standard required by statute and could represent a significant burden on some registrants. Additionally, DEA believes that the vast disparity in the increase, where fees for manufacturers increase by more than seven fold, while fees for registrants increase by 26 percent, is unreasonable. Although there is concern regarding a potential difference between the scheduled investigation work plan and actual operations, DEA recognizes that no plan is perfect and operations may be adjusted as the environment changes. This potential exists for all four options. Therefore, the potential change in work plan did not weigh into the DEA's decision to not select Option 2. DEA's decision to not select Option 2 is based on the unreasonable increase in fees for some registrants and the severe disparity in increase among the registrant groups.
Option 3 is called the Flat Fee Option. The flat fee option would provide equal fees across all registrant groups regardless of the proportion of DCP costs and resources the registrant group may require (
DEA calculated the annual registrant fee for key registrant groups under Option 3 and compared this fee to the current fee:
In the flat-fee option, the registration fees for manufacturers and distributors are reduced significantly, from $2,293 for manufacturers and $1,147 for distributors to $247 for both. This reduction represents an 89 percent and 78 percent reduction for manufacturers and distributors respectively. The registration fee for practitioners increases by 34 percent to $247 on an annual basis.
The proposed fees as a percentage of revenue is very low as indicated in Table 6 above: 0.000 to 0.002 percent for manufacturers, 0.000 to 0.009 percent for distributors, and 0.127 to 0.261 percent for practitioners. The impact of the incremental increase in the fee from current fees as a percentage of revenue is even lower. Registrant groups with a decrease in fee under this option would experience a decrease as a percentage of revenue.
As with the other options, the calculation considered in Option 3 results in a dramatic fee disparity among registrant groups. The fees for manufacturers and distributors decrease, while the fees for practitioners increase.
The flat fee option has positive and negative aspects. The fee that DEA is required to charge registrants is based on a statutory requirement—it is not a user fee. A user fee calculation would require a calculation of the direct and indirect costs associated with each of the registrant groups and set fees to recover the costs associated with each of these groups. Since the registration fee is not a user fee, DEA is not required to calculate fees according to its costs by registrant groups. General historical costs of scheduled investigations support different fees among the categories. However, setting the same fees for all registrants, from multi-national corporations to mid-level practitioners is unreasonable.
After consideration of the flat fee option, DEA did not select this option to calculate the proposed new fees. The fee disparity among registrant groups caused by this calculation alternative is too great. Under this option, the calculation would result in reduced fees for manufacturers and distributors by 89 percent and 78 percent respectively, while practitioner fees would increase by 34 percent. Setting the fees at the same level across all registrant groups is not “reasonable.” DEA registrants include some of the largest corporations
Option 4 is called the Weighted-Ratio Option. In this option, fees are assigned to different registrant categories based on DEA's general historical cost data. This option distinguishes among the categories to establish a “reasonable” fee for each category. The different fees are expressed in ratios: 1 for researchers, canine handlers, analytical labs, and narcotics treatment programs; 3 for registrants on three year registration cycles, pharmacies, hospitals/clinics, practitioners, teaching institutions, and mid-level practitioners; 6.25 for distributors and importers/exporters; and 12.5 for manufacturers. The adopted ratios are applied for administrative convenience since historically costs vary and a fee must be set in advance. To determine the fee, a weighted ratio is assigned based on registrant group, and the amount needed to be collected over the FY 2012–FY 2014 period is divided by the weighted number of estimated registrations to determine the fees.
In the weighted-ratio option, the registration fees for all registrant groups increase by 33 percent from current fees, although the absolute dollar amount may differ. The proposed new registration fees range from $244 annually (or annual equivalent) to $3,052. Registration fees are collected by location and by registered business activity. Most small registrants are expected to pay a single registration fee of $244 ($60 annual increase), $1,526 ($379 annual increase) or $3,052 ($759 annual increase). Registration fees for all registrant groups increase by 33 percent and as a result, there is no disparity in the fee increase among registrant groups.
The weighted-ratio methodology, much like the flat fee, is straightforward and easy to understand, but unlike the flat fee, this method applies historic weighted ratios to differentiate fees among registrant groups. Additionally, the fees calculated using this methodology are similar to fees calculated in the past-based option, which allocates historical pre-registration and scheduled investigations costs to registrant groups. Finally, this method does not create a disproportionate fee increase in any registrant group.
DEA selected Option 4 to calculate the proposed new fee structure. This approach has been used since Congress established registrant fees and continues to be a reasonable reflection of differing costs. The registration fees under the weighted-ratio option result in differentiated fees among registrant groups, where registrants with larger revenues and costs pay higher fees than registrants with lower revenues and costs. Furthermore, the weighted-ratio does not create a disparity in the relative increase in fees from the current to the proposed fees. The weighted ratios used by DEA to calculate the proposed fee have proven effective and reasonable over time. Additionally, the selected calculation methodology accurately reflects the differences in activity level, notably in inspections, scheduled investigations and other control and monitoring, by registrant category; for example, these costs are greatest for manufacturers. DEA selected this option because it is the only option that resulted in “reasonable” fees for all registrant groups.
Based on thorough analysis of the identified fee calculation options—including the anticipated economic impact on registrants—DEA has determined that the current weighted-ratio option represents the most reasonable approach to calculate registrant fees sufficient to fully fund the DCP.
The proposed fee schedule would replace the current fee schedule for controlled substance and chemical registrants in order to recover the full costs of the DCP so that it may continue to meet the programmatic responsibilities set forth by statute, Congress, and the President. As discussed, without an adjustment to fees, the DCP will be unable to continue current operations, necessitating dramatic program reductions, and possibly weakening the closed system of distribution. Accordingly, DEA proposes the following new fees for the FY 2012–2014 period.
As of December 2010 there were a total of 1,378,609 controlled substances and chemical registrants (1,377,466 controlled substances registrants and 1,143 chemical registrants), as shown in Table 10.
Not all registrants listed in Table 10 are subject to the fees. Publicly owned institutions, law enforcement agencies, Indian Health Services, the Department of Veterans Affairs, Federal Bureau of Prisons, and military personnel are exempt from fees.
The number of registrations exceeds the number of individual registrants because some registrants are required to hold more than one registration. The CSA requires a separate registration for each location where controlled substances are handled and a separate registration for each business activity; that is, a registration for activities related to the handling of controlled substances and a registration for activities related to the handling of List I chemicals. Some registrants may conduct multiple activities under a single registration (
This proposed rule affects those manufacturers, distributors, dispensers, importers, and exporters of controlled substances and List I chemicals that are required to obtain and pay a registration fee with DEA pursuant to the CSA (21 U.S.C. 822 and 958(f)). As of December 2010, there were 1,378,609 controlled substances and chemical registrants (1,377,466 controlled substances registrants and 1,143 chemical registrants), as shown above in Table 10.
Pharmacies, hospitals/clinics, practitioners, teaching institutions, and mid-level practitioners make up 98.9 percent of all registrants. These registrants register every three years. Other registrants maintain an annual registration. Registration and reregistration costs vary by registrant category as is described in more detail in the sections below.
The proposed fees would affect a wide variety of entities. Table 11 indicates the sectors affected by the proposed rule and their average annual revenue/income. Most DEA registrants are small entities under Small Business Administration (SBA) standards. Almost all practitioners, which are the largest category of registrants, would be considered small (annual revenues of less than $6 million to $8.5 million, depending on specialty), and practitioners and mid-level practitioners total 1,280,992 (as of December 2010).
Supermarkets, discount stores, warehouse clubs, and superstores handle controlled substances through their distribution centers and pharmacies. Drug products containing List I chemicals are primarily distributed as over-the-counter medicines. These are distributed by drug wholesalers who specialize in non-prescription drugs, wholesalers who supply convenience stores, and grocery, pharmacy, and discount stores (
The proposed fee, if implemented, is expected to have two levels of impact. Initially, the increase in the fee will impact the registrants. Then the fee increase or portion of the fee increase is expected to be eventually passed on to the general public. To be analytically conservative, the analysis below assumes that the impact of the fee increase is absorbed entirely by the registrants.
DEA assumes that the registration fees are business expenses for all registrants. As a result, the increase in the fee will be dampened by reduced tax liability, as a result of the increase in registration fee expense. For example, if a practitioner pays an additional $60 per year in registration fees and the combined federal and state income tax is 35 percent, the net cash impact is $39, not $60. The additional $60 causes income/profit to decrease by $60, decreasing the tax liability by $21. The net cash outlay is $39.
DEA examined the proposed fees as a percentage of income for physicians, dentists, and physician's assistants in the practitioner registrant group and as a percentage of revenue for pharmacies, manufacturers and distributors. This analysis indicates the fee increase is expected to have the greatest affect on small businesses in the practitioner registrant group. The majority of practitioners and mid-level practitioners work in small businesses. Physicians, dentists, and physician's assistants reflect a representative sub-group of the practitioner and mid-level practitioner registrant groups. The effect of the fee increase is diminished by any increase in registrant income.
The table below describes the average income for physicians, dentists, and physician's assistants from 2004 to 2012. The table below also reflects the impact of the proposed fee increase as a percentage of average income. This analysis assumes that the fee increase is absorbed personally by each practitioner/mid-level practitioner. The analysis ignores the dampening effect of registration fees as a business expense and the potential that the fee increase might be passed on to customers.
In 2007, the current fee of $184 on an annual basis represents 0.119 percent, 0.125 percent, and 0.237 percent of annual income for physicians, dentists, and physician's assistants respectively. In 2012, the proposed fee of $244 (on an annual basis) would represent approximately 0.125 percent, 0.139 percent, and 0.258 percent of annual income for physicians, dentists, and physician's assistants respectively. While proposed fees are 33 percent above the current fees implemented at the end of 2006, average incomes for physicians, dentists, and physician's assistants increased 26 percent, 19 percent, and 22 percent respectively. This estimated increase in average income dampens the effect of the fee increase as a percentage of average income. The 33 percent fee increase as a percentage of average income is 6 percent for physicians, 11 percent for dentists, and 9 percent for physician's assistants from 2007 to 2012. The diminishing effect is more apparent when comparing 2012 to 2006, the year for which the current fee was calculated and implemented. Additionally, as the average income grows in 2013 and 2014, the income adjusted fees are not any higher than in recent history.
Exempt from the payment of registration fees are any hospital or other institution that is operated by an agency of the United States, of any State, or any political subdivision of an agency thereof. Likewise, an individual who is required to obtain a registration in order to carry out his/her duties as an official of a federal or State agency is also exempt from registration fees.
DEA concludes that this proposed rule is not a significant regulatory action because it does not result in a materially adverse effect on the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.
This proposed rule is necessary to ensure the full funding of the DCP through registrant fees as required by 21 U.S.C. 886a. It has been five years since the last fee change. As discussed above, statutory and operational changes to the DCP cannot be fully offset by improved operational efficiencies and require a recalculation of registrant fees. This proposed rule does not change the requirement to register to handle controlled substances and/or List I chemicals but rather changes the annual fee associated with registration and reregistration that will allow DEA to meet its statutory obligations. DEA recognizes that the proposed fee changes affect small businesses, but does not believe the relative individual impact is significant. The average annual increase in estimated registration fee collections is less than $100 million at an estimated annual increase of $88,333,030.
This proposed rule will not impose additional information collection requirements on the public.
Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601–612) (RFA), federal agencies must evaluate the impact of rules on small entities and consider less burdensome alternatives. DEA has evaluated the impact of this proposed rule on small entities as summarized above and concluded that although the rule will affect a substantial number of small entities, it will not impose a significant economic impact on any regulated entities.
In accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Deputy Assistant Administrator hereby certifies that this proposed rulemaking has been drafted consistent with the Act and that a regulatory analysis on the effects or impact of this proposed rulemaking on small entities has been done and summarized above.
This rule is not a discretionary action but implements statutory direction to charge reasonable fees to recover the full costs of activities constituting the DCP
Under the weighted-ratio methodology, the individual effect on small business registrants is minimal. Practitioners and mid-level practitioners represent 92.9 percent of all registrants and nearly all practitioners and mid-level practitioners are employed by small businesses pursuant to SBA standards. Practitioners and mid-level practitioners would pay a three-year registration fee of $732 or the equivalent of $244 per year.
For consideration of the impact of the proposed fee increase on small businesses, DEA analyzed the proposed registration fee as a percentage of annual income for a representative practitioner group: physicians, dentists, and physician's assistants. While there are many specialists listed in the Bureau of Labor Statistics income data, incomes for physicians, dentists, and physician's assistants are representative of the practitioner and mid-level practitioner registrant groups. For practitioners and mid-level practitioners, the proposed new fee, on an annual basis, would be $244; the annual increase would be $60 from the current fee. From the calculation performed in the preceding section,
This proposed rule to increase registrant fees has been developed in accordance with the principles of Executive Orders 13563 and 12866. Public comment is encouraged through the Internet with easy Internet access to supporting information found at
The primary cost of the proposed rule is the incremental increase in the combined registration fees paid by registrants. Benefits of the proposed rule are an extension of the benefits of the DCP. The DCP is a strategic component of United States law and policy aimed at preventing, detecting, and eliminating the diversion of controlled substances and listed chemicals into the illicit market while ensuring a sufficient supply of controlled substances and listed chemicals for legitimate medical, scientific, research and industrial purposes. The absence of or significant reduction in this program would result in enormous costs for the citizens and residents of the United States due to the diversion of controlled substances and listed chemicals into the illicit market as outlined in the Economic Impact Assessment found in the rulemaking docket.
This proposed regulation meets the applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice Reform to eliminate ambiguity, minimize litigation, establish clear legal standards and reduce burden.
This rulemaking does not preempt or modify any provision of State law; nor does it impose enforcement responsibilities on any State; nor does it diminish the power of any State to enforce its own laws. Accordingly, this rulemaking does not have federalism implications warranting the application of Executive Order 13132.
This rule does not contain a federal mandate and will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $126,400,000 or more (adjusted for inflation) in any one year, and will not significantly or uniquely affect small governments. DEA notes that many governmental entities operate DEA-registered facilities and that they are currently fee exempt. Moreover, the effect of the proposed increase on individual entities and practitioners is minimal. The majority of the affected entities will pay a fee of $732 for a three year registration period ($244 per year or an increase of $60 per year). This rule is promulgated in compliance with 21 U.S.C. 886a that the full costs of operating the DCP be collected through registrant fees.
This proposed rule is required by statute, will not have tribal implications and will not impose substantial direct compliance costs on Indian tribal governments.
Administrative practice and procedure, Drug traffic control, Security measures.
Administrative practice and procedure, Drug traffic control, Exports, Imports, Security measures.
For the reasons set out above, 21 CFR Parts 1301 and 1309 are proposed to be amended as follows:
1. The authority citation for Part 1301 continues to read as follows:
21 U.S.C. 821, 822, 823, 824, 831, 871(b), 875, 877, 886a, 951, 952, 953, 956, 957, 958.
2. Amend § 1301.13 by revising paragraph (e)(1) to read as follows:
(e) * * *
(1)
3. The authority citation for Part 1309 is corrected to read as follows:
21 U.S.C. 802, 821, 822, 823, 824, 830, 871(b), 875, 877, 886a, 952, 953, 957, 958.
4. Revise § 1309.11 to read as follows:
(a) For each application for registration or reregistration to manufacture the applicant shall pay an annual fee of $3,052.
(b) For each application for registration or reregistration to distribute, import, or export a List I chemical, the applicant shall pay an annual fee of $1,526.
5. In § 1309.21, paragraph (c) is revised to read as follows:
(c) * * *
Internal Revenue Service (IRS), Treasury.
Correction to advance notice of proposed rulemaking.
This document contains a correction to advance notice of proposed rulemaking (REG–114206–11) that was published in the
Julie Hanlon-Bolton, (202) 622–3040 (not a toll-free number).
The correction notice that is the subject of this document is under section 45D of the Internal Revenue Code.
As published, the advance notice of proposed rulemaking (REG–114206–11) contains an error that may prove to be misleading and is in need of clarification.
Accordingly, the publication of advance notice of proposed rulemaking (REG–114206–11), which was the subject of FR Doc. 2011–13981, is corrected as follows:
On page 32881, column 2, in the preamble, under the paragraph heading “Background”, second paragraph of the column, fourth line, the language “nonprofit corporation) or partnership if” is corrected to read “nonprofit corporation) or partnership, if”.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking by cross-reference to temporary regulations.
In the Rules and Regulations section of this issue of the
Written and electronic comments and requests for a public hearing must be received by August 30, 2011.
Send submissions to: CC:PA:LPD:PR (REG–118809–11), Room 5203, Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered to: CC:PA:LPD:PR Monday through Friday between the hours of 8 a.m. and 4 p.m. to: CC:PA:LPD:PR (REG–118809–11), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC, or sent electronically via the Federal eRulemaking Portal at
Concerning the proposed regulations, Arturo Estrada, (202) 622–3900; concerning submissions of comments and requests for a public hearing, Oluwafunmilayo Taylor, (202) 622–7180 (not toll-free numbers).
Section 939A(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111–203 (124 Stat. 1376 (2010)), (the “Dodd-Frank Act”), requires each Federal agency to review its regulations that require the use of an assessment of credit-worthiness of a security or money market instrument, and to review any references or requirements in those regulations regarding credit ratings. Section 939A(b) directs each agency to modify any regulation identified in the review required under section 939A(a) by removing any reference to, or requirement of reliance on, credit ratings and substituting a standard of credit-worthiness that the agency deems appropriate. Numerous provisions under the Code are affected.
Temporary regulations in the Rules and Regulations section of this issue of the
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The IRS and the Treasury Department specifically request comments on the clarity of the proposed regulations and how they may be made easier to understand. All comments will be available for public inspection and copying. A public hearing may be scheduled if requested in writing by any person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the hearing will be published in the
These regulations were drafted by personnel in the Office of Associate Chief Counsel (Financial Institutions and Products), the Office of Associate Chief Counsel (Income Tax and Accounting), the Office of Associate Chief Counsel (International) and the Office of the Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the IRS and the Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Excise taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR parts 1 and 48 are proposed to be amended as follows:
26 U.S.C. 7805 * * *
1. Paragraph (a)(4) is added.
2. In paragraph (b), the definition of
The addition and revision read as follows:
(4) [The text of the proposed amendments to § 1.150–1(a)(4) is the same as the text of § 1.150–1T(a)(4) published elsewhere in this issue of the
(b) * * *
(f) * * *
[The text of the proposed amendments to § 1.171–1(f)
(b) * * *
(7) [The text of the proposed amendments to § 1.197–2(b)(7) is the same as the text of § 1.197–2T(b)(7) published elsewhere in this issue of the
(e) * * *
(2) * * *
(ii) [The text of the proposed amendments to § 1.249–1(e)(2)(ii) is the same as the text of § 1.249–1T(e)(2)(ii) published elsewhere in this issue of the
(f)
(3) [The text of the proposed amendments to § 1.249–1(f)(3) is the same as the text of § 1.249–1T(f)(3) published elsewhere in this issue of the
(d) * * *
(4) * * *
[The text of the proposed amendments to § 1.475(a)–(4)(d)(4)
[The text of the proposed amendments to § 1.475(a)–4(d)(4)
[The text of the proposed amendments to § 1.475(a)–4(d)(4)
(g) * * *
(3) * * *
(ii) * * *
(B) [The text of the proposed amendments to § 1.860G–2(g)(3)(ii)(B) is the same as the text of § 1.860G–2T(g)(3)(ii)(B) published elsewhere in this issue of the
(C) [The text of the proposed amendments to § 1.860G–2(g)(3)(ii)(C) is the same as the text of § 1.860G–2T(g)(3)(ii)(C) published elsewhere in this issue of the
(D) [The text of the proposed amendments to § 1.860G–2(g)(3)(ii)(D) is the same as the text of § 1.860G–2T(g)(3)(ii)(D) published elsewhere in this issue of the
1. Paragraph (d)
2. Paragraph (e)(4)(iv)(B) is revised.
3. Paragraph (e)(5)(ii)(B)(
4. Paragraph (g)
The revisions read as follows:
(d) * * *
[The text of the proposed amendments to § 1.1001–3(d)
(e) * * *
(4) * * *
(iv) * * *
(B) [The text of the proposed amendments to § 1.1001–3(e)(4)(iv)(B) is the same as the text of § 1.1001–3T(e)(4)(iv)(B) published elsewhere in this issue of the
(5) * * *
(ii) * * *
(B) * * *
(
(g) * * *
[The text of the proposed amendments to § 1.1001–3(g)
[The text of the proposed amendments to § 1.1001–3(g)
[The text of the proposed amendments to § 1.1001–3(g)
26 U.S.C. 7805 * * *
(f) * * *
(4) * * *
(ii) * * *
(B) [The text of the proposed amendments to § 48.4101–1(f)(4)(ii)(B) is the same as the text of § 48.4101–1T(f)(4)(ii)(B) published elsewhere in this issue of the
(l) * * *
(5) [The text of the proposed amendments to § 48.4101–1(l)(5) is the same as the text of § 48.4101–1T(l)(5) published elsewhere in this issue of the
Internal Revenue Service (IRS), Treasury.
Correction to a notice of proposed rulemaking.
This document contains corrections to a notice of proposed rulemaking (REG–101826–11) that was published in the
Julie Hanlon-Bolton, (202) 622–3040 (not a toll-free number).
The correction notice that is the subject of this document is under section 45D of the Internal Revenue Code.
As published, a notice of proposed rulemaking (REG–101826–11) contains errors that may prove to be misleading and are in need of clarification.
Accordingly, the publication of the notice of proposed rulemaking (REG–101826–11), which was the subject of FR Doc. 2011–13978, is corrected as follows:
1. On page 32883, column 2, in the preamble, under the paragraph heading “General Overview”, second paragraph of the column, fourth line, the language “nonprofit corporation) or partnership if” is corrected to read “nonprofit corporation) or partnership, if”.
2. On page 32883, column 3, in the preamble, under the paragraph heading “Explanation of Provisions”, first paragraph of the column, second line, the language “amortizing loans) re-invest those” is corrected to read “amortizing loans) reinvest those”.
Department of Education.
Request for information.
The U.S. Department of Education (the Department) requests comments on its preliminary plan for the retrospective analysis of its existing regulations as part of its implementation of Executive Order 13563 “Improving Regulation and Regulatory Review.” The purpose of this preliminary plan is to make the Department's regulatory program more effective and less burdensome in achieving the Department's regulatory objectives. The plan, once final, will establish the Department's policy for conducting thorough and meaningful retrospective reviews and analyses of its regulations on an ongoing basis. The Department requests public comment on this preliminary plan to help the Department review its significant existing regulations in order to determine whether any of these regulations should be modified, streamlined, expanded, or repealed.
In addition, pursuant to the “President's Memorandum on Administrative Flexibility, Lower Costs, and Better Results for State, Local, and Tribal Governments,” we request comments (including, when applicable, from students, their parents, and consumer and taxpayer representatives) on possible administrative flexibility that the Department may be able to provide to State, local, and tribal governments.
We must receive your comments on or before July 25, 2011.
Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments by fax or by e-mail. Please submit your comments only one time, in order to ensure that we do not receive duplicate copies. In addition, please include the Docket ID—Docket ID ED–2011–OGC–0004—at the top of your comments.
•
•
The Department's policy for comments received from members of the public (including those comments submitted by mail, commercial delivery, or hand delivery) is to make these submissions available for public viewing in their entirety on the Federal eRulemaking Portal at
Elizabeth McFadden, Deputy General Counsel for Ethics, Legislative Counsel, and Regulatory Services, Office of the General Counsel, U.S. Department of Education, 400 Maryland Avenue, SW., Washington, DC 20202–2110. Telephone: 202–401–6000. You may also e-mail your questions to:
If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
Individuals with disabilities can obtain this document in an accessible format (
To view Executive Order 13563 go to:
To view the “President's Memorandum on Administrative Flexibility, Lower Costs, and Better Results for State, Local, and Tribal Governments,” go to:
We invite you to submit comments regarding the preliminary plan, which is published in its entirety as an Appendix to this notice, and possible administrative flexibility that the Department may be able to provide to State, local, and tribal governments. Please let us know of any further opportunities we should take to improve any of our regulations by modifying, streamlining, expanding, or repealing them or to provide additional flexibility to entities that receive Department funds.
During and after the comment period, you may inspect all public comments on this notice by accessing Regulations.gov. You may also inspect the comments, in person, in room 6E300, 400 Maryland Avenue, SW., Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., Eastern time, Monday through Friday of each week except Federal holidays. If you want to schedule an appointment to review the comments in person, please contact the person listed under
On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public docket for this notice. If you want to schedule an appointment for this type of aid, please contact the person listed under
On January 18, 2011, President Obama issued Executive Order 13563 (published in the
Section 6(b) of Executive Order 13563 directs each agency to develop and submit to the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs a preliminary plan for reviewing existing significant regulations in order to determine whether any such regulations should be modified, streamlined, expanded, or repealed.
The Department developed a preliminary plan and submitted it to OMB on May 18, 2011. The preliminary plan addresses our plan to review existing significant regulations (and significant guidance documents and existing information collections—to the extent they are associated with existing regulations), and priorities, requirements, definitions, and selection criteria governing discretionary grant programs that are established through rulemaking but that are not codified in the Code of Federal Regulations. More specifically, the plan (1) lists the factors and processes the Department proposes to use to set priorities for the retrospective review of its regulations; (2) identifies an initial list of existing regulations that are candidates for review; (3) explains how the Department intends to coordinate with other Federal agencies that have overlapping jurisdiction or similar interests; and (4) sets forth the proposed components of its retrospective cost-benefit analysis. Through this notice, we request public comment on these particular elements of the preliminary plan as well as all other aspects of the plan. We will consider the feedback we receive through this process when formulating a final retrospective review plan and establishing processes for ongoing review at the Department.
The preliminary plan is included in the Appendix to this notice and is also available on the Department's Open Government Web site at
On February 28, 2011, the President issued a memorandum to Federal agencies entitled “Administrative Flexibility, Lower Costs, and Better Results for State, Local, and Tribal Governments.” This memorandum requires Federal agencies to report to OMB on actions taken and plans to offer greater flexibility, where it will yield improved outcomes at lower cost, in Federal programs administered by State, local, and tribal governments.
To implement the President's directive in the memorandum, the Department is working to identify administrative, regulatory, and legislative barriers that currently prevent States, localities, and tribes
We would appreciate responses to the following questions:
(1) What administrative, regulatory, and statutory requirements could be changed to help reduce costs and unnecessary burdens, spur innovation, and improve student or program outcomes?
(2) What regulatory requirements should the Department consider waiving, subject to statutory waiver authority?
(3) Should the Department streamline the application and approval process for waivers and, if so, how?
(4) Where could the Department reduce current reporting requirements that are not necessary or useful in measuring program performance, facilitating data-driven program improvements, or ensuring the proper use of taxpayer dollars? Where are there opportunities to consolidate or streamline data collection or submission requirements?
(5) How can the Department streamline or modify the procedures that we use for processing requests for waivers of maintenance-of-effort (MOE) requirements to make them more transparent and uniform across programs with MOE requirements and reduce unnecessary reporting for States?
(6) What cross-agency flexibility or alignment is needed to allow States, local, and tribal governments to improve their early learning, workforce, and place-based efforts? (This could include consideration of how we might provide additional flexibility in such areas as performance measurement, application requirements, or uses of funds, or might encourage cross-agency funding opportunities, etc.)
(7) What flexibility can the Department offer to help facilitate collaboration at and across the State, local, and tribal levels?
(8) Where could increased flexibility drive the most improvements in program and student outcomes?
Executive Order 13563 (Executive Order) recognizes the importance of maintaining a consistent culture of retrospective review and analysis throughout the executive branch. Determining the costs and benefits of a regulation before it is implemented is a challenging task and it often cannot be accomplished with perfect precision. The U.S. Department of Education's (ED) plan is designed to create a defined policy, method, and schedule for identifying certain significant rules that may be outmoded, ineffective, insufficient, or excessively burdensome. The review processes described in this plan are intended to facilitate the identification of regulations that warrant repeal or modification, or the strengthening, complementing, or modernizing of regulations, where necessary or appropriate.
a.
In developing and implementing regulations, guidance, technical assistance, and approaches to compliance related to our programs, we are guided by the following three principles. First, we are committed to working closely with affected persons and groups. Specifically, we work with a broad range of interested parties and the general public, including parents, students, and educators; State, local, and tribal governments; and neighborhood groups, schools, colleges, rehabilitation service providers, professional associations, advocacy organizations, businesses, and labor organizations.
Secondly, we are committed to ensuring our regulations are concise and minimize burden to the greatest extent possible while still helping ensure the achievement of program outcomes. And finally, we continue to seek greater and more useful public participation in our rulemaking activities through the use of transparent and interactive rulemaking procedures and new technologies. If we determine that it is necessary to develop regulations, we seek public participation at all key stages in the rulemaking process.
These three guiding principles will be incorporated fully into our retrospective analyses of ED regulations.
The following offices within ED are included in this plan:
c.
a.
No. However, ED will soon be publishing a notice requesting public comment on our preliminary plan in the
b.
c.
a. Summary of pre-existing agency efforts (independent of E.O. 13563) to conduct retrospective analysis of existing rules:
ED has long been committed to ensuring that its regulations are reviewed and updated as necessary and appropriate. As outlined each year in ED's Regulatory Plan,
In deciding when to regulate, we consider:
• Whether regulations are essential to promote quality and equality of opportunity in education;
• Whether a demonstrated problem can be resolved without regulation;
• Whether regulations are necessary in order to provide a legally binding interpretation that resolves ambiguity;
• Whether entities or situations subject to regulation are so diverse that a uniform approach through regulation would do more harm than good; and
• Whether regulations are needed to protect the Federal interest; that is, to ensure that Federal funds are used for their intended purpose and to eliminate fraud, waste, and abuse.
In deciding how to regulate, we are mindful of the following principles:
• Regulate no more than necessary;
• Minimize burden to the extent possible, and promote multiple approaches to meeting statutory requirements when possible;
• Encourage coordination of federally funded activities with State and local reform activities;
• Ensure that the benefits justify the costs of regulating;
• To the extent possible, establish performance objectives rather than specify compliance behavior; and
• Encourage flexibility, to the extent possible, so institutional forces and incentives achieve desired results.
Additionally, we routinely review the priorities and requirements governing our discretionary grant competitions following the completion of those competitions to determine whether changes should be made for future competitions.
Over the past two years, and operating under these principles, we have engaged in retrospective review of several key regulations that required updating to reflect changes in the authorizing statute, Administration priorities, or ED policies. We also began the process of developing a broader plan for a retrospective review of our regulations. Some examples of those efforts are as follows:
• ED recently reviewed and revised its Freedom of Information Act (FOIA) regulations to implement changes made to FOIA in recent years. These amended regulations also took into account public guidance regarding FOIA issued by the White House and the Department of Justice. The revised regulations articulate more clearly to the public how ED processes FOIA requests for publicly available records, thereby promoting equality of opportunity and decreasing ambiguity.
• In 2009 and 2010, ED reviewed and subsequently modified, following notice and public comment, its Education Department Acquisition Regulations (EDAR) to bring those regulations into alignment with changes to the Federal Acquisition Regulations. These modifications will increase the efficiency with which ED manages contracts.
• Upon reauthorization of the Federal TRIO discretionary grant programs in the Higher Education Opportunity Act of 2008, ED reviewed its existing TRIO regulations and conducted negotiated rulemaking in 2009 and 2010 to comprehensively update and amend the regulations governing these programs. These amended regulations will help ensure that Federal funds are used for their intended purpose and resolve ambiguity for potential applicants, thereby ensuring that all eligible applicants have an opportunity to participate in the program.
• Over the past two years, ED reviewed and revised a number of program integrity regulatory provisions associated with the Federal student aid programs authorized under Title IV of
• In January 2011, ED successfully completed its 2010 Burden Reduction Initiative to reduce Free Application for Federal Student Aid (FAFSA) burden by at least five percent. In fact, ED decreased the FAFSA burden by 5,405,813 hours, or more than 14 percent. As part of accomplishing this impressive burden reduction, ED also realized the other goals included as part of the initiative: (a) Consolidation of the FAFSA and SAR into one ICR to better reflect that the two are part of one business process—applying for Federal student financial aid; and (b) Simplifying the application experience for student aid applicants by shortening completion times, primarily through the use of improved technology such as “skip and assumption logic.”
• In preparation for conducting a retrospective review of ED's regulations, we have reviewed plans and strategies used by other agencies, journal articles, and Administrative Conference of the United States (ACUS) Recommendation 95–3, “Review of Existing Agency Regulations.” We also began considering methods for determining which regulations should be reviewed, strategies for engaging senior leadership, and how best to allocate resources for such a review.
b.
Prior to issuance of the Executive Order, and in establishing ED's regulatory priorities for 2011, we identified several specific regulations for retrospective review and determined that, based on that review, further amendments to these regulations are necessary. These regulations are as follows:
•
•
•
•
a.
This plan, once finalized, will establish ED's policy for conducting thorough and meaningful retrospective reviews and analyses of our regulations on an ongoing basis. This plan will be disseminated to all offices within ED, and all offices will participate in implementing the plan.
ED has established a retrospective review team that is responsible for developing this plan and for coordinating the retrospective reviews going forward. This team will regularly report its progress in implementing the plan and conducting the retrospective reviews to Deputy Secretary Miller and other senior officials. As indicated below, ED intends to conduct its retrospective reviews biennially. Thus, retrospective reviews will become standard operating procedure in the agency.
b.
The factors ED will use in setting priorities for the retrospective review of its regulations are:
• Have regulated parties expressed confusion about the regulations or requested changes to the regulations?
• Can the regulations be understood and implemented without extensive legal interpretation, non-regulatory guidance, or technical assistance?
• Have regulated parties expressed concern about unwarranted regulatory burden? Do the regulations create an unnecessary administrative burden?
• What is the estimated timeline for reviewing and possibly amending the regulations? For instance, will ED need to conduct negotiated rulemaking to amend the regulations, and does ED need amended regulations in place by a certain date?
• Has Congress amended the authorizing statute such that prompt review of existing regulations is necessary?
• Does ED anticipate reauthorization of the authorizing statute in the near term such that prompt review of existing regulations would likely be disrupted or not lead to regulatory revisions that could be implemented before reauthorization?
• Are the regulations outmoded, unnecessary, or out of date? If so, are they impeding the proper administration of the relevant program?
• Are the current regulations sufficient to administer the applicable programs?
• Are the regulations necessary to conduct the grant program or can the program be implemented based entirely on the statutory provisions or through using appropriate provisions of EDGAR?
• Have issues with the regulations been identified in audits (Office of Inspector General (OIG), Government Accountability Office (GAO), Single Audits)? Are there repeat audit findings or conflicting views on what the regulations mean?
• Are the regulations essential for program effectiveness and financial integrity? For example, does ED or another oversight entity monitor compliance with the regulations?
c.
In addition to those regulations currently under review, we have preliminarily identified a number of other regulatory provisions that we believe warrant retrospective review. As indicated below, program offices will be asked to conduct a retrospective review of these and other regulatory provisions in the next several months. These are as follows:
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•
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d.
e.
The retrospective review team will include representatives of the following offices: Office of the Deputy Secretary; Office of the Under Secretary; Office of Planning, Evaluation, and Policy Development; Budget Service; and the Office of the General Counsel. These offices do not have primary responsibility for drafting or implementing regulations. Additionally, the team will consult, as appropriate, with other offices that have agency-wide responsibilities, such as the Office of Inspector General.
f.
The review team will be trained on the prioritization factors that ED has identified above and on our principles for regulating. The principles and the prioritization factors will be used as the key criteria in conducting the review.
g.
ED will be publishing the preliminary plan for public comment and, following the receipt of public comment, will revise the plan accordingly. At the same time, the retrospective review team will be asking program offices, budget analysts, and program attorneys to complete a retrospective review survey that requests information on existing regulations (see response to question VI(c) below). The team will coordinate the retrospective reviews and provide periodic reports to Deputy Secretary Miller and other senior officials on the progress and results of those reviews.
Once these reviews have been completed, the retrospective review team will analyze the results and develop recommendations to senior officials about which regulations should be amended (or what other actions other
While ED is conducting these reviews, it will analyze the public comments that it receives on the draft plan and incorporate any changes into the final plan. ED intends to conduct its retrospective reviews biennially.
h.
The retrospective review team will use the results of the analysis to develop recommendations for senior officials regarding whether regulations should be amended and whether alternatives to regulating, such as updating guidance or modifying reporting requirements, should instead be used to reduce burden, simplify program implementation, or improve understanding of the regulations.
i.
ED will revise regulations based on the results of the retrospective reviews, the recommendations of the retrospective review team, and the decisions of senior officials. As indicated above, ED intends to conduct its retrospective reviews biennially.
j.
ED will work through the Office of Information and Regulatory Affairs within the Office of Management and Budget and with its existing contacts at other agencies as it is conducting its retrospective reviews and any subsequent amendments to our regulations. These agencies include the U.S. Department of Justice, the U.S. Department of Labor, the U.S. Department of Health and Human Services, the Social Security Administration, and the U.S. Small Business Administration. With respect to our discretionary grant programs, we have consulted and will continue to consult with other Federal agencies engaged in similar activities to assess ways in which we can reduce overlap and redundancy and share best practices, including in such areas as pre-award risk assessments and audit reviews.
k.
There has been a thorough internal review of the preliminary plan by all offices within ED and any revisions made as a result of the public comment we receive on the draft plan will undergo a similarly thorough review.
The preliminary plan has undergone several levels of Departmental review. We have actively engaged and sought input from ED's senior leaders in developing the plan. The plan was presented to ED's Policy Committee for input and recommendations by senior policy officials. Based on recommendations from the Policy Committee, changes were made to the plan, and further changes were made as a result of the review by a larger group of ED staff who are directly responsible for administering the programs that would be affected by any changes to the regulations. As necessary, meetings were held to answer questions and reconcile differences.
ED will soon be publishing the preliminary plan for public comment and will seek informal feedback from stakeholders. Following receipt of public and stakeholder input, ED will consider further revisions to the plan. The final plan will undergo a similar internal review as the preliminary plan.
a.
ED will use several metrics to evaluate regulations after they have been implemented. These metrics are as follows:
• Have there been numerous questions from stakeholders asking for further clarification of, or further amendment to, the regulations on points it would be feasible or desirable to address or clarify in the regulations?
• What, if any, guidance has ED provided to clarify the regulations following issuance of the regulations and has the guidance provided the clarification needed?
• What does information obtained from ED data collections, including data collected through evaluations, grantee performance reports, and other sources tell us about changes in net benefits, cost-effectiveness ratios, or other financial metrics?
• With respect specifically to ED's regulations implementing Parts B and C of IDEA, ED already publishes a quarterly list of correspondence that it sends in response to requests from stakeholders. This correspondence provides guidance and interpretations of the IDEA and its implementing regulations. We will continue to monitor the substance of this correspondence and the number of inquiries received to assess whether regulatory changes may be necessary.
• Has implementation of the regulations led to unfair or unequal access to funding?
b.
The retrospective review team will develop a template for offices to use in collecting data on the metrics identified above. ED also is exploring using a customer survey on an ongoing basis to obtain feedback and data from the public on ED regulations.
c.
Although ED will not be incorporating experimental designs into its analyses, its retrospective analysis of a given set of regulations will begin with independent reviews from the following: (1) Program staff who are responsible for overseeing the implementation of the regulations; (2) the program attorney who advises the program staff on the legal aspects of administering the program; and (3) budget staff who are knowledgeable about the allowable uses of program funds. Each individual will independently complete a review survey that requests information on at least the following questions (which correspond to the prioritization factors described above):
• Have regulated parties identified a lack of clarity or need for changes in the regulations? If so, what regulatory provisions cause confusion or need change?
• Can the regulations be understood and implemented without extensive legal interpretation, non-regulatory guidance, or technical assistance?
• Have regulated parties expressed concern about unwarranted regulatory burden? Do the regulations create an unnecessary administrative burden? If so, what regulatory provisions might be unduly burdensome and why?
• What is the estimated timeline for reviewing and possibly amending the regulations? For instance, will ED need to conduct negotiated rulemaking to amend the regulations and does ED need amended regulations in place by a certain date?
• Has Congress amended the authorizing statute such that prompt review of existing regulations is necessary?
• Does ED anticipate reauthorization of the authorizing statute in the near
• Are the regulations outmoded, unnecessary, or out of date? If so, are they impeding the proper administration of the relevant program? Please identify specific regulatory provisions that are obsolete or out of date and provide a brief explanation.
• What does the evidence from program evaluations, including those that use experimental designs, reveal about the efficacy of the regulations and the need for changes?
• Are the current regulations sufficient to administer the applicable programs? If not, what specific changes would you recommend to update the existing regulations?
• Are regulations necessary to conduct the grant program or can the program be implemented based on the statutory provisions? If regulations are necessary, what specific areas need to be covered in the regulations?
• Have issues with the regulations been identified in audits (OIG, GAO, Single Audits)? Are there repeat audit findings or conflicting views on what the regulations mean?
• Are the regulations essential for program effectiveness and financial integrity? For example, does ED or any other oversight entity monitor compliance with the regulations?
• What are the costs and benefits of removing a regulatory requirement, and what would be the effect on students and program accountability?
a. Will the agency publish its retrospective review plan and available data on its Open Government Web site (
ED will publish its plan on its Open Government website (
National Park Service, Interior.
Proposed rule.
The National Park Service (NPS) proposes to designate routes where off-road vehicles (ORVs) may be used within Cape Hatteras National Seashore (Seashore), North Carolina. Under NPS general regulations, the operation of motor vehicles off of roads within areas of the national park system is prohibited unless otherwise provided for by special regulation. The proposed rule would authorize ORV use at the Seashore, manage it to protect and preserve natural and cultural resources and natural processes, and provide a variety of safe visitor experiences while minimizing conflicts among various users.
Comments must be received on or before midnight (Eastern Daylight Time) Tuesday September 6, 2011. The NPS does not anticipate extending the public comment period beyond the stated deadline due to a court imposed deadline for completing the final rule.
You may submit comments, identified by the Regulation Identifier Number (RIN) 1024–AD85, by any of the following methods:
Comments submitted through Federal eRulemaking Portal:
Mike Murray, Superintendent, Cape Hatteras National Seashore, 1401 National Park Drive, Manteo, North Carolina 27954. Phone: (252) 473–2111 (ext 148).
Officially established in 1937 along the Outer Banks of North Carolina, Cape Hatteras is the nation's first national seashore. Consisting of more than 30,000 acres distributed along approximately 67 miles of shoreline, the Seashore is part of a dynamic barrier island system.
The Seashore serves as a popular recreation destination where visitors participate in a variety of recreational activities. The Seashore also contains important habitat for wildlife created by the Seashore's dynamic environmental processes. Several species, listed under the Endangered Species Act (ESA), including the piping plover, seabeach amaranth, and three species of sea turtles, are found within the park.
In enacting the National Park Service Organic Act of 1916 (Organic Act) (16 U.S.C. 1
Executive Order 11644, Use of Off-Road Vehicles on the Public Lands, was issued in 1972 in response to the widespread and rapidly increasing off-road driving on public lands “often for legitimate purposes but also in frequent conflict with wise land and resource management practices, environmental values, and other types of recreational activity.” Executive Order 11644 was amended by Executive Order 11989 in 1977, and together they are collectively referred to in this rule as “E.O.”. The E.O. requires Federal agencies that allow motorized vehicle use in off-road areas to designate specific areas and routes on public lands where the use of motorized vehicles may be permitted.
Specifically, section 3 of the E.O. requires agencies to develop and issue regulations and administrative instructions to provide for
(1) Areas and trails shall be located to minimize damage to soil, watershed, vegetation, or other resources of the public lands.
(2) Areas and trails shall be located to minimize harassment of wildlife or significant disruption of wildlife habitats.
(3) Areas and trails shall be located to minimize conflicts between off-road vehicle use and other existing or proposed recreational uses of the same or neighboring public lands, and to ensure the compatibility of such uses with existing conditions in populated areas, taking into account noise and other factors.
(4) Areas and trails shall not be located in officially designated Wilderness Areas or Primitive Areas. Areas and trails shall be located in areas of the National Park system, Natural Areas, or National Wildlife Refuges and Game Ranges only if the respective agency head determines that off-road vehicle use in such locations will not adversely affect their natural, aesthetic, or scenic values.
The NPS regulation at 36 CFR 4.10(b) implements the E.O. and requires that routes and areas designated for ORV use be promulgated as special regulations and that the designation of routes and areas shall comply with 36 CFR 1.5 and the E.O. It also states that such routes and areas may be designated only in national recreation areas, national seashores, national lakeshores, and national preserves. The proposed rule is consistent with these authorities and with NPS Management Policies 2006, available at:
Following the establishment of the Seashore in 1937, beach driving was primarily for the purpose of transportation, not recreation. Because the area was sparsely populated, the number of ORVs on the beach was much smaller than it is today. The paving of NC Highway 12, the completion of the Bonner Bridge connecting Bodie and Hatteras islands in 1963, and the introduction of the State of North Carolina ferry system to Ocracoke Island facilitated visitor access to the sound and ocean beaches. Improved access, increased population, and the popularity of the sport utility vehicle have resulted in a dramatic increase in vehicle use on Seashore beaches.
Since the 1970s, ORV use at the Seashore has been managed through various draft or proposed plans, none were completed or published as a special regulation as required by 36 CFR 4.10(b). Motivated in part by a decline in most beach nesting bird populations on the Seashore since the 1990s, in July 2007 the NPS completed the Cape Hatteras National Seashore Interim Protected Species Management Strategy/Environmental Assessment (Interim Strategy) to provide resource protection guidance with respect to ORVs and other human disturbance until the long-term ORV management plan and regulation could be completed. In October 2007, a lawsuit was filed by Defenders of Wildlife and the National Audubon Society against the NPS and the US Fish and Wildlife Service, challenging the Interim Strategy. The lawsuit alleged the Federal defendants failed to implement an adequate plan to govern off-road vehicle use at the Seashore that would protect the Seashore's natural resources while minimizing conflicts with other users, and that the Federal defendants failed to comply with the requirements of the E.O. and NPS regulations regarding ORV use. The lawsuit was resolved in April 2008 by a consent decree agreed to by the plaintiffs, the NPS, and the interveners, Dare and Hyde counties and a coalition of local ORV and fishing groups. ORV use is currently managed pursuant to the consent decree, which also established deadlines of December 31, 2010 and April 1, 2011, respectively, for completion of an ORV management plan/EIS and a final special regulation. On December, 20 2010, the Cape Hatteras ORV Plan/Final Environmental Impact Statement (plan/FEIS) was completed, and the Record of Decision (ROD) selecting the NPS preferred alternative was signed by the NPS Southeast Regional Director. The public was informed of the availability of the plan/FEIS and ROD through notice in the
This proposed rule establishes a special regulation pursuant to 36 CFR 4.10(b) to manage ORV use at the Seashore. The special regulation will implement portions of the selected action alternative, as described in the ROD, by designating ORV routes at the Seashore, establishing requirements to obtain a permit, and imposing date and time and other restrictions related to operation of ORVs, including vehicle and equipment standards. In addition, the proposed rule would correct a drafting error at § 7.58(b)(1) to clarify that the definitions only apply to § 7.58 and not to the entirety of 36 CFR Part 7. Further the rule would delete the definition of permittee at § 7.58(b)(1)(ii) as it is unnecessary and potentially confusing to the public, as the term could be applied to individuals holding different types of permits for different activities. The deletion consequently requires redesignation of the structure of paragraph (b). The addition of paragraph (c) would implement portions of the selected action alternative as described in the ROD, by designating ORV routes at the Seashore, establishing requirements to obtain a permit, and imposing date and time and other restrictions related to operation of ORVs, including vehicle and equipment standards.
The following explains some of the principal elements of the proposed rule in a question and answer format:
For the purposes of this regulation, an “off-road vehicle” or “ORV” means a motor vehicle used off of park roads (off-road). Not all ORVs are authorized for use at the Seashore; however, all ORVs are subject to the vehicle requirements, prohibitions, and permitting requirements described below in this regulation.
Yes. To obtain an ORV permit, you must complete a short education program, acknowledge in writing that you understand and agree to abide by the rules governing ORV use at the Seashore, and pay the applicable permit
No. There would be no limit to the number of permits that the Superintendent could issue. However, use restrictions may limit the number of vehicles on a particular route at one time.
Yes. You would need to get a permit for each vehicle that you want to use for driving on designated ORV routes. A permit would need to be affixed to all vehicles operated on designated ORV routes within the Seashore.
Once you obtain an ORV permit, you may operate a vehicle off road only on designated routes described in the tables located in § 7.58(c)(9). The tables also provide dates for seasonal restrictions on driving these designated routes. Maps of designated ORV routes would be available in the Office of the Superintendent and on the Seashore Web site.
No. In addition to the referenced seasonal restrictions, ORV routes are also subject to temporary resource and safety closures. However, past experience indicates that substantial sections of the beach that are designated as ORV routes would remain open for ORV use when other sections are temporarily closed.
Yes. To receive a permit to operate a vehicle on designated ORV routes, your vehicle must be registered, licensed, and insured for highway use and comply with inspection regulations within the state, country, or province where the vehicle is registered. It must have no more than two axles and its tires must be U.S. Department of Transportation listed or approved, as described at:
Yes. Four-wheel-drive vehicles are recommended, but two-wheel-drive vehicles would be allowed if, in the judgment of the vehicle operator, the vehicle is capable of over-sand travel.
Yes. Towed boat and utility trailers with one or two axles would be allowed. Boat and utility trailers with more than two axles would be prohibited.
No. Travel trailers (
No. The operation of motorcycles would be prohibited on designated ORV routes.
Motorcycles are generally not capable of travelling through the deep, soft sand or carrying the requisite equipment for self extraction should they become stuck.
No. Vehicles not registered, licensed and insured for highway use, including ATVs and UTVs, cannot lawfully be operated to ORV access points, and adequate parking for trailers or other transport vehicles is not readily available adjacent to ORV access points. Further, these vehicles have historically not been allowed to operate within the Seashore, and authorizing such use would limit the capacity for and interfere with the more significant and traditional use of four-wheel drive pick-up trucks, sport utility vehicles and other passenger vehicles for off-road access associated with fishing, picnicking, sun bathing, surfing, wading and swimming.
The speed limit would be 15 miles per hour (unless otherwise posted), except for emergency vehicles when responding to a call.
Yes. Vehicles must yield to pedestrians and move to the landward side of the ORV corridor when approaching or passing a pedestrian on the beach. When traveling within 100 feet of pedestrians, ORVs must slow to 5 mph.
Yes, but not at all times on all routes. ORVs would be allowed on designated ORV routes 24 hours a day from November 16 to April 30, subject to the terms and conditions established under an ORV permit. However, from May 1 to November 15, designated ORV routes in potential sea turtle nesting habitat (ocean intertidal zone, ocean backshore, and dunes) would be closed to ORVs from 9:00 p.m. until 7:00 a.m. However, from September 15 to November 15, the Superintendent may reopen designated ORV routes at night if there are no turtle nests remaining. This is a minor change to the dates in the ROD. The NPS has decided it would be easier for the public to understand and more convenient to administer if the night driving dates coincided with some of the seasonal ORV route dates. Therefore, as described, night driving may be allowed beginning on September 15 instead of September 16. Routes that are subject to these night driving restrictions, as well as routes identified as having no turtle nests remaining, will be depicted on maps available in the Office of the Superintendent and on the Seashore Web site.
No. During the restricted hours, all vehicles would be prohibited on designated ORV routes, including the beach.
No. It would be covered by the ORV permit required to drive on the designated ORV routes in the Seashore.
Yes, such use would be accommodated on a case-by-case basis in front of villages only, and would be subject to the conditions of a special use permit issued by the Superintendent. The permit would allow you to transport mobility-impaired individuals to a predetermined location in an otherwise vehicle-free area (VFA) in front of the villages. After transporting the person to the beach, you would have
No. Commercial Use Authorizations (CUAs) would, as appropriate, also authorize ORV use by the CUA holder but not their clients. ORV use by commercial fisherman who are actively engaged in a commercial fishing activity would be authorized ORV use under the terms of their commercial fishing special use permit.
Yes. In keeping with the current practice, commercial fishermen when actively engaged in their authorized commercial fishing activity would be allowed to enter VFAs, except for resource closures and lifeguarded beaches. Lifeguarded beaches would be closed seasonally by the Superintendent. Commercial fishing activities and use of associated fishing gear conflicts with the significant, concentrated beach use and associated swimming use of these areas by visitors.
Commercial fishermen while actively engaged in authorized commercial fishing activity and who are able to present a fish-house receipt from the previous 30 days would be allowed to enter the beach at 5 a.m. on days when night driving restrictions are in effect for the general public.
Section 3(4) of E.O. provides that ORV “areas and trails shall be located in areas of the National Park system, Natural Areas, or National Wildlife Refuges and Game Ranges only if the respective agency head determines that off-road vehicle use in such locations will not adversely affect their natural, aesthetic, or scenic values.” Since the E.O. clearly was not intended to prohibit all ORV use everywhere in these units, the term “adversely affect” does not have the same meaning as the somewhat similar terms “adverse impact” or “adverse effect” commonly used in the National Environmental Policy Act of 1969 (NEPA) . Under NEPA, a procedural statute that provides for the study of environmental impacts, the term “adverse effect” refers to any effect, no matter how minor or negligible. Section 3(4) of the E.O. by contrast, does not prescribe procedures or any particular means of analysis. It concerns substantive management decisions, and must instead be read in the context of the authorities applicable to such decisions. The Seashore is an area of the National Park System. Therefore, the NPS interprets the E.O. term “adversely affect” consistent with its NPS Management Policies 2006. Those policies require that NPS only allows “appropriate use” of parks, and avoids “unacceptable impacts.”
Specifically, this rule will not impede the attainment of the Seashore's desired future conditions for natural and cultural resources as identified in the plan/FEIS. We have determined this rule will not unreasonably interfere with the atmosphere of peace and tranquility, or the natural soundscape maintained in natural locations within the Seashore. Therefore, we have determined that within the context of E.O., the resources and values of the Seashore, ORV use on the ORV routes designated by this rule (which are also subject to resource closures and other species management measures that will be implemented under the selected action in the ROD) will not adversely affect the natural, aesthetic, or scenic values of the Seashore.
Section 8(a) of the E.O. requires the respective agency head to monitor the effects of the use of off-road vehicles on lands under their jurisdictions. On the basis of the information gathered, such agency head shall from time to time amend or rescind designations of areas or other actions taken pursuant to the E.O. as necessary to further the policy of the E.O. The selected action for the plan/EIS, as described in the ROD, identifies monitoring and resource protection procedures, periodic review, and desired future condition to provide for the ongoing and future evaluation of impacts of ORV use on protected resources. The park Superintendent has the existing authority under both this proposed regulation and under 36 CFR § 1.5 to close portions of the Seashore as needed to protect park resources.
This document is a significant rule and the Office of Management and Budget (OMB) has reviewed this rule under Executive Order 12866. The assessments required by Executive Order 12866 and the details of potential beneficial and adverse economic effects of the proposed rule can be found in the report entitled “Benefit-Cost Analysis of Proposed ORV Use Regulations in Cape Hatteras National Seashore” which is available online at
(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities.
(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.
(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.
(4) OMB has determined this rule raises novel legal or policy issues. ORV use at the Seashore has been the subject of litigation in the past; a settlement agreement between the parties was reached in May 2008 and ORV use at the Seashore is currently managed under a court order/consent decree until the final rule is promulgated.
The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the RFA (5 U.S.C. 601
As part of the socio-economic impact analysis for the plan/EIS, and based on suggestions from negotiated rulemaking advisory committee members, NPS conducted a small business survey, a visitor intercept survey, and a vehicle count study to supplement the existing sources of socio-economic data that were available in the public domain. We carefully considered his information in analyzing the rule's costs, benefits and impact.
While close to 100 percent of the rule's impacts would fall on small businesses, some popular areas, such as Cape Point, South Point, and Bodie Island spit, would have designated year-round or seasonal ORV routes. The presence of more Vehicle Free Areas (VFAs) for pedestrians, combined with increased parking for pedestrian access,
The proposed rule includes a number of measures designed to mitigate effect on the number of visitors as well as the potential for indirect economic effects on village businesses that profit from patronage by Seashore visitors using ORVs. These include: New pedestrian and ORV beach access points, parking areas, pedestrian trails, routes between dunes, and ORV ramps to enhance ORV and pedestrian access; a designated year-round ORV route at Cape Point and South Point, subject to resource closures when breeding activity occurs; and pedestrian shoreline access along ocean and inlet shorelines adjacent to shorebird pre-nesting areas until breeding activity is observed. In addition, we will seek funding for an alternative transportation study and consider applications for businesses to offer beach and water shuttle services. These extra efforts to increase overall access and visitor use under the Selected Action, which we developed with extensive public involvement, should increase the probability that the economic impacts are on the low rather than high end of the range.
This rule is not a major rule under the SBREFA, 5 U.S.C. 804(2). This rule:
a. Does not have an annual effect on the economy of $100 million or more.
b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
This determination is based on information contained in the report titled “Benefit-Cost Analysis of Proposed ORV Use Regulations in Cape Hatteras National Seashore”, available for review online at
This rule does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or Tribal governments or the private sector. The designated ORV routes are located entirely within the Seashore, and will not result in direct expenditure by State, local, or Tribal governments. This rule addresses public use of NPS lands, and imposes no requirements on other agencies or governments. Therefore, a statement containing the information required by the UMRA (2 U.S.C. 1531
Under the criteria in E.O. 12630, this rule does not have significant takings implications. No taking of personal property will occur as a result of this rule. Access to private property located within or adjacent to the Seashore will not be affected by this rule. This rule does not regulate uses of private property. A takings implication assessment is not required.
Under the criteria in E.O. 13132, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. This rule only affects use of NPS-administered lands and imposes no requirements on other agencies or governments. A Federalism summary impact statement is not required.
This rule complies With the requirements of E.O. 12988. Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
Under the criteria in E.O. 13175 we have evaluated this rule and determined that it would have no potential effect on Federally recognized Indian Tribes.
On August 27, 2010, the NPS sent a letter to the Tuscarora Nation requesting information on any historic properties of religious or cultural significance to the Tribe that would be affected by the plan/FEIS. The Tuscarora Nation has not informed the Seashore of any such properties.
This rule does not contain any new collection of information that requires approval by OMB under the PRA of 1995 (44 U.S.C. 3501
This rule implements portions of the plan/FEIS and ROD which is a major Federal action significantly affecting the quality of the human environment. In accordance with NEPA, the NPS prepared a Draft Environmental Impact Statement (DEIS) and a Final Environmental Impact Statement for the plan/FEIS. The plan/FEIS was released on November 15, 2010. The NPS Notice of Availability and the EPA Notice of Availability for the plan/FEIS were published in the
Information presented in the plan/FEIS is based on a wide range of scientific and peer reviewed data which was used to determine potential impacts and to develop a range of alternatives. Studies, surveys, or reports used or referenced are listed in the Reference section of the plan/FEIS, available for review at
This rule is not a significant energy action under the definition in E.O. 13211. A Statement of Energy Effects is not required.
We are required by Executive Orders 12866 and 12988, and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
All submissions received must include the agency name and RIN for this rulemaking: 1024–AD85. All comments received through the Federal eRulemaking portal at
District of Columbia, National Parks, Reporting and recordkeeping requirements.
In consideration of the foregoing, the National Park Service proposes to amend 36 CFR part 7 as follows:
1. The authority citation for part 7 continues to read as follows:
16 U.S.C. 1, 3, 9a, 462(k); Sec. 7.96 also issued under 36 U.S.C. 501–511, DC Code 10–137 (2001) and DC Code 50–2201 (2001).
2. In § 7.58,
A. Revise the introductory language in paragraph (b)(1).
B. Remove paragraph (b)(1)(ii),
C. Redesignate paragraphs (b)(1)(iii) through (b)(1)(v) as (b)(1)(ii) through (b)(1)(iv).
D. Add paragraph (c).
The revisions to read as follows:
(b) * * *
(1)
(c)
(1)
(2)
(i) A permit issued by the Superintendent is required to operate a vehicle on designated ORV routes at the Seashore.
(ii) Operation of a motor vehicle authorized under an ORV permit is limited to those routes designated in this paragraph (c).
(iii) There is no limit to the number of ORV permits that the Superintendent may issue.
(iv) Annual ORV permits are valid for the calendar year for which they are issued. Seven-day ORV permits are valid from the date of issue.
(v) In order to obtain a permit, an applicant must comply with vehicle and equipment requirements, complete a short education program in person, acknowledge in writing an understanding of the rules governing ORV use at the Seashore, and pay the permit fee.
(vi) Each permit holder must affix the permit in a manner and location specified by the Superintendent to the vehicle authorized for off-road use.
(3)
(i) The vehicle must be registered, licensed, and insured for highway use and must comply with inspection regulations within the state, country, or province where the vehicle is registered.
(ii) The vehicle must have no more than two axles.
(iii) A towed boat or utility trailer must have no more than two axles.
(iv) Vehicle tires must be listed or approved by the U.S. Department of Transportation.
(v) The vehicle must carry a low-pressure tire gauge, shovel, jack, and jack stand.
(4)
(5) The off-road operation of a motorcycle, all-terrain vehicle (ATV) or utility vehicle (UTV) is prohibited.
(6) The towing of a travel trailer (
(7)
(i) Authorize the North Carolina Department of Transportation to use Seashore beaches as a public way, when necessary, to bypass sections of NC Highway 12 that are impassable or closed for repairs; or
(ii) Allow participants in regularly scheduled fishing tournaments to drive in an area if such tournament use was allowed in that area for that tournament before January 1, 2009; or
(iii) Allow vehicular transport of mobility impaired individuals via the shortest, most direct distance from the nearest designated ORV route or Seashore road to a predetermined location in a designated vehicle-free
(8)
(i) Not designated for ORV use, provided the beach is not subject to a resource closure and is not lifeguarded; and
(ii) Beginning at 5 a.m. on days when night driving restrictions are in effect, to set or tend haul seine or gill nets, if the permit holder is carrying and able to present a fish-house receipt from the previous 30 days.
(9)
(10)
(11)
(ii) In addition to the requirements of Part 4 of this chapter, the following restrictions apply:
(A) A vehicle operator must yield to pedestrians on all designated ORV routes.
(B) When approaching or passing a pedestrian on the beach, a vehicle operator must move to the landward side to yield the wider portion of the ORV corridor to the pedestrian.
(C) A vehicle operator must slow to 5 mph when traveling within 30.5 meters (100 feet) or less of pedestrians at any location on the beach at any time of year.
(D) An operator may park on a designated ORV route, but no more than one vehicle deep, and only as long as the parked vehicle does not obstruct two-way traffic.
(E) When driving on a designated route, an operator must lower the vehicle's tire pressure sufficiently to maintain adequate traction within the posted speed limit.
(F) The speed limit for off road driving is 15 mph, unless otherwise posted.
(12)
(i) Hours of operation and night driving restrictions are listed in the following table:
(ii) Maps available in the office of the Superintendent and on the Seashore's Web site will show routes closed due to night driving restrictions, and routes the Superintendent opens because there are no turtle nests remaining.
(13)
(14) Violating any of the provisions of this paragraph, or the terms, conditions, or requirements of an ORV or other permit authorizing ORV use is prohibited. A violation may also result in the suspension or revocation of the applicable permit by the Superintendent.
(15)
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve revisions to the Imperial County Air Pollution Control District (ICAPCD), Kern County Air Pollution Control District (KCAPCD), and Ventura County Air Pollution Control District (VCAPCD) portions of the California State Implementation Plan (SIP). These revisions concern volatile organic compound (VOC) emissions from architectural coating operations. We are proposing to approve local rules to regulate these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act).
Any comments on this proposal must arrive by
Submit comments, identified by docket number EPA–R09–OAR–2011–0198, by one of the following methods:
1.
2.
3.
David Grounds, EPA Region IX, (415) 972–3019,
This proposal addresses the following local rules: ICAPCD Rule 424, KCAPCD Rule 410.1A, and VCAPCD Rule 74.2.In the Rules and Regulations section of this
We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action.
Environmental Protection Agency (EPA).
Notice of filing of petitions and request for comment.
This document announces the Agency's receipt of several initial filings of pesticide petitions requesting the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities.
Comments must be received on or before August 5, 2011.
Submit your comments, identified by docket identification (ID) number and the pesticide petition number (PP) of interest as shown in the body of this document, by one of the following methods:
•
•
•
A contact person, with telephone number and e-mail address, is listed at the end of each pesticide petition summary. You may also reach each contact person by mail at Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001.
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed at the end of the pesticide petition summary of interest.
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
3.
EPA is announcing its receipt of several pesticide petitions filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 174 or part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the requests before responding to the petitioners. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petitions described in this document contain the data or information prescribed in FFDCA section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petitions. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on these pesticide petitions.
Pursuant to 40 CFR 180.7(f), a summary of each of the petitions that are the subject of this document, prepared by the petitioner, is included in a docket EPA has created for each rulemaking. The docket for each of the petitions is available on-line at
As specified in FFDCA section 408(d)(3), (21 U.S.C. 346a(d)(3)), EPA is publishing notice of the petition so that the public has an opportunity to comment on this request for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petition may be obtained through the petition summary referenced in this unit.
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Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
Corporation for National and Community Service.
Proposed rule with request for comments.
The Corporation for National and Community Service (the Corporation) proposes amendments to its National Service Criminal History Check regulations to require grantees to conduct and document criminal history checks (including both state criminal history checks and FBI fingerprint checks) on Senior Companions, Foster Grandparents, Retired Senior Volunteer Program grant-funded staff, Learn and Serve America, AmeriCorps State/National (including Education Award Program) participants, and other Corporation grant-funded participants and grant-funded staff in all Corporation programs, who, on a recurring basis, have access to children, persons age 60 and older, or individuals with disabilities.
To be certain your comments are considered, they must reach the Corporation on or before August 5, 2011.
You may send your comments electronically through the Federal government's one-stop rulemaking Web site at
Amy Borgstrom at (202) 606–6930. The TDD/TTY number is (202) 606–3472. You may request this notice in an alternative format for the visually impaired.
We invite you to submit comments about these proposed regulations online at
On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these proposed regulations. If you want to schedule an appointment for this type of aid, please contact the person listed under
The Corporation initially engaged in rulemaking concerning the requirement for grantees to conduct criminal history checks on national service participants and grant-funded staff in 2007. In that rule, the Corporation required programs to conduct National Service Criminal History Checks—consisting of a statewide search of a state's criminal registry (for both the state where the individual resides at the time of application and the state where the individual will be serving) and a check of the Department of Justice's National Sex Offender Public Web site (NSOPW)—on all “covered individuals.” Covered individuals were those program staff and participants who had recurring access to children, the elderly, and to individuals with disabilities. Recurring access was defined as having contact with individuals from one or more of the above groups on more than one occasion. The regulations did not cover the RSVP and Learn and Serve programs, nor did they cover the NCCC and VISTA programs, which are Federally operated programs that have their own criminal history requirements.
Those regulations offered the option of requesting approval of an alternative search procedure (also known as an “alternative screening protocol” or “ASP”), which would permit an entity that could demonstrate that it was “prohibited or otherwise precluded under state law from complying with a Corporation requirement relating to criminal history checks or that [it] could obtain substantially equivalent or better information through an alternative process” to use a process other than the one outlined by the Corporation. (45 CFR 2540.206). Under this rule, an entity had the option of using a national FBI fingerprint-based check in lieu of the state criminal registry check without obtaining prior Corporation approval.
In 2009, Congress passed the Kennedy Serve America Act of 2009 (Pub. L. 111–13) (SAA), which amended the National and Community Service Act of 1990 (42 U.S.C. 12501
As directed by the SAA, the Corporation issued new regulations in 2009, expanding coverage to any national service participant or grant-funded employee who received one of the above-described payments for his or her service or employment. (74 FR 46495). Now included in this group of covered individuals are grant-funded staff serving in any Corporation-funded national service program, including RSVP and Learn and Serve grant-funded staff, as well as participants in all Corporation grant programs, if the individual receives one of the types of remuneration described above. This includes the Non-profit Capacity Building and Social Innovation Fund grant programs.
Pursuant to these regulations, each individual meeting the amended description of a “covered individual” hired or enrolled in a program on or after October 1, 2009, is required to undergo a full National Service Criminal History Check including: (a) A search of either (1) the state criminal registry in the state in which the program is operating and the state in which the individual resides at the time of application,
In addition to expanding the definition of “covered individuals,” the Serve America Act expanded the types of offenses that would render an individual ineligible to serve in a covered position to include individuals who had been convicted of murder.
Under section 189D(d) of the NCSA, as amended by the SAA, beginning April 21, 2011, entities that select covered individuals over the age of 18 who will have recurring access to vulnerable populations as part of their position must conduct both a statewide criminal history check and an FBI fingerprint-based check. As described herein, section 189D(d)(3) of the NCSA permits limited exceptions to this heightened requirement.
The Corporation is undertaking this rulemaking to implement the amendments made by the SAA with regard to heightened screening requirements for covered individuals with recurring access to vulnerable populations. In addition, this proposed rule clarifies several existing requirements, and makes several minor technical corrections for clarity.
The SAA amended the definition of “program” in the NCSA to include newly-authorized programs such as Campuses of Service, Serve America and Encore Fellows, Silver Scholars, the Social Innovation Fund, and activities funded under programs such as the Volunteer Generation Fund. This proposed rule corrects the definition of “program” in regulation to align with the definition in statute.
To clarify that it is not necessary to conduct checks on individuals whose connection to the program is tangential (such as an individual who provides training to participants and volunteers on occasion but is otherwise not integral to the operation of the program) or who is intended as a beneficiary (such as a child who receives a cash prize for completing a service-learning project hosted by the program), this rule proposes to amend the definition of “covered individual” by removing the clause “or other remuneration.” A covered individual is any individual who receives a Corporation grant-funded living allowance, stipend, national service education award, or salary for participation in or employment by a program. An individual who receives some financial benefit through a national service program but who does not otherwise perform any service to implement the program is not a covered individual.
The Serve America Act expanded the list of offenses that would render an individual ineligible for service to include conviction for murder. The Corporation amended its regulations to align with this statutory change in 2009, but through that rulemaking inadvertently neglected to amend the regulation on eligibility to serve in an AmeriCorps State and National position. This rule amends § 2522.200 to expand the list of eligibility criteria to serve in an AmeriCorps State and National to include satisfaction of the National Service Criminal History Check eligibility criteria.
In practice, the National Service Criminal History Check for covered individuals includes: (1) a name or fingerprint-based state registry check of the state where the program is operating and the state where the individual resides at the time of application
Since promulgating criminal history check rules in 2007, the Corporation has applied the first prong of this test to programs operating in more than one state by requiring such programs to conduct the state registry check in the state where the covered individual will be primarily serving or working. This proposed rule would also codify this clarification.
As required by section 189D of the NCSA, as amended by the SAA, under this rule, unless the Corporation approves an alternative screening protocol under § 2540.206, for each covered individual a program hires or enrolls on or after April 21, 2011, who is age 18 or older and whose position will involve recurring access to vulnerable populations, in addition to a National Sex Offender Public Web site (
“Recurring access” is defined as “the ability on more than one occasion to approach, observe, or communicate with, an individual, through physical proximity or other means, including but not limited to, electronic or telephonic communication.” (45 CFR 2510.20).
In anticipation of this heightened requirement, current grantees have inquired into whether the Corporation would be developing a centralized mechanism for conducting FBI checks for national service participants. While the Corporation is committed to identifying ways to decrease burden on grantees, at this time no such centralized mechanism is available.
Under this proposed rule, an entity may apply to the Corporation for approval of an ASP that would relieve the entity from the requirement to conduct both the statewide and national checks on a covered individual with recurring access to vulnerable populations.
The Corporation will approve an ASP for this requirement if the entity demonstrates: (1) The service provided by the individual serving with the entity to a vulnerable population is episodic in nature or for a 1-day period; (2) the cost to the program of complying with § 2540.202(b) of this chapter is prohibitive; (3) the program is not authorized, or is otherwise unable, under state or Federal law, to access the national criminal history background check system of the FBI; or (4) the program cannot comply with the requirement for good cause, as determined and approved by the Corporation.
Congress specifically exempted from heightened coverage those individuals whose access to vulnerable populations is “episodic in nature or for a 1-day period.” While the heightened coverage applies to all individuals with “recurring access,” or access on more than one occasion, it will not apply to those individuals whose recurring access is “episodic in nature.”
For the purposes of this rule, the Corporation proposes to define “episodic” as access that is not a regular, scheduled, and anticipated component of an individual's position description. If access to vulnerable populations is not a regular, scheduled, and anticipated component of the position description, the program is not required to conduct both an FBI and a state check on the individual.
For example, consider an individual who is applying for an AmeriCorps position with an environmental program that involves volunteer coordination. If the program anticipates that the position will involve coordinating high school student volunteers on a regular basis, the individual will need the heightened check. However, if the program has no reason to expect that the position will involve coordinating 17-year-old and younger volunteers because the program has never operated in a youth environment and does not have any youth engagement goals, and does not recruit high school age volunteers, any contact with a child volunteer would be irregular, unscheduled, and unanticipated, and thus, episodic. Therefore, it would be unnecessary to conduct a heighted check on the individual.
The Corporation does not propose a numeric component for the determination of whether or not access is episodic. In other words, if a program does not anticipate that a member will have access to vulnerable populations, the requirement would not materialize after a specific number of incidents of access occur.
The Corporation expects that in the majority of cases it will be clear whether or not access to vulnerable populations is an anticipated, regular component of a position description. Nevertheless, the Corporation recommends that programs specifically address contact with vulnerable populations in each position description. If incidental access becomes unexpectedly regular or frequent, a program may want to take additional precautionary measures based on the circumstances.
The Corporation will publish on its Web site those scenarios for which the Corporation has approved ASPs for “good cause” based on requests received following the publication of this rule. This list may be expanded and codified in regulation in the future.
Under current 45 CFR 2540.203(c), (redesignated as 2540.203(b) under this proposed rule) it is not necessary to perform an additional check on an individual who serves in consecutive terms of service with a program with a break in service of fewer than 30 days. This section permits a program to forego additional checks for individuals serving consecutive terms, but is based upon a presumption that the additional check would essentially replicate the original check.
Each individual hired or enrolled into a covered position that involves recurring access to vulnerable populations after April 21, 2011, is required to undergo the enhanced criminal history check. The fact that an individual met the criminal history check requirements at the time the individual was hired or enrolled in a prior term of service does not excuse the individual from the enhanced requirements at the time the individual is hired or enrolled in a subsequent term, even if there has been a break in service of fewer than 30 days.
If a program can demonstrate that the check performed on an individual during the previous term would meet the current requirements, it is not necessary to perform an additional check. For example, if, at the time the covered individual was hired or enrolled in a prior term, the program conducted the NSOPR check, a state check, and an FBI check, it is unnecessary to replicate the entire process for the subsequent term if there is a break in service of fewer than 30 days.
Under current rules, an individual for whom the results of a required state criminal registry check are pending is not permitted access to vulnerable populations “without being accompanied by an authorized program representative who has previously been cleared for such access.” 45 CFR 2540.204(g). Since the initial promulgation of this rule, it has come to our attention that it is common for the vulnerable beneficiary in question to be accompanied by a parent, legal guardian, teacher, doctor, nurse, or other individual responsible for his or her care.
The Corporation does not believe it is necessary for a selected individual with pending criminal history results to be accompanied by an authorized program representative who has received the appropriate criminal history check when the vulnerable individual is accompanied by an individual responsible for his or her care. Thus, under this proposed rule, a covered individual may be selected and placed while state or FBI criminal history checks are pending, so long as the individual is not permitted access to vulnerable populations without being accompanied by: (1) An authorized program representative who has previously been cleared for such access;
For example, a covered individual who occasionally gives nature tours to schoolchildren as part of an environmental program would not be required to be accompanied by an authorized program representative on the tour if the students are accompanied by teachers or parents.
This proposed rule clarifies that it is not necessary to retain the actual documents produced as a result of conducting the statewide or FBI criminal registry search component of the check. Rather, it is sufficient to retain a summary of the results certified by an authorized program representative, along with written documentation that the results were considered in selecting the individual. The program must have reviewed and determined that the criteria used by the issuing governmental body meets or exceeds the Corporation's standards for eligibility. For example, if a program receives a document from the statewide criminal registry that indicates the individual has been “cleared” for service based upon an agreement that describes the offenses that would result in ineligibility, that clearance document may be retained as the result of the criminal registry check.
The proposed rule requires grantees to obtain and document a baseline criminal history check for covered individuals. The Corporation considers the cost of this required criminal history check a reasonable and necessary program grant expense, such costs being presumptively eligible for reimbursement. In any event, a grantee should include the costs associated with its screening process in the grant budget it submits for approval to the Corporation.
The proposed rule codifies the Corporation's guidance that, except where approved by the Corporation, a grantee may not charge an individual for the cost of a National Service Criminal History Check. In addition, because criminal history checks are inherently attributable to operating a program, such costs may not be charged to a state commission administrative grant.
We will monitor compliance with the rules and requirements associated with National Service Criminal History Checks as a material condition of receiving a Corporation grant. A grantee's failure to comply with this requirement may adversely affect the grantee's access to grant funds or ability to obtain future grants from the Corporation. In addition, a grantee jeopardizes eligibility for reimbursement of costs related to a disqualified individual if it fails to perform or properly document (as described herein) the required National Service Criminal History Check on covered individuals.
The table below illustrates which requirements apply to various program types.
The Corporation intends to make any final rule based on this proposal effective no sooner than 60 days after the final rule is published in the
Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action” although not economically significant, under section 3(f) of Executive Order 12866.
As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 605 (b)), the Corporation certifies that this rule, if adopted, will not have a significant economic impact on a substantial number of small entities. This regulatory action will not 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 United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, the Corporation has not performed the initial regulatory flexibility analysis that is required under the Regulatory Flexibility Act (5 U.S.C. 601
For purposes of Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531–1538, as well as Executive Order 12875, this regulatory action does not contain any Federal mandate that may result in increased expenditures in either Federal, state, local, or Tribal governments in the aggregate, or impose an annual burden exceeding $100 million on the private sector.
This proposed rule contains no information collection requirements and is therefore not subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501
Executive Order 13132, Federalism, prohibits an agency from publishing any rule that has Federalism implications if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. The proposed rule does not have any Federalism implications, as described above.
Grant programs—social programs.
Grant programs—social programs, Reporting and recordkeeping requirements, Volunteers.
Administrative practice and procedure, Grant programs—social programs, Reporting and recordkeeping requirements, Volunteers.
Aged, Grant programs—social programs, Volunteers.
Aged, Grant programs—social programs, Volunteers.
For the reasons stated in the preamble, the Corporation for National and Community Service proposes to amend chapter XXV, title 45 of the Code of Federal Regulations as follows:
1. The authority citation for Part 2510 continues to read as follows:
42 U.S.C. 12511.
2. Amend § 2510.20 by revising the definition of “program” to read as follows:
1. The authority citation for Part 2522 continues to read as follows:
42 U.S.C. 12571–12595; 12651b–12651d; E.O. 13331, 69 FR 9911
2. Amend § 2522.200 by:
a. Removing the period at the end of paragraph (a)(3) and adding a semicolon in its place; and
b. Adding a new paragraph (a)(4) to read as follows:
(a) * * *
(4) Satisfy the National Service Criminal History Check eligibility criteria pursuant to 45 CFR § 2540.201.
3. Revise § 2522.205 to read as follows:
You must apply eligibility criteria relating to criminal history to a participant or staff position for which an individual receives a Corporation grant-funded living allowance, stipend, education award, or salary for participation in or employment by a program as defined in § 2510.20 of this chapter.
4. Remove and reserve § 2522.206.
5. Revise § 2522.207 to read as follows:
In determining an individual's eligibility to serve in a covered position, you must follow the procedures in part 2540 of this title.
6. The authority citation for Part 2540 continues to read as follows:
E.O. 13331, 69 FR 9911; 18 U.S.C. 506, 701, 1017; 42 U.S.C. 12653, 12631–12637; 42 U.S.C. 5065.
7. Revise § 2540.200 to read as follows:
You must apply eligibility criteria relating to criminal history to an individual applying for, or serving in, a position for which the individual receives a Corporation grant-funded living allowance, stipend, education award, or salary for participation in or employment by a program as defined in § 2510.20 of this chapter.
8. Revise § 2540.201 to read as follows:
In addition to eligibility criteria established by the program, an individual shall be ineligible to serve in a covered position if the individual—
(a) Refuses to consent to a criminal registry check described in § 2540.202 of
(b) Is registered, or required to be registered, on a state sex offender registry or the National Sex Offender Registry; and
(c) Has been convicted of murder, as defined in section 1111 of title 18, United States Code.
9. Revise § 2540.202 to read as follows:
(a)
(1)
(i) A search (by name or fingerprint) of the state criminal registry for
(A) The state in which the program operates (for multi-state programs, the state where the individual will be primarily serving or working) and
(B) The state in which the individual resides at the time of application; or
(ii) Submitting fingerprints to the Federal Bureau of Investigation for a national criminal history background check; and
(2)
(b)
(1) A search (by name or fingerprint) of
(A) The state criminal registry for the state in which your program operates and
(B) The state in which the individual resides at the time of application; and
(2) Submitting fingerprints to the Federal Bureau of Investigation for a national criminal history background check.
10. Revise § 2540.203 to read as follows:
(a)
(b)
11. Amend § 2540.204 by:
a. Revising paragraph (f); and
b. Adding a new paragraph (g).
The revision and addition will read as follows:
(f) Ensure that an individual, for whom the results of a required state or FBI criminal registry check are pending, is not permitted to have access to children, persons age 60 and older, or individuals with disabilities without being accompanied by:
(1) An authorized program representative who has previously been cleared for such access;
(2) A family member or legal guardian of the vulnerable individual; or
(3) An individual authorized by nature of his or her profession to have recurring access to the vulnerable individual, such as an education or medical professional.
(g) Unless specifically approved by the Corporation, a grantee may not charge an individual for the cost of any component of a National Service Criminal History Check.
12. Revise § 2540.205(b) to read as follows:
(b) Maintain the results of the NSOPW check, and the results or a summary of the results issued by a state or Federal government body of the state or FBI searches performed for each National Service Criminal History check (unless precluded by state law), and document in writing that an authorized program representative considered the results in selecting the individual.
13. Revise § 2540.206 to read as follows:
(a)
(1) Verifies the identity of the individual; and
(2) Includes a search of an alternative criminal database that is sufficient to identify the existence, or absence of, the criminal offenses listed in § 2540.208 of this chapter.
(b)
(1) The service provided by the individual serving with the entity to a vulnerable population is episodic in nature or for a 1-day period;
(2) The cost to the program of complying with § 2540.202(b) of this chapter is prohibitive;
(3) The program is not authorized, or is otherwise unable, under state or Federal law, to access the state registry or the national criminal history background check system of the FBI; or
(4) The program cannot comply with § 2540.202(b) of this chapter for good cause, as determined and approved by the Corporation.
(c)
14. Remove and reserve § 2540.207.
15. The authority citation for part 2551 continues to read as follows:
42 U.S.C. 4950
16. Amend § 2551.23 by adding a new paragraph (l) to read as follows:
(l) Conduct criminal history checks on all Senior Companions and Senior Companion grant-funded employees who enroll in, or are hired by, your program after November 23, 2007, in accordance with the National Service Criminal History Check requirements in 45 CFR §§ 2540.200–207.
17. Remove and reserve §§ 2551.26, 2551.27, 2551.28, 2551.29, 2551.30, 2551.31, 2551.32.
18. The authority citation for Part 2552 continues to read as follows:
42 U.S.C. 4950
19. Amend § 2552.23 by adding a new paragraph (l) to read as follows:
(l) Conduct criminal history checks on all Foster Grandparents and Foster Grandparent grant-funded employees who enroll in, or are hired by, your program after November 23, 2007, in accordance with the National Service Criminal History Check requirements in 45 CFR §§ 2540.200–207.
20. Remove and reserve § 2552.26, 2552.27, 2552.28, 2552.29, 2552.30, 2552.31, 2552.32.
Fish and Wildlife Service, Interior.
Advance notice of proposed rulemaking.
We solicit recommendations on whether the bald eagle (
We will accept comments received or postmarked by the end of the day on October 4, 2011.
You may submit comments by either one of the following methods:
•
•
We will not accept e-mail or faxes. We will post all comments on
Dr. George T. Allen, 703–358–1825.
Propagation of bald eagles and golden eagles has not been allowed under the raptor propagation permit regulations at 50 CFR 21.30. We are now considering whether to permit this activity. We request comments and suggestions on this topic from the public, other concerned governmental agencies, the scientific community, industry, and other interested parties.
You may submit your comments and supporting materials only by one of the methods listed in the
If you submit a comment via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection at
The U.S. Fish and Wildlife Service is the Federal agency with the primary responsibility for managing migratory birds. Our authority is based on the Migratory Bird Treaty Act (MBTA, 16 U.S.C. 703
The MBTA allows the Secretary of the Interior to issue permits for take and possession of migratory birds for many purposes. The BGEPA allows bald eagles and golden eagles to be taken and possessed under more restricted circumstances. For example, only golden eagles that are depredating on livestock or wildlife may be taken from the wild by falconers, and bald eagles, no matter what their origin, cannot be held for falconry. Eagles may not be sold, purchased, or bartered under any circumstances, regardless of whether they are wild or captive-bred in origin.
Bald and golden eagles are the only raptor species protected by the MBTA that are not allowed under the current raptor propagation permit regulations at 50 CFR 21.30 because those regulations do not apply to these two species that are also protected under the Bald and Golden Eagle Protection Act (see 50 CFR 21.2(b)). We are evaluating whether to amend the regulations to allow some holders of valid raptor propagation permits to propagate eagles as they can many other raptor species. Most eagles in captivity are held under permits for exhibition/education, eagle falconry, and Native American eagle aviaries. All
We particularly solicit comments on the topics listed below. Explaining your reasons and rationale for your comments will help as we consider them.
(1) Whether to allow propagation of bald eagles and golden eagles under raptor propagation permits.
(2) Qualifications and experience necessary to propagate eagles.
(3) Limits or restrictions that should apply to propagation of eagles.
(4) Special restrictions that should apply with regard to imprinting.
(5) Whether propagators should be allowed to hybridize bald eagles and golden eagles with other species of eagles.
(6) Restrictions on purposes for which captive-bred eagles may be held.
(7) Qualifications and experience necessary to possess a captive-bred bald eagle or golden eagle.
(8) Special facilities requirements for propagation of golden eagles and bald eagles.
(9) Report information that should be required from a permit holder, if any.
(10) Other conditions that should apply to these permits.
Fish and Wildlife Service, Interior.
Advance notice of proposed rulemaking.
We are considering promulgating migratory bird permit regulations for a permit to use raptors (birds of prey) in abatement activities. Abatement means the use of trained raptors to flush, scare (haze), or take birds or other wildlife to mitigate damage or other problems, including risks to human health and safety. We have permitted this activity under special purpose permits since 2007 pursuant to a migratory bird permit policy memorandum. We now intend to prepare a specific permit regulation to authorize this activity. We seek information and suggestions from the public to help us formulate any proposed regulation.
We must receive any comments or suggestions by October 4, 2011.
You may only submit comments or suggestions by the following methods:
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•
We will post all comments on
Susan Lawrence at 703–358–2016.
We request comments and suggestions on this topic from the public, other concerned governmental agencies, the scientific community, industry, or any other interested parties. You may submit your comments and materials concerning this issue by one of the methods listed in the
If you submit a comment via
Comments and materials we receive, as well as supporting documentation we use in preparing a proposed rule, will be available for public inspection at
In response to public interest in the use of trained raptors to haze (scare) depredating and other problem birds from airports and agricultural crops, we drafted policy to establish a migratory bird abatement permit. On January 12, 2007, we published a
The policy memorandum and conditions govern current administration of Federal Migratory Bird Special Purpose Abatement permits (Federal abatement permit). Applicants for a Federal abatement permit complete and submit Service application form 3–200–79 (
A Federal abatement permit authorizes the use of trained raptors protected under the Migratory Bird Treaty Act (MBTA) to abate problems caused by migratory birds or other wildlife. Under the current policy, an individual must be a Master Falconer in good standing under the Federal falconry regulations (50 CFR 21.29) to
Raptors used under a Federal abatement permit must be captive-bred and banded with a Service-issued seamless band. Any MBTA-protected raptor species (including legally held threatened or endangered species) may be used for abatement, except for golden eagles and bald eagles. There is currently no limit to the number of raptors an abatement permit holder may hold under a Federal abatement permit provided that they are properly cared for and each raptor is used for abatement activities. Facilities and equipment must meet standards described in 50 CFR 21.29.
A Federal abatement permit holder may use captive-bred raptors held under his or her migratory bird master falconry permit for abatement activities without transferring them to his or her abatement permit, provided the applicable State falconry permitting authority allows this. The falconry bird used must be a species authorized for use per the conditions of the Federal abatement permit. Only the permit holder may use his or her falconry birds for abatement activities. Raptors held under a Federal abatement permit may not be used for falconry unless they are transferred to a falconry permit.
Abatement permit holders must submit a completed 3–186A form (Migratory Bird Acquisition and Disposition Report) to the issuing Migratory Bird Permit Office for each raptor he or she acquires or disposes of under the permit, but they have no other reporting requirements. Among other things, we solicit suggestions as to whether reporting will have value, and what level of reporting should be required.
A Federal abatement permit, by itself, does not authorize the general killing, injuring, or take of migratory birds or other wildlife. Any take of protected migratory birds by an abatement permit holder must be authorized by a Federal depredation order or depredation permit. Any harassment, disturbance, or take of bald eagles, golden eagles, or endangered or threatened species by an abatement permit holder must be authorized by the applicable Federal permit. Abatement activities must also be in accordance with any other applicable Federal, State, or Tribal law.
However, no additional Federal permit is required to take species that are not protected under the MBTA or any other applicable Federal law. In addition, no Federal permit is required to conduct abatement activities directed at protected migratory birds that do not amount to a take. We do not consider flushing, scaring, or hazing to meet the definition of take under the MBTA.
Possession and use for abatement of exotic raptor species that are not on the list of MBTA-protected species at 50 CFR 10.13, such as Barbary falcon, Lanner falcon, and Saker falcon, is not regulated under the MBTA and is outside the scope of this notice. Hybrid raptors of MBTA-protected species would still be subject to this proposed permit regulation. Though an abatement permit would not be required for use of such species in abatement activities, any resulting take of protected migratory birds or other protected wildlife must still be authorized under the applicable Federal, State, or Tribal law or regulation.
A Federal abatement permit will allow the permittee to conduct abatement at the locations identified and under the conditions listed on his or her abatement permit. A State abatement permit also may be required of an abatement practitioner.
We solicit comments and suggestions on any aspect of the use of trained MBTA-protected raptors for abatement activities and potential regulations to govern Federal permitting. We particularly solicit comments on the topics listed below. Explaining the reasons and rationale for your comments where appropriate will help as we consider them in the preparation of a proposed rule.
(1) Qualifications and experience necessary to qualify for a Federal abatement permit.
(2) Limits on the species that should be authorized for use in abatement activities.
(3) Limits on the numbers of raptors that should be authorized for use in abatement activities.
(4) Qualifications and experience of subpermittees (both those authorized to fly the permit holder's raptors and those allowed to care for birds).
(5) Caging requirements for birds, while traveling, being transported and held in “temporary” caging for extended periods of time, i.e., multiple birds held in a trailer while conducting seasonal abatement activities at multiple locations.
(6) The use of falconry birds held by subpermittees for abatement.
(7) Any other considerations relating to subpermittees conducting abatement activities under a permit holder's permit, including their business relationship to the permit holder. For example, should falconers located elsewhere in the United States be allowed to conduct abatement activities in their own locale as subpermittees under a permit holder's abatement permit? Why or why not?
(8) Comments on what has worked well under existing permits and what has not worked well.
(9) Report information that should be required from a permit holder, if any.
(10) Other conditions that should apply to these permits.
(11) Examples of situations where raptors are used for abatement and information or documentation of success or lack of success in accomplishing abatement objectives.
The authorities for this notice are the Migratory Bird Treaty Act, 40 Stat. 755 (16 U.S.C. 703–712); Pub. L. 95–616, 92 Stat. 3112 (16 U.S.C. 712(2)); Pub. L. 106–108, 113 Stat. 1491, and Note Following 16 U.S.C. 703.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes regulations to implement Amendment 3 to the Atlantic Deep-Sea Red Crab Fishery Management Plan (Red Crab FMP). The New England Fishery Management Council (Council) developed Amendment 3 to bring the Red Crab FMP into compliance with the annual catch limit (ACL) and accountability measure (AM) requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Although
Written comments must be received no later than 5 p.m. eastern standard time, on August 5, 2011.
An environmental assessment (EA) was prepared for Amendment 3 that describes the proposed action and other considered alternatives, and provides an analysis of the impacts of the proposed measures and alternatives. Copies of Amendment 3, including the EA and the Initial Regulatory Flexibility Analysis (IRFA), are available on request from Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950. These documents are also available online at
You may submit comments, identified by RIN 0648–BA22, by any one of the following methods:
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•
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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.
Moira Kelly, Fishery Policy Analyst, (978) 281–9218.
The Council developed Amendment 3 with the primary goal of bringing the Red Crab FMP into compliance with the requirements of the reauthorized Magnuson-Stevens Act that FMPs include ACLs and AMs. The Red Crab FMP was implemented in October 2002. Since implementation, the red crab fishery has been managed under a target TAC and DAS system that allocated DAS equally across the fleet of limited access permitted vessels. The fleet DAS allocation was calculated by determining how many DAS would be required to reach the target TAC based on recent average landings-per-DAS by the active vessels. The FY 2010 target TAC was 3.91 million lb and fleet DAS allocation was 665 DAS. The FY 2010 specifications will remain in place until replaced by the proposed specifications in Amendment 3, if approved.
The biological and management reference points currently in the Red Crab FMP are used to determine if overfishing is occurring or if the stock is overfished. However, these reference points for red crab are currently not sufficient to comply with the Magnuson-Stevens Act and the National Standard 1 (NS1) guidelines. As a result, the Council intended to establish new estimates for maximum sustainable yield (MSY), optimum yield (OY), overfishing limit (OFL), and acceptable biological catch (ABC) for red crab. However, there is still insufficient information on the species to establish the MSY, OY, or OFL, and ABC is defined in terms of landings instead of total catch (
MSY is defined under the Magnuson-Stevens Act as “the largest long-term average catch or yield that can be taken from a stock or stock complex under prevailing ecological, environmental conditions and fishery technological characteristics (
The OFL is an estimate of the catch level above which overfishing is occurring, but based on the available information, the SSC determined that an OFL could not be estimated for the red crab fishery at this time.
ABC is defined under the Magnuson-Stevens Act as “a level of stock or stock complex's annual catch that accounts for the scientific uncertainty in the estimate of OFL and any other scientific uncertainty, and should be specified based on the ABC control rule.” The NS1 guidelines further state that “ABC may not exceed OFL,” and that “the determination of ABC should be based, when possible, on the probability that an actual catch equal to a stock's ABC would result in overfishing.” These guidelines also require that the Council's ABC control rule be based on scientific advice provided by its SSC and that the SSC recommend the ABC to the Council.
At its March 16, 2010, meeting, the SSC determined that the available information for red crab provided an insufficient basis on which to recommend an ABC control rule, and that “an interim ABC based on long-term average landings is safely below an overfishing threshold and adequately accounts for scientific uncertainty.” The SSC reviewed information on historical dead discards of red crab in the directed trap fishery and in bycatch fisheries at its June 22, 2010, meeting in an effort to recommend an ABC that includes both landings and dead discards. However, the SSC determined that there was insufficient information to specify dead discards, but that the long-term average landings, and the presumed discarding practices associated with those landings, were sustainable, and maintained its recommendation of specifying the interim red crab ABC in terms of landings only. Based on this approach, the long-term average landings for 1974–2008 result in an ABC of 3.91 million lb (1,775 mt), represented in terms of commercial landings.
Under section 303(a)(15) of the Magnuson-Stevens Act, any FMP must establish a mechanism for specifying ACLs at a level that prevents overfishing. The NS1 guidelines further state that the ACL for a given stock or stock complex cannot exceed the ABC, that it serves as the basis for invoking AMs, and that ACLs in coordination with AMs must prevent overfishing. Based on the requirements of the Magnuson-Stevens Act and the NS1
The NS1 guidelines describe AMs as management controls aimed at preventing the ACL from being exceeded, and to correct or mitigate overages of the ACL. The Council proposes both proactive and reactive AMs for the red crab fishery in Amendment 3. The proactive AM would grant the Regional Administrator the authority to close the red crab fishery when the TAL is projected to be harvested. The reactive AM would be a pound-for-pound payback of any overage, should the TAL be exceeded. In any year in which the ACL and TAL are not equal, if any overage of the ACL is not accounted for through the AM that applies to an overage of the TAL (
The Council proposes the following specifications for red crab for FYs 2011–2013:
This measure would replace the DAS and target TAC management scheme with a TAL. The Council intends this measure to work in conjunction with the in-season closure authority AM, which would grant the Regional Administrator the authority to close the fishery when the TAL is project to be harvested. This measure is being proposed to simplify the management measures for red crab, provide increased flexibility to the red crab fleet, and ensure more accurate accounting of the catch limits.
Red crab vessels qualified for a trip limit during the initial limited access qualification process. The FMP originally specified a trip limit of 75,000 lb (34,019 kg), unless a vessel owner could demonstrate he or she landed more than 75,000 lb (34,019 kg) on a trip during the qualification period, in which case the owner was granted a trip limit equal to that higher level, rounded to the nearest 5,000 lb (2,268 kg). Only one vessel qualified under that provision, and it has operated with a trip limit of 125,000 lb (56,699 kg) since 2002. The proposed rule would eliminate these trip limits to simplify the management measures for red crab and provide increased flexibility to the red crab fleet.
The current trap limit regulations state that red crab may not be harvested from gear other than a marked red crab trap; no more than 600 traps may be used when fishing for red crab; and lobster, red crab, or fish may not be harvested from a parlor trap while on a red crab DAS. The proposed measure would modify the regulation to prohibit more than 600 traps being deployed in water deeper than 400 m; prohibit a limited access red crab vessel from harvesting red crab in water shallower than 400 m; and prohibit parlor traps from being deployed at water shallower than 400 m. This measure was proposed by the Council to allow red crab vessels that also fish for lobster to do so on the same trip. However, the proposed modifications may be unenforceable. They would require an enforcement agent to witness the deployment of traps beyond the recommended depth range and/or witness the at-sea retrieval of the traps to determine compliance with the regulations. As this is not practical, NMFS proposes to disapprove this measure because of the inability to effectively enforce these regulations.
The Council has also proposed a measure that would remove the current prohibition on landing more than one standard tote (100 lb (45.4 kg)) of female red crab, conditional on a scientific recommendation from the SSC. The Council proposed this measure to allow the future expansion of the fishery to include female red crab. However, NMFS considers this proposal to be administratively unnecessary and inconsistent with the best available science.
Administratively, modifying the regulations to allow landing female red crabs could be done through a framework adjustment, as specified in the FMP, and the analytical requirements to implement such a change to the male-only fishery would be the same with or without the approval of this measure. Amendment 3 did not recommend any specific management measures or monitoring protocol that would potentially need to be implemented in conjunction with implementing this change. Scientifically, the SSC determined that at this time there is insufficient scientific information available to make any determination as to the potential impact on red crab of landing more than an incidental amount of female red crab. Further, analysis of the impacts of landing female red crabs was not included in the FMP and none is included in Amendment 3. If sufficient scientific information becomes available, and the Council determines it is interested in removing this prohibition once specific management measures to accommodate this change are developed, additional Council action and analysis would be required, regardless of whether this measure is implemented in Amendment 3. Therefore, NMFS proposes to disapprove this measure. NMFS seeks comments on all of the proposed measures in Amendment 3, as well as on its intention to disapprove two of the Council's proposed measures.
As required under section 303(c) of the Magnuson-Stevens Act, the Council reviewed the draft regulations and deemed them necessary and appropriate for implementation of Amendment 3. Technical changes to the regulations deemed necessary by the Secretary for clarity may be made, as provided under section 304(b) of the Magnuson-Stevens Act.
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 the Red Crab FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
The Office of Management and Budget has determined that this proposed rule is not significant for the purposes of Executive Order 12866.
The Council prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act (RFA),
All of the entities (fishing vessels) affected by this action are considered small entities under the Small Business Administration size standards for small fishing businesses (
This action does not introduce any new reporting, recordkeeping, or other compliance requirements. This proposed rule does not duplicate, overlap, or conflict with other Federal rules.
The participants in the commercial red crab fishery were defined as those vessels issued limited access red crab permits. Although some firms own more than one vessel, available data make it difficult to reliably identify ownership control over more than one vessel. As of December 2011, there were four vessels with limited access red crab permits actively operating in the red crab fishery. For this analysis, the number of permitted vessels is considered to be a maximum estimate of the number of small business entities. The total value of landings in the red crab fishery averaged $3.44 million, so all business entities in the harvesting sector can be categorized as small businesses for purpose of the RFA, even if the assumption overstates the number of business entities.
The proposed action will affect all four active vessels in the directed red crab fishery. However, it is not expected to have any impact on the gross or average revenues for the fishery because it does not change the total allowable landings level for red crab from the FY 2010 level of 3.913 million lb (1,775 mt). This harvest level is substantially higher than the average landings in recent years (2.588 million lb (1,174 mt) from FY 2007–2009), and is not expected to constrain landings unless markets for red crab substantially improve or major new markets develop. The FY 2007–2009 landings were low due to market conditions, and were not constrained by the total catch limit during 2007–2009.
Information on costs in the fishery is not readily available and individual vessel profitability cannot be determined directly; therefore, expected changes in gross revenues were used as a proxy for profitability. For the four participating vessels in 2009, average total sales were $534,602 per vessel. Because the proposed action would not directly constrain the gross revenues per vessel, it would not directly affect the profits of individual vessels, and, therefore, it is not necessary to analyze impacts according to the dependence of each vessel in the red crab fishery.
Fisheries, Fishing, Recordkeeping and reporting requirements.
For the reasons stated in the preamble, 50 CFR part 648 is proposed to be amended as follows:
1. The authority citation for part 648 continues to read as follows:
16 U.S.C. 1801
2. In § 648.2, the definition for “Day(s)-at-Sea” is revised, and the definition for “Red crab trip” is added, in alphabetical order, to read as follows:
3. In § 648.4, paragraphs (a)(13)(i)(E)(
(a) * * *
(13) * * *
(i)
(B)
4. In § 648.7, paragraph (b)(2)(iii) is removed.
5. In § 648.10, paragraphs (h) introductory text, (h)(4), and (h)(8) are revised to read as follows:
(h)
(4) The vessel's confirmation numbers for the current and immediately prior NE multispecies or monkfish fishing trip must be maintained on board the vessel and provided to an authorized officer immediately upon request.
(8) Any vessel that possesses or lands per trip more than 400 lb (181 kg) of scallops; any vessel issued a limited access NE multispecies permit subject to the NE multispecies DAS program requirements that possesses or lands regulated NE multispecies, except as provided in §§ 648.10(h)(9)(ii), 648.17, and 648.89; and any vessel issued a limited access monkfish permit subject to the monkfish DAS program and call-in requirement that possess or lands monkfish above the incidental catch trip limits specified in § 648.94(c) shall be
6. In § 648.14, paragraphs (t)(2)(iii) and (t)(3)(iv) are added; paragraphs (t)(2)(ii) and (t)(4) through (6) are revised; and paragraph (t)(7) is removed to read as follows:
(t) * * *
(2) * * *
(ii)
(iii) Fish for, possess, or land red crab, in excess of the incidental limit specified at § 648.263(b)(1), after determination that the TAL has been reached and notice of the closure date has been made.
(3) * * *
(iv) Purchase or otherwise receive for a commercial purpose in excess of the incidental limit specified at § 648.263(b)(1), after determination that the TAL has been reached and notice of the closure date has been made.
(4)
(ii) Retain, possess, or land any red crab claws and legs separate from crab bodies if the vessel has not been issued a valid Federal limited access red crab permit or has been issued a valid Federal limited access red crab permit, but is not fishing on a dedicated red crab trip.
(iii) Retain, possess, or land more than two claws and eight legs per crab if the vessel has been issued a valid Federal red crab incidental catch permit, or has been issued a valid Federal limited access red crab permit and is not fishing on a dedicated red crab trip.
(iv) Possess or land red crabs that have been fully processed at sea,
(5)
(6)
7. Section 648.260 is revised to read as follows:
(a)
(1) The Red Crab PDT shall meet at least once annually during the intervening years between Stock Assessment and Fishery Evaluation (SAFE) Reports, described in paragraph (b) of this section, to review the status of the stock and the fishery. Based on such review, the PDT shall provide a report to the Council on any changes or new information about the red crab stock and/or fishery, and it shall recommend whether the specifications for the upcoming year(s) need to be modified. At a minimum, this review shall include a review of at least the following data, if available: Commercial catch data; current estimates of fishing mortality and catch-per-unit-effort (CPUE); discards; stock status; recent estimates of recruitment; virtual population analysis results and other estimates of stock size; sea sampling, port sampling, and survey data or, if sea sampling data are unavailable, length frequency information from port sampling and/or surveys; impact of other fisheries on the mortality of red crabs; and any other relevant information.
(2) If new and/or additional information becomes available, the Red Crab PDT shall consider it during this annual review. Based on this review, the Red Crab PDT shall provide guidance to the Red Crab Committee and the Council regarding the need to adjust measures in the Red Crab FMP to better achieve the FMP's objectives. After considering guidance, the Council may submit to NMFS its recommendations for changes to management measures, as appropriate, through the specifications process described in this section, the framework process specified in § 648.261, or through an amendment to the FMP.
(3) Based on the annual review, described above, and/or the SAFE Report described in paragraph (b) of this section, recommendations for acceptable biological catch (ABC) from the Scientific and Statistical Committee (SSC), and any other relevant information, the Red Crab PDT shall recommend to the Red Crab Committee and Council the following specifications for harvest of red crab: An annual catch limit (ACL) set less than or equal to ABC, and total allowable landings (TAL) necessary to meet the objectives of the FMP in each red crab fishing year, specified for a period of up to 3 fishing years.
(4) The PDT, after its review of the available information on the status of the stock and the fishery, may recommend to the Council any measures necessary to assure that the specifications will not be exceeded, as well as changes to the appropriate specifications.
(5) Taking into account the annual review and/or SAFE Report described in paragraph (b) of this section, the advice of the SSC, and any other relevant information, the Red Crab PDT may also recommend to the Red Crab Committee and Council changes to stock status determination criteria and associated thresholds based on the best scientific information available, including information from peer-reviewed stock assessments of red crab. These adjustments may be included in the Council's specifications for the red crab fishery.
(6)
(ii) The Council's recommendation must include supporting documentation, as appropriate, concerning the environmental, economic, and social impacts of the recommendations. The Regional Administrator shall consider the recommendations and publish a rule in the
(iii) The Regional Administrator may propose specifications different than those recommended by the Council. If the specifications published in the
(iv) If the final specifications are not published in the
(b)
(2) In any year in which a SAFE Report is not completed by the Red Crab PDT, the annual review process described in paragraph (a) of this section shall be used to recommend any necessary adjustments to specifications and/or management measures in the FMP.
8. Section 648.262 is revised to read as follows:
(a)
(b)
(2) If NMFS determines that the ACL was exceeded in a given fishing year, the exact amount of an overage that was not already deducted from the TAL under paragraph (b)(i) of this section will be deducted, as soon as is practicable, from a subsequent single fishing year's TAL, through notification consistent with the Administrative Procedure Act.
9. In § 648.263, paragraph (a)(1) is removed and reserved, and paragraphs (a)(3), (a)(5), and (b)(1) are revised to read as follows:
(a) * * *
(3)
(5)
(b) * * *
(1)
10. In § 648.264, paragraphs (a)(1), (a)(2), (a)(3), and (a)(6) are revised to read as follows:
(a) * * *
(1) Limited access red crab vessel may not harvest red crab from any fishing gear other than red crab traps/pots, marked as specified by paragraph (a)(5) of this section.
(2) Limited access red crab vessels may not deploy more than 600 traps/pots in water depths greater than 400 m (219 fath), and may not harvest red crab in water depths less than 400 m (219 fath).
(3)
(6)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Announcement of availability of fishery management plan amendment; request for comments.
NMFS announces that the Mid-Atlantic Fishery Management Council (Council) has submitted Amendment 11 to the Atlantic Mackerel, Squid, and Butterfish (MSB) Fishery Management Plan (FMP) (Amendment 11), incorporating the Final Environmental Impact Statement (FEIS) and the Initial Regulatory Flexibility Analysis (IRFA), for review by the Secretary of Commerce and is requesting comments from the public.
Comments must be received on or before September 6, 2011.
A final environmental impact statement (FEIS) was prepared for Amendment 11 that describes the proposed action and other considered alternatives and provides a thorough analysis of the impacts of the proposed
You may submit comments on this notice of availability, identified by “0648–AX05,” by any one of the following methods:
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• Mail to Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope “Comments on MSB Amendment 11.”
Aja Szumylo, Fishery Policy Analyst, 978–281–9195, fax 978–281–9135.
The goals of Amendment 11 are to: (1) Establish a cap on capacity in the mackerel fishery via a limited access program based on current and historical participation that does not impede optimal U.S. utilization of the fishery; (2) update MSB species' essential fish habitat (EFH) definitions; (3) evaluate fishing-related impacts on
The Council initially notified the public of its intent to consider the impacts of alternatives for limiting access to the mackerel fishery in a Notice of Intent to Prepare a Supplemental Environmental Impact Statement (SEIS) for Amendment 9 to the MSB FMP (Amendment 9) on March 4, 2005 (70 FR 10605). The Council subsequently conducted scoping meetings on the development of a limited access program through Amendment 9. However, due to unforeseen delays in the development of Amendment 9, the Council notified the public on December 19, 2005 (70 FR 75114), that the mackerel limited access program would instead be analyzed in Amendment 11. The Council notified the public on February 27, 2007 (75 FR 8693), that it would begin the development of Amendment 11 in an SEIS, and finally notified the public on August 11, 2008 (73 FR 46590), that it would be necessary to prepare a full environmental impact statement (EIS) for Amendment 11. During further development of Amendment 11, the Council determined that the additional issues that are listed above would also be considered.
The Council conducted public hearings in February 2010 and was originally scheduled to take final action on Amendment 11 in April of 2010, but decided to revise certain alternatives after reviewing public comment. The revisions were deemed to require a Supplement to the Draft Environmental Impact Statement (SDEIS) and an additional comment period. Following the public comment period that ended on October 12, 2010, the Council adopted Amendment 11 on October 13, 2010. In Amendment 11, measures recommended by the Council would:
• Implement a three-tiered limited access system, with vessels grouped based on the following landings thresholds, with all qualifiers required to have possessed a valid permit on March 21, 2007. A vessel must have landed at least 400,000 lb (181.44 mt) in any one year 1997–2005 to qualify for a Tier 1 permit; at least 100,000 lb (45.36 mt) in any one year March 1, 1994–December 31, 2005, to qualify for a Tier 2 permit; or at 1east 1,000 lb (0.45 mt) in any one year March 1, 1994–December 31, 2005, to qualify for a Tier 3 permit, with Tier 3 allocated up to 7 percent of the commercial quota, through the specifications process;
• Establish an open access permit for all other vessels;
• Establish trip limits for all tiers annually through the specifications process, with possession limits initially set as unlimited for Tier 1; 135,000 lb (61.23 mt) for Tier 2; 100,000 lb (45.36 mt) for Tier 3; and 20,000 lb (9.07 mt) for open access;
• Establish permit application, permit appeal, vessel baseline, and vessel upgrade, replacement, and confirmation of permit history provisions similar to established for other Northeast region limited access fisheries;
• Establish a 10-percent maximum volumetric fish hold upgrade for Tier 1 and Tier 2 vessels;
• Allow vessel owners to retain mackerel fishing history in a purchase and sale agreement and use the history to qualify a different vessel for a mackerel permit (permit splitting);
• Require Tier 3 vessels to submit VTRs on a weekly basis;
• Designate as EFH the area associated with 90 percent of survey catch for each life stage of non-overfished species (i.e.,
• Establish a recreational mackerel allocation equaling 6.2 percent of the mackerel allowable biological catch.
Public comments are solicited on Amendment 11 and its incorporated documents through the end of the comment period stated in this notice of availability (NOA). A proposed rule that would implement Amendment 11 may be published 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.
Forest Service, USDA.
Notice of Meeting.
The Glenn/Colusa County Resource Advisory Committee (RAC) will meet in Willows, California. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110–343) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meeting is open to the public. The purpose of the meeting is to travel to
The meeting will be held on July 25, 2011 from 8 a.m. and end at approximately 4:30 p.m.
The meeting will be held in the field during the monitoring trip beginning at the Mendocino NF Supervisor's Office, 825 North Humboldt Ave., Willows, CA. Written comments may be submitted as described under
All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at 825 N. Humboldt Ave., Willows, CA 95988. Please call ahead to (530) 934–1269 to facilitate entry into the building to view comments.
Randy Jero, Committee Coordinator, USDA, Mendocino National Forest, Grindstone Ranger District, 825 N. Humboldt Ave., Willows, CA 95988. (530) 934–1269; e-mail
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday. Requests for reasonable accomodation for access to the facility or procedings may be made by contacting the person listed For Further Information.
The meeting is open to the public. Agenda items to be covered include: (1) Introductions, (2) Approval of Minutes, (3) Public Comment, (4) Field Monitoring and Discussion at Project Area, (5) Next Agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by July 18, 2011 to be scheduled on the agenda. Written comments and requests for time for oral comments must be sent to Randy Jero, Committee Coordinator, USDA, Mendocino National Forest, Grindstone Ranger District, 825 N. Humboldt Ave, Willows, CA 95988 or by e-mail to
National Agricultural Statistics Service, USDA.
Notice of suspension of data collection and publication.
This notice announces the intention of the National Agricultural Statistics Service (NASS) to suspend one currently approved information collection, (July Sheep and Goat Survey), and to indefinitely postpone the renewal of two periodic data collections (Census of Aquaculture and the Tenure, Ownership and Transition of Agricultural Land (TOTAL) survey formerly known as the Agricultural Economics and Land Ownership Survey (AELOS)) and their associated publications due to budgetary cutbacks.
Joseph T. Reilly, Associate Administrator, National Agricultural Statistics Service, U.S. Department of Agriculture, (202) 720–4333.
The July Sheep and Goat survey is a follow on survey to the January Sheep and Goat survey. These two surveys are included in a larger group of monthly and quarterly crop and livestock surveys included in the Agricultural Surveys Program (0535–0213) docket. Only the July Sheep and Goat survey will be suspended from this docket.
The Census of Aquaculture is a follow on survey to the Census of Agriculture. This survey is normally conducted every five years. The last time this survey was conducted was in 2006 for the reference year of 2005. NASS will postpone the renewal of this data collection indefinitely.
The Tenure, Ownership and Transition of Agricultural Land (TOTAL) survey, (formerly known as the Agricultural Economics and Land Ownership Survey (AELOS) is also a follow on survey to the Census of Agriculture. This survey is normally conducted once about every ten years. The last time this survey was conducted was in 2000 for the reference year of 1999.
NASS will suspend these information collections as of July 6, 2011 due to budget constraints. NASS will not publish the Sheep and Goat report for July or any reports for the Census of Aquaculture or TOTAL survey unless there is a change in the anticipated budget shortfall.
U.S. Census Bureau, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)).
To ensure consideration, written comments must be submitted on or before September 6, 2011.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Patrick J. Benton, Census Bureau, Room HQ–6H045, Washington, DC 20233–8400, (301) 763–4618.
The Census Bureau plans to conduct a CARI technology field test using the 2012 SIPP–EHC platform from March to May of 2012. The SIPP–EHC is an experimental household-based survey designed as a continuous series of national panels molded around an annual interview structured with an event history calendar and collecting detailed monthly data for a central “core” of labor force and income questions. CARI is a data collection method that captures audio along with response data during computer-assisted personal and telephone interviews (CAPI & CATI). A portion of each interview is recorded unobtrusively, with the respondent's consent, and the sound file and screen images are returned with the response data to a central location for coding.
By reviewing the recorded portions of the interview, quality assurance analysts can evaluate the likelihood that the exchange between the field representative and respondent is authentic and follows critical survey protocol as defined by the sponsor and based on best practices. The 2012 SIPP–EHC CARI test instrument will utilize the CARI Interactive Data Access System (CARI System), an innovative, integrated, multifaceted monitoring system that features a configurable Web-based interface for behavior coding, quality assurance and coaching. This system assists in coding interviews for measuring question and interviewer performance and the interaction between interviewers and respondents.
The 2012 SIPP–EHC CARI Field Test will visit survey respondents never before interviewed in SIPP. The 2012 SIPP–EHC CARI test will interview respondents using the previous calendar year, 2011, as the reference period. The content of the 2012 SIPP–EHC CARI test will match that of the 2012 SIPP–EHC test conducted as a wave 2 reinterview from January to March of 2012 with the addition of the recording consent question. In addition to the activation of the recording capabilities of the 2012 SIPP–EHC instrument, the 2012 SIPP–EHC CARI test adds the consent question to the questionnaire which will record the respondent's permission to audio record responses. Additionally, approximately 20 specific questions are programmed to be recorded during each person's interview. Based on sponsor requirements related to interviewer critical performance behaviors, the CARI technology would be used in addition to other measures of interviewer performance.
This is the second CARI field test conducted by the Census Bureau. The first CARI field test was used to conduct behavior-coding for the 2010 American Community Survey Content Test in early 2011. The Census Bureau is conducting this test to determine if the deployment of CARI will have any significant impact on response rates and item level responses. The primary focus will be to examine the impact that recording has on the quality of data. Approximately 1,300 addresses will be selected for the 2012 SIPP–EHC CARI Field Test, yielding about 900 interviewed households. We estimate that each household contains 2.1 people aged 15 and above, yielding approximately 1,890 person-level interviews in this field test. Interviews take 60 minutes on average. The total annual burden hours for 2012 SIPP–EHC CARI Field Test interviews will be 1,890 hours in FY 2012.
The 2012 SIPP–EHC CARI Field Test instrument will reference calendar year 2011. The interview is conducted in person with all household members 15 years old or over using regular proxy-respondent rules. The 2012 SIPP–EHC CARI test will record the respondent's consent to audio record their responses, and will record approximately 20 predetermined questions during each person's interview.
Title 13, United States Code, Section 182.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
An application has been submitted to the Foreign-Trade Zones (FTZ) Board (the Board) by the Sebring Airport Authority, grantee of FTZ 215, requesting authority to reorganize the zone under the alternative site framework (ASF) adopted by the Board (74 FR 1170, 1/12/09 (correction 74 FR 3987, 1/22/09); 75 FR 71069–71070, 11/22/10). The ASF is an option for
FTZ 215 was approved by the Board on July 26, 1996 (Board Order 835, 61 FR 42832–42833, 08/19/96).
The current zone project includes the following site:
The grantee's proposed service area under the ASF would be DeSoto, Glades, Hardee, Hendry, Highlands and Okeechobee Counties and the Cities of Belle Glade and Pahokee, Florida, as described in the application. If approved, the grantee would be able to serve sites throughout the service area based on companies' needs for FTZ designation. The proposed service area is within and adjacent to the Port Manatee Customs and Border Protection port of entry.
The applicant is requesting authority to reorganize its existing zone project to include its existing site as a “magnet” site. The ASF allows for the possible exemption of one magnet site from the “sunset” time limits that generally apply to sites under the ASF, and the applicant proposed that Site 1 be so exempted. No usage-driven sites are being requested at this time.
In accordance with the Board's regulations, Kathleen Boyce of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is September 6, 2011. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to September 19, 2011.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230–0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
For further information, contact Kathleen Boyce at
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a–81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
The application to expand FTZ 78 is approved, subject to the FTZ Act and the Board's regulations, including Section 400.28, to the Board's standard 2,000-acre activation limit for the overall general-purpose zone project, and to sunset provisions that would terminate authority for existing Sites 1–5 on June 30, 2016 and for Sites 8–12 on June 30, 2018 where no activity has occurred under FTZ procedures before those dates.
ATTEST:
National Institute of Standards and Technology, Department of Commerce.
Notice.
The National Institute of Standards and Technology (NIST) invites and requests nomination of individuals for appointment to its nine existing Federal Advisory Committees: Technology Innovation Program Advisory Board, Board of Overseers of the Malcolm Baldrige National Quality Award, Judges Panel of the Malcolm Baldrige National Quality Award, Information Security and Privacy Advisory Board, Manufacturing Extension Partnership Advisory Board, National Construction Safety Team Advisory Committee, Advisory Committee on Earthquake Hazards Reduction, NIST Smart Grid Advisory Committee, and Visiting Committee on Advanced Technology. NIST will consider nominations received in response to this notice for appointment to the Committees, in addition to nominations already received. Registered Federal lobbyists may not serve on the NIST Committees.
Nominations for all committees will be accepted on an ongoing basis and will be considered as and when vacancies arise.
See below.
The Board will consist of ten members appointed by the Director of NIST, at least seven of whom shall be from United States industry, chosen to reflect the wide diversity of technical disciplines and industrial sectors represented in TIP projects. No member will be an employee of the Federal Government.
The Board will function solely as an advisory body, in compliance with the provisions of the Federal Advisory Committee Act.
15 U.S.C 278n(k), as amended by the America COMPETES Act (Pub. L. 110–69), Federal Advisory Committee Act: 5 U.S.C. App. 2.
The Board was established in accordance with 15 U.S.C. 3711a(d)(2)(B), pursuant to the Federal Advisory Committee Act (5 U.S.C. App. 2).
1. The Board shall review the work of the private sector contractor(s), which assists the Director of the National Institute of Standards and Technology (NIST) in administering the Award. The Board will make such suggestions for the improvement of the Award process as it deems necessary.
2. The Board shall provide a written annual report on the results of Award activities to the Director of NIST, along with its recommendations for the improvement of the Award process.
3. The Board will function solely as an advisory committee under the Federal Advisory Committee Act.
4. The Board will report to the Director of NIST.
1. The Board will consist of approximately eleven members selected on a clear, standardized basis, in accordance with applicable Department of Commerce guidance, and for their preeminence in the field of organizational performance management. There will be a balanced representation from U.S. service, manufacturing, education, health care industries, and the nonprofit sector.
2. The Board will be appointed by the Secretary of Commerce and will serve at the discretion of the Secretary. The term of office of each Board member shall be three years. All terms will commence on March 1 and end on February 28 of the appropriate year.
1. Members of the Board shall serve without compensation, but may, upon request, be reimbursed travel expenses, including per diem, as authorized by 5 U.S.C. 5701
2. The Board will meet twice annually, except that additional meetings may be called as deemed necessary by the NIST Director or by the Chairperson. Meetings are usually one day in duration.
3. Board meetings are open to the public. Board members do not have access to classified or proprietary information in connection with their Board duties.
1. Nominations are sought from the private and public sector as described above.
2. Nominees should have established records of distinguished service and shall be familiar with the quality improvement operations of manufacturing companies, service companies, small businesses, education, health care, and nonprofits. The category (field of eminence) for which the candidate is qualified should be specified in the nomination letter. Nominations for a particular category should come from organizations or individuals within that category. A summary of the candidate's qualifications should be included with the nomination, including (where applicable) current or former service on Federal advisory boards and Federal employment. In addition, each nomination letter should state that the person agrees to the nomination, acknowledges the responsibilities of serving on the Board, and will actively participate in good faith in the tasks of the Board. Besides participation at meetings, it is desired that members be able to devote the equivalent of seven days between meetings to either developing or researching topics of potential interest, and so forth, in furtherance of their Board duties.
3. The Department of Commerce is committed to equal opportunity in the workplace and seeks a broad-based and diverse Board membership.
The Judges Panel was established in accordance with 15 U.S.C. 3711a(d)(1) and the Federal Advisory Committee Act (5 U.S.C. App. 2).
1. The Judges Panel will ensure the integrity of the Malcolm Baldrige National Quality Award selection process by reviewing the results of examiners' scoring of written applications, and then voting on which applicants merit site visits by examiners to verify the accuracy of claims made by applicants.
2. The Judges Panel will ensure that individuals on site visit teams for the Award finalists have no conflict of interest with respect to the finalists. The
3. The Judges Panel will function solely as an advisory body, and will comply with the provisions of the Federal Advisory Committee Act.
4. The Panel will report to the Director of NIST.
1. The Judges Panel is composed of at least nine, and not more than twelve, members selected on a clear, standardized basis, in accordance with applicable Department of Commerce guidance. There will be a balanced representation from U.S. service and manufacturing industries, education, health care, and nonprofits and will include members familiar with performance improvement in their area of business.
2. The Judges Panel will be appointed by the Secretary of Commerce and will serve at the discretion of the Secretary. The term of office of each Panel member shall be three years. All terms will commence on March 1 and end on February 28 of the appropriate year.
1. Members of the Judges Panel shall serve without compensation, but may, upon request, be reimbursed travel expenses, including per diem, as authorized by 5 U.S.C. 5701
2. The Judges Panel will meet three times per year. Additional meetings may be called as deemed necessary by the NIST Director or by the Chairperson. Meetings are usually one to four days in duration. In addition, each Judge must attend an annual three-day Examiner training course.
3. Committee meetings are closed to the public pursuant to Section 10(d) of the Federal Advisory Committee Act, 5 U.S.C. App. 2, as amended by Section 5(c) of the Government in the Sunshine Act, Public Law 94–409, and in accordance with Section 552b(c)(4) of Title 5, United States Code. Since the members of the Judges Panel examine records and discuss Award applicant data, the meetings are likely to disclose trade secrets and commercial or financial information obtained from a person that may be privileged or confidential. In addition, meetings may be closed pursuant to Section 552b(c)(9)(B) because for a government agency the meetings are likely to disclose information that could significantly frustrate implementation of a proposed agency action.
1. Nominations are sought from all U.S. service and manufacturing industries, education, health care, and nonprofits as described above.
2. Nominees should have established records of distinguished service and shall be familiar with the performance improvement operations of manufacturing companies, service companies, small businesses, education, health care, and nonprofit organizations. The category (field of eminence) for which the candidate is qualified should be specified in the nomination letter. Nominations for a particular category should come from organizations or individuals within that category. A summary of the candidate's qualifications should be included with the nomination, including (where applicable) current or former service on Federal advisory boards and Federal employment. In addition, each nomination letter should state that the person agrees to the nomination, acknowledge the responsibilities of serving on the Judges Panel, and will actively participate in good faith in the tasks of the Judges Panel. Besides participation at meetings, it is desired that members be either developing or researching topics of potential interest, reading Baldrige applications, and so forth, in furtherance of their Committee duties.
3. The Department of Commerce is committed to equal opportunity in the workplace and seeks a broad-based and diverse Judges Panel membership.
The ISPAB was originally chartered as the Computer System Security and Privacy Advisory Board (CSSPAB) by the Department of Commerce pursuant to the Computer Security Act of 1987 (Pub. L. 100–235). As a result of the E-Government Act of 2002 (Pub. L. 107–347), Title III, the Federal Information Security Management Act of 2002, Section 21 of the National Institute of Standards and Technology Act (15 U.S.C. 278g–4) the Board's charter was amended. This amendment included the name change of the Board.
The objectives and duties of the ISPAB are:
1. To identify emerging managerial, technical, administrative, and physical safeguard issues relative to information security and privacy.
2. To advise the NIST, the Secretary of Commerce and the Director of the Office of Management and Budget on information security and privacy issues pertaining to Federal Government information systems, including thorough review of proposed standards and guidelines developed by NIST.
3. To annually report its findings to the Secretary of Commerce, the Director of the Office of Management and Budget, the Director of the National Security Agency, and the appropriate committees of the Congress.
4. To function solely as an advisory body, in accordance with the provisions of the Federal Advisory Committee Act.
The ISPAB is comprised of twelve members, in addition to the Chairperson. The membership of the Board includes:
1. Four members from outside the Federal Government eminent in the information technology industry, at least one of whom is representative of small or medium sized companies in such industries.
2. Four members from outside the Federal Government who are eminent in the field of information technology, or related disciplines, but who are not employed by or representative of a producer of information technology equipment; and
3. Four members from the Federal Government who have information system management experience, including experience in information security and privacy; at least one of these members shall be from the National Security Agency.
Members of the ISPAB who are not full-time employees of the Federal government are not paid for their service, but will, upon request, be allowed travel expenses in accordance with Subchapter I of Chapter 57 of Title 5, United States Code, while otherwise
Meetings of the Board are usually two to three days in duration and are usually held quarterly. The meetings primarily take place in the Washington, DC metropolitan area but may be held at such locations and at such time and place as determined by the majority of the Board.
Board meetings are open to the public and members of the press usually attend. Members do not have access to classified or proprietary information in connection with their Board duties.
Nominations are being accepted in all three categories described above.
Nominees should have specific experience related to information security or electronic privacy issues, particularly as they pertain to Federal information technology. Letters of nomination should include the category of membership for which the candidate is applying and a summary of the candidate's qualifications for that specific category. Also include (where applicable) current or former service on Federal advisory boards and any Federal employment. Each nomination letter should state that the person agrees to the nomination, acknowledges the responsibilities of serving on the ISPAB, and that they will actively participate in good faith in the tasks of the ISPAB.
Besides participation at meetings, it is desired that members be able to devote a minimum of two days between meetings to developing draft issue papers, researching topics of potential interest, and so forth in furtherance of their Board duties.
Selection of ISPAB members will not be limited to individuals who are nominated. Nominations that are received and meet the requirements will be kept on file to be reviewed as Board vacancies occur.
Nominees must be U.S. citizens.
The Department of Commerce is committed to equal opportunity in the workplace and seeks a broad-based and diverse ISPAB membership.
The MEP Advisory Board was established in accordance with the requirements of Section 3003(d) of the America COMPETES Act (Pub. L. 110–69) and the Federal Advisory Committee Act, 5 U.S.C. App. 2.
1. The Board will provide advice on MEP programs, plans, and policies.
2. The Board will assess the soundness of MEP plans and strategies.
3. The Board will assess current performance against MEP program plans.
4. The Board will function solely in an advisory capacity, and in accordance with the provisions of the Federal Advisory Committee Act.
5. The Board shall submit an annual report through the NIST Director to the Secretary for transmittal to Congress within 30 days after the submission to Congress of the President's annual budget request each year. The report will address the status of the MEP and comment on programmatic planning and updates.
1. The MEP Board is composed of 10 members, broadly representative of stakeholders. At least 2 members shall be employed by or on an advisory board for the Centers, and at least 5 other members shall be from U.S. small businesses in the manufacturing sector. No member shall be an employee of the Federal Government.
2. The Director of the National Institute of Standards and Technology (NIST) shall appoint the members of the Board. Members shall be selected on a clear, standardized basis, in accordance with applicable Department of Commerce guidance. Members serve at the discretion of the NIST Director.
3. Committee members from the manufacturing industry and those representing specific stakeholder groups shall serve in a representative capacity. Committee members from the academic community shall serve as experts and will be considered Special Government Employees (SGEs) and will be subject to all ethical standards and rules applicable to SGEs.
4. The term of office of each member of the Board shall be three years, except that vacancy appointments shall be for the remainder of the unexpired term of the vacancy.
1. Members of the Board will not be compensated for their services but will, upon request, be allowed travel and per diem expenses as authorized by 5 U.S.C. 5701
2. The Board will meet at least two times a year. Additional meetings may be called by the NIST Director.
3. Committee meetings are open to the public.
Nominations are being accepted in all categories described above.
Nominees should have specific experience related to industrial extension services. Letters of nomination should include the category of membership for which the candidate is applying and a summary of the candidate's qualifications for that specific category. Each nomination letter should state that the person agrees to the nomination and acknowledges the responsibilities of serving on the MEP Advisory Board.
Selection of MEP Advisory Board members will not be limited to individuals who are nominated. Nominations that are received and meet the requirements will be kept on file to be reviewed as Board vacancies occur.
The Department of Commerce is committed to equal opportunity in the workplace and seeks a broad-based and diverse MEP Advisory Board membership.
The Committee was established in accordance with the National Construction Safety Team Act, Public Law 107–231 and the Federal Advisory Committee Act (5 U.S.C. App. 2).
1. The Committee shall advise the Director of the National Institute of Standards and Technology (NIST) on carrying out the National Construction Safety Team Act (Act), review and provide advice on the procedures developed under section 2(c)(1) of the Act, and review and provide advice on the reports issued under section 8 of the Act.
2. The Committee functions solely as an advisory body, in accordance with the provisions of the Federal Advisory Committee Act.
3. The Committee shall report to the Director of NIST.
4. The Committee shall provide a written annual report, through the Director of the NIST Engineering Laboratory (EL) and the Director of NIST, to the Secretary of Commerce for submission to the Congress, to be due on January 1 of each year. Such report will provide an evaluation of National Construction Safety Team activities, along with recommendations to improve the operation and effectiveness of National Construction Safety Teams, and an assessment of the implementation of the recommendations of the National Construction Safety Teams and of the Committee.
1. The Committee will be composed of not fewer than five nor more than ten members that reflect a wide balance of the diversity of technical disciplines and competencies involved in the National Construction Safety Teams investigations. Members shall be selected on the basis of established records of distinguished service in their professional community and their knowledge of issues affecting the National Construction Safety Teams.
2. The Director of the NIST shall appoint the members of the Committee, and they will be selected on a clear, standardized basis, in accordance with applicable Department of Commerce guidance.
1. Members of the Committee will not be paid for their services, but will, upon request, be allowed travel and per diem expenses in accordance with 5 U.S.C. 5701
2. The Committee will meet at least once per year at the call of the Chair. Additional meetings may be called whenever one-third or more of the members so request it in writing or whenever the Chair or the Director of NIST requests a meeting.
1. Nominations are sought from all fields involved in issues affecting National Construction Safety Teams.
2. Nominees should have established records of distinguished service. The field of expertise that the candidate represents he/she is qualified should be specified in the nomination letter. Nominations for a particular field should come from organizations or individuals within that field. A summary of the candidate's qualifications should be included with the nomination, including (where applicable) current or former service on Federal advisory boards and Federal employment. In addition, each nomination letter should state that the candidate agrees to the nomination, acknowledges the responsibilities of serving on the Committee, and will actively participate in good faith in the tasks of the Committee.
3. The Department of Commerce is committed to equal opportunity in the workplace and seeks a broad-based and diverse Committee membership.
The Committee was established on June 27, 2006 in accordance with the National Earthquake Hazards Reduction Program Reauthorization Act, Public Law 108–360 and the Federal Advisory Committee Act (5 U.S.C. App. 2).
1. The Committee will assess trends and developments in the science and engineering of earthquake hazards reduction, effectiveness of the Program in carrying out the activities under section 103(a)(2) of the Act, the need to revise the Program, the management, coordination, implementation, and activities of the Program.
2. The Committee functions solely as an advisory body, in accordance with the provisions of the Federal Advisory Committee Act.
3. The Committee shall report to the Director of NIST.
4. Not later than one year after the first meeting of the Committee, and at least once every two years thereafter, the Committee shall report to the Director of NIST, on its findings of the assessments and its recommendations for ways to improve the Program. In developing recommendations, the Committee shall consider the recommendations of the United States Geological Survey Scientific Earthquake Studies Advisory Committee.
1. The Committee will consist of not fewer than 11 nor more than 17 members, who reflect a wide diversity of technical disciplines, competencies, and communities involved in earthquake hazards reduction. Members shall be selected on the basis of established records of distinguished service in their professional community and their knowledge of issues affecting the National Earthquake Hazards Reduction Program.
2. The Director of NIST shall appoint the members of the Committee, and they will be selected on a clear, standardized basis, in accordance with applicable Department of Commerce guidance.
3. The term of office of each member of the Committee shall be three years, except that vacancy appointments shall be for the remainder of the unexpired term of the vacancy and that the initial members shall have staggered terms such that the committee will have approximately 1/3 new or reappointed members each year.
4. No committee member may be an “employee” as defined in subparagraphs (A) through (F) of section 7342(a)(1) of Title 5 of the United States Code.
1. Members of the Committee will not be compensated for their services, but will, upon request, be allowed travel and per diem expenses in accordance with 5 U.S.C. 5701
2. Members of the Committee shall serve as Special Government Employees and are required to file an annual Executive Branch Confidential Financial Disclosure Report.
3. The Committee shall meet at least once per year. Additional meetings may be called whenever the Director of NIST requests a meeting.
4. Committee meetings are open to the public.
1. Nominations are sought from industry and other communities having an interest in the National Earthquake Hazards Reduction Program, such as, but not limited to, research and academic institutions, industry standards development organizations, state and local government bodies, and financial communities, who are qualified to provide advice on earthquake hazards reduction and represent all related scientific, architectural, and engineering disciplines.
2. Nominees should have established records of distinguished service. The field of expertise that the candidate represents should be specified in the nomination letter. Nominations for a particular field should come from organizations or individuals within that field. A summary of the candidate's qualifications should be included with the nomination, including (where applicable) current or former service on Federal advisory boards and Federal employment. In addition, each nomination letter should state that the person agrees to the nomination, acknowledges the responsibilities of serving on the Committee, and will actively participate in good faith in the tasks of the Committee.
3. The Department of Commerce is committed to equal opportunity in the workplace and seeks a broad-based and diverse Committee membership.
The Committee was established in accordance with the Federal Advisory Committee Act (5 U.S.C. App.).
1. The Committee shall advise the Director of the National Institute of Standards and Technology (NIST) on carrying out duties authorized by section 1305 of the Energy Independence and Security Act of 2007 (Pub. L. 110–140).
2. The Committee functions solely as an advisory body in accordance with the provisions of the Federal Advisory Committee Act.
3. The Committee shall report to the Director of NIST.
4. The Committee shall provide input to NIST on the Smart Grid Standards, Priority, and Gaps. The Committee shall provide input on the overall direction, status and health of the Smart Grid implementation by the Smart Grid industry, including identification of issues and needs. Input to NIST will be used to help guide the Smart Grid Interoperability Panel activities and also assist NIST in directing research and standards activities.
5. Upon request of the Director of NIST, the Committee will prepare reports on issues affecting Smart Grid activities.
1. The Committee will be composed of not fewer than nine nor more than fifteen members that reflect the wide diversity of technical disciplines and competencies involved in the Smart Grid deployment and operations and will come from a cross section of organizations. Members shall be selected on the basis of established records of distinguished service in their professional community and their knowledge of issues affecting Smart Grid deployment.
2. The Director of NIST shall appoint the members of the Committee, and they will be selected on a clear, standardized basis, in accordance with applicable Department of Commerce guidance.
1. Members of the Committee will not be paid for their services but will, upon request, be allowed travel and per diem expenses in accordance with 5 U.S.C. 5701
2. The Committee will meet at least twice per year. Additional meetings may be called whenever one-third or more of the members so request in writing or whenever the Director of NIST requests a meeting.
1. Nominations are sought from all fields involved in issues affecting the Smart Grid.
2. Nominees should have established records of distinguished service. The field of expertise that the candidate represents should be specified in the nomination letter. Nominations for a particular field should come from organizations or individuals within that field. A summary of the candidate's qualifications should be included with the nomination, including (where applicable) current or former service on Federal advisory boards and Federal employment. In addition, each nomination letter should state that the person agrees to the nomination, acknowledges the responsibilities of serving on the Committee, and will actively participate in good faith in the tasks of the Committee. The Department of Commerce is committed to equal opportunity in the workplace and seeks a broad-based and diverse Committee membership.
Federal Advisory Committee Act: 5 U.S.C. App.
The VCAT was established in accordance with 15 U.S.C. 278 and the Federal Advisory Committee Act (5 U.S.C. App.).
1. The Committee shall review and make recommendations regarding general policy for NIST, its organization, its budget, and its programs, within the framework of applicable national policies as set forth by the President and the Congress.
2. The Committee functions solely as an advisory body, in accordance with the provisions of the Federal Advisory Committee Act.
3. The Committee shall report to the Director of NIST.
4. The Committee shall provide an annual report, through the Director of NIST, to the Secretary of Commerce for submission to the Congress not later than 30 days after the submittal to Congress of the President's annual budget request in each year. Such report shall deal essentially, though not necessarily exclusively, with policy issues or matters which affect the Institute, or with which the Committee in its official role as the private sector policy advisor of the Institute is concerned. Each such report shall identify areas of program emphasis for the Institute of potential importance to the long-term competitiveness of the United States industry. Such report also shall comment on the programmatic planning document and updates thereto submitted to Congress by the Director under subsections (c) and (d) of section 23 of the NIST Act (15 U.S.C. 278i). The Committee shall submit to the Secretary and Congress such additional reports on specific policy matters as it deems appropriate.
1. The Committee is composed of 15 members that provide representation of a cross-section of traditional and emerging United States industries. Members shall be selected solely on the basis of established records of distinguished service and shall be eminent in such fields as business, research, new product development, engineering, labor, education, management consulting, environment, and international relations. No employee of the Federal Government shall serve as a member of the Committee.
2. The Director of the NIST shall appoint the members of the Committee, and they will be selected on a clear, standardized basis, in accordance with applicable Department of Commerce guidance.
3. The term of the office of each member of the Committee shall be three years, except that vacancy appointments shall be for the remainder of the unexpired term of the vacancy.
1. Members of the VCAT will not be compensated for their services, but will, upon request, be allowed travel expenses in accordance with 5 U.S.C. 5701
2. Members of the Committee shall serve as Special Government Employees (SGEs) and will be subject to the ethics standards applicable to SGEs. As SGEs, the members are required to file an annual Executive Branch Confidential Financial Disclosure Report.
3. Meetings of the VCAT usually take place at the NIST headquarters in Gaithersburg, Maryland, and may be held periodically in Washington, DC and at the NIST site in Boulder, Colorado. Meetings are usually two days in duration and are held at least twice each year.
4. Generally, Committee meetings are open to the public.
1. Nominations are sought from all fields described above.
2. Nominees should have established records of distinguished service and shall be eminent in fields such as business, research, new product development, engineering, labor, education, management consulting, environment and international relations. The category (field of eminence) for which the candidate is qualified should be specified in the nomination letter. Nominations for a particular category should come from organizations or individuals within that category. A summary of the candidate's qualifications should be included with the nomination, including (where applicable) current or former service on Federal advisory boards and Federal employment. In addition, each nomination letter should state that the candidate agrees to the nomination, acknowledges the responsibilities of serving on the VCAT, and will actively participate in good faith in the tasks of the VCAT. Besides participation in two-day meetings held at least twice each year, it is desired that members be able to devote the equivalent of two days between meetings to either developing or researching topics of potential interest, and so forth in furtherance of the Committee duties.
3. The Department of Commerce is committed to equal opportunity in the workplace and seeks a broad-based and diverse VCAT membership.
National Environmental Satellite, Data and Information Service (NESDIS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice of Policy Change.
NOAA's National Data Centers will not accept checks (nor money orders) in payment for orders. Prepayment is required and the accepted forms of payment are Visa, MasterCard, American Express, Discover, wire transfers and Automated Clearing House. Please refer to the NNDC Non-Federal Customer Payment Policy for additional information.
Angel Robinson (301) 713–9230 ext 186.
All non-federal customers
NNDC accepts payment in U.S. currency, by VISA, MasterCard, American Express, and Discover. Cardholder's name, charge card number, expiration date, and signature are required. When indicating this method of payment via mail or fax, the cardholder must sign the document authorizing the charge.
Payments, in
National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce.
Notice of issuance of a Letter of Authorization.
In accordance with the Marine Mammal Protection Act (MMPA), as amended and implementing regulations, notification is hereby given that the National Marine Fisheries Service (NMFS) has issued a Letter of Authorization (LOA) to the Port of Anchorage (POA) and the U.S. Department of Transportation Maritime Administration (MARAD), to take four species of marine mammals incidental to the POA's Marine Terminal Redevelopment Project (MTRP).
Effective July 15, 2011, through July 14, 2012.
The LOA and supporting documentation are available for review by writing to P. Michael Payne, Chief, Permits, Conservation, and Education Division, Office of Protected Resources, National Marine Fisheries Service (NMFS), 1315 East-West Highway, Silver Spring, MD 20910–3225 or by telephoning one of the contacts listed below. Documents cited in this notice may be viewed, by appointment, during regular business hours, at the aforementioned address and at the Alaska Regional Office, 222 West 7th Avenue, Anchorage, AK 99513.
Brian D. Hopper, Office of Protected Resources, NMFS, (301) 713–2289.
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361
Authorization may be granted for periods up to 5 years if NMFS finds, after notification and opportunity for public comment, that the taking will have a negligible impact on the species or stock(s) of marine mammals and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses. In addition, NMFS must prescribe regulations that include permissible methods of taking and other means of effecting the least practicable adverse impact on the species and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species for subsistence uses. The regulations must include requirements for monitoring and reporting of such taking.
Regulations governing the taking of Cook Inlet beluga whales (
On May 6, 2011, NMFS received a request for an LOA renewal pursuant to the aforementioned regulations that would authorize, for a period not to exceed 1 year, take of marine mammals, by Level B harassment only, incidental to the POA MTRP. In compliance with the 2010 LOA, POA and MARAD submitted an annual report on POA construction activities, covering the period of July 15 through December 31, 2010. The report also covers the period of January 1 through July 15, 2010, pursuant to the U.S. Army Corps of Engineers' reporting requirement under their permit issued under Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act. The report can be found on the NMFS Web site at
During the reporting period covered by the 2010 LOA, in-water construction activities were conducted in the North Extension Bulkhead. In-water construction and construction monitoring for the 2009 season ended on November 20, 2010, when ice formation and poor visibility impeded further activity. These activities were within the scope of those analyzed in the final rule and included in the 2010 LOA.
As required by the 2010 LOA, the POA and MARAD established safety and harassment zones at the project site, which were monitored for the presence of marine mammals before, during, and after in-water pile driving. If the applicable safety and harassment zones were not visible because of fog, poor light, darkness, sea state, or any other reason, in-water construction activities were shut down until the area was once again visible. From July 21 to November 20, 2010, 41 in-water pile driving shutdowns were documented due to marine mammal sightings. The peak month for shutdowns and delays during the 2010 construction season was September, when 20 shutdowns and 10 delays were recorded. Most of these occurred when marine mammals were sighted approaching or surfacing just inside the harassment zone.
According to the POA's annual report, within the LOA reporting period (July 21–November 20, 2010), MMOs stationed at the POA recorded 118 marine mammal sighting events in the general area totaling 746 animals. The number of animals is typically greater than the number of sighting events because a single sighting event can (and often does) consist of multiple animals and animals such as beluga whales often travel in groups. There were 731 beluga whales (422 white, 224 gray, and 85 dark gray); 13 harbor seals; and 2 harbor porpoises. The number of reported whales sighted between July 21 and November 20, 2010 includes repeated sightings of individuals during the course of the monitoring period.
The highest number of sightings (44) and number of marine mammals sighted (265) occurred in September (261 of this number were beluga whales: 172 white; 59 gray; and 30 dark gray). The fewest number of sightings for a 30-day period were recorded in August, when 146 marine mammals were sighted. In general, beluga whales showed no observable reaction to pile driving. The only observable reaction which has been documented is beluga whale groups splitting momentarily on three occasions as they maneuver around barges or vessels. In-water pile driving has yet to begin this year, to date; therefore, no MMOs have been required at the POA in 2011.
POA regulations (50 CFR part 217 subpart U) stipulate that the POA and MARAD employ a scientific marine mammal monitoring team separate from the on-site MMOs to characterize beluga whale frequency, abundance, group composition, movements, behavior, and habitat use around the POA and observe, analyze, and document potential changes in behavior in response to in-water construction work. The POA and MARAD complied with this requirement by assembling a monitoring team from the Alaska Pacific University (APU) to implement a NMFS-approved scientific monitoring plan. The scientific marine mammal monitoring 2010 annual report was attached as an appendix to the annual report submitted by POA and MARAD. This report covers the period of June through November, 2010 (ICRC, 2011). A summary of that report follows.
The APU observers conducted scientific monitoring from the Cairn Point Station on Elmendorf Air Force Base, which directly overlooks the POA. For 87 days, from June 29 through November 19, 2010, trained graduate and undergraduate marine biology students conducted approximately 600 hours of scientific monitoring and documented approximately 115 beluga whales, comprising 42 groups traveling through the study area. Spatial distribution analysis indicates that approximately 21 percent of all groups sighted occurred within (n = 42) or adjacent to (n = 5) the MRTP footprint. There were significant differences in the number of whales observed across tidal stages (F
Mean beluga whale group size was 2.7 plus or minus .35 individuals. Only three groups contained individuals identified as calves, and groups with calves were larger on average (4.3 plus or minus 1.2 individuals) than those without. All three groups containing calves were sighted within or adjacent to the MTRP footprint. The number of beluga whales sighted, group size, and size of groups with calves in 2010 decreased from those sighted in 2009; however, this difference was not considered significant. The APU team will continue to monitor and report on beluga whale abundance and the various parameters discussed here within lower Knik Arm for the duration of POA construction.
In summary, the scientific monitoring team found that beluga whale habitat use, distribution and movements, and behavior during 2010 were consistent with previous years (2007–2009) with whales primarily traveling through the study area on the incoming and outgoing tides to and from likely foraging areas further up Knik Arm. Similar to accounts from the MMOs stationed at the POA, no observed behavioral changes (
During the 2010 LOA reporting period, the following numbers of marine mammals were identified as taken from in-water pile driving: 13 beluga whales; 1 harbor seal; 0 harbor porpoises; and 0
As discussed in more detail below, the POA has implemented a robust monitoring and mitigation program to minimize harassment and avoid exposing animals to injurious levels of sound produced by pile driving. The POA has also developed a successful communication system between MMOs and engineers to shut down pile driving before whales enter into designated harassment zones, avoiding Level A take and minimizing Level B take.
During the 2011 construction season, the POA will be conducting two projects at the North End of the project site. The construction work includes: (1) Partial tail wall sheet pile removal at the Wet Barge Berth; and (2) limited inspection of tail walls at the North Extension. The work involves excavation of fill behind exiting sheet pile prior to removal or inspection. The excavation, tail wall removal, and inspection will be conducted out-of-water, inland of the bulkhead. Mobilization, rigging, and excavation began the week of May 9, 2011. At certain locations, barge-mounted heavy equipment will be required to excavate fill material. When the barge is in use, construction marine mammal monitoring will be conducted in accordance with existing permit requirements (
As stated in the regulations and LOA, take of marine mammals will be minimized through implementation of the following mitigation measures: (1) If a marine mammal is detected within or approaching the Level A or impact and vibratory pile driving Level B harassment isopleths (200 m, 350 m and 1,300 m, respectively) prior to in-water pile driving, operations shall be immediately delayed or suspended until the marine mammal moves outside these designated zones or the animal is not detected within 15 minutes of the last sighting; (2) if a marine mammal is detected within or approaching 200 m prior to chipping, this activity shall be immediately delayed or suspended until the marine mammal moves outside these designated zones or the animal is not detected within 15 minutes of the last sighting; (3) except in certain circumstances (
NMFS-approved marine mammal observers (MMOs) will be stationed at the port during all in-water pile driving and chipping and blasting associated with dock demolition, if it occurs. These observers will be responsible for documenting take, marine mammal behavior, and, if necessary, notifying the resident engineer when shut down is necessary. In addition, the POA and MARAD shall employ a scientific marine mammal monitoring team separate from the on-site MMOs to characterize beluga whale abundance, frequency, movements, behavior, group dynamics, and habitat use around the POA and observe, analyze, and document potential changes in behavior in response to in-water construction work. This monitoring team is not required to be present during all in-water pile driving operations but will be on-site 4 days per week, weather permitting. It is anticipated that Alaska Pacific University (APU) will begin the 2011 scientific marine mammal observation program in June. The on-site MMOs and this marine mammal monitoring team shall remain in contact to alert each other to marine mammal presence when both teams are working.
The POA and MARAD shall submit monthly reports summarizing all in-water construction activities and marine mammal sightings. In addition, an annual report shall be due sixty days before expiration of the LOA. This report shall summarize monthly reports and any apparent long or short term impacts the MTRP may be having on marine mammals. This LOA will be renewed annually based on review of the annual monitoring report.
The POA and MARAD have complied with the requirements of the 2010 LOA, and NMFS has determined that marine mammal take during the 2010 construction season is within the amount authorized. Accordingly, NMFS has issued a LOA to POA and MARAD authorizing take by harassment of marine mammals incidental to the marine terminal redevelopment project at the POA. Issuance of the 2011–2012 LOA is based on NMFS' review of the annual report submitted by the POA and MARAD, and determination that the observed impacts were within the scope of the analysis and authorization contained in the final rule and previously issued LOA. Specifically, NMFS found that the total taking of marine mammals, in consideration of the required mitigation, monitoring, and reporting measures, will have no more than a negligible impact on the affected species or stocks and will not have an unmitigable adverse impact on their availability for taking for subsistence uses.
Wednesday, July 13, 2011, 10 a.m.–12 noon.
Room 420, Bethesda Towers, 4330 East West Highway, Bethesda, Maryland.
Commission Meeting—Open to the Public.
(a) Lead 100 ppm.
(b) ASTM F963 Notice of Requirements.
A live Web cast of the Meeting can be viewed at
For a recorded message containing the latest agenda information, call (301) 504–7948.
Todd A. Stevenson, Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, (301) 504–7923.
Wednesday, July 13, 2011; 2 p.m.–3 p.m.
Hearing Room 420, Bethesda Towers, 4330 East West Highway, Bethesda, Maryland.
Closed to the Public.
The Commission staff will brief the Commission on the status of compliance matters.
For a recorded message containing the latest agenda information, call (301) 504–7948.
Todd A. Stevenson, Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, (301) 504–7923.
Wednesday, July 6, 2011, 10 a.m.–12 Noon.
Room 420, Bethesda Towers, 4330 East West Highway, Bethesda, Maryland.
Commission Meeting—Open to the Public.
(a) ASTM F963 Notice of Requirements; and
(b) Phthalates Enforcement Policy
A live Web Cast of the Meeting can be viewed at
For a recorded message containing the latest agenda information, call (301) 504–7948.
Todd A. Stevenson, Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, (301) 504–7923.
Defense Logistics Agency, DoD.
Notice to Amend a System of Records.
The Defense Logistics Agency is proposing to amend a system of records notice in its existing inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
The proposed action will be effective without further notice on August 5, 2011 unless comments are received which would result in a contrary determination.
You may submit comments, identified by docket number and/Regulatory Information Number (RIN) and title, by any of the following methods:
•
•
Ms. Jody Sinkler, Privacy Act Officer, Headquarters Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060–6221, or by phone at (703) 767–5045.
The Defense Logistics Agency's system of record notices subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The specific changes to the record system being amended are set forth below followed by the notice, as amended, published in its entirety. The proposed amendment is not within the purview of subsection (r) of the Privacy Act of 1974 (5 U.S.C. 552a), as amended, which requires the submission of new or altered systems reports.
Chaplain Care and Counseling Record (June 30, 2009, 74 FR 31259).
Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the DLA FOIA/Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060–6221. Individuals should provide their name and address.”
Delete entry and replace with “Individuals seeking access to information about themselves contained in this system should address written inquiries to the DLA FOIA/Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060–6221. Individuals should provide their name and address.”
Delete entry and replace with “The DLA rules for accessing records, for contesting contents, and appealing initial agency determinations are contained in 32 CFR part 323, or may be obtained from the DLA FOIA/Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060–6221.”
Chaplain Care and Counseling Record.
Office of the Chaplain, Headquarters, Defense Logistics Agency, ATTN: DH, 8725 John J. Kingman Road, Stop 2533, Fort Belvoir, VA 22060–6221.
Individuals who have received spiritual counseling, guidance, or ministration from the DLA Command Chaplain; and/or individuals who have participated in Chaplain sponsored activities.
Individual's name, home address and telephone number, religion, and details for which the individual sought counseling or assistance.
5 U.S.C. 301, Departmental Regulations; 10 U.S.C. 136, Under Secretary of Defense for Personnel and Readiness; 10 U.S.C. 3547, Duties: Chaplains, assistance required of commanding officers; 10 U.S.C. 5142, Chaplain Corps and Chief of Chaplains.
To document spiritual counseling or assistance provided to individuals.
In addition to those disclosures generally permitted under 5 U.S.C. 553a(b) of the Privacy Act of 1974, these records contained therein may specifically be disclosed outside DoD as a routine use pursuant to 5 U.S.C. 55a(b)(3) as follows:
The DoD “Blanket Routine Uses” also apply to this system of records.
Records may be stored on paper.
Records are retrieved by individual's name.
Records are stored in locked cabinets and are accessible only by the Chaplain.
Information is retained in the system until superseded or no longer needed.
Command Chaplain, Headquarters, Defense Logistics Agency, ATTN: DH, 8725 John J. Kingman Road, Stop 2533, Fort Belvoir, VA 22060–6221.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the DLA FOIA/Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060–6221.
Individuals should provide their name and address.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the DLA FOIA/Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060–6221.
Individuals should provide their name and address.
The DLA rules for accessing records, for contesting contents, and appealing initial agency determinations are contained in 32 CFR part 323, or may be obtained from the DLA FOIA/Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060–6221.
Information is provided by the record subject.
None.
Defense Logistics Agency, DoD.
Notice to amend a system of records.
The Defense Logistics Agency is proposing to amend a system of records notice in its existing inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
The proposed action will be effective without further notice on August 5, 2011 unless comments are received which would result in a contrary determination.
You may submit comments, identified by docket number and/Regulatory Information Number (RIN) and title, by any of the following methods:
•
•
Ms. Jody Sinkler, Privacy Act Officer, Headquarters Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060–6221, or by phone at (703) 767–5045.
The Defense Logistics Agency's system of record notices subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The specific changes to the record system being amended are set forth below followed by the notice, as amended, published in its entirety. The proposed amendment is not within the purview of subsection (r) of the Privacy Act of 1974 (5 U.S.C. 552a), as amended, which requires the submission of new or altered systems reports.
Labor Management Relations Records System (May 19, 2009, 74 FR 23396)
Delete entry and replace with “Human Resources, Labor and Employee Relations Policy (J–13), Headquarters, Defense Logistics Agency (DLA), 8725 John J. Kingman Road, Suite 3630, Fort Belvoir, VA 22060–6221.
Defense Logistics Agency Human Resources Services-Columbus (DHRS–C), 3990 East Broad Street, Building 11, Section 3, Columbus, OH 43213–0919.
Defense Logistics Agency Human Resources Services-New Cumberland (DHRS–N), 2001 Mission Drive, Suite 3, New Cumberland, PA 17070–5042.
Defense Logistics Agency Human Resources Services (DHRS–D), 3990 East Broad Street, Building 306, Columbus, OH 43213–1158.”
Delete “Social Security Number” from entry.
Delete “E.O. 9397 (SSN)” from entry.
Change “unfair labor complaints” to “unfair labor practice complaints.”
Delete “Social Security Numbers” from entry.
Delete entry and replace with “Director, DLA Human Resources, Headquarters, Defense Logistics Agency, ATTN: J–13, 8725 John J. Kingman Road, Suite 3630, Fort Belvoir, VA 22060–6221.
Director, Defense Logistics Agency Human Resources Services—Columbus (DHRS–C), 3990 East Broad Street, Building 11, Section 3, Columbus, OH 43213–0919.
Director, Defense Logistics Agency Human Resources Services—New Cumberland (DHRS–N), 2001 Mission Drive, Suite 3, New Cumberland, PA 17070–5042.
Director, Defense Logistics Agency Human Resources Services (DHRS–D), 3990 East Broad Street, Building 306, Columbus, OH 43213–1158.”
Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system of records should address written inquiries to the DLA FOIA/Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060–6221.
Written inquiry should contain the subject individual's full name, and case subject and case number, if known.”
Delete entry and replace with “Individuals seeking access to information about themselves contained in this system of records should address written inquiries to the DLA FOIA/Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060–6221.
Written inquiry should contain the subject individual's full name, and case subject and case number, if known.”
Delete entry and replace with “The DLA rules for accessing records, for contesting contents, and appealing initial agency determinations are contained in 32 CFR Part 323, or may be obtained from the DLA FOIA/Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060–6221.”
Labor Management Relations Records System.
Human Resources, Labor and Employee Relations Policy (J–13), Headquarters, Defense Logistics Agency (DLA), 8725 John J. Kingman Road, Suite 3630, Fort Belvoir, VA 22060–6221.
Defense Logistics Agency Human Resources Services—Columbus (DHRS–C), 3990 East Broad Street, Building 11, Section 3, Columbus, OH 43213–0919.
Defense Logistics Agency Human Resources Services—New Cumberland (DHRS–N), 2001 Mission Drive, Suite 3, New Cumberland, PA 17070–5042.
Defense Logistics Agency Human Resources Services (DHRS–D), 3990 East Broad Street, Building 306, Columbus, OH 43213–1158.
DLA or other third party employees and individuals of other Federal agencies who receive personnel support from DLA who are involved in labor grievances, disputes, or complaints which have been referred to an arbitrator for resolution.
The file contains the subject individuals name, addresses, telephone numbers, background papers, and details pertaining to the case or issue.
Chapter 71 of Title 5 of the U.S. Code, Labor-Management Relations.
Records are maintained incident to the administration, processing, and resolution of unfair labor practice complaints, grievance-arbitrations, negotiability, and representation issues. Statistical data, with personal identifiers removed, may be used by management for reporting or policy evaluation purposes.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records contained therein may specifically be disclosed outside the DOD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To Representatives of the U.S. Office of Personnel Management (OPM) on matters relating to the inspection, survey, audit or evaluation of Civilian Personnel Management Programs.
To the Comptroller General or any of his authorized representatives, in the course of the performance of duties of the Government Accountability Office relating to the Labor-Management Relations Program.
To the Federal Labor Relations Authority to respond to inquiries from that office regarding complaints referred to or filed with that office.
To arbitrators, examiners, or other third parties appointed to inquire into, review, or negotiate labor-management issues.
The DoD “Blanket Routine Uses” also apply to this system of records.
Records may be stored on paper and/or electronic storage media.
Records are retrieved by case subject, case numbers, and/or individual employee name.
Records are maintained in areas accessible only to DLA personnel who must access the records to perform their duties. The computerized files are password protected with access restricted to authorized users. Records are secured in locked or guarded buildings, locked offices, or locked cabinets during non duty hours.
Records will be destroyed 5 years after final resolution of the case.
Director, DLA Human Resources, Headquarters, Defense Logistics Agency, ATTN: J–13, 8725 John J. Kingman Road, Suite 3630, Fort Belvoir, VA 22060–6221.
Director, Defense Logistics Agency Human Resources Services—Columbus (DHRS–C), 3990 East Broad Street, Building 11, Section 3, Columbus, OH 43213–0919.
Director, Defense Logistics Agency Human Resources Services—New Cumberland (DHRS–N), 2001 Mission Drive, Suite 3, New Cumberland, PA 17070–5042.
Director, Defense Logistics Agency Human Resources Services (DHRS–D), 3990 East Broad Street, Building 306, Columbus, OH 43213–1158.
Individuals seeking to determine whether information about themselves is contained in this system of records should address written inquiries to the DLA FOIA/Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060–6221.
Written inquiry should contain the subject individual's full name, and case subject and case number, if known.
Individuals seeking access to information about themselves contained in this system of records should address written inquiries to the DLA FOIA/Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060–6221.
Written inquiry should contain the subject individual's full name, and case subject and case number, if known.
The DLA rules for accessing records, for contesting contents, and appealing initial agency determinations are contained in 32 CFR part 323, or may be obtained from the DLA FOIA/Privacy Act Office, Headquarters, Defense Logistics Agency, ATTN: DGA, 8725 John J. Kingman Road, Suite 1644, Fort Belvoir, VA 22060–6221.
The individual; Servicing Human Resources Director, arbitrator's office, the Federal Labor Relations Authority Headquarters and regional offices, and union officials.
None.
The decision was based on matters discussed in the Final Environmental Impact Statement (EIS), inputs from the public and regulatory agencies, and other relevant factors. The Final EIS was made available to the public on May 13, 2011, through a
This NOA is published pursuant to the regulations (40 CFR Part 1506.6) implementing the provisions of the NEPA of 1969 (42 U.S.C. 4321,
Department of the Army, DoD.
Notice to Amend a System of Records.
The Department of the Army is proposing to amend a system of records notice in its existing inventory of records systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended.
The changes will be effective on August 5, 2011 unless comments are received that would result in a contrary determination.
You may submit comments, identified by docket number and/Regulatory Information Number (RIN) and title, by any of the following methods:
•
•
Mr. Leroy Jones, Department of the Army, Privacy Office, U.S. Army Records Management and Declassification Agency, 7701 Telegraph Road, Casey Building, Suite 144, Alexandria, VA 22325–3905, or by phone (703) 428–6185.
The Department of the Army systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The specific changes to the records systems being amended are set forth below followed by the notices, as amended, published in their entirety. The proposed amendments are not within the purview of subsection (r) of
Correction of Military Records Cases (January 28, 2008, 73 FR 4852).
Delete entry and replace with “5 U.S.C. 301, Departmental Regulations; 10 U.S.C. 3013, Secretary of the Army; 10 U.S.C. 1552, Correction of military records: Claims incident thereto, 10 U.S.C. 1214, Armed Forces; Right to a Full and Fair Hearing; 10 U.S.C. 1216, Secretaries, powers, functions and duties; 10 U.S.C. 1553, Review of Discharge or Dismissal; 10 U.S.C. 1554, Military Personnel Benefits and E.O. 9397 (SSN), as amended.”
Correction of Military Records Cases.
Army Review Boards Agency, 1901 South Bell Street, 2nd Floor, Arlington, VA 22202–4508. Copy of Board decision is incorporated in petitioner's Official Military Personnel File except where such action would nullify relief granted, in which case application and decisions are retained in files of the Correction Board.
Present or former members of the U.S. Army, U.S. Army Reserve or Army National Guard or their authorized representatives who apply for the correction of his/her military records and review of Discharge from the Armed Forces of the United States.
Application for Correction of Military Record (DD Form 149), Application for the Review of Discharge from the Armed Forces of the United States (DD 293), individual's name (first and last), address, telephone number, email, fax number, branch of service, rank, social security number (SSN), date of discharge, type of discharge, relevant information pertaining to discharge or military corrective action, counselor's name, counselor's address, counselor's phone number and email, documentary evidence, affidavits, information from individual's military record pertinent to corrective action requested, testimony, hearing transcripts when appropriate, briefs/arguments, advisory opinions, findings, conclusions and decisional documents of the Board.
5 U.S.C. 301, Departmental Regulations; 10 U.S.C. 3013, Secretary of the Army; 10 U.S.C. 1552, Correction of military records: Claims incident thereto, 10 U.S.C. 1214, Armed Forces; Right to a Full and Fair Hearing; 10 U.S.C. 1216, Secretaries, powers, functions and duties; 10 U.S.C. 1553, Review of Discharge or Dismissal; 10 U.S.C. 1554, Military Personnel Benefits and E.O. 9397 (SSN), as amended.
Records are used by the Board to consider all applications properly before it to determine the existence of an error or an injustice.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To the Department of Justice when cases are litigated.
The DoD “Blanket Routine Uses” set forth at the beginning of the Army's compilation of systems of records notices also apply to this system.
Paper records in file folders and electronic storage media.
Applicant's surname, Social Security Number (SSN) and/or number assigned to applicant.
Information is privileged, and restricted to individuals who have a need for the record in the performance of their official duties. Computer terminals with access to the records are located in rooms with authorized personnel. These rooms are locked when unoccupied. Common Access Card (CAC) certificates and PIN, or login and passwords are used to support the minimum requirements of accountability, access control, least privilege, and data integrity. Additionally, intrusion detection systems, malicious code protection, and firewalls are used.
Records are retained at the Army Review Boards Agency for at least 6 months after case is closed and then retired to the National Personnel Records Center where they are retained for 20 years.
Director, Army Review Boards Agency, 1901 South Bell Street, 2nd Floor, Arlington, VA 22202–4508.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Director, Army Review Boards Agency, 1901 South Bell Street, 2nd Floor, Arlington, VA 22202–4508.
Individual must furnish full name, Social Security Number, service number if assigned, current address and telephone number, information that will assist in locating the record, and signature.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the Director, Army Review Boards Agency, 1901 South Bell Street, 2nd Floor, Arlington, VA 22202–4508.
Individual must furnish full name, Social Security Number (SSN), service number if assigned, current address and telephone number, information that will assist in locating the record, and signature.
The Army's rules for accessing records, and for contesting contents and appealing initial agency determinations are contained in Army Regulation 340–21; 32 CFR Part 505; or may be obtained from the system manager.
From the individual, his/her Official Military Personnel File, other Army records/reports, relevant documents from any source.
None.
Department of the Navy, DoD.
Notice to delete a system of records.
The Department of the Navy is deleting a system of records notice in its existing inventory of record systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended.
This proposed action will be effective without further notice on August 5, 2011 unless comments are received which result in a contrary determination.
You may submit comments, identified by dock number and/RIN number and title, by any of the following methods:
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Ms. Robin Patterson, FOIA/Privacy Act Policy Branch, Department of the Navy, 2000 Navy Pentagon, Washington, DC 20350–2000, or by phone at (202) 685–6546.
The Department of the Navy systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
Personnel Action Reporting System (PARS) (September 2, 1999, 64 FR 48148)
Commander, Navy Installations Command, Department of the Navy, has determined that N12290–1 provided for the collection by a system that is no longer in operation. This system, Personnel Action Reporting System (PARS) was a sunset system and all records contained therein have been properly destroyed. PARS, N12290–1, can therefore be deleted.
Department of Education.
Comment request.
The Department of Education (the Department), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the reporting burden on the public and helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before September 6, 2011.
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that Federal agencies provide interested parties an early opportunity to comment on information collection requests. The Director, Information Collection Clearance Division, Information Management and Privacy Services, Office of Management, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Copies of the proposed information collection request may be accessed from
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339.
Environmental Protection Agency (EPA).
Notice of Determination.
The Regional Administrator of the Environmental Protection Agency—New England Region, has determined that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the coastal waters of Chatham, Orleans, Eastham, Wellfleet, Truro, and Provincetown, collectively termed the Outer Cape Cod for the purpose of this notice.
Ann Rodney, U. S. Environmental Protection Agency—New England Region, Office of Ecosystem Protection, Oceans and Coastal Protection Unit, Five Post Office Square, Suite 100, OEP06–1, Boston, MA 02109–3912. Telephone: (617) 918–1538. Fax number: (617) 918–0538. E-mail address:
On April 29, 2011, EPA published a notice that the Commonwealth of Massachusetts had petitioned the Regional Administrator, Environmental Protection Agency, to determine that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the waters of the Outer Cape Cod. Four comments were received on this petition. The response to comments can be obtained utilizing the above contact information.
The petition was filed pursuant to Section 312(f)(3) of Public Law 92–500, as amended by Public Laws 95–217 and 100–4, for the purpose of declaring these waters a No Discharge Area (NDA).
Section 312(f)(3) states: After the effective date of the initial standards and regulations promulgated under this section, if any State determines that the protection and enhancement of the quality of some or all of the waters within such State require greater environmental protection, such State may completely prohibit the discharge from all vessels of any sewage, whether treated or not, into such waters, except that no such prohibition shall apply until the Administrator determines that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for such water to which such prohibition would apply.
This Notice of Determination is for the waters of the Outer Cape Cod. The NDA boundaries are as follows:
The boundaries were chosen based on easy line-of-sight locations and generally represent all navigational waters. The area includes the municipal waters of Chatham, Orleans, Eastham, Wellfleet, Truro, and Provincetown, and from mean high water out to the state/federal boundary.
The information submitted to EPA by the Commonwealth of Massachusetts certifies that there is one landside pumpout facility at Goose Hummock Marine in Orleans within the proposed area available to the boating public. The location, contact information, hours of
Based on the examination of the petition and its supporting documentation, and information from site visits conducted by EPA New England staff, EPA has determined that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the area covered under this determination.
This determination is made pursuant to Section 312(f)(3) of Public Law 92–500, as amended by Public laws 95–217 and 100–4.
Environmental Protection Agency (EPA).
Notice.
The Director of the Office of Ecosystem Protection, EPA–New England, is issuing a notice of availability of the final National Pollutant Discharge Elimination System (NPDES) General Permits for certain Publicly Owned Treatment Works Treatment Plants (POTW treatment plants) and Other Treatment Works Treating Domestic Sewage (collectively, “facilities”) in the Commonwealth of Massachusetts (including both Commonwealth and Indian country lands) and the State of New Hampshire. Throughout this document, these two permits are collectively referred to as the “Publicly Owned Treatment Works General Permit” (“POTW GP” or the “General Permit”). The General Permit replaces the prior POTW GP, which expired on September 23, 2010 (the “expired POTW GP”).
The POTW GP establishes Notice of Intent (“NOI”) requirements as well as effluent limitations, standards, and prohibitions for facilities that discharge to fresh and marine waters. Coverage under these General Permits is available to facilities in Massachusetts classified as minor facilities and to facilities in New Hampshire classified as major or minor facilities. Owners and/or operators of these facilities, including those facilities whose authorization to discharge under the expired POTW GP was administratively continued in accordance with the Administrative Procedures Act (5 U.S.C. 558(c)) and 40 CFR 122.6, will be required to submit an NOI to be covered by the final POTW GP to both EPA–New England and the appropriate state agency, in accordance with the notification requirements of the General Permit. Following EPA and State review of the NOI, the facility will receive written notification from EPA whether coverage and authorization to discharge under the General Permit has been granted. The eligibility requirements for permit coverage, including the requirement that a facility have a receiving water dilution factor equal to or greater than 50, are provided in the General Permit. The General Permit does not cover new sources as defined under 40 CFR 122.2.
The POTW GP shall be effective on July 6, 2011 and will expire at midnight, July 6, 2016. In accordance with 40 CFR Part 23, these permits shall be considered issued for the purpose of judicial review two (2) weeks after the
The required notification information to obtain permit coverage is provided in the POTW GP. This information shall be submitted to both EPA and the appropriate state agency. Notification information may be sent via regular or overnight mail to EPA–Region 1, Office of Ecosystem Protection, OEP06–1, 5 Post Office Square-Suite 100, Boston, Massachusetts 02109–3912; and to the appropriate state agency at the addresses provided in Attachment F to the POTW GP.
Additional information concerning the final POTW GP may be obtained by contacting Meridith Timony at 617–918–1533, between the hours of 9 a.m. and 5 p.m., Monday through Friday, excluding holidays. The General Permit and the Response to Comments document may be viewed over the Internet via the EPA–Region I Web site at
Environmental Protection Agency (EPA).
Notice.
This notice announces receipt of applications to register new uses for pesticide products containing currently registered active ingredients, pursuant to the provisions of section 3(c) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended. EPA is publishing this Notice of such applications, pursuant to section 3(c)(4) of FIFRA.
Comments must be received on or before August 5, 2011.
Submit your comments, identified by the docket identification (ID) number in the summary for the product of interest, by one of the following methods:
•
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A contact person is listed at the end of each registration application summary and may be contacted by telephone or e-mail. The mailing address for each contact person listed is: Registration Division (7505P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001.
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
EPA received applications as follows to register new uses for pesticide products containing currently registered active ingredients pursuant to the provisions of section 3(c) of FIFRA, and is publishing this Notice of such applications pursuant to section 3(c)(4) of FIFRA. Notice of receipt of these
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Environmental protection, Pesticides and pest.
Environmental Protection Agency (EPA).
Notice.
This notice announces the availability of EPA's preliminary human health risk assessment for the registration review of chlorpyrifos and opens a public comment period on this document. Registration review is EPA's periodic review of pesticide registrations to ensure that each pesticide continues to satisfy the statutory standard for registration, that is, the pesticide can perform its intended function without unreasonable adverse effects on human health or the environment. As part of the registration review process, the Agency has completed a comprehensive preliminary human health risk assessment for all chlorpyrifos uses. After reviewing comments received during the public comment period, EPA will issue a revised risk assessment, explain any changes to the preliminary risk assessment, and respond to comments and may request public input on risk mitigation before completing a proposed registration review decision for chlorpyrifos. Through this program, EPA is ensuring that each pesticide's registration is based on current scientific and other knowledge, including its effects on human health and the environment.
Comments must be received on or before September 6, 2011.
Submit your comments identified by the docket identification (ID) number EPA–HQ–OPP–2008–0850, by one of the following methods:
•
•
•
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, farm worker, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the chemical review manager listed under
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i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
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EPA is conducting its registration review of chlorpyrifos pursuant to section 3(g) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Procedural Regulations for Registration Review at 40 CFR part 155, subpart C. Section 3(g) of FIFRA provides, among other things, that the registrations of pesticides are to be reviewed every 15 years. Under FIFRA, a pesticide product may be registered or remain registered only if it meets the statutory standard for registration given in FIFRA section 3(c)(5). When used in accordance with widespread and commonly recognized practice, the pesticide product must perform its intended function without unreasonable adverse effects on the environment; that is, without any unreasonable risk to man or the environment, or a human dietary risk from residues that result from the use of a pesticide in or on food.
As directed by FIFRA section 3(g), EPA is reviewing the pesticide registration for chlorpyrifos to ensure that it continues to satisfy the FIFRA standard for registration—that is, that chlorpyrifos can still be used without unreasonable adverse effects on human health or the environment. Chlorpyrifos is an organophosphate insecticide, acaricide, and miticide used to control a variety of insects on food and feed crops, golf course turf, greenhouses, nonstructural wood treatments (such as utility poles and fence posts), ant bait stations, and as an adult mosquitocide. EPA has completed a comprehensive preliminary human health risk assessment for all chlorpyrifos uses.
Pursuant to 40 CFR 155.53(c), EPA is providing an opportunity, through this notice of availability, for interested parties to provide comments and input concerning the Agency's preliminary human health risk assessment for chlorpyrifos. EPA acknowledged its intent to issue this assessment for public comment in a December 21, 2010, Stipulation and Order issued by the U.S. District Court for the Southern District of New York in
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• To ensure that EPA will consider data or information submitted, interested persons must submit the data or information during the comment period. The Agency may, at its discretion, consider data or information submitted at a later date.
• The data or information submitted must be presented in a legible and useable form. For example, an English translation must accompany any material that is not in English and a written transcript must accompany any information submitted as an audiographic or videographic record. Written material may be submitted in paper or electronic form.
• Submitters must clearly identify the source of any submitted data or information.
• Submitters may request the Agency to reconsider data or information that the Agency rejected in a previous review. However, submitters must explain why they believe the Agency should reconsider the data or information in the pesticide's registration review.
As provided in 40 CFR 155.58, the registration review docket for each pesticide case will remain publicly accessible through the duration of the registration review process; that is, until all actions required in the final decision on the registration review case have been completed.
Environmental protection, Chlorpyrifos, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice of proposed settlement agreement; request for public comment.
In accordance with Section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (“CERCLA”), 42 U.S.C. 9622(i), notice is hereby given of a proposed administrative settlement for recovery of Past Response Costs and Future Response Costs, as these terms are defined in the settlement, concerning the Nuclear Metals, Inc. Superfund Site (“Site”) located at 2229 Main Street in Concord, Middlesex County, Massachusetts with Textron Inc., Whittaker Corporation, United States Army, and United States Department of Energy. The settlement requires payment of $4,115,000 in reimbursement of Past Response Costs. The settlement also requires performance of a non-time critical removal action and payment of all Future Response Costs. The settlement includes covenants pursuant to Sections 106 and 107(a) of CERCLA, 42 U.S.C. 9606 and 9607(a). For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the settlement for recovery of response costs (Section XV of the proposed settlement). The Agency will consider all comments received and may modify or withdraw its consent to this cost recovery settlement if comments received disclose facts or considerations which indicate that the settlement is inappropriate, improper, or inadequate. The Agency's response to any comments received will be available for public inspection at the Concord Free Public Library, 129 Main St., Concord, MA 01742 and at U.S. EPA Region 1, 5 Post Office Square, Suite 100, Boston, MA 02109–3912.
Comments must be submitted on or before August 5, 2011.
The proposed settlement is available for public inspection at U.S. EPA Region 1, OSRR Records and Information Center, 5 Post Office Square, Suite 100, Mailcode LIB01–2, Boston, MA 02109–3912, by appointment, (617) 918–1440. Comments should reference the Nuclear Metals, Inc. Superfund Site, Concord, MA and U.S. EPA Region 1 Docket No. CERCLA–01–2011–004, and should be addressed to Audrey Zucker, U.S. EPA Region 1, 5 Post Office Square, Suite 100, Mailcode OES04–2, Boston, MA 02109–3912.
A copy of the proposed settlement agreement can also be obtained from Heather Cote, U.S. EPA Region 1, 5 Post Office Square, Suite 100, Mailcode OES04–4, Boston, MA 02109–3912. Additional information on the Nuclear Metals, Inc. Superfund Site and the index to the administrative record for the non-time critical removal action can be found at
Environmental Protection Agency (EPA).
Notice of Proposed Administrative Settlement and Opportunity for Public Comment.
The United States Environmental Protection Agency (“EPA”) is proposing to enter into an administrative settlement agreement (“Settlement Agreement”) with Atlantic City Electric Company, Inc. (“Respondent”) pursuant to Section 122(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. 9622(h). The Settlement Agreement provides for Respondent's payment of certain past costs incurred at the Price Landfill Superfund Site, City of Pleasantville and Egg Harbor Township, Atlantic County, New Jersey (“Site”).
In accordance with Section 122(i) of CERCLA, 42 U.S.C. 9622(i), this notice is being published to inform the public of the proposed Settlement Agreement and of the opportunity to comment. For thirty (30) days following the date of publication of this notice, EPA will receive written comments relating to the proposed Settlement Agreement. EPA will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations that indicate that the proposed settlement is inappropriate, improper or inadequate. EPA's response to any comments received will be available for public inspection at EPA Region 2, 290 Broadway, 17th Floor, New York, NY 10007–1866.
Comments must be provided by August 5, 2011.
Comments should reference the EPA Index No. II–CERCLA–02–2011–2013 and should be sent to the U.S. Environmental Protection Agency, Region 2, Office of Regional Counsel, New Jersey Superfund Branch, 290 Broadway–17th Floor, New York, NY 10007.
A copy of the proposed administrative settlement, as well as background information relating to the settlement, may be obtained from William C. Tucker, Assistant Regional Counsel, New Jersey Superfund Branch, Office of Regional Counsel, U.S. Environmental Protection Agency, Region 2, 17th Floor, 290 Broadway, New York, New York 10007–1866. Telephone: 212–637–3139.
William C. Tucker, Assistant Regional Counsel, New Jersey Superfund Branch, Office of Regional Counsel, U.S. Environmental Protection Agency, Region 2, 17th Floor, 290 Broadway, New York, New York 10007–1866. Telephone: 212–637–3139.
Federal Communications Commission.
Notice.
As required by the Civil Service Reform Act of 1978 (Pub. L. 95–454), Chairman Julius Genachowski appointed the following executive to the Performance Review Board (PRB): Mindel De La Torre.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35), the Regulatory Secretariat (MVCB) will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection requirement concerning OMB Circular A–119.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Submit comments on or before August 5, 2011.
Submit comments identified by Information Collection 9000–0153, OMB Circular A–119, by any of the following methods:
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Mr. Anthony Robinson, Procurement Analyst, Contract Policy Branch, GSA (202) 501–2658 or e-mail
On February 19, 1998, a revised OMB Circular A–119, “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities,” was published in the
On September 30, 2007, the Administration for Children and Families (ACF) Children's Bureau awarded multi-year grants to 53 regional partnerships grantees (RPGs) to improve the safety, permanency and well-being of children affected by methamphetamine or other substance abuse who have been removed or are at risk of removal from their home. The Child and Family Services Improvement Act of 2006, the authorizing legislation for the RPG program, required that a set of performance indicators be established to periodically assess the grantees' outcomes. The legislation mandated that these performance indicators be developed through a consultative process involving ACF, the Substance Abuse and Mental Health Services Administration (SAMHSA), and representatives of the State or Tribal agencies who are members of the regional partnerships. The legislation also requires the Secretary of the Department of Health and Human services to submit annually to Congress a report that includes the performance indicators established under this grant program.
The final set of RPG performance indicators was approved by ACF and disseminated to the funded grantees in January 2008. It includes a total of 23 indicators across four outcome domains: Child/youth (9 indicators), adult (7 indicators), family/relationship (5 indicators), and regional partnership/service capacity (2 indicators). It also includes a core set of child and adult demographic elements that will provide important context needed to properly analyze, explain and understand the outcomes. No other national data collection measures these critical child, adult, family, and RPG outcomes specifically for these children and
The purpose of this request is to obtain OMB approval for an extension of the original three year request which was approved on March 31, 2009. Forty-three of the original 53 grantees were awarded for a five-year grant period, thus necessitating an extension of the original request in order to continue data collection for the remainder of the grant period. The first submission of RPG grantee data to the RPG data collection system ocurred in December, 2008, and every six months thereafter. Data collection will be conducted for the fifth year of the grant period, ending September 30, 2012, with data submission by January 2013. Data collection may be extended for one year until January 2014 should grantees request and be granted no-cost extensions.
To minimize grantee data collection and reporting burden, many of the data elements are already being collected by counties and States in order to report Federally-mandated data for the Adoption and Foster Care Analysis and Reporting System (AFCARS), the Treatment Episode Data Set (TEDS) and the National Outcome Measures (NOMs); in addition, all States voluntarily submit data for the Federal National Child Abuse and Neglect Data System (NCANDS). Therefore, most child welfare data elements included in the RPG performance measures can be found in a State's automated case management system, which is often a Federally-funded Statewide Automated Child Welfare Information System (SACWIS). TEDS admission and discharge data are collected by State substance abuse agencies according to their own information systems for monitoring substance abuse treatment admissions and transmitted monthly or quarterly to the SAMHSA contractor.
As a result of prior Federal government reporting requirements, States are already collecting several data elements needed by the RPGs. The RPG lead agency or their state or local partners are able to download information from these existing State child welfare and substance abuse treatment data systems to obtain data to monitor their RPG program outcomes, thereby reducing the amount of primary data collection needed.
In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above.
Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447,
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is requesting that any industry organizations interested in participating in the selection of a nonvoting industry representative to serve on its Cellular, Tissue, and Gene Therapies Advisory Committee notify FDA in writing. FDA is also requesting nominations for nonvoting industry representatives to serve its Cellular, Tissue, and Gene Therapies Advisory Committee. A nominee may either be self-nominated or nominated by an organization to serve as a nonvoting industry representative. Nomination will be accepted for current vacancies effective with this notice.
Any industry organization interested in participating in the selection of an appropriate nonvoting member to represent industry interests must send a letter stating that interest to FDA by August 5, 2011, for vacancies listed in the notice. Concurrently, nomination material for prospective candidates should be sent to FDA by August 5, 2011.
All letters of interest and nominations should be submitted in writing to Gail Dapolito (see
Gail Dapolito, Center for Biologics Evaluation and Research (HFM–71), Food and Drug Administration, 1401 Rockville Pike, Rockville, MD 20852–
The Agency requests nominations for a nonvoting industry representative on the Cellular, Tissue, and Gene Therapies Advisory Committee. The Cellular, Tissue, and Gene Therapies Advisory Committee advises the Commissioner of Food and Drugs (the Commissioner) or designee in discharging responsibilities as they relate to the regulation of cellular and gene therapy products.
This committee has 13 voting members. Members are asked to provide their expert scientific and technical advice to FDA to help make sound decisions on the safety, effectiveness, appropriate use, and labeling of cellular and gene therapy products.
Any industry organization interested in participating in the selection of an appropriate nonvoting member to represent industry interests should send a letter stating that interest to the FDA contact (see
Individuals may self nominate and/or an organization may nominate one or more individuals to serve as a nonvoting industry representative. A current curriculum vitae and the name of the committee of interest should be sent to the FDA contact person (see
FDA has a special interest in ensuring that women, minority groups, individuals with physical disabilities, and small businesses are adequately represented on its advisory committees, and therefore, encourages nominations for appropriately qualified candidates from these groups. Specifically, in this document, nominations for nonvoting representatives of industry interests are encouraged from the cellular and gene therapy products biotech industry.
This notice is issued under the Federal Advisory Committee Act (5 U.S.C. app. 2) and 21 CFR part 14, relating to the advisory committees.
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Kristina Toliver at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
Blood Products Advisory Committee Day 1:
Blood Products Advisory Committee Day 2:
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Bryan Emery or Rosanna Harvey at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Advisory Council on Alcohol Abuse and Alcoholism.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Information is also available on the Institute's/Center's home page:
Privacy Office, DHS.
Committee Management; Request for Applicants for Appointment to the DHS Data Privacy and Integrity Advisory Committee.
The Department of Homeland Security Privacy Office is seeking applicants for appointment to the DHS Data Privacy and Integrity Advisory Committee.
Applications for membership must reach the Department of Homeland Security Privacy Office at the address below on or before August 15, 2011.
If you wish to apply for membership, please submit the documents described below to Martha K. Landesberg, Executive Director, DHS
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Martha K. Landesberg, Executive Director, DHS Data Privacy and Integrity Advisory Committee, Department of Homeland Security, Washington, DC 20528, by telephone (703) 235–0780, by fax (703) 235–0442, or by e-mail to
The DHS Data Privacy and Integrity Advisory Committee is an advisory committee established in accordance with the provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C.A. App. 2. The Committee was established by the Secretary of Homeland Security under the authority of 6 U.S.C. 451 and provides advice at the request of the Secretary and the DHS Chief Privacy Officer on programmatic, policy, operational, administrative, and technological issues within DHS that relate to personally identifiable information (PII), as well as data integrity and other privacy-related matters. The duties of the Committee are solely advisory in nature. In developing its advice and recommendations, the Committee may, consistent with the requirements of the FACA, conduct studies, inquiries, workshops and seminars in consultation with individuals and groups in the privacy sector and/or other governmental entities. The Committee typically meets four times in a calendar year.
1. Individuals who are currently working in the areas of higher education or research in public (except Federal) or not-for-profit institutions;
2. Individuals currently working in non-governmental industry or commercial interests, including at least one individual who is familiar with the data concerns of small to medium enterprises; and
3. Other individuals, as determined appropriate by the Secretary.
Committee members serve as Special Government Employees (SGE) as defined in section 202(a) of title 18 United States Code. As such, they are subject to Federal conflict of interest laws and government-wide standards of conduct regulations. Members must annually file Confidential Financial Disclosure Reports (OGE Form 450) for review and approval by Department ethics officials. DHS may not release these reports or the information in them to the public except under an order issued by a Federal court or as otherwise provided under the Privacy Act (5 U.S.C. 552a). Committee members are also required to have an appropriate security clearance as a condition of their appointment. Members are not compensated for their service on the Committee; however, while attending meetings or otherwise engaged in Committee business, members may receive travel expenses and per diem in accordance with Federal regulations.
If you are interested in applying for membership on the DHS Data Privacy and Integrity Advisory Committee, please submit the following documents to Martha K. Landesberg, Executive Director, at the address provided below by August 15, 2011:
1. A current resume; and
2. A letter that explains your qualifications for service on the Committee and describes in detail how your experience is relevant to the Committee's work.
Your resume and your letter will be weighed equally in the application review process. Please note that by Administration policy individuals who are registered as Federal lobbyists are not eligible to serve on Federal advisory committees. If you are registered as a Federal lobbyist and you have actively lobbied at any time since August 15, 2009, you are not eligible to apply for membership on the DHS Data Integrity and Privacy Advisory Committee. Applicants selected for membership will be required to certify, pursuant to 28 U.S.C. 1746, that they are not registered as Federal lobbyists. Please send your documents to Martha K. Landesberg, Executive Director, DHS Data Privacy and Integrity Advisory Committee, by
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DHS requests that you voluntarily submit this information under its following authorities: the Federal Records Act, 44 U.S.C. 3101; the FACA, 5 U.S.C.A. App. 2; and the Privacy Act of 1974, 5 U.S.C. 552a.
Privacy Office, DHS.
Notice of Privacy Act system of records.
In accordance with the Privacy Act of 1974 the Department of Homeland Security proposes to establish a new Department-wide system of records notice entitled, “Department of Homeland Security/ALL–030 Use of the Terrorist Screening Database System of Records.” The Department of Homeland Security is maintaining a mirror copy of the Department of Justice/Federal Bureau of Investigation–019 Terrorist Screening Records System of Records, August 22, 2007, in order to automate and simplify the current method for transmitting the Terrorist Screening Database to the Department of Homeland Security and its components. Additionally, the Department of Homeland Security is issuing a Notice of Proposed Rulemaking concurrent with this system of records elsewhere in the
Submit comments on or before August 5, 2011. This new system will be effective August 5, 2011.
You may submit comments, identified by docket number DHS–2011–0061 by one of the following methods:
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For general questions and privacy issues please contact: Mary Ellen Callahan (703–235–0780), Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the Department of Homeland Security (DHS) proposes to establish a new system of records titled, “DHS/ALL–030 Use of the Terrorist Screening Database (TSDB) System of Records.” DHS is maintaining a mirror copy of the Department of Justice (DOJ)/Federal Bureau of Investigation (FBI)–019 Terrorist Screening Records System of Records (August 22, 2007, 72 FR 47073) in order to automate and simplify the current method for transmitting the TSDB to DHS and its components.
Homeland Security Presidential Directive 6 (HSPD–6), issued in September 2003, called for the establishment and use of a single consolidated watchlist to improve the identification, screening, and tracking of known or suspected terrorists and their supporters. The FBI/TSC maintains and distributes the TSDB as the U.S. government's consolidated terrorist watchlist. DHS and the FBI/TSC, working together, have developed the DHS Watchlist Service (WLS) in order to automate and simplify the current method for transmitting TSDB records from the FBI/TSC to DHS and its components.
The WLS allows the FBI/TSC and DHS to move away from a manual and cumbersome process of data transmission and management to an automated and centralized process. The WLS will replace multiple data feeds from the FBI/TSC to DHS and its components, as documented by information sharing agreements, with a single feed from the FBI/TSC to DHS and its components. The WLS is a system to system secure connection with no direct user interface.
DHS and its components are authorized to access TSDB records via the WLS pursuant to the terms of information sharing agreements with FBI/TSC. DHS is publishing this SORN and has published privacy impact assessments to provide additional transparency into how DHS has implemented WLS. DHS will review and update this SORN no less then biennially as new DHS systems come online with the WLS and are approved consistent with the terms of agreements with FBI/TSC. There are five DHS systems that currently receive TSDB data directly from the FBI/TSC and will use the WLS. These systems have existing SORNs that cover the use of the TSDB:
(1) Transportation Security Administration (TSA), Office of Transportation Threat Assessment and Credentialing: DHS/TSA–002 Transportation Security Threat Assessment System (May 19, 2010, 75 FR 28046);
(2) TSA, Secure Flight Program: DHS/TSA–019 Secure Flight Records System (November 9, 2007, 72 FR 63711);
(3) U.S. Customs and Border Protection (CBP), Passenger Systems Program Office for inclusion in TECS: DHS/CBP–011 TECS System (December 19, 2008 73 FR 77778);
(4) U.S. Visitor and Immigrant Status Indicator Technology (US–VISIT) Program for inclusion into the DHS Enterprise Biometrics Service (IDENT): DHS/USVISIT–0012 DHS Automated Biometric Identification System (June 5, 2007, 72 FR 31080); and
In addition, two DHS components will receive TSDB data via the WLS in the form of a computer readable extract. The components' use of the TSDB data is covered by existing SORNs:
(1) Office of Intelligence and Analysis (I&A): DHS/IA–001 Enterprise Records System, (May 15, 2008 73 FR 28128), and
(2) U.S. Immigration and Customs Enforcement (ICE): DHS/ICE–009 External Investigations, (January 5, 2010 75 FR 404).
Information stored in the WLS will be shared back with the FBI/TSC in order to ensure that DHS and the FBI/TSC can reconcile any differences in the database and ensure DHS has the most up-to-date and accurate version of TSDB records. All other sharing will be conducted pursuant to the programmatic system of records notices and privacy impact assessments discussed in this SORN.
DHS is planning future enhancements to the WLS that will provide for a central mechanism to receive information from DHS components when they encounter a potential match to the TSDB and send this information to the FBI/TSC. DHS will update this SORN to reflect such enhancements to the WLS, as part of its biennial reviews of this SORN once that capability is implemented.
DHS is publishing this SORN to cover the Department's use of the TSDB in
Concurrent with the publication of this SORN, DHS is issuing a Notice of Proposed Rulemaking to exempt this system from specific sections of the Privacy Act.
The Privacy Act embodies fair information principles in a statutory framework governing the means by which the United States Government collects, maintains, uses, and disseminates individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency for which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass United States citizens and lawful permanent residents. As a matter of policy, DHS extends administrative Privacy Act protections to all individuals where systems of records maintain information on U.S. citizens, lawful permanent residents, and visitors. Individuals may request access to their own records that are maintained in a system of records in the possession or under the control of DHS by complying with DHS Privacy Act regulations, 6 CFR Part 5.
The Privacy Act requires each agency to publish in the
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this system of records to the Office of Management and Budget and to Congress.
Department of Homeland Security (DHS)/ALL–030 Use of the Terrorist Screening Database (TSDB) System of Records
Unclassified.
Records are maintained at DHS and Component Headquarters in Washington, DC and field offices.
Categories of individuals covered by this system include:
• Individuals known or appropriately suspected to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism (“known or suspected terrorists”).
Categories of records in this system include:
• Identifying information, such as name, date of birth, place of birth, biometrics, photographs, passport and/or drivers license information, and other available identifying particulars used to compare the identity of an individual being screened with a known or suspected terrorist, including audit records containing this information;
• For known or suspected terrorists, in addition to the categories of records listed above, references to and/or information from other government law enforcement and intelligence databases, or other relevant databases that may contain terrorism information.
• Homeland Security Act of 2002, Public Law 107–296;
• Section 5 U.S.C. 301;
• The Tariff Act of 1930, as amended;
• The Immigration and Nationality Act; and
• 49 U.S.C. 114, 5103a, 40113, ch. 49 and 46105.
DHS and its components collect, use, maintain, and disseminate information in the DHS Watchlist Service (WLS) to facilitate DHS counterterrorism, law enforcement, border security, and inspection activities. TSDB data, which includes personally identifiable information (PII), is necessary for DHS to effectively and efficiently assess the risk and/or threat posed by a person for the conduct of its mission.
The Federal Bureau of Investigation (FBI)/Terrorist Screening Center (TSC) is providing a near real time, synchronized version of the TSDB in order to improve the timeliness and governance of watchlist data exchanged between the FBI/TSC and DHS and its component systems that currently use watchlist data.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act all or a portion of the records or information contained in this system may be disclosed outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (DOJ)/FBI/TSC in order to receive confirmations that the information has been appropriately transferred and any other information related to the reconciliation process so that DHS is able to maintain a mirror copy of the TSDB.
This system will share information internal to the Department pursuant to (b)(1) of the Privacy Act. Besides the routine use described above, external sharing shall occur at the programmatic level pursuant to following published System of Records Notices:
(1) TSA, Office of Transportation Threat Assessment and Credentialing: DHS/TSA–002 Transportation Security Threat Assessment System (May 19, 2010, 75 FR 28046);
(2) TSA, Secure Flight Program: DHS/TSA–019 Secure Flight Records System (November 9, 2007, 72 FR 63711);
(3) CBP, Passenger Systems Program Office for inclusion in TECS: DHS/CBP–011 TECS System (December 19, 2008 73 FR 77778);
(4) U.S. VISIT program for inclusion into the DHS Enterprise Biometrics Service (IDENT): DHS/USVISIT–0012 DHS Automated Biometric Identification System (June 5, 2007, 72 FR 31080);
(5) Office of Intelligence and Analysis (I&A): DHS/IA–001 Enterprise Records System, (May 15, 2008 73 FR 28128), and
(6) U.S. Immigration and Customs Enforcement (ICE): DHS/ICE–009 External Investigations, (January 5, 2010 75 FR 404).
None.
Records in this system are stored electronically or on paper in secure facilities in a locked drawer behind a locked door. The records are stored on magnetic disc, tape, digital media, and CD–ROM.
Records may be retrieved by name or personal identifier.
Records in this system are safeguarded in accordance with applicable rules and policies, including all applicable DHS automated systems security and access policies. Strict controls have been imposed to minimize the risk of compromising the information that is being stored. Access to the computer system containing the records in this system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions.
The WLS will maintain a near real time mirror of the TSDB, and will not retain historical copies of the TSDB. The WLS will be synchronized with the TSDB. When the FBI/TSC adds, modifies, or deletes data from the TSDB, the WLS will duplicate these functions almost simultaneously, and that information will then be passed to DHS and its component systems. The DHS component that is screening individuals will maintain, separate from the WLS, a record of a match or possible match with the TSDB and DHS will retain this information in accordance with the DHS component specific SORNs identified in this notice.
Executive Director, Passenger Systems Program Office, Office of Information Technology, Customs and Border Protection, 7400 Fullerton Rd, Springfield, VA.
The Secretary of Homeland Security has exempted this system from the notification, access, and amendment procedures of the Privacy Act because it is a law enforcement system. However, DHS and its components will consider individual requests to determine whether or not information may be released. Thus, individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the Headquarters or component FOIA Officer, whose contact information can be found at
When seeking records about yourself from this system of records or any other Departmental system of records your request must conform with the Privacy Act regulations set forth in 6 CFR Part 5. You must first verify your identity, meaning that you must provide your full name, current address, and date and place of birth. You must sign your request, and your signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury, as a substitute for notarization. In addition you should provide the following:
• An explanation of why you believe the Department would have information on you;
• Identify which component(s) of the Department you believe may have the information about you;
• Specify when you believe the records would have been created;
• Provide any other information that will help the FOIA staff determine which DHS component agency may have responsive records; and
• If your request is seeking records pertaining to another living individual, you must include a statement from that individual certifying his/her agreement for you to access his/her records.
Without this bulleted information the component(s) may not be able to conduct an effective search, and your request may be denied due to lack of specificity or lack of compliance with applicable regulations.
In addition, if individuals are uncertain what agency handles the information, they may seek redress through the DHS Traveler Inquiry Redress Program (TRIP) (January 18, 2007, 72 FR 2294). Individuals who believe they have been improperly denied entry, refused boarding for transportation, or identified for additional screening by CBP may submit a redress request through TRIP.
TRIP is a single point of contact for individuals who have inquiries or seek resolution regarding difficulties they experienced during their travel screening at transportation hubs such as airports and train stations or crossing U.S. borders. Redress requests should be sent to: DHS Traveler Redress Inquiry Program, 601 South 12th Street, TSA–901, Arlington, VA 20598 or online at
See “Notification procedure” above.
See “Notification procedure” above.
Records are received from the DOJ/FBI–019 Terrorist Screening Records System of Records (August 22, 2007, 72 FR 47073)
The Secretary of Homeland Security has exempted this system from the following provisions of the Privacy Act, subject to the limitations set forth in 5 U.S.C. 552a(c)(3) and (c)(4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (e)(12); (f); (g)(1); and (h) pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland Security has exempted this system from the following provisions of the Privacy Act, subject to the limitation set forth in 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f) pursuant to 5 U.S.C. 552a(k)(1) and (k)(2).
Coast Guard, DHS.
Request for applications.
The Coast Guard seeks applications for membership on the National Offshore Safety Advisory Committee. This Committee advises the Secretary of Department of Homeland Security on matters and actions concerning activities directly involved with or in support of the exploration of offshore mineral and energy resources insofar as they relate to matters within Coast Guard jurisdiction.
Applicants should submit a cover letter and resume in time to reach the Alternate Designated Federal Officer (ADFO) on or before August 22, 2011.
Applicants should send their cover letter and resume to the following address: Commandant (CG–5222), Attn: Vessel and Facility Operations Standards, U.S. Coast Guard, 2100 Second Street, SW., STOP 7126, Washington, DC 20593–7126; or by calling (202) 372–1386; or by faxing (202) 372–1926; or by e-mailing to
This notice, is available in our online docket, USCG–2011–0539, at
Kevin Y. Pekarek, ADFO of National Offshore Safety Advisory Committee (NOSAC); telephone (202) 372–1386; fax (202) 372–1926; or e-mail at
The National Offshore Safety Advisory Committee (NOSAC) is a Federal advisory committee under 5 U.S.C. App. (Pub. L. 92–463). It was established under authority of Title 6 U.S.C. section 451 and advises the Secretary of Homeland Security on matters affecting the offshore industry.
The Committee is expected to meet approximately twice per year as called for by its charter and normally meets in Houston, Texas or New Orleans, Louisiana. It may also meet for extraordinary purposes. NOSAC or its subcommittees may conduct telephonic meetings at other times throughout the year when necessary for specific tasking.
We will consider applications for five positions that will become vacant on January 31, 2012.
(a) One member representing enterprises specializing in the support, by offshore supply vessels or other vessels, of offshore mineral and oil operations including geophysical services;
(b) One member representing construction of offshore exploration and recovery facilities;
(c) One member representing employees of companies engaged in offshore operations, who should have recent practical experience on vessels or offshore units involved in the offshore mineral and energy industry;
(d) One member representing enterprises specializing in offshore drilling; and,
(e) One member representing companies engaged in production of petroleum.
To be eligible, applicants for all available positions should have expertise and/or knowledge and experience regarding the technology, equipment and techniques that are used or are being developed for use in the exploration for and the recovery of offshore mineral resources.
Registered lobbyists are not eligible to serve on federal advisory committees. Registered lobbyists are lobbyists required to comply with provisions contained in the Lobbying Disclosure Act of 1995 (Pub. L. 110–81, as amended). Each NOSAC Committee member serves a term of office of up to three years. Members may be considered to serve consecutive terms. All members serve at their own expense and receive no salary or reimbursement of travel expenses, or other compensation from the Federal Government.
In support of the policy of the Coast Guard on gender and ethnic nondiscrimination, we encourage qualified men and women of all racial and ethnic groups to apply. The Coast Guard values diversity; all different characteristics and attributes of persons that enhance the mission of the Coast Guard.
If you are interested in applying to become a member of the Committee, send your cover letter and resume to Kevin Y. Pekarek, ADFO of NOSAC at Commandant (CG–5222)/NOSAC, U.S. Coast Guard, 2100 Second Street, SW., STOP 7126, Washington, DC 20593–7126. Send your cover letter and resume in time for it to be received by the ADFO on or before August 22, 2011.
To visit our online docket, go to
Coast Guard, DHS.
Notice of policy.
The Coast Guard has completed a review of policy and public comments received regarding standard rules for the use of force for self-defense of vessels of the United States as described in the Coast Guard Authorization Act of 2010. It has determined that the existing guidance regarding the use of force provides an adequate framework for standard rules for the use of force for self-defense against piracy.
This notice is effective on July 6, 2011.
The policy letter and other documents mentioned in this preamble as being available in the docket, are part of docket USCG–2011–0012 and are available for inspection or copying at the Docket Management Facility, U.S. Department of Transportation, West Building Ground floor, Room W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590–0001, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at
This policy is also available on the U.S. Coast Guard's Homeport Web site at
If you have questions concerning the policy, please call LCDR John Reardon, Office of Maritime and International Law, United States Coast Guard; telephone 202–372–1129, e-mail
The Coast Guard is publishing this notice to affirm that guidance published by the Coast Guard, in Port Security Advisory (PSA) 03–09, provides adequate guidance on conduct relating to section 912 of the Coast Guard Authorization Act of 2010 (CGAA). Section 912 of the CGAA states that an owner, operator, time charterer, master, mariner, or individual who uses force or authorizes the use of force to defend a vessel of the United States against an act of piracy shall not be liable for monetary damages for any injury or death caused by such force to any person engaging in an act of piracy if such force was in accordance with standard rules for the use of force in self-defense of vessels prescribed by the Secretary.
In accordance with Section 912 of the CGAA, the Coast Guard requested input from the public and representatives of industry and labor in order to determine if the current authorization in 33 U.S.C. 383, Resistance of Pirates by Merchant Vessels, and Coast Guard guidance in PSA 3–09 provides an adequate framework for standard rules for the use of force for self-defense of vessels of the United States. 76 FR 4706. The Coast Guard received eleven comments, which are available in the public docket found on
The majority of the comments were supportive of the overall current guidance and stated the well-established rights of self-defense of seafarers in 33 U.S.C. 383, accompanied by the advisory guidelines of PSA 3–09, are an adequate framework. One comment stated that PSA 3–09 constitutes sufficient information to be considered standard rules and requires no alteration. Another comment stated that PSA 3–09 adequately describes the masters' authority and discretion in the use of self-defense and did not believe more specific guidance was necessary. The comment further stated that 33 U.S.C. 383 and the Coast Guard Authorization Act of 2010 section 912 provided sufficient immunity for persons defending vessels.
Of the eleven comments received, several were outside the scope of the guidance, but were constructive suggestions on potential tactics and operations. These comments are helpful and will be considered during routine reviews and updates to other advisories and guidance. For example, three comments urged further deployment of heavier weapons and suggested a legal exemption for merchant vessels to carry machine guns and rocket propelled grenades and for the use of military weapons not permitted under U.S. law. Another urged that restrictions on import/export of weapons be lifted and the international community be pressured to allow deployment of weapons. One commenter suggested that the Coast Guard provide additional guidance on the use of non-deadly force options, including pepper spray and other chemical repellants. Additionally, one comment encouraged the use of Special Forces to respond to hostage situations. One comment noted that armed security teams onboard its vessels had successfully deterred attacks. Other comments noted that the safe room concept (“citadel”) should be reviewed. The Coast Guard continues to examine these and other issues in consultation with interagency and industry partners to ensure the continued development of guidance in responding to piracy.
Given the existing guidance and the public support for that guidance as revealed in the comments, the Coast Guard has determined that the current authorization in 33 U.S.C. 383, Resistance of Pirates by Merchant Vessels, and the guidance published by the Coast Guard in Port Security Advisory 3–09 provide an adequate framework for standard rules for the use of force for self-defense. We have reproduced the text of Port Security Advisory 03–09 below.
This document is intended to provide guidance to U.S. flagged commercial vessels and embarked personnel, including contract security personnel, not entitled to sovereign immunity and operating in High Risk Waters (HRW),
The following definitions apply for the purpose of this guidance:
a.
b.
c.
d.
Examples of imminent danger include, but are not limited to, aiming or firing weapons at a U.S. flagged vessel with individuals embarked, or an attempted armed, non-consensual boarding, without legal authority, of a U.S. flagged vessel by another vessel (other than U.S. or foreign warships, law enforcement vessels, or other vessels clearly marked as being on non-commercial government service). It might also include the act of brandishing weapons directed at crewmembers or security personnel, where there is a reasonable belief that the attacker(s) also has the means and opportunity to inflict great bodily harm or death on the individual or others in the vicinity. The determination of imminent danger is fact dependent, and the law may be broader than the paradigm outlined above. Although the law may allow for other considerations, or use slightly differing terminology based on an individual's particular circumstances, the Coast Guard uses the following as a helpful training tool for its members to explain the concept: Imminent danger would exist when an attacker manifests apparent intent to cause great bodily harm or death to oneself or others, as demonstrated by the following elements, each of which is present at the same time:
(1)
(2)
(3)
e.
f.
g.
h.
i.
Vessel masters retain control of and authority over their vessels, crewmembers, and embarked security personnel at all times. Any use of force employed in accordance with the guidance set forth herein is subject to the direction of the vessel master. Only that force reasonably necessary under the circumstances should be used. Nothing in the application of this guidance shall be construed as to necessarily require personnel to meet force with equal or lesser force.
In the exercise of self-defense or defense of others, crew and security personnel may use all available means to apply that force reasonably necessary to defend themselves or others from harm, including the use of deadly force if required.
Subject to the above, deadly force may only be used in self-defense or defense of others, when an individual has the reasonable belief that the person or persons to which the deadly force would be directed poses an imminent danger of death or great bodily harm. The objective when using deadly force in self-defense or defense of others is defense of life. The use of deadly force in self-defense or defense of others may include the use of ordnance fired into a vessel, if necessary for self-defense or defense of others. Accordingly, when confronted with a person or vessel that poses an imminent danger of death or great bodily harm, personnel and vessels to which this guidance applies may use reasonable force, up to and including deadly force, in self-defense or defense of others.
Subject to the above, non-deadly force may be used in the following circumstances:
(1) for self-defense or defense of others.
(2) for defense of the vessel.
(3) to prevent the theft or, intentional damage to, or destruction of property (including the U.S. flagged vessel) that the master, crew, or security personnel are authorized to protect.
Non-deadly force tactics could include maneuvers by the vessel, deployment of sonic blasts, use of fire hoses to flood a vessel threatening to attack, the use of disabling fire by properly trained personnel, or other non-lethal means employed by crewmembers or security personnel, directed at a vessel or persons threatening attack.
Although not required under the law, retreat (
Masters always retain the inherent right to use force in defense of the vessel. Masters must inform the crew and security personnel of their authority to employ force in defense of the vessel. Masters may restrain the authority of the crew and security personnel to employ force in defense of the vessel. If a master withholds from the crew or security personnel any use of force authority for defense of the vessel, the master must approve the withheld portion prior to its use in defense of the vessel. Defense of the vessel alone does not justify deadly force. Unless otherwise directed by a master, the crew and security personnel may use non deadly force in defense of the vessel. Masters should consider all the circumstances when employing force, and resort to deadly force only when there is imminent danger of death or great bodily harm.
Signals, including firing of warning shots, may be employed, but are not required. Warning shots are not a use of force, and should not be used if they will endanger any persons or property. Moreover, warning shots should not be used as a signal that the use of deadly force is imminent.
As a result of this review, there will be no change to the policy. The Coast Guard will routinely review and update the policy as needed.
30–Day Notice of Information Collection Under Review: OMB 22, National Interest Waivers; Supplemental Evidence to I–140 and I–485; OMB Control No. 1615–0063.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until August 5, 2011. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), and to the Office of Management and Budget (OMB) USCIS Desk Officer. Comments may be submitted to: USCIS, Chief, Regulatory Products Division, Office of the Executive Secretariat, 20 Massachusetts Avenue, NW., Washington, DC 20529–2020. Comments may also be submitted to DHS via facsimile to 202–272–8352 or via e-mail at
When submitting comments by e-mail please make sure to add OMB Control Number 1615–0063 in the subject box. Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
If you need a copy of the information collection instrument, please visit the Web site at:
We may also be contacted at: USCIS, Regulatory Products Division, Office of the Executive Secretariat, 20 Massachusetts Avenue, NW., Washington, DC 20529–2020, Telephone number 202–272–8377.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until August 5, 2011. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), and to the Office of Management and Budget (OMB) USCIS Desk Officer. Comments may be submitted to: Sunday Aigbe, Chief, Regulatory Products Division, USCIS, 20 Massachusetts Avenue, NW., Washington, DC 20529–2020. Comments may also be submitted to DHS via facsimile to 202–272–0997 or via e-mail at
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: 50 responses at 30 minutes (0.5 hour) per response.
(6) An estimate of the total public burden (in hours) associated with the collection: 45 annual burden hours.
If you need a copy of the information collection instrument, please visit the Web site at:
We may also be contacted at: USCIS, Regulatory Products Division, Office of the Executive Secretariat, 20 Massachusetts Avenue, NW., Washington, DC 20529–2210; Telephone 202–272–8377.
30-Day Notice of Information Collection Under Review: Form N–644, Application for Posthumous Citizenship; OMB Control No. 1615–0059.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until August 5, 2011. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), and to the Office of Management and Budget (OMB) USCIS Desk Officer. Comments may be submitted to: Sunday Aigbe, Chief, Regulatory Products Division, USCIS, 20 Massachusetts Avenue, NW., Washington, DC 20529–2020. Comments may also be submitted to DHS via facsimile to 202–272–0997 or via e-mail at
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
If you need a copy of the information collection instrument, please visit the Web site at:
We may also be contacted at: USCIS, Regulatory Products Division, Office of the Executive Secretariat, 20 Massachusetts Avenue, NW., Washington, DC 20529–2020; Telephone 202–272–8377.
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; Extension of an existing information collection: 1651–0067.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: Documentation Requirements for Articles Entered Under Various Special Tariff Treatment Provisions. This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended with a change to the burden hours. This document is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
Written comments should be received on or before August 5, 2011.
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
U.S. Customs and Border Protection (CBP) encourages the general public and affected Federal agencies to submit written comments and suggestions on proposed and/or continuing information collection requests pursuant to the Paperwork Reduction Act (Pub. L. 104–13). Your comments should address one of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency/component, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies/components estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collections of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological techniques or other forms of information.
If additional information is required contact: Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 799 9th Street, NW., 5th Floor, Washington, DC 20229–1177, at 202–325–0265.
30-Day Notice of Information Collection for Review; OMB Control No. 1653–NEW.
The Department of Homeland Security, U.S. Immigration and Customs Enforcement (ICE), will be submitting the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted for thirty days until August 5, 2011.
Written comments and suggestions from the public and affected agencies regarding items contained in this notice and especially with regard to the estimated public burden and associated response time should be directed to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to OMB Desk Officer, for United States Immigration and Customs Enforcement, Department of Homeland Security, and sent via electronic mail to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
Requests for a copy of the proposed information collection instrument, with instructions; or inquiries for additional information should be directed to: Office of the Chief Financial Officer/OAA/Records Branch, U.S. Immigration and Customs Enforcement, 500 12th Street SW., STOP 5705, Washington, DC 20536–5705.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
The purpose of TRN is to make grants to applicant organizations to assist, inform, educate and engage tenants of eligible Section 8-assisted properties regarding their rights, responsibilities and options in response to a property owner's filing a notice of Opt-Out or mortgage prepayment, in response to a second consecutive “Below 60” score of the property from the HUD Real Estate Assessment Center (REAC), or in anticipation of a maturing mortgage on the property within 24 months of publication of this notice. The program aims to engage tenants in efforts to preserve eligible properties as affordable housing, and to provide tenants with information on their own rights and responsibilities based on 24 CFR Part 245 and guidance in HUD handbook 4381.5
Interested persons are invited to submit comments regarding this proposal.
Comments should refer to the proposal by name and/or OMB approval Number (2502–Pending) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; e-mail
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail Colette Pollard at
This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the information collection described below. This notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
This notice also lists the following information:
The purpose of TRN is to make grants to applicant organizations to assist, inform, educate and engage tenants of eligible Section 8-assisted properties regarding their rights, responsibilities and options in response to a property owner's filing a notice of Opt-Out or mortgage prepayment, in response to a
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Chief Information Officer, HUD.
Notice. Correction.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
The Public Housing Assessment System requires public housing agencies to submit financial information annually to HUD. The Uniform Financial Reporting Standards for HUD housing programs requires that this information be submitted electronically, using generally accepted accounting principles, in a prescribed format. The Operating Fund Program regulation (24 CFR 990) requires PHAs to submit information at a project level. Correct the Burden Hour on the previously.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval Number (2535–0107) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; e-mail
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail Colette Pollard at
This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the Information collection described below. This notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
The Public Housing Assessment System requires public housing agencies to submit financial information annually to HUD. The Uniform Financial Reporting Standards for HUD housing programs requires that this information be submitted electronically, using generally accepted accounting principles, in a prescribed format. The Operating Fund Program regulation (24 CFR 990) requires PHAs to submit information at a project level.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
The U.S. Department of the Housing and Urban Development (HUD) is conducting an important national study of Disaster Housing Assistance Program (DHAP) families who transitioned from stepped-up rents (
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval Number (2528–0256) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; e-mail
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail Colette Pollard at
This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the Information collection described below. This notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
This notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE), Interior.
Notice of extension of an information collection (1010–0151).
To comply with the Paperwork Reduction Act of 1995 (PRA), BOEMRE is inviting comments on a collection of information that we will submit to the Office of Management and Budget (OMB) for review and approval. The information collection request (ICR) concerns the paperwork requirements in the regulations of planned exploration, development, and production operations on the OCS, under Subpart B, Plans and Information.
Submit written comments by September 6, 2011.
Cheryl Blundon, Regulations and Standards Branch at (703) 787–1607. You may also contact Cheryl Blundon to obtain a copy, at no cost, of the regulations and the forms that require the subject collection of information.
You may submit comments by either of the following methods listed below.
• Electronically: go to
• E-mail
The Independent Offices Appropriations Act (31 U.S.C. 9701), the Omnibus Appropriations Bill (Pub. L. 104–133, 110 Stat. 1321, April 26, 1996), and OMB Circular A–25, authorize Federal agencies to recover the full cost of services that confer special benefits. Under the Department of the Interior's (DOI) implementing policy, the Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEM) is required to charge fees for services that provide special benefits or privileges to an identifiable non-Federal recipient above and beyond those which accrue to the public at large. Several requests for approval required in subpart B are subject to cost recovery, and BOEMRE regulations specify service fees for these requests.
This authority and responsibility are among those delegated to the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE). The regulations at 30 CFR part 250, subpart B, concern plans and information required while conducting activities on a lessee and/or operators lease and are the subject of this collection. This request also covers the related Notices to Lessees and Operators (NTLs) that BOEMRE issues to clarify, supplement, or provide additional guidance on some aspects of our regulations.
BOEMRE engineers, geologists, geophysicists, environmental scientists, and other Federal agencies analyze and evaluate the information and data collected under subpart B to ensure that planned operations are safe; will not adversely affect the marine, coastal, or human environment; and will conserve the resources of the OCS. We use the information to: (a) Report annually to NOAA Fisheries the effectiveness of mitigation, any adverse effects of the proposed action, and any incidental take, in accordance with 50 CFR 402.14(i)(3), and (b) allow the Regional Supervisor to make an informed decision on whether to approve the proposed exploration or development and production plans as submitted or whether modifications are necessary without the analysis and evaluation of the required information. The affected States also review the information collected for consistency with approved Coastal Zone Management (CZM) plans.
Specifically, BOEMRE uses the information to evaluate, analyze, determine, or ensure that:
• Ancillary activities comply with appropriate laws or regulations and are conducted safely, protect the environment, and do not interfere or conflict with the other uses of the OCS
• Points of contact and responsible parties are designated for proposed activities.
• Surveying, monitoring, or other activities do not interfere or conflict with preexisting and other uses of the area.
• Plans or actions meet or implement lease stipulation requirements.
• Proposed exploration, drilling, production, and pipeline activities are conducted in a safe and acceptable manner for the location and water depth proposed and conserve reservoir energy to allow enhanced recovery operations in later stages of lease development.
• Unnecessary or incompatible facilities are not installed on the OCS.
• Shallow drilling hazards (such as shallow gas accumulations or mudslide areas) are avoided.
• Areas are properly classified for H
• Appropriate oil spill planning measures and procedures are implemented.
• Expected meteorological conditions at the activity site are accommodated.
• Environmentally sensitive areas are identified, and the direct and cumulative effects of the activities are minimized.
• Offshore and onshore air quality is not significantly affected by the proposed activities.
• Waste disposal methods and pollution mitigation techniques are appropriate for local conditions.
• State CZM requirements have been met.
• Archaeological or cultural resources are identified and protected from unreasonable disturbances.
• Socioeconomic effects of the proposed project on the local community and associated services have been determined.
• Support infrastructures and associated traffic are adequately covered in plans.
The following forms used in the Gulf of Mexico Region (GOMR) are also submitted to BOEMRE. The OMB approved these forms as part of the information collection for the current subpart B regulations. The BOEMRE forms are:
• MMS–0137 (Plan Information Form) is submitted to summarize plan information. Due to the Deepwater Horizon and Macondo well incident, we reevaluated procedures for reviewing blowout scenarios and worst case discharge. The revised form is printed at the end of this notice for your review and comment.
• MMS–0138 (GOM Air Emission Calculations for Exploration Plans) and MMS–0139 (GOM Air Emission Calculations for Development Operations Coordination Documents
• MMS–0141 (ROV Survey Report) is submitted to report the observations and information recorded from 2 sets of ROV monitoring surveys to identify high-density biological communities that may occur on the seafloor in deep water.
• MMS–0142 (Environmental Impact Analysis Worksheet) is a fill in the blank form that is submitted to identify the environmental impact-producing factors (IPFs) for the listed environmental resources.
BOEMRE is also providing: Tips to Avoid Common Emissions Spreadsheet Errors and Instructions, which are printed at the end of this notice for your review.
We will protect information considered proprietary under the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR 2), 30 CFR 250.197, “Data and information to be made available to the public or for limited inspection,” and 30 CFR Part 252, “Outer Continental Shelf (OCS) Oil and Gas Information Program.” No items of a sensitive nature are collected. Responses are mandatory.
We have not identified any other non-hour cost burdens associated with this collection of information.
Agencies must also estimate the non-hour cost burdens to respondents or recordkeepers resulting from the collection of information. Therefore, if you have costs to generate, maintain, and disclose this information, you should comment and provide your total capital and startup cost components or annual operation, maintenance, and purchase of service components. You should describe the methods you use to estimate major cost factors, including system and technology acquisition, expected useful life of capital equipment, discount rate(s), and the period over which you incur costs. Capital and startup costs include, among other items, computers and software you purchase to prepare for collecting information, monitoring, and record storage facilities. You should not include estimates for equipment or services purchased: (i) Before October 1, 1995; (ii) to comply with requirements not associated with the information collection; (iii) for reasons other than to provide information or keep records for the Government; or (iv) as part of customary and usual business or private practices.
We will summarize written responses to this notice and address them in our submission for OMB approval. As a result of your comments, we will make any necessary adjustments to the burden in our submission to OMB. Revised Form BOEMRE–0137 follows:
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit: new applications and corrected application.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications to conduct certain activities with endangered species. With some exceptions, the Endangered Species Act (ESA) prohibits activities with listed species unless a Federal permit is issued that allows such activities. The ESA law requires that we invite public comment before issuing these permits. We also correct and reopen the comment period for a previously announced application.
We must receive comments or requests for documents on or before August 5, 2011.
Brenda Tapia, Division of Management Authority, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 212, Arlington, VA 22203; fax (703) 358–2280; or e-mail
Brenda Tapia, (703) 358–2104 (telephone); (703) 358–2280 (fax);
Send your request for copies of applications or comments and materials concerning any of the applications to the contact listed under
Please make your requests or comments as specific as possible. Please confine your comments to issues for which we seek comments in this notice, and explain the basis for your comments. Include sufficient information with your comments to allow us to authenticate any scientific or commercial data you include.
The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) Those that include citations to, and analyses of, the applicable laws and regulations. We will not consider or include in our administrative record comments we receive after the close of the comment period (see
Comments, including names and street addresses of respondents, will be available for public review at the address listed under
To help us carry out our conservation responsibilities for affected species, the Endangered Species Act of 1973, section 10(a)(1)(A), as amended (16 U.S.C. 1531
On June 23, 2011, we published a
The following applicants each request a permit to import the sport-hunted trophy of one male bontebok (
Fish and Wildlife Service, Interior.
Notice of teleconference.
We, the U.S. Fish and Wildlife Service (Service), announce a public teleconference of the Wildlife and Hunting Heritage Conservation Council (Council).
We will hold the teleconference on Tuesday, July 26, 2011, from 10 a.m. to 1 p.m. (Eastern Daylight Time). If you wish to listen to the teleconference, orally present material during the teleconference, or submit written material for the Council to consider during the teleconference, notify Joshua Winchell by Thursday, July 21, 2011. See instructions under
Joshua Winchell, Council Coordinator, 4401 N. Fairfax Dr., Mailstop 3103–AEA, Arlington, VA 22203; (703) 358–2639 (phone); (703) 358–2548 (fax); or
In accordance with the requirements of the Federal Advisory Committee Act, 5 U.S.C. App., we give notice that the Council will hold a teleconference (
Formed in February 2010, the Council provides advice about wildlife and habitat conservation endeavors that:
(a) Benefit recreational hunting;
(b) Benefit wildlife resources; and
(c) Encourage partnership among the public, the sporting conservation
The Council advises the Secretary of the Interior (DOI) and the Secretary of Agriculture (USDA), reporting through the Director of the U.S. Fish and Wildlife Service (Service), in consultation with the Director of the Bureau of Land Management (BLM), Chief of the Forest Service (USFS), Chief of the Natural Resources Service (NRCS), and Administrator of the Farm Services Agency (FSA). The Council's duties are strictly advisory and consist of, but are not limited to, providing recommendations for:
(a) Implementing the Recreational Hunting and Wildlife Resource Conservation Plan—A Ten-Year Plan for Implementation;
(b) Increasing public awareness of and support for the Sport Wildlife Trust Fund;
(c) Fostering wildlife and habitat conservation and ethics in hunting and shooting sports recreation;
(d) Stimulating sportsmen and women's participation in conservation and management of wildlife and habitat resources through outreach and education;
(e) Fostering communication and coordination among State, Tribal, and Federal Government; industry; hunting and shooting sportsmen and women; wildlife and habitat conservation and management organizations; and the public;
(f) Providing appropriate access to Federal lands for recreational shooting and hunting;
(g) Providing recommendation to improve implementation of Federal conservation programs that benefit wildlife, hunting, and outdoor recreation on private lands; and
(h) When requested by the agencies' designated ex officio members, or the Designated Federal Officer in consultation with the Council Chairman, performing a variety of assessments or reviews of policies, programs, and efforts, through the Council's designated subcommittees or workgroups.
Background information on the Council is available at
The Council will convene by telephone to discuss: (1) The U.S. Forest Service's Planning Rule, (2) the U.S. Fish and Wildlife Service's National Wildlife Refuge System Vision document, (3) the conservation and forestry titles of the USDA Farm Bill, and (4) impacts to wildlife and habitat funding resulting from the Equal Access to Justice Act (5 U.S.C. 504; 28 U.S.C. 2412). In advance of the teleconference, we will post the final agenda and copies of materials to be discussed by the Council on the Internet at
Interested members of the public may listen to the teleconference, orally present material during the teleconference, or submit written material ahead of time for the Council to consider during the teleconference. Questions from the public will not be considered during the teleconference. Speakers who wish to expand upon oral statements they presented during the teleconference, or those who had wished to speak but could not be accommodated on the agenda, are invited to submit written statements to the Council before the teleconference.
Oral presentations will be limited to 2 minutes per speaker, with no more than a total of 30 minutes for all speakers. Those wishing to give oral presentations must notify the Council Coordinator by July 21, 2011.
Written statements must be received by July 21, 2011, so that the information may be made available to the Council for their consideration prior to this teleconference. Written statements must be supplied to the Council Coordinator in one of the following formats: One hard copy with original signature, or one electronic copy via e-mail. Please submit your statement to Joshua Winchell, Council Coordinator (
In order to listen to or participate in this teleconference, you must register by close of business on July 21, 2011. Please submit your name, e-mail address, and phone number to Joshua Winchell, Council Coordinator (
The Council Coordinator will maintain the teleconference's summary minutes, which will be available for public inspection at the location under
Bureau of Land Management, Interior.
Notice of Utah's Resource Advisory Council (RAC).
In accordance with the Federal Land Policy and Management Act (FLPMA) and the Federal Advisory Committee Act of 1972 (FACA), the U.S. Department of the Interior, Bureau of Land Management's (BLM) Utah RAC will meet as indicated below.
The Utah RAC will meet Thursday, August 4, 2011, (8:15 a.m.—5 p.m.), South Ogden Park & Ride, and Friday, August 5, 2011, (8:30 a.m.—3:30 p.m.) in Salt Lake City, Utah.
On August 4, the RAC will meet at the Park-N-Ride, Exit 405 (South Weber Drive), from Highway 89 (South Ogden). The South Weber Park & Ride is the first right crossing Highway 89 on the north side of South Weber Drive. The RAC will meet on the north end of the parking lot. Directions and further information will be provided for the field tour of the Deseret Land and Livestock Allotment (Woodruff, Utah). On August 5, the business meeting will be held at the BLM's Utah State Office, 440 West 200 South, fifth floor Monument Conference Room, Salt Lake City, Utah.
Sherry Foot, Special Programs Coordinator, Utah State Office, Bureau of Land Management, P.O. Box 45155, Salt Lake City, Utah 84145–0155; phone (801) 539–4195.
The 15-member Council advises the Secretary of the Interior, through the Bureau of Land Management, on a variety of planning and management issues associated with public land management in Utah. On August 4, planned agenda topics include a field tour of the Three Creeks Allotment on the Deseret Land and Livestock (DLL) in Woodruff, Utah. The RAC will view the long-term and annual benefits to wildlife, livestock water quality, and recreational opportunities of “time control” grazing. A presentation on data collected from DLL from Open Range Consulting will also take place. For tour convenience and parking at the DLL, only the first four (4) vehicles to sign on for the field tour will be permitted to accompany the RAC. These vehicles
On August 5, a business meeting will be held to discuss the ecological, social, and economic values that can be created by the proposed grazing strategy (follow-up to the field tour); RAC voting in support of the Rich County Project subgroup report; RAC subgroup report on the draft BLM Utah Instruction Memorandum on the Statewide Travel Management Planning Policy; Air Quality status update; a conference call with BLM's Director Abbey on the RAC's involvement with the America's Great Outdoors Initiative; and, Grazing/Range monitoring guidelines and protocol. The conference call with Director Abbey will take place from 1–1:45 p.m. (Mountain Time). A half-hour public comment period, where the public may address the Council, is scheduled for August 5, from 2:45–3:15 p.m. Written comments may be sent to the Bureau of Land Management addressed listed above.
All meetings are open to the public; however, transportation, lodging, and meals are the responsibility of the participating public.
.
Bureau of Reclamation and National Park Service, Interior.
Notice of intent.
On December 10, 2009, Secretary of the Interior (Secretary) Ken Salazar announced that the development of a Long-Term Experimental and Management Plan (LTEMP) for Glen Canyon Dam was needed. The Secretary emphasized the inclusion of stakeholders, particularly those in the Glen Canyon Dam Adaptive Management Program (GCDAMP), in the development of the LTEMP. The Department of the Interior (Department), through the Bureau of Reclamation (Reclamation) and the National Park Service (NPS), will prepare a draft environmental impact statement (EIS) and conduct public scoping for the adoption of a LTEMP for the operation of Glen Canyon Dam. The Department's decision to develop the LTEMP is a component of its efforts to continue to comply with the ongoing requirements and obligations established by the Grand Canyon Protection Act of 1992 (Pub. L. 102–575) (GCPA). Reclamation and the NPS will co-lead this effort because Reclamation has primary responsibility for operation of Glen Canyon Dam and the NPS has primary responsibility for Grand Canyon National Park and Glen Canyon National Recreation Area.
Beverley Heffernan, telephone (801) 524–3712; facsimile (801) 524–3826; e-mail
The GCDAMP was established by, and has been implemented pursuant to the Secretary's 1996 Record of Decision on the Operation of Glen Canyon Dam (ROD), in order to comply with monitoring and consultation requirements of the GCPA. The GCDAMP includes a Federal advisory committee known as the Glen Canyon Dam Adaptive Management Work Group (AMWG), a technical work group, a scientific monitoring and research center administered by the U.S. Geological Survey (USGS), and independent scientific review panels. The AMWG makes recommendations to the Secretary concerning Glen Canyon Dam operations and other management actions to protect resources downstream of Glen Canyon Dam consistent with the GCPA and other applicable provisions of Federal law.
The purpose of the proposed LTEMP is to utilize current, and develop additional scientific information, to better inform Departmental decisions and to operate the dam in such a manner as to improve and protect important downstream resources while maintaining compliance with relevant laws including the GCPA, the Law of the River, and the Endangered Species Act (ESA). The National Environmental Policy Act (NEPA) process will document and evaluate impacts of the alternatives described in the EIS. The LTEMP is intended to develop and implement a structured, long-term experimental and management plan, to determine the need for potential future modifications to Glen Canyon Dam operations, and to determine whether to establish an ESA Recovery Implementation Program for endangered fish species below Glen Canyon Dam.
A primary function of the LTEMP will be to identify adaptive management experiments that have been successfully completed under the GCDAMP and to evaluate potential future experiments that may further inform management decisions. Revised dam operations and other actions under the jurisdiction of the Secretary will be considered for alternatives in the EIS, in keeping with the scope of the GCPA. The LTEMP will be the first EIS completed on the operations of Glen Canyon Dam since the 1995 EIS, which was intended to allow the Secretary to “balance and meet statutory responsibilities for protecting downstream resources for future generations and producing hydropower, and to protect affected Native American interests.” Given that it has been 15 years since completion of the 1996 ROD on the operation of Glen Canyon Dam, the Department will study new information developed through the GCDAMP, including information on climate change, so as to more fully inform future decisions regarding the operation of Glen Canyon Dam and other management and experimental actions.
As stated above, the LTEMP will build on more than a decade of scientific experimentation and monitoring undertaken as part of the GCDAMP. Accordingly, Reclamation and the NPS intend, where appropriate, to incorporate by reference, or tier from, earlier NEPA compliance documents prepared as part of the Department's Glen Canyon Dam adaptive management efforts, see 40 CFR 1500.4(i), 1502.20, and 1508.20(b), such as the Environmental Assessment for an Experimental Protocol for High-Flow Releases from Glen Canyon Dam and the Environmental Assessment for Non-Native Fish Control in the Colorado River Downstream from Glen Canyon Dam that are currently in preparation.
Environmental documentation and updated information developed for the Long-Term Experimental Plan (LTEP) EIS (that was partially developed during 2006–2007) will be utilized. In a
This
Public scoping meetings will be held to solicit comments on the scope of the LTEMP and the issues and alternatives that should be analyzed. These meetings will serve to expand upon the input received from meetings and recommendations of the AMWG. Additional information regarding the dates and times for the upcoming meetings and identification of relevant comment periods will be provided in a future
Glen Canyon Dam was authorized by the Colorado River Storage Project Act of 1956 and completed by Reclamation in 1963. Below Glen Canyon Dam, the Colorado River flows for 15 miles through the Glen Canyon National Recreation Area which is managed by the NPS. Fifteen miles below Glen Canyon Dam, Lees Ferry, Arizona, marks the beginning of Marble Canyon and the northern boundary of Grand Canyon National Park.
The major function of Glen Canyon Dam is water conservation and storage. The dam is specifically managed to regulate releases of water from the Upper Colorado River Basin to the Lower Colorado River Basin to satisfy provisions of the 1922 Colorado River Compact and subsequent water delivery commitments, and thereby allow states within the Upper Basin to deplete water from the watershed upstream of Glen Canyon Dam and utilize their apportionments of Colorado River water.
Another function of Glen Canyon Dam is to generate hydroelectric power. Between the dam's completion in 1963 and 1990, the dam's daily operations were primarily to maximize generation of hydroelectric power. Over time, concerns arose with respect to the operation of Glen Canyon Dam, including effects on the downstream riparian ecosystem and on species listed pursuant to the ESA. In 1992, Congress passed and the President signed into law the GCPA which addresses potential impacts of dam operations on downstream resources in Glen Canyon National Recreation Area and Grand Canyon National Park.
The GCPA required the Secretary to complete an EIS evaluating alternative operating criteria that would determine how Glen Canyon Dam would be operated “to protect, mitigate adverse impacts to, and improve the values for which Grand Canyon National Park and Glen Canyon National Recreation Area were established.” The final EIS was completed in March 1995. Consistent with section 1802 of the GCPA, the Preferred Alternative (Modified Low Fluctuating Flow Alternative) was selected as the best means to operate Glen Canyon Dam in a ROD issued on October 9, 1996. In 1997 the Secretary adopted operating criteria for Glen Canyon Dam (62 FR 9447) as required by Section 1804(c) of the GCPA.
Additionally, the GCPA required the Secretary to undertake research and monitoring to determine if revised dam operations were achieving the resource protection objectives of the final EIS and ROD. These provisions of the GCPA were incorporated into the 1996 ROD and led to the establishment of the GCDAMP, administered by Reclamation, and of the Grand Canyon Monitoring and Research Center within the USGS.
The purpose of the proposed action is to fully evaluate dam operations and identify management actions and experimental options that will provide a framework for adaptively managing Glen Canyon Dam over the next 15 to 20 years consistent with the GCPA and other provisions of applicable Federal law. The proposed action will help determine specific alternatives that could be implemented to meet the GCPA's requirements and to minimize—consistent with law—adverse impacts on the downstream natural, recreational, and cultural resources in the two park units, including resources of importance to American Indian Tribes. The need for the proposed action stems from the need to utilize scientific information developed over the past 15 years to better inform Departmental decisions on dam operations and other management and experimental actions so that the Secretary may continue to meet statutory responsibilities for protecting downstream resources for future generations, conserving ESA listed species, and protecting Native American interests, while meeting water delivery obligations and for the generation of hydroelectric power.
The proposed Federal action is to (a) Develop and implement a structured, long-term experimental and management plan for the operation of Glen Canyon Dam and (b) to determine whether to establish a Recovery Implementation Program for endangered fish species below Glen Canyon Dam.
Before including a name, address, telephone number, e-mail address, or other personal identifying information in the comment, please be advised that the entire comment—including personal identifying information—may be made publicly available at any time. While a commenter may request that Reclamation and the NPS withhold personal identifying information from public review, Reclamation and the NPS cannot guarantee that the Department will be able to do so.
Bureau of Reclamation, Interior.
Notice of intent and scoping meeting.
The Department of the Interior, Bureau of Reclamation (Reclamation) and the San Joaquin River Exchange Contractors Water Authority (Exchange Contractors) propose to prepare a joint EIS/EIR for a twenty-five year water transfer program (Program). The action would be to execute agreements for water transfers among Reclamation, Mid-Pacific Region; Central Valley Project (CVP) and State Water Project (SWP) contractors; and the Exchange Contractors for water service years 2014 to 2038. The Program would consist of the annual development and transfer of up to 150,000 acre-feet of substitute water (maximum of 100,000 acre-feet of
Written comments on the scope of the EIS/EIR should be mailed to Mr. Brad Hubbard at the address below by August 10, 2011.
A public scoping meeting will be held on July 13, 5–7 p.m., in Los Banos, California.
Written comments on the scope of the EIS should be sent to Mr. Brad Hubbard, Bureau of Reclamation, 2800 Cottage Way, MP–410, Sacramento, California, 95825, or via e-mail to
The public scoping meeting will be held at the Miller-Lux Building, Floor 1, 830 Sixth Street, Los Banos, California.
Mr. Brad Hubbard, Project Manager, Bureau of Reclamation at the above address, via e-mail at
The Program's objective is the Exchange Contractor's annual transfer of Central Valley Project (CVP) water to:
• Other CVP contractors and SWP contractors to meet demands of agriculture, municipal, and industrial uses, and/or
• The RWSP for delivery to the San Joaquin Valley Federal, State and private wildlife refuges.
The proposed Program would assist Reclamation in optimizing the use of limited existing water resources for agriculture, fish and wildlife resources, and municipal and industrial purposes. The Exchange Contractors propose to annually transfer CVP water for the production of agricultural crops or livestock and/or municipal and industrial uses because of water supply shortages or when full contract deliveries cannot otherwise be made. The RWSP needs additional water to provide the refuges with the increment between Level 2 (approximately 422 thousand acre-feet (TAF) of CVP yield—the amount of water historically used by refuges prior to 1992), and Level 4 (approximately 555 TAF—the amount of water required for optimum wetland habitat development) quantities. This increment is known as “Incremental Level 4” and is water the RWSP acquires from willing sellers. The Program's annual water transfers would occur largely within the San Joaquin Valley of central California. The Exchange Contractors' service area covers parts of Fresno, Madera, Merced, and Stanislaus counties. The agricultural water users that would benefit from the potential transfers are located in the counties of Stanislaus, San Joaquin, Merced, Madera, Fresno, San Benito, Santa Clara, Tulare, Kern, Kings, Contra Costa, Alameda, Monterey, and Santa Cruz. The wetland habitat areas that may receive the water are located in Merced, Fresno, Kings, Tulare, and Kern counties.
Some of the resources potentially affected by transfers under the proposed Program include: surface water including the San Joaquin River, groundwater, biological resources, land uses including Indian Trust Assets (if any), air quality/climate change, socioeconomics including impacts to agricultural production, and environmental justice.
If special assistance is required to participate in the scoping meeting, please contact Ms. Joann White at 209–827–8616 or via e-mail at
Before including your name, address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
United States International Trade Commission.
July 20, 2011 at 11 a.m.
Room 110, 500 E Street, SW., Washington, DC 20436, Telephone: (202) 205–2000.
Open to the public.
1. Agendas for future meetings: none.
2. Minutes.
3. Ratification List.
4. Vote in Inv. Nos. 701–TA–379 and 731–TA–788 and 790–793 (Second Review)(Stainless Steel Plate from Belgium, Italy, Korea, South Africa, and Taiwan). The Commission is currently scheduled to transmit its determinations and Commissioners' opinions to the Secretary of Commerce on or before August 10, 2011.
5. Vote in Inv. No. 731–TA–856 (Second Review)(Ammonium Nitrate from Russia). The Commission is currently scheduled to transmit its determinations and Commissioners' opinions to the Secretary of Commerce on or before July 27, 2011.
6. Outstanding action jackets: none.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
60-day Notice of Information Collection Under Review.
The Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with established review procedures of the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted until September 6, 2011. This process is
Written comments concerning this information collection should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget,
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques of other forms of information technology, e.g., permitting electronic submission of responses.
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, United States Department of Justice, Two Constitution Square, 145 N Street, NE., Room 2E–508, Washington, DC 20530.
National Institute of Corrections, U.S. Department of Justice.
Solicitation for a Cooperative Agreement.
The National Institute of Corrections (NIC) Administration Division is seeking applications for the development, implementation, and evaluation of a project to assess the effects of access to Medicaid at the time of release from incarceration on reentry outcomes, including health care utilization, employment success, and recidivism. The recipient of the award will work in a partnership with the selected state's prisons, jails, and Medicaid agency to implement and evaluate the project. This project will be conducted over a 36-month period. This cooperative agreement is a collaborative project between the National Institute of Corrections and the Office of the Assistant Secretary for Planning and Evaluation (ASPE), U.S. Department of Health of Human Services (HHS).
To be considered, applicants must demonstrate at a minimum (1) In-depth knowledge of the criminal justice and healthcare fields, (2) experience working with local jails, state prisons, and state Medicaid agencies, (3) the capacity to engage local jails, state prisons, and state Medicaid agencies participation in this project, and (4) the experience and organizational capacity to carry out the goals of this project.
Applications must be received by 4 p.m. (EDT) on August 11, 2011.
Mailed applications must be sent to: Director, National Institute of Corrections, 320 First Street NW., Room 5002, Washington, DC 20534. Applicants are encouraged to use Federal Express, UPS, or similar service to ensure delivery by the due date as mail at NIC is sometimes delayed due to security screening.
Hand-delivered applications should be brought to 500 First Street, NW., Washington, DC 20534. At the front desk, dial (202) 307–3106, extension 0 for pickup.
Faxed and e-mailed applications will not be accepted; however, electronic applications can be submitted via
A copy of this announcement and links to the required application forms can be downloaded from the NIC Web site at
All technical or programmatic questions concerning this announcement should be directed to CDR Anita E. Pollard, Corrections Health Manager, National Institute of Corrections. CDR Pollard can be reached by e-mail at
Individuals reentering society after incarceration often encounter a number of barriers. Research suggests that helping to ensure that reentering individuals can meet their basic needs can lead to better outcomes for those individuals, including lower rates of recidivism. Severe or unmanaged health problems increase the risk of adverse outcomes,
Jails and prisons are responsible for providing medical care while individuals are incarcerated, but that care typically ends as soon as individuals are released back to the community. Continuity of care between the correctional facility and the community is a critical factor in this, providing crucial support to individuals as they strive to comply with conditions of release. However, upon release, most individuals have few options for receiving necessary healthcare, including addiction and mental health treatment. Correctional jurisdictions make significant investments in the health of incarcerated individuals; access to affordable healthcare post-release increases the value of those investments and may reduce future corrections spending.
The results of several studies suggest that between 50 and 90 percent of the criminal justice-involved population lacks health insurance when released from prison or jail. Low levels of employment and income among the formerly incarcerated reduce their ability to obtain affordable health insurance and partially explain the low level of coverage among this population. (D. Mancuso and B.E.M. Felver (2010) “Health Care Reform, Medicaid Expansion and Access to Alcohol/Drug Treatment: Opportunities for Disability Prevention.”
In March of 2010, the Patient Protection and Affordable Care Act (PPACA), Public Law 111–148 and the Health Care and Education Reconciliation Act, Public Law 111–152 were passed and signed into law and together became known as the Affordable Care Act, or health care reform. One of the most notable elements of the Affordable Care Act is its 2014 expansion of Medicaid eligibility to individuals at or below 133 percent of the federal poverty level. This will dramatically increase the Medicaid-eligible population. A Congressional Budget Office (CBO) analysis estimates that an additional 16 million individuals will be eligible for Medicaid beginning in 2014. Included in that population are many of the 9 million individuals who cycle through American jails and the over 725,000 individuals who are released from prison every year. Many of these individuals have significant health needs but, in most states, are not currently eligible for enrollment in Medicaid. (Congressional Budget Office. 2010. “Letter to Nancy Pelosi on H.R. 4872, Reconciliation Act of 2010 (Final Health Care Legislation).” Washington, DC: Congressional Budget Office, March 20; S. Somers, A. Hamblin, J. Verdier, and V. Byrd. August 2010 “Covering Low-Income Childless Adults in Medicaid: Experiences from Selected States.” Center for Health Care
The changes occurring as a result of healthcare reform will significantly affect the ways in which justice involved individuals can access public health insurance and services. Estimates indicate that at least 35 percent of new Medicaid eligibles under the Affordable Care Act will have a history of criminal justice system involvement. (Calculations based on the estimated size of newly eligible population, the size of the justice involved population and the share of that population without insurance.) This overlap between the reentering population and Medicaid eligibles provides the opportunity to jumpstart the enrollment process for health care coverage through Medicaid on a broader scale as part of the reentry planning process. It also allows for the evaluation of the association between expanding access to treatment and health services and reentry outcomes. Particularly, it provides a framework for evaluating the interconnectedness of health status, employment, and recidivism. Additionally, this provides a mechanism for studying targeted outreach and enrollment strategies for one large subgroup of those newly eligible for Medicaid in 2014.
NIC/DOJ and ASPE/HHS are committed to promoting risk reduction through the use of evidence-based policies and practices. One way to reduce risk among individuals reentering the community from prison or jail is to ensure continuity of care between the detention facility and the community. Effective continuity of care increases treatment benefits and opportunities for successful reintegration, strengthens already invested treatment resources, and decreases health and safety risks among reentering individuals and the communities to which they return. Some local jails and state corrections institutions currently include pre-release application for Medicaid as a part of the reentry planning process. The Bazelon Center for Mental Health Law, an advocacy organization for people with mental disabilities, has made a strong case for incorporating assistance to benefits, such as Medicaid, a part of reentry programming. Reentry activities that connect individuals to Medicaid often include providing active assistance with the application processes and linking individuals to community providers. Research has found a positive relationship between access to healthcare upon reentry and a number of outcomes related to improved well-being although, most of this research focuses on individuals with severe mental illness. These positive effects include reduced recidivism and reduced health care costs. (Bazelon Center for Mental Health Law. (2009)
NIC and ASPE are expanding on earlier research by examining the provision of Medicaid enrollment assistance and its effect on reentry outcomes for all Medicaid-eligible individuals reentering the community from jail or prison. The reentry population may face numerous challenges in applying for Medicaid, including low literacy levels, poor mental health and functioning, incomplete personal identification and lack of documentation. Addressing these challenges as a part of the reentry planning process will facilitate the development of evidence-based practices for connecting a population with unique and complicated needs to health services in the community.
Purpose: This project will evaluate how application assistance during incarceration and enrollment in Medicaid at the time of release from incarceration affects three outcomes related to individual and community well-being: (1) Healthcare utilization, (2) employment, and (3) recidivism. Without adequate access to healthcare and treatment, individuals reentering the community from jail or prison can contribute to decreased public safety, create additional financial burdens on the public health system, and be less likely to find and maintain employment. This model requires cooperation and collaboration among local jails, state corrections, parole and probation (if under supervision), and Medicaid agencies to provide access to continuing community-based healthcare following release. States have developed systems to assist other vulnerable populations, such as homeless and domestic violence populations, with benefits applications, but these processes may not have been adapted or extended to the reentry population. Enrollment in Medicaid capitalizes on treatment provided in the jail or prison setting and offers necessary support for an individual to comply with conditions of release. If shown as an effective practice for increasing access to healthcare and increasing successful reentry outcomes, this strategy would be a win-win for states by improving the effectiveness of both corrections and Medicaid agencies and potentially reducing long-term costs.
A schedule of activities for this project shall include, at a minimum, the following:
(1) Identification of an appropriate evaluation site(s) among states that either (a) currently have a Section 1115 Medicaid demonstration waiver to cover childless adults; (b) are early adopters of the Medicaid expansion under the Affordable Care Act; or, (c) use state-only funding to extend public health insurance coverage to childless adults. (
(2) Selection of sites using criteria established by NIC and ASPE. (a) Scale shall be a primary criterion for site selection. The cohort of prisoners in the queue for release must be large enough
(3) Design and facilitation of project implementation through: (a) Providing assistance to the sites in the development of an appropriate reentry Medicaid application process; (b) Helping states identify resources, including reallocation of existing reentry programming resources and recruitment of volunteers to implement the project; (c) Assisting states in developing Memorandums of Understanding (MOUs) for data exchange between state corrections, local jails, Medicaid agencies, and state repositories of employment information. Information on employment is most likely available from the quarterly wage data available through the state unemployment insurance agency or state child support enforcement program. The state child support enforcement agency also maintains the state directory of new hires which has information on all new job starts.
(4) Design and conduct of random assignment project evaluation, which includes using the analyses of matched data using appropriate statistical methodologies to determine the relationship between early access to Medicaid and the previously identified outcomes of interest: (a) Healthcare utilization, (b) employment success, and (c) recidivism.
These are the minimum project requirements. Procedurally the award recipient will also be responsible for preparing documents that may be required by NIJ to obtain approvals and clearances associated with the Privacy Act, Paperwork Reduction Act, and Protection of Human Subjects.
Applicants are also encouraged to approach other funding partners to expand the scope of the demonstration to include access to additional benefits, such as food stamps (SNAP); to consider supplemental data collection strategies such as participant surveys; and to implement the project in additional sites. These expansions will be subject to the approval of NIC and ASPE.
Key issues and challenges for this project include: Recruitment of sites where both the corrections and Medicaid agencies are willing to participate and exchange information; Reducing the barriers to establishing institution-spanning collaborations given state and local government fiscal constraints; Differences in the reentry planning processes in jail and prison environments; Confidentiality restrictions that may impede the development of shared data agreements between state and local corrections, Medicaid, and child support agencies; Collection of data on healthcare utilization among non-Medicaid users in both the treatment and control groups; Development of an experimental evaluation design given the constraints that accompany research conducted in corrections environments; Capacity of communities to provide additional healthcare services to newly eligible populations; Medicaid requirements for verifiable identification as part of the enrollment process and to access services; Consistent transition planning across disciplines. Post release parole or probation supervision, when ordered, plays an important role in potential success or failure of transitional planning, but will probably be administered by a separate agency.
The applicant must address the issues and challenges identified above by describing why each issue is important and propose strategies for successfully addressing each challenge. Applicants are encouraged to identify and address additional issues and challenges that they believe will significantly affect the successful implementation of this project.
If additional resources are made available in subsequent years, additional deliverables may include: A replicability toolkit for the field with sections that apply to local jails, state prisons, and Medicaid agencies (year 4); and A report on project impacts at 24 months post release (year 5).
The awardee, with subject matter experts, should also plan to meet with ASPE and NIC staff at least two more times during the course of the project. These meetings will last up to 2 days and may focus on project development and updates. Only one of these meetings will be held in Washington, DC.
The awardee, with subject matter experts, should plan to meet via WebEx several times at key points during the project for updates and project development activities. NIC will host these meetings, which will last up to 2 hours. The meeting itself will be at NIC's expense, but fees for project staff who attend the meeting will be charged to the cooperative agreement.
Applications should be concisely written, typed double-spaced and reference the project by the NIC opportunity number and title referenced in this announcement. If you are hand delivering or submitting via Fed-Ex, please include an original and three copies of the full proposal (program and budget narrative, application forms, assurances and other descriptions). The originals should have the applicant's signature in blue ink. Electronic submissions will be accepted only via
The project summary/abstract portion of the application should include a summary of the application's project description and a brief description of the critical elements of the proposed project. The summary must be clear, accurate, concise, and without reference to other parts of the application. The brief description must include the needs to be addressed, the goals and objectives for the project, and how the strategies proposed meet those goals and objectives.
The Project Summary/Abstract must be single-spaced and limited to one page in length.
The narrative portion of the application should include, at a minimum, the following sections.
A Statement indicating the applicant's understanding of the project's purpose, goals and objectives. The applicant should state this in language other than that used in the solicitation (
The narrative portion of the application should not exceed 30 double-spaced typewritten pages, excluding attachments related to the credentials and relevant experience of staff.
Applicants may partner with other entities to bring the full range of subject matter expertise to the proposal. The approval of these collaborative efforts is subject to the written approval of NIC and ASPE. Applicants must have demonstrated ability to implement a project of this size and scope.
Are all of the project research questions and activities adequately discussed? Is there a clear description of how each project activity will be accomplished, including major tasks, the strategies to be employed, required staffing, responsible parties, and other required resources? Are there any unique or exceptional approaches, techniques, or design aspects proposed that will enhance the project?
Project Management and Administration: 20 Points. Does the applicant identify reasonable objectives, milestones, measures to track progress? Are the proposed management and staffing plans clear, realistic, and sufficient to carry out the project? Is the applicant willing to meet with NIC and ASPE, at a minimum, as specified in the solicitation for this cooperative agreement?
Do the skills, knowledge, and expertise of the organization and the proposed project staff demonstrate a high level of competency to carry out the tasks? Does the applicant/organization have the necessary experience and organizational capacity to carry out all goals of the project? If consultants and/or partnerships are proposed, is there a reasonable justification for their inclusion in the project and a clear structure to ensure effective coordination?
Is the proposed budget realistic, does it provide sufficient cost detail/narrative, and does it represent good value relative to the anticipated results? Does the application include a chart that aligns the budget with project activities along a timeline with, at a minimum, quarterly benchmarks? In terms of program value, is the estimated cost reasonable in relation to work performed and project products?
NIC will NOT award a cooperative agreement to an applicant who does not have a Dun and Bradstreet Database Universal Number (DUNS) and is not registered in the Central Contractor Registry (CCR).
Applicants can obtain a DUNS number at no cost by calling the
Applicants may register in the CRR online at the CCR Web site,
NIC expects this award to be signed by September 13, 2011.
The states listed below are likely to be appropriate evaluation sites because they either (a) Currently have a Section 1115 Medicaid demonstration waiver to cover childless adults; (b) are early adopters of the Medicaid expansion under the Affordable Care Act; or, (c) use state-only funding to extend public health insurance coverage to childless adults.
National Aeronautics and Space Administration (NASA).
Notice of intent to conduct scoping and prepare an Environmental Impact Statement (EIS) for Demolition and Environmental Cleanup Activities for the NASA administered portion of the Santa Susana Field Laboratory (SSFL), Ventura County, California.
Pursuant to the National Environmental Policy Act (NEPA), as amended, (42 U.S.C. 4321
The purpose of this notice is to apprise interested agencies, organizations, tribal governments, and individuals of NASA's intent to prepare the EIS. NASA will hold public scoping meetings to get the views of interested parties regarding appropriate action alternatives and significant environmental issues associated with the development of the EIS. The scoping meeting locations and dates identified at this time are provided under
Interested parties are invited to submit comments on environmental issues and concerns, preferably in writing, on or before September 17, 2011, to assure full consideration during the scoping process.
Comments submitted by mail should be addressed to Allen Elliott, SSFL Project Director, NASA MSFC AS01, Building 4494, Huntsville, AL 35812. Comments may be submitted via e-mail to
Allen Elliott, SSFL Project Director, by phone at (256) 544–0662 or by e-mail at
The SSFL site is 2,850 acres located in Ventura County, California approximately seven miles northwest of Canoga Park and approximately 30 miles northwest of downtown Los Angeles. SSFL is comprised of four areas known as Areas I, II, III, and IV and two unnumbered areas known as the “undeveloped land”. NASA administers 41.7 acres within Area I and all 409.5 acres of Area II. The Boeing Company manages the remaining 2,398.8 acres within Areas I, III, IV, and two undeveloped areas.
Since the mid-1950s, when the two federally-owned areas were owned by the U.S. Air Force, this site has been used for developing and testing rocket engines. Four test stand complexes were constructed in Area II between 1954 and 1957 named Alfa, Bravo, Coca, and Delta. Area II and the LOX Plant portion of Area I were acquired by NASA from the U.S. Air Force in the 1970s. These test stands and related ancillary structures have been found to have historical significance based on the historic importance of the engine testing and the engineering and design of the structures.
The NASA administered areas of SSFL also contain cultural resources not related to rocket development. SSFL is located near the crest of the Simi Hills that are part of the Santa Monica Mountains running east-west across Southern California. The diverse terrain consists of ridges, canyons and sandstone rock outcrops. The region was occupied by Native Americans from the earliest Chumash, Tongva, and Tataviam cultures. NASA has conducted several previous surveys to locate archaeological and architectural resources within its portion of the SSFL. As a result, NASA has identified one historic property, the Burro Flats Painted Cave, that is listed on the National Register of Historic Places (NRHP), as well as multiple buildings and structures that are either individually eligible for listing on the NRHP or are elements of NRHP-eligible historic districts containing multiple architectural resources.
Previous environmental sampling on the NASA administered property indicates that metals, dioxins, PCBs, volatile organics, and semi-volatile organics are present in the soils and upper groundwater (known as the Surficial Media Operable Unit). Volatile organics, metals, and semi-volatile organics are also present in the deeper groundwater (known as the Chatsworth Formation Operable Unit).
Rocket engine testing has been discontinued at these sites and the property has been excessed to the
In 2007, a Consent Order among NASA, Boeing, DOE, and DTSC was signed addressing demolition of certain infrastructure and environmental cleanup of SSFL. NASA entered into an Administrative Order on Consent (AOC) for Remedial Action with DTSC on December 6, 2010 “to further define and make more specific NASA's obligations with respect to the cleanup of soils at the Site.” Based on the 2010 Order, NASA is required to complete a federal environmental review pursuant to NEPA, NASA Procedural Requirement (NPR) 8580.1, and Executive Order (EO) 12114. An EIS is being prepared by NASA to include demolition of site infrastructure and soil cleanup, pursuant to the AOC, and groundwater remediation within Area II and a portion of Area I (LOX Plant) of SSFL.
As part of the environmental review process, certain studies are being completed in order to characterize the existing conditions and inform the analysis and consultation. These include surveys for wildlife, critical habitat, rare plants, wetlands, and archaeological and cultural resources. The findings of these studies will be incorporated into the EIS.
In order to prepare SSFL for disposition, NASA proposes the demolition of SSFL structures and cleanup of the site to meet the AOC commitments. The EIS will consider a range of alternatives that meets NASA's objectives to clean up soil and groundwater contamination at the portion of the SSFL site administered by NASA. Implementation of this proposed action would occur by implementing one Demolition Alternative
• Demolition Alternative;
• No Demolition Alternative (No Action).
• Alternative for Soil Cleanup to Background Levels and Groundwater Cleanup to Suburban Residential Cleanup Goals;
• Alternative for Soil and Groundwater Cleanup to Suburban Residential Cleanup Goals;
• Alternative for Soil and Groundwater Cleanup to Industrial Cleanup Goals;
• Alternative for Soil and Groundwater Cleanup to Recreational Cleanup Goals;
• No Environmental Cleanup Alternative (No Action).
Per NEPA, NASA is required to include analysis of the “No Action” alternative. For the purpose of this analysis two No Action Alternatives are presented. The No Action Alternative analysis involves no environmental cleanup at the site and/or no demolition of test stands and ancillary structures on the NASA-administered property.
NASA anticipates that the areas of potential environmental impact from each alternative of most interest to the public are likely to include: Soil removal/erosion; hazardous waste storage and disposal; potential impacts to threatened, endangered, and sensitive species; effects on critical habitat and wetlands; impacts to cultural and historic resources; air quality and greenhouse gas emissions; and disturbance to groundwater, surface water, or geologic structure.
NASA plans to hold three public scoping meetings to introduce the SSFL project and EIS planning process and to solicit public comments regarding alternatives and environmental issues to be considered in the EIS. The public scoping meetings are scheduled as follows:
1. Chatsworth, Tuesday, August 16, 2011, 6–8:30 p.m. at the Chatsworth Hotel, 9777 Topanga Canyon Road, Chatsworth, CA 91311.
2. Simi Valley, Wednesday, August 17, 6–8:30 p.m. at the Grand Vista, 999 Enchanted Way, Simi Valley, CA 93065.
3. West Hills, Thursday, August 18, 9:30–12 at the Corporate Pointe at West Hills, 8413 Fallbrook Ave, West Hills, CA 91304 areas.
During the EIS planning process, the public will be provided several opportunities for involvement, the first of which is initiated with this NOI and is referred to as scoping. In accordance with NEPA, the purpose of scoping is to provide “an early and open process for determining the scope of issues to be addressed and for identifying the significant issues related to a proposed action”. Future opportunities for comment and involvement will include reviews of the Draft and Final EIS. The availability of these documents will be published in the
In conclusion, written public input is hereby requested on alternatives and environmental issues and concerns, including impacts to historic properties, associated with Demolition and Environmental Cleanup Activities at NASA's SSFL site in Ventura County, California that should be addressed in the EIS.
National Aeronautics and Space Administration.
Notice of Intent to Grant Partially Exclusive License.
This notice is issued in accordance with 35 U.S.C. 209(e) and 37 CFR 404.7(a)(1)(i). NASA hereby gives notice of its intent to grant a partially exclusive license in the United States to practice the inventions described and claimed in USPN 6,133,036, Preservation Of Liquid Biological Samples, NASA Case No. MSC–22616–2 and USPN 6,716,392, Preservation Of Liquid Biological Samples, NASA Case No. MSC–22616–3 to Advanced Preservation Technologies, LLC, having its principal place of business in Warner Robins, Georgia. The patent rights in these inventions have been assigned to the United States of America as represented by the Administrator of the National Aeronautics and Space Administration. The prospective partially exclusive license will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7.
The prospective partially exclusive license may be granted unless within fifteen (15) days from the date of this published notice, NASA receives written objections including evidence and argument that establish that the grant of the license would not be
Objections submitted in response to this notice will not be made available to the public for inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Objections relating to the prospective license may be submitted to Patent Counsel, Office of Chief Counsel, NASA/Johnson Space Center, 2101 NASA Parkway, Houston, Texas 77058, Mail Code AL; Phone (281) 483–3021; Fax (281) 483–6936.
Kurt G. Hammerle, Intellectual Property Attorney, Office of Chief Counsel, NASA/Johnson Space Center, 2101 NASA Parkway, Houston, Texas 77058, Mail Code AL; Phone (281) 483–1001; Fax (281) 483–6936. Information about other NASA inventions available for licensing can be found online at
All meetings are held at 2:30 p.m.: Tuesday, July 5, Wednesday, July 6, Thursday, July 7, Tuesday, July 12, Wednesday, July 13, Thursday, July 14, Wednesday, July 20, Thursday, July 21, Tuesday, July 26, Wednesday, July 27, and Thursday, July 28.
Board Agenda Room, No. 11820, 1099 14th St., NW., Washington, DC 20570.
Closed.
Pursuant to § 102.139(a) of the Board's Rules and Regulations, the Board or a panel thereof will consider “the issuance of a subpoena, the Board's participation in a civil action or proceeding or an arbitration, or the initiation, conduct, or disposition * * * of particular representation or unfair labor practice proceedings under section 8, 9, or 10 of the [National Labor Relations] Act, or any court proceedings collateral or ancillary thereto.” See also 5 U.S.C. 552b(c)(10).
Lester A. Heltzer, (202) 273–1067.
Nuclear Regulatory Commission [NRC–2011–0006].
Weeks of July 4, 11, 18, 25, August 1, 8, 2011.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the week of July 4, 2011.
This meeting will be Web cast live at the Web address—
This meeting will be Web cast live at the Web address—
This meeting will be Web cast live at the Web address—
There are no meetings scheduled for the week of August 1, 2011.
There are no meetings scheduled for the week of August 8, 2011.
The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings, call (recording)—(301) 415–1292. Contact person for more information: Rochelle Bavol, (301) 415–1651.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
This notice is distributed electronically to subscribers. If you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555, (301–415–1969), or send an e-mail to
Notice is hereby given that the U.S. Nuclear Regulatory Commission (NRC, the Commission) has issued Renewed Facility Operating License Nos. DPR–42 and DPR–60 to Northern States Power Company—Minnesota (licensee), the
The notice also serves as the record of decision for Renewed Facility Operating License Nos. DPR–42 and DPR–60, consistent with Title 10 of the Code of Federal Regulations (10 CFR) 51.103, “Record of Decision—General.” NUREG–1437, “Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 39, Regarding Prairie Island Nuclear Generating Plant, Units 1 and 2,” issued May 2011, discusses the Commission's consideration of a range of reasonable alternatives, including replacement power from a new natural-gas-fired, combined-cycle plant; a combination of natural gas, wind, and wood-fired generation and conservation; a combination of wind, conservation, and continued operation of one of the PINGP units; and not renewing the licenses (the no-action alternative). The factors considered in the record of decision appear in the supplemental environmental impact statement (SEIS) for PINGP. Subsequent to the issuance of the final SEIS, the NRC received two letters commenting on the final SEIS. The first letter was from the U.S. Environmental Protection Agency, Region 5, dated June 15, 2011. The second letter was from the Prairie Island Indian Community, dated June 20, 2011. The NRC staff has reviewed the comments and has determined that the comments provide no new or significant information, and therefore, none of the findings in the final SEIS are changed as a result of the comments.
The PINGP units are pressurized-water reactors located within the city limits of Red Wing, MN, on the west bank of the Mississippi River in southeastern Minnesota. The application for the renewed licenses complied with the standards and requirements of the Atomic Energy Act of 1954, as amended, and the Commission's regulations. As required by the Atomic Energy Act and the Commission's regulations in 10 CFR chapter I, the Commission has made appropriate findings, which are set forth in the licenses. Prior public notice of the action involving the proposed issuance of the renewed licenses and of an opportunity for a hearing on the proposed issuance of the renewed licenses was published in the
For further details with respect to this action, see (1) Northern States Power Company's license renewal application for PINGP dated April 11, 2008, as supplemented by letters dated through May 11, 2011; (2) the Commission's safety evaluation report, issued October 16, 2009, and supplemented on April 15, 2011; (3) the licensee's updated safety analysis report; and (4) the Commission's final environmental impact statement (NUREG–1437, Supplement 39), issued May 2011. These documents are available at the NRC's Public Document Room, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852, and online in the NRC Library at
Copies of Renewed Facility Operating License Nos. DPR–42 and DPR–60, may be obtained by writing to the U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Director, Division of License Renewal. Copies of the PINGP safety evaluation report and the final environmental impact statement (NUREG–1437, Supplement 39) may be purchased from the National Technical Information Service, U.S. Department of Commerce, Springfield, VA 22161, (
For the Nuclear Regulatory Commission.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17f–2(d) requires that records produced pursuant to the fingerprinting requirements of Section 17(f)(2) of the Act be maintained; permits the designated examining authorities of broker-dealers or members of exchanges, under certain circumstances, to store and maintain records required to be kept by this rule; and permits the required records to be maintained on microfilm. The general purpose for Rule 17f–2 is to: (i) Identify security risk personnel; (ii) provide criminal record information so that employers can make fully informed employment decisions; and (iii) deter persons with criminal records from seeking employment or association with covered entities. The rule enables the Commission or other examining authority to ascertain whether all required persons are being fingerprinted and whether proper procedures regarding fingerprint are being followed. Retention of these records for the term of employment of all personnel plus three years ensures that law enforcement officials will have easy access to fingerprint cards on a timely basis. This in turn acts as an effective deterrent to employee misconduct.
Approximately 5,300 respondents are subject to the recordkeeping requirements of the rule. Each respondent keeps approximately 60 new records per year, which takes approximately 2 minutes per record for the respondent to maintain, for an annual burden of approximately 2 hours (60 records times 2 minutes) per respondent or a total annual burden of approximately 10,300 hours (5,300 respondents times 2 hours) for all respondents. All records subject to the rule must be retained for the term of employment plus 3 years. In addition, we estimate the total cost to respondents is approximately $119,000.
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to
Please direct your written comments to: Thomas Bayer, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 6432 General Green Way, Alexandria, Virginia 22312 or send an e-mail to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Registered broker-dealers use Form BDW (17 CFR 249.501a) to withdraw from registration with the Commission, the self-regulatory organizations, and the states. On average, the Commission estimates that it would take a broker-dealer approximately one hour to complete and file a Form BDW to withdraw from Commission registration as required by Rule 15b6–1. The Commission estimates that approximately 515 broker-dealers withdraw from Commission registration annually
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Securities and Exchange Commission (“Commission”).
Temporary order and notice of application for a permanent order under section 9(c) of the Investment Company Act of 1940 (“Act”).
Secretary, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090; Applicants: J.P. Morgan
Laura J. Riegel, at (202) 551–6873, or Dalia Osman Blass, Branch Chief, at (202) 551–6821 (Division of Investment Management, Office of Investment Company Regulation).
The following is a temporary order and a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or an applicant using the Company name box, at
1. Each of the Applicants (other than Constellation and Highbridge) is either directly or indirectly a wholly-owned subsidiary of J.P. Morgan Chase & Co. (“JPMC”). Each of Constellation and Highbridge is an indirect, majority-owned subsidiary of JPMC. JPMC is a financial services holding company whose businesses provide a broad range of financial services. J.P. Morgan Securities is registered as a broker-dealer under the Securities Exchange Act of 1934, as amended (“Exchange Act”) and is registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”). J.P. Morgan Securities does not currently serve as an investment adviser, sub-adviser, depositor or principal underwriter (as defined in section 2(a)(29) of the Act) for any of the registered investment companies (“Funds”) or employees' securities companies (“ESCs,” and included in the term Funds), as defined in section 2(a)(13) of the Act. BSAM is registered as an investment adviser under the Advisers Act and serves as investment adviser or sub-adviser to various Funds, including as general partner that provides investment advisory services to various ESCs.
2. On June 29, 2011, the United States District Court for the Southern District of New York entered a judgment, which included the Injunction, against J.P. Morgan Securities (“Final Judgment”) in a matter brought by the Commission.
1. Section 9(a)(2) of the Act, in relevant part, prohibits a person who has been enjoined from engaging in or continuing any conduct or practice in connection with the purchase or sale of a security, or in connection with activities as an underwriter, broker or dealer, from acting, among other things, as an investment adviser or depositor of any registered investment company or a principal underwriter for any registered open-end company, registered unit investment trust or registered face-amount certificate company. Section 9(a)(3) of the Act makes the prohibition in section 9(a)(2) applicable to a company, any affiliated person of which has been disqualified under the provisions of section 9(a)(2). Section 2(a)(3) of the Act defines “affiliated person” to include, among others, any person directly or indirectly controlling, controlled by, or under common control with, the other person. Applicants state that J.P. Morgan Securities is an affiliated person of each of the other Applicants within the meaning of section 2(a)(3) of the Act. Applicants state that the entry of the Injunction results in Applicants being subject to the disqualification provisions of section 9(a) of the Act.
2. Section 9(c) of the Act provides that the Commission shall grant an application for exemption from the disqualification provisions of section 9(a) if it is established that these provisions, as applied to the applicants, are unduly or disproportionately severe or that the applicants' conduct has been such as not to make it against the public interest or the protection of investors to grant the exemption. Applicants have filed an application pursuant to section 9(c) seeking a temporary and permanent order exempting them and other Covered Persons from the disqualification provisions of section 9(a) of the Act.
3. Applicants believe they meet the standard for exemption specified in section 9(c). Applicants state that the prohibitions of section 9(a) as applied to them would be unduly and disproportionately severe and that the conduct of the Applicants has been such as not to make it against the public interest or the protection of investors to grant the exemption from section 9(a).
4. Applicants state that the alleged conduct giving rise to the Injunction did not involve any of the Applicants acting in the capacity of investment adviser, sub-adviser or depositor for any Fund (including as general partner providing investment advisory services to ESCs) or as principal underwriter for any registered open-end company, registered unit investment trust or registered face-
5. Applicants state that their inability to continue to provide investment advisory and subadvisory services to the Funds (including as general partner providing investment advisory services to ESCs) and principal underwriting services to any registered open-end company would result in potential hardship for the Funds and their shareholders. Applicants state that they will, as soon as reasonably practical, distribute written materials, including an offer to meet in person to discuss the materials, to the boards of directors of the Funds (“Boards”) (excluding, for this purpose, the ESCs) for which the Applicants serve as investment adviser, investment sub-adviser or principal underwriter, including the directors who are not “interested persons,” as defined in section 2(a)(19) of the Act, of such Funds, and their independent legal counsel, if any, describing the circumstances that led to the Injunction and any impact on the Funds, and the application. Applicants state they will provide the Boards with the information concerning the Injunction and the application that is necessary for the Funds to fulfill their disclosure and other obligations under the Federal securities laws.
6. Applicants also state that, if they were barred from providing services to the Funds, the effect on their businesses and employees would be severe. Applicants state that they have committed substantial resources to establishing expertise in providing advisory and distribution services to Funds. Applicants further state that prohibiting them from providing such services would not only adversely affect their businesses, but would also adversely affect about 940 employees who are involved in those activities. Applicants also state that disqualifying certain Applicants from continuing to provide investment advisory services to the ESCs is not in the public interest or in the furtherance of the protection of investors. Because the ESCs have been formed for certain key employees, officers and directors of JPMC and its affiliates, it would not be consistent with the purposes of the ESC provisions of the Act or the terms and conditions of the ESC orders to require another entity not affiliated with JPMC to manage the ESCs. In addition, participating employees of JPM and its affiliates likely subscribed for interests in the ESCs with the expectation that the ESCs would be managed by an affiliate of JPMC.
7. Certain of the Applicants previously have applied for and received exemptions under section 9(c) as the result of conduct that triggered section 9(a) of the Act, as described in greater detail in the application.
Applicants agree that any order granting the requested relief will be subject to the following condition:
Any temporary exemption granted pursuant to the application shall be without prejudice to, and shall not limit the Commission's rights in any manner with respect to, any Commission investigation of, or administrative proceedings involving or against, Covered Persons, including, without limitation, the consideration by the Commission of a permanent exemption from section 9(a) of the Act requested pursuant to the application or the revocation or removal of any temporary exemptions granted under the Act in connection with the application.
The Commission has considered the matter and finds that Applicants have made the necessary showing to justify granting a temporary exemption.
Accordingly,
By the Commission.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94–409, that the Securities and Exchange Commission will hold a Closed Meeting on Thursday, July 7, 2011 at 2 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the scheduled matters at the Closed Meeting.
Commissioner Casey, as duty officer, voted to consider the items listed for the Closed Meeting in a closed session.
The subject matter of the Closed Meeting scheduled for Thursday, July 7, 2011 will be:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings;
An adjudicatory matter; and
Other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact:
The Office of the Secretary at (202) 551–5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the Fee Schedule of the Boston Options Exchange Group, LLC (“BOX”).
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Section 8 of the BOX Fee Schedule currently imposes a fee of $0.50 per contract for all Eligible Orders sent to Away Exchanges in excess of 10,000 contracts per month for each BOX Options Participant.
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Act,
The Exchange believes that it is equitable to permit BOX Participants to have orders routed to away exchanges without being assessed a fee. The Exchange believes that BOX Options Participants may send additional order flow to BOX, to the benefit of all market participants, if there is no fee assessed when Participant orders may be sent to an Away Exchange. The Exchange believes that the proposed change is an equitable allocation of fees because the order routing fee structure applies to all BOX Participants.
Further, the Exchange believes the proposed change and the resulting order routing fee structure are fair and reasonable and must be competitive with similar fees in place on other exchanges. BOX operates within a highly competitive market in which market participants can readily direct order flow to any of eight other competing venues if they deem fee levels at a particular venue to be excessive. The change to allow BOX Participants to have more orders routed away at no cost is intended to attract order flow to BOX and provide BOX Participants additional flexibility in their execution decisions. The Exchange believes all market participants can benefit from greater liquidity on BOX and that it is appropriate to provide a fee structure intended to attract additional order flow. In particular, the proposed change will allow BOX to remain competitive with other exchanges, and allow BOX to maintain a fee structure which is equitable among all BOX Participants. The Exchange believes that this competitive marketplace impacts the fees present on BOX today and influences this proposal.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
CHX proposes to add Article 4, Rule 2 (CHX Connect) to include an explicit description of the Exchange's CHX Connect order routing service. The text of this proposed rule change is available on the Exchange's Web site at (
In its filing with the Commission, the CHX included statements concerning the purpose of and basis for the proposed rule changes and discussed any comments it received regarding the proposal. The text of these statements may be examined at the places specified in Item IV below. The CHX has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
New Article 4, Rule 2 describes the operation of the CHX Connect routing network. CHX Connect is an electronic communications service owned and operated by the Exchange which allows Participants to transmit orders and related transaction information directly to any destination designated by the order sending Participant (such as an over-the-counter market maker or order-routing vendor) connected to the service without being submitted to the Exchange's trading facilities. The CHX Connect communications service was described in a rule filing made with the Commission in 2006, but which did not update the Exchange's rules.
The Exchange believes that certain order senders may have an interest in the CHX Connect service in order to efficiently route orders which cannot be accepted into the Matching System directly. For example, an order sender may have received a market order to buy a NMS security normally traded in the CHX Matching System.
Participants may also elect to use CHX Connect to transmit orders in an electronic format to the Exchange's Matching System, to Institutional Brokers registered with the Exchange pursuant to Article 17 of our rules, and to other destinations which are connected to the CHX's network. The Matching System will only accept orders in securities listed on the Exchange or eligible for Unlisted Trading Privileges. The Exchange believes that certain Participants may be interested in using CHX Connect to send orders to our facilities as an alternative to private order routing systems or vendors, which perform the same function. Participants may designate where an order is to be directed on a security-by-security or order-by-order basis. Instructions received on an order-by-order basis shall supersede previously-received instructions on a security-by-security basis. Use of the CHX Connect service is subject to the approval of the Exchange. The Exchange evaluates all potential users on an equal and non-discriminatory basis. The criteria by which potential users of the service are evaluated relate solely to preserving the security and integrity of the Exchange's systems, and to ensuring the proper formatting of messages sent via CHX Connect in generally accepted industry protocols, such as Financial Information eXchange (FIX) Protocol. The fees and charges for a subscription to the CHX Connect Service are set forth in the Exchange's published Schedule of Fees and Assessments, and apply equally to all users of the system.
This service is a facility of the Exchange. As a result, the Exchange would submit fee changes, and any applicable changes to its rules, to the Commission as required by Exchange Act Rule 19b–4 in connection with the CHX Connect service.
The Exchange would provide these routing services in compliance with its rules and with the provisions of the Exchange Act and the rules thereunder, including, but not limited to, the requirements of Sections 6(b)(4) and (5) of the Act that the rules of a national securities exchange provide for the equitable allocation of reasonable dues, fees and other charges among its members and issuers and other persons using its facilities, and not be designed to permit unfair discrimination between customers, issuers, brokers or dealers.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act in general, and furthers the objectives of Section 6(b)(1) of the Act in particular, in that it allows the Exchange to be organized and have the capacity to be able to carry out the purposes of the Act and to comply, and (subject to any rule or order of the Commission pursuant to section 17(d) or 19(g)(2) of the Act) to enforce compliance by its members and persons associated with such members, with the provisions of the Act, the rules and regulations thereunder, and the rules of the exchange. As discussed herein, CHX Connect is a communications service offered by the Exchange to its Participants to either send orders to the Matching System or to another destination of its choosing. The CHX Connect communications service was described in a rule filing made with the Commission in 2006, but which did not update the Exchange's rules.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. As noted above, the Exchange believes that its CHX Connect service will compete with the existing order routing networks operated by broker-dealers or other service providers. By providing Participants a means of effectively directing orders which cannot be accepted into the Matching System to a destination which can handle such orders, the Exchange is attempting to provide ready solutions to potential order senders, with the ultimate goal of maximizing order flow to the Exchange's trading facilities.
The CHX Connect service is entirely optional and Participants are not required to utilize it to send order to the Exchange or elsewhere. The Exchange notes that the routing and connectivity services of CHX Connect appear to be very similar manner to those offered by the Secure Financial Transaction Infrastructure® (“SFTI”) system, which is provided by NYSE Technologies, an affiliated company of the New York Stock Exchange, Inc. By competing with SFTI and other service providers of secure connectivity among market participants, CHX Connect would offer additional options for participants looking for systems to deliver their orders.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to extend the operation of its New Market Model Pilot, currently scheduled to expire on August 1, 2011, until the earlier of Securities and Exchange Commission (“Commission”) approval to make such pilot permanent or January 31, 2012. The text of the proposed rule change is available at the Exchange, the Commission's Public Reference Room, and
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to extend the operation of its New Market Model Pilot (“NMM Pilot”) that was adopted pursuant to its merger with the New York Stock Exchange LLC (“NYSE”).
The Exchange notes that parallel changes are proposed to be made to the rules of NYSE.
In December 2008, NYSE Amex implemented significant changes to its equities market rules, execution technology and the rights and obligations of its equities market participants all of which were designed
As part of the NMM Pilot, NYSE Amex eliminated the function of equity specialists on the Exchange creating a new category of market participant, the Designated Market Maker or DMM.
In addition, the Exchange implemented a system change that allowed DMMs to create a schedule of additional non-displayed liquidity at various price points where the DMM is willing to interact with interest and provide price improvement to orders in the Exchange's system. This schedule is known as the DMM Capital Commitment Schedule (“CCS”).
The NMM Pilot further modified the logic for allocating executed shares among market participants having trading interest at a price point upon execution of incoming orders. The modified logic rewards displayed orders that establish the Exchange's BBO. During the operation of the NMM Pilot orders, or portions thereof, that establish priority
The NMM Pilot was originally scheduled to end operation on October 1, 2009, or such earlier time as the Commission may determine to make the rules permanent. The Exchange filed to extend the operation of the Pilot on five occasions
NYSE Amex established the NMM Pilot to provide incentives for quoting, to enhance competition among the existing group of liquidity providers and add a new competitive market participant. The Exchange believes that the NMM Pilot allows the Exchange to provide its market participants with a trading venue that utilizes an enhanced market structure to encourage the addition of liquidity, facilitate the trading of larger orders more efficiently and operates to reward aggressive liquidity providers. As such, the Exchange believes that the rules governing the NMM Pilot should be made permanent. Through this filing the Exchange seeks to extend the current operation of the NMM Pilot until January 31, 2012, in order to allow the Exchange time to formally submit a filing to the Commission to convert the pilot rules to permanent rules.
The basis under the Securities Exchange Act of 1934 (the “Act”) for this proposed rule change is the requirement under Section 6(b)(5) that an exchange have rules that are designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, to protect investors and the public interest. The Exchange believes that the instant filing is consistent with these principles because the NMM Pilot provides its market participants with a trading venue that utilizes an enhanced market structure to encourage the addition of liquidity, facilitate the trading of larger orders more efficiently and operates to reward aggressive liquidity providers. Moreover, the instant filing requesting an extension of the NMM Pilot will permit adequate time for: (i) The Exchange to prepare and submit a filing to make the rules governing the NMM Pilot permanent; (ii) public notice and comment; and (iii) completion of the 19b–4 approval process.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to extend the operation of its Supplemental Liquidity Providers Pilot (“SLP Pilot” or “Pilot”) (See Rule 107B—NYSE Amex Equities), currently scheduled to expire on August 1, 2011, until the earlier of the Securities and Exchange Commission's (“Commission”) approval to make such Pilot permanent or January 31, 2012. The text of the proposed rule change is available at the Exchange, the Commission's Public Reference Room, and
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to extend the operation of its Supplemental Liquidity Providers Pilot,
In October 2008, the New York Stock Exchange LLC (“NYSE”) implemented significant changes to its market rules, execution technology and the rights and obligations of its market participants all of which were designed to improve execution quality on the NYSE. These changes were all elements of the NYSE's and the Exchange's enhanced market model referred to as the “New Market Model” (“NMM Pilot”).
As part of the NMM Pilot, NYSE eliminated the function of specialists on the Exchange creating a new category of market participant, the Designated Market Maker or “DMM.”
The NYSE adopted NYSE Rule 107B governing SLPs as a six-month pilot program commencing in November 2008. This NYSE pilot has been extended several times, most recently to August 1, 2011.
NYSE Amex Equities established the SLP Pilot to provide incentives for quoting, to enhance competition among the existing group of liquidity providers, including the DMMs, and add new competitive market participants. NYSE Amex Equities Rule 107B is based on NYSE Rule 107B. NYSE Amex Rule 107B was filed with the Commission on December 30, 2009, as a “me too” filing for immediate effectiveness as a pilot program.
The Exchange believes that the SLP Pilot, in coordination with the NMM Pilot and the NYSE SLP Pilot, allows the Exchange to provide its market participants with a trading venue that utilizes an enhanced market structure to encourage the addition of liquidity, facilitate the trading of larger orders more efficiently and operates to reward aggressive liquidity providers. As such, the Exchange believes that the rules governing the SLP Pilot (NYSE Amex Equities Rule 107B) should be made permanent.
Through this filing the Exchange seeks to extend the current operation of the SLP Pilot until January 31, 2012, in order to allow the Exchange to formally submit a filing to the Commission to convert the Pilot rule to a permanent rule. The Exchange is currently preparing a rule filing seeking permission to make the NYSE Amex Equities SLP Pilot permanent, but does not expect that filing to be completed and approved by the Commission before August 1, 2011.
The basis under the Securities Exchange Act of 1934 (the “Act”) for this proposed rule change is the requirement under Section 6(b)(5) that an exchange have rules that are designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, to protect investors and the public interest. The Exchange believes that the instant filing is consistent with these principles because the SLP Pilot provides its market participants with a trading venue that utilizes an enhanced market structure to encourage the addition of liquidity and operates to reward aggressive liquidity providers. Moreover, the instant filing requesting an extension of the SLP Pilot will permit adequate time for: (i) The Exchange to prepare and submit a filing to make the rules governing the SLP Pilot permanent; (ii) public notice and comment; and (iii) completion of the 19b–4 approval process.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange, pursuant to Section 19(b)(1) of the Act
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to amend its Exchange Rules 1079 (FLEX Index, Equity and Currency Options), 1001A (Position Limits), and 1101A (Terms of Options Contracts) to list and trade cash-settled, European-style options, including FLEX
The Russell U.S. Indexes are designed to be a comprehensive representation of the investable U.S. equity market. These indexes are capitalization-weighted and include only common stocks belonging to corporations domiciled in the United States. These indexes are traded on NYSE, NYSE Amex and/or NASDAQ. Stocks are weighted by their “available” market capitalization, which is calculated by multiplying the primary market price by the “available” shares; that is, total shares outstanding less corporate cross-owned shares; shares owned by Employee Stock Ownership Plans (“ESOPs”) and Leveraged Employee Stock Ownership Plans (“LESOPs”) that comprise 10% or more of shares outstanding; shares that are part of unlisted share classes; and shares held by an individual, a group of individuals acting together, or a corporation not in the index that owns 10% or more of the shares outstanding; and shares subject to Initial Public Offering lock-ups.
All equity securities listed on NYSE, NYSE Amex or NASDAQ are considered for inclusion in the Russell U.S. Indexes, with the following exceptions: (1) Stocks trading less than $1.00 per share on average during the month of May; (2) stocks of non-U.S. companies; (3) preferred and convertible preferred stocks; (4) redeemable shares; (5) participating preferred stocks; (6) warrants and rights; (7) trust receipts; (8) royalty trusts; (9) limited liability companies; (10) Bulletin Board and Pink Sheet stocks; (11) closed-end investment companies; (12) limited partnerships; and (13) foreign stocks. All of these stocks are “reported securities” as defined by Rule 11Aa3–1(a)(4) under the Act.
As of May 31, 2010, the stocks comprising the Russell 1000® Index had an average market capitalization of $12.24 billion, ranging from a high of $295.03 billion (Exxon Mobil Corp.) to a low of $0.14 billion (Seahawk Drilling Inc.). The number of available shares outstanding averaged 401.41 million, ranging from a high of 28.98 billion (Citigroup Inc.) to a low of 6.17 million (NVR Inc.). The Russell 1000® Index has a total capitalization of approximately $11.7 trillion as of May 31, 2010.
As of May 31, 2010, the stocks comprising the Russell 1000® Growth Index had an average market capitalization of $13.20 billion, ranging from a high of $295.03 billion (Exxon Mobil Corp.) to a low of $0.14 billion (Seahawk Drilling Inc.). The number of available shares outstanding averaged 355.18 million, ranging from a high of 8.76 billion (Microsoft Corp.) to a low of 6.17 million (NVR Inc.). The Russell 1000® Growth Index has a total capitalization of approximately $8.2 trillion as of May 31, 2010.
As of May 31, 2010, the stocks comprising the Russell 1000® Value Index had an average market capitalization of $11.31 billion, ranging from a high of $295.03 billion (Exxon Mobil Corp.) to a low of $0.14 billion (Seahawk Drilling Inc.). The number of available shares outstanding averaged 429.04 million, ranging from a high of 28.98 billion (Citigroup Inc.) to a low of 6.17 million (NVR Inc.). The Russell 1000® Value Index has a total capitalization of approximately $7.6 trillion as of May 31, 2010.
As of May 31, 2010, the stocks comprising the Russell 2000® Growth Index had an average market capitalization of $623.07 million, ranging from a high of $4.53 billion (Human Genome Sciences Inc.) to a low of $14.57 million (Repros Therapeutics Inc.). The number of available shares outstanding averaged 44.06 million,
As of May 31, 2010, the stocks comprising the Russell 2000® Value Index had an average market capitalization of $579.57 million, ranging from a high of $3.34 billion (UAL Corp.) to a low of $26.15 million (Cardiac Science Corp.). The number of available shares outstanding averaged 46.19 million, ranging from a high of 2.20 billion (E*Trade Financial Corp.) to a low of 1.23 million (Seaboard Corp.). The Russell 2000® Value Index has a total capitalization of approximately $0.8 trillion as of May 31, 2010.
As of May 31, 2010, the stocks comprising the Russell 3000® Index had an average market capitalization of $4.39 billion, ranging from a high of $295.03 billion (Exxon Mobil Corp.) to a low of $14.57 million (Repros Therapeutics Inc.). The number of available shares outstanding averaged 161.73 million, ranging from a high of 28.98 billion (Citigroup Inc.) to a low of 1.23 million (Seaboard Corp.). The Russell 3000® Index has a total capitalization of approximately $12.9 trillion as of May 31, 2010.
As of May 31, 2010, the stocks comprising the Russell 3000® Growth Index had an average market capitalization of $4.77 billion, ranging from a high of $295.03 billion (Exxon Mobil Corp.) to a low of $14.57 million (Repros Therapeutics Inc.). The number of available shares outstanding averaged 146.50 million ranging from a high of 8.76 billion (Microsoft Corp.) to a low of 2.02 million (Atrion Corp.). The Russell 3000® Growth Index has a total capitalization of approximately $9.0 trillion as of May 31, 2010.
As of May 31, 2010, the stocks comprising the Russell 3000® Value Index had an average market capitalization of $4.10 billion, ranging from a high of $295.03 billion (Exxon Mobil Corp.) to a low of $26.15 million (Cardiac Science Corp.). The number of available shares outstanding averaged 171.82 million, ranging from a high of 28.98 billion (Citigroup Inc.) to a low of 1.23 million (Seaboard Corp.). The Russell 3000® Value Index has a total capitalization of approximately $8.4 trillion as of May 31, 2010.
As of May 31, 2010, the stocks comprising the Russell Midcap® Index had an average market capitalization of $4.59 billion, ranging from a high of $18.79 billion (TJX Cos Inc.) to a low of $0.14 billion (Seahawk Drilling Inc.). The number of available shares outstanding averaged 173.74 million, ranging from a high of 1.74 billion (Qwest Communications International) to a low of 6.17 million (NVR Inc.). The Russell Midcap® Index has a total capitalization of approximately $3.5 trillion as of May 31, 2010.
As of May 31, 2010, the stocks comprising the Russell Midcap® Growth Index had an average market capitalization of $4.71 billion, ranging from a high of $18.79 billion (TJX Cos Inc.) to a low of $0.14 billion (Seahawk Drilling Inc.). The number of available shares outstanding averaged 163.59 million, ranging from a high of 1.38 billion (Xerox Corp.) to a low of 6.17 million (NVR Inc.). The Russell Midcap® Growth Index has a total capitalization of approximately $2.3 trillion as of May 31, 2010.
As of May 31, 2010, the stocks comprising the Russell Midcap® Value Index had an average market capitalization of 4.43 billion, ranging from a high of $15.48 billion (Las Vegas Sands Corp.) to a low of $0.14 billion (Seahawk Drilling Inc.). The number of available shares outstanding averaged 187.15 million, ranging from a high of 1.74 billion (Qwest Communications International) to a low of 6.17 million (NVR Inc.). The Russell Midcap® Value Index has a total capitalization of approximately $2.4 trillion as of May 31, 2010.
As of May 31, 2010, the stocks comprising the Russell Top 200® Index had an average market capitalization of $42.92 billion, ranging from a high of $295.03 billion (Exxon Mobil Corp.) to a low of $2.24 billion (AOL Inc.). The number of available shares outstanding averaged 1.31 billion, ranging from a high of 28.98 billion (Citigroup Inc.) to a low of 48.90 million (Liberty Media Corp.—Starz). The Russell Top 200® Index has a total capitalization of approximately $8.2 trillion as of May 31, 2010.
As of May 31, 2010, the stocks comprising the Russell Top 200® Growth Index had an average market capitalization of $44.74 billion, ranging from a high of $295.03 billion (Exxon Mobil Corp.) to a low of $9.11 billion (Boston Scientific Corp.) The number of available shares outstanding averaged 1.07 billion, ranging from a high of 8.76 billion (Microsoft Corp.) to a low of 64.32 million (Blackrock Inc.). The Russell Top 200® Growth Index has a total capitalization of approximately $5.9 trillion as of May 31, 2010.
As of May 31, 2010, the stocks comprising the Russell Top 200® Value Index had an average market capitalization of $41.52 billion, ranging from a high of $295.03 billion (Exxon Mobil Corp.) to a low of $2.24 billion (AOL Inc.). The number of available shares outstanding averaged 1.49 billion, ranging from a high of 28.98 billion (Citigroup Inc.) to a low of 48.90 million (Liberty Media Corp.—Starz). The Russell Top 200® Value Index has a total capitalization of approximately $5.2 trillion as of May 31, 2010.
As of May 31, 2010, the stocks comprising the Russell 2500
As of May 31, 2010, the stocks comprising the Russell 2500
As of May 31, 2010, the stocks comprising the Russell 2500
As of May 31, 2010, the stocks comprising the Russell Small Cap Completeness Index had an average market capitalization of $1.11 billion, ranging from a high of $31.67 billion (Blackrock Inc.) to a low of $14.57 million (Repros Therapeutics Inc.). The number of available shares outstanding averaged 61.07 million, ranging from a high of 1.66 billion (Level 3 Communications Inc.) to a low of 1.23 million (Seaboard Corp.). The Russell Small Cap Completeness Index has a total capitalization of approximately $2.7 trillion as of May 31, 2010.
As of May 31, 2010, the stocks comprising the Russell Small Cap Completeness Growth Index had an average market capitalization of $1.17 billion, ranging from a high of $31.67 billion (Blackrock Inc.) to a low of $14.57 million (Repros Therapeutics Inc.). The number of available shares outstanding averaged 59.29 million, ranging from a high of 1.24 billion (Activision Blizzard Inc.) to a low of 2.02 million (Atrion Corp.). The Russell Small Cap Completeness Growth Index has a total capitalization of approximately $1.8 trillion as of May 31, 2010.
As of May 31, 2010, the stocks comprising the Russell Small Cap Completeness Value Index had an average market capitalization of $1.08 billion, ranging from a high $31.67 billion (Blackrock Inc.) to a low of $26.15 million (Cardiac Science Corp.). The number of available shares outstanding averaged 62.61 million, ranging from a high of 1.66 billion (Level 3 Communications Inc.) to a low of 1.23 million (Seaboard Corp.). The Russell Small Cap Completeness Value Index has a total capitalization of approximately $1.8 trillion as of May 31, 2010.
The value of each Russell Index is currently calculated by Reuters Limited (“Reuters”)
The methodology used to calculate the value of the Russell U.S. Indexes is similar to the methodology used to calculate the value of other well known market-capitalization-weighted indexes. The level of each index reflects the total market value of the component stocks relative to a particular base period and is computed by dividing the total market value of the companies in each index by the respective index divisor. The divisor is adjusted periodically to maintain consistent measurement of the index. Below is a table of base dates and the respective index levels as of May 26, 2011:
Options on the Russell U.S. Indexes would expire on the Saturday following the third Friday of the expiration month (“Expiration Saturday”). Trading in options on the Russell U.S. Indexes would normally cease at 4:15 p.m. Eastern Standard Time (“EST”)
The Russell U.S. Indexes are monitored and maintained by Russell, which is responsible for making all necessary adjustments to the index to reflect component deletions, share changes, stock splits, stock dividends (other than ordinary cash dividends), and stock price adjustments due to restructuring, mergers, or spin-offs involving the underlying components. Some corporate actions, such as stock splits and stock dividends, require simple changes to the available shares outstanding and the stock prices of the underlying components. Other corporate actions, such as share issuances, change the market value of an index and require the use of an index divisor to effect adjustments.
The Russell U.S. Indexes are re-constituted annually on the last Friday in June (unless the last Friday is the 27th or later of the month, in which case the re-constitution occurs on the prior Friday), based on prices and available shares outstanding as of the preceding May 31. New index components are added only as part of the annual re-constitution, after which, should a stock be removed from an index for any reason, it could not be replaced until the next re-constitution except in the case of a spin-off where the new company resulting from the spin-off meets the membership criteria of one of the existing indexes.
The Exchange represents that it would monitor the Russell U.S. Indexes on a quarterly basis, and would not list any additional series for trading and would limit all transactions in such options to closing transactions only for the purpose of maintaining a fair and orderly market and protecting investors if: (i) The number of securities in the Index drops by one-third or more; (ii) 10% or more of the weight of the Index is represented by component securities having a market value of less than $75 million; (iii) less than 80% of the weight of the Index is represented by component securities that are eligible for options trading pursuant to Exchange Rules 1000A
The proposed contract specifications for the options on the Russell U.S. Indexes are based on the contract specifications of similar options currently listed on CBOE, NYSE Amex and ISE.
For options on the Full Value Russell U.S. Indexes, the Exchange proposes to establish an aggregate position limit of 50,000 contracts on the same side of the market, provided that no more than 30,000 of such contracts are in the nearest expiration month series. Full Value Russell Index contracts would be aggregated with Reduced Value Russell Index contracts, where ten Reduced Value Russell Index contracts would equal one Full Value Russell Index contract.
Additionally, Commentary .01 to Exchange Rule 1001A provides that under certain circumstances index options positions may be exempted from established position limits for each contract “hedged” by an equivalent dollar amount of the underlying component securities. Furthermore, Commentary .02 to that same Rule provides that member organizations may receive exemptions of up to two times the applicable position limit where the index options positions are in proprietary accounts used for the purpose of facilitating orders for customers of those member organizations.
The Exchange proposes to set strike price intervals for these index options at $2.50 when the strike price of Full or Reduced Value Options Russell U.S. Indexes is below $200, and at least $5.00 strike price intervals otherwise.
Exchange Rule 1101A provides that after a particular class of stock index options has been approved for listing
The Exchange therefore, proposes to list options on the Full and Reduced Value Russell U.S. Indexes in the three consecutive near-term expiration months, plus up to three successive expiration months in the March cycle. For example, consecutive expirations of June, July and August, plus September, December and March expirations would be listed.
All of the specifications and calculations for options on the Reduced Value Russell U.S. Indexes would be the same as those used for the Full Value Russell U.S. Indexes with position limits adjusted accordingly for the Reduced Value Russell Options. The reduced-value options would trade independently of, and in addition to, the full-value options. Options on all the Russell U.S. Indexes would be subject to the same rules that presently govern all Exchange index options, including sales practice rules, margin requirements, trading rules, and position and exercise limits.
Exchange Rules are designed to protect public customer trading. Specifically, Rule 1024 prohibits members and member organizations from accepting a customer order to purchase or write an option unless such customer's account has been approved in writing by a designated Options Principal of the Member.
The Exchange represents that it has an adequate surveillance program in place for options on the Russell U.S. Indexes and intends to apply those same procedures that it applies to the Exchange's other index options. Additionally, the Exchange is a member of the Intermarket Surveillance Group (“ISG”) under the Intermarket Surveillance Group Agreement, dated June 20, 1994. The members of the ISG include all of the national securities exchanges. These members work together to coordinate surveillance and share information regarding the stock and options markets. In addition, the major futures exchanges are affiliated members of the ISG, which allows for the sharing of surveillance information for potential intermarket trading abuses.
The Exchange also represents that it has the necessary systems capacity to support the new options series that would result from the introduction of options on the Full and Reduced Value Russell U.S. Indexes, including LEAPS on the Full Value Russell U.S. Indexes.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange believes that the Russell U.S. Indexes would provide investors additional trading opportunities. The Exchange believes that listing reduced value options would attract a greater source of customer business than if it listed only full value options on the Full Value Russell U.S. Indexes. The Exchange further believes that listing reduced value options would provide an opportunity for investors to hedge, or speculate on, the market risk associated with the stocks comprising the Russell U.S. Indexes and use this trading vehicle while extending a smaller outlay of capital.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate, it has become effective pursuant to 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The purpose of this proposed rule change is to amend NSCC's rules relating to NSCC's incorporation of its Dividend Settlement Service (“DSS”) and Funds Only Settlement Service (“FOSS”) into the Envelope Settlement Service (“ESS”) and NSCC's discontinuing of its Data Distribution Boxes Service (“DDBS”). The proposed rule change would also make certain changes to ESS processing.
In its filing with the Commission, NSCC included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. NSCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
DSS, FOSS, and ESS operate similarly in that they are non-guaranteed services of NSCC through which NSCC members exchange physical envelopes through a centralized location at NSCC. Pursuant to Rule 43 of NSCC's Rules and Procedures, DSS centralizes claims processing for collection and payment of dividends and interest between NSCC members through the exchange of envelopes through the facilities of NSCC. Pursuant to Rule 41 of NSCC's Rules and Procedures, FOSS centralizes money-only settlements for NSCC members through the exchange of paperwork delivered to and received by NSCC members through NSCC's facilities. Pursuant to Rule 9 and Addendum D of NSCC's Rules and Procedures, ESS allows an NSCC member to physically deliver a sealed envelope containing securities and such other items as NSCC may from time to time permit to a specified NSCC member. The money settlement associated with ESS, DSS, and FOSS transactions occurs through NSCC's end-of-day settlement process.
NSCC has offered DSS since its founding. FOSS was created in 1983 to remove money-only settlement activity, which prior to that time was included in ESS, from ESS in order to facilitate what was then NSCC's guaranty of settlement of securities transactions processed through ESS.
DDBS was traditionally used to distribute hard copy Important Notices, clearing reports, and other informational documents to NSCC members. Today members: (a) receive Important Notices through the Web site of NSCC's parent, The Depository Trust & Clearing Corporation, at
NSCC performs certain regulatory tracking and reporting functions (
Separately, the proposed rule change would also allow for automatic updates to NSCC's Obligation Warehouse service with respect to securities transactions that settle though ESS where the delivering member includes an Obligation Warehouse control number with the respective envelope delivery to ESS. However, this feature will not be implemented concurrently with the other changes proposed by this filing, but rather it would be announced by Important Notice at a later date.
Under the proposed rule change, NSCC's rules would be updated to change references to ESS deliveries and receives occurring through NSCC's New York City facility to use general language allowing NSCC to provide the service through any NSCC facility as announced by Important Notice.
As mentioned above, the rule change proposes to require that members not comingle different issues of securities in the same envelope or with other activity conducted through ESS. Pursuant to the proposed rule changes, NSCC would also be allowed to prohibit comingling between funds-only and dividend settlement items.
With respect to the above, NSCC proposes to make changes to its rules and procedures as follows:
NSCC's Rule 6 presently provides for the establishment of DDBS. Under the proposed rule change, the text of this rule would be deleted to reflect the elimination of DDBS.
Under the proposed rule change, NSCC's Rule 9 (currently entitled “Delivery and Receipt of Securities”), pursuant to which NSCC offers ESS, would be renamed as “Envelope Settlement Service” and would be amended to: (1) Reflect the incorporation of FOSS and DSS into ESS, (2) incorporate the ESS processing changes described above, (3) allow for automatic updates to NSCC's Obligation Warehouse service with respect to securities transactions that settle through ESS where the delivering member includes an Obligation Warehouse Control Number with the respective envelope delivery to ESS, and (4) make other conforming changes to integrate rule provisions relating to FOSS and DSS into Rule 9.
NSCC's Rule 41 provides for the establishment of and procedures for FOSS. Under the proposed rule change, the text of this rule will be deleted to reflect the elimination of FOSS as a separate service.
NSCC's Rule 43 provides for the establishment of and procedures for DSS. Under the proposed rule change, the text of this rule would be deleted to reflect the elimination of DSS as a separate service.
NSCC's Fee Schedule would be revised to delete charges for the discontinued services mentioned above. Under the proposed rule change, all services offered under the newly combined ESS would be subject to the existing ESS charge for deliveries and receives.
Addendum D, a statement of policy with regard to ESS and other NSCC services, provides, among other things, that money-only settlement charges should not be processed through ESS. NSCC proposed to amend Addendum D to conform to the changes proposed above. The proposed revised Addendum D would also include a technical change that clarifies that NSCC may reverse a member's debits or credits that are related to the Commission Bill Service.
Upon Commission approval of this rule filing, the implementation date of the proposed changes described above will be announced by Important Notice; however, the elimination of DDBS will not take effect until approximately (but no less than) 30 days from the date of the Commission's approval.
The proposed rule change is consistent with the requirements of the
NSCC does not believe that the proposed rule change would impose any burden on competition.
Written comments relating to the proposed rule change have not been solicited NSCC.
Within forty-five days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change; or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission by the Division of Trading and Markets, pursuant to delegated authority.
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the following information collection request to the Office of Management and Budget (OMB) for approval in accordance with the Paperwork Reduction Act of 1995.
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Submit comments to the Office of Management and Budget (OMB) for up to 30 days from July 6, 2011.
Direct comments to the Department of State Desk Officer in the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB). You may submit comments by the following methods:
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You may obtain copies of the proposed information collection and supporting documents from Keith Miller, Office of Overseas Schools, U.S. Department of State, Room H–328, 2301 C Street, NW., Washington, DC 20522–0132, who may be reached on 202–261–8200 or at
We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary to properly perform our functions.
• Evaluate the accuracy of our estimate of the burden of the proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond.
The Office of Overseas Schools of the Department of State (A/OPR/OS) is responsible for determining that adequate educational opportunities exist at Foreign Service posts for dependents of U.S. Government personnel stationed abroad and for assisting American-sponsored overseas schools to demonstrate U.S. educational philosophy and practice. The information gathered enables A/OPR/OS to advise the Department and other foreign affairs agencies regarding current and constantly changing conditions, and enables A/OPR/OS to make judgments regarding assistance to schools for the improvement of educational opportunities.
Information is collected via electronic media.
Notice is hereby given that the Department of State proposes to amend an existing system of records, Passport Records, State-26, pursuant to the provisions of the Privacy Act of 1974, as amended (5 U.S.C. 552a) and Office of Management and Budget Circular No. A–130, Appendix I. The Department's report was filed with the Office of Management and Budget on June 15, 2011.
It is proposed that the current system will retain the name “Passport Records.” It is also proposed that the amended system description will include revisions/additions to the following sections: Categories of individuals; Categories of records; Routine uses; Retrievability; Safeguards; System manager and address; Systems exempted from certain provisions of the Act; and other administrative updates. The following sections have been added to the system of records, Passport Records, State-26, to ensure Privacy Act of 1974 compliance: Purpose and Contesting Records Procedures. Any persons interested in commenting on the amended system of records may do so by writing to the Director, Office of Information Programs and Services, A/GIS/IPS, Department of State, SA–2, 515 22nd Street, Washington, DC 20522–8001. This system of records will be effective 40 days from the date of publication, unless we receive comments that will result in a contrary determination.
The amended system description, “Passport Records, State-26,” will read as set forth below.
Passport Records.
Classified and Unclassified.
Department of State; Passport Services; State Annex 17; 1111 19th Street, NW., Washington, DC 20522–1705.
Records are maintained in the Passport Records system about individuals who:
(a) Have applied for the issuance, amendment, extension, or renewal of U.S. passport books and passport cards;
(b) Were issued U.S. passport books or passport cards, or had passports amended, extended, renewed, limited, revoked, or denied;
(c) Have applied to have births overseas reported as births of U.S. citizens overseas;
(d) Were issued a Consular Report of Birth Abroad of U.S. citizens or for whom Certification(s) of Birth have been issued;
(e) Were born and/or died in the former Panama Canal Zone;
(f) Applied at American diplomatic or consular posts for registration and have so registered;
(g) Were issued Cards of Registration and Identity as U.S. citizens;
(h) Were issued Certificates' of Loss of Nationality of the United States by the Department of State;
(i) Applied at American diplomatic or consular posts for issuance of Certificates of Witness to marriage and individuals who have been issued Certificates of Witness to Marriage;
(j) Deceased individuals for whom a Report of Death of an American Citizen Abroad has been obtained;
(k) Although U.S. citizens, are not or may not be entitled under relevant passport laws and regulations to the issuance or possession of U.S. passport books, passport cards, or other documentation nor service(s);
(l) Have previous passport records that must be reviewed before further action can be taken or their passport application or request for other consular services;
(m) Requested their own or another's passport records under FOIA or Privacy Act, whether successfully or not; or
(n) Have corresponded with Passport Services concerning various aspects of the issuance or denial of a specific applicant's U.S. passport books or passport cards.
Passport Services maintains U.S. passport records for passports issued from 1925 to present, as well as vital records related to births abroad, deaths, and witnesses to marriage abroad. The passport records system does not maintain evidence of travel such as entrance/exit stamps, visas, or residence permits, since this information is entered into the passport book after it is issued. The passport records system includes the following categories of records:
(a) Passport books and passport cards, applications for passport books and passport cards, and applications for additional visa pages, amendments, extensions, replacements, and/or renewals of passport books or passport cards (including all information and materials submitted as part of or with all such applications, to the extent retained by the Department);
(b) Applications for registration at American diplomatic and consular posts as U.S. citizens or for issuance of Cards of Identity and Registration as U.S. Citizens;
(c) Consular Reports of Birth Abroad of United States citizens;
(d) Panama Canal Zone birth certificates and death certificates;
(e) Certificates of Witness to Marriage;
(f) Certificates of Loss of United States nationality;
(g) Oaths of Repatriation;
(h) Consular Certificates of Repatriation;
(i) Reports of Death of an American Citizen Abroad;
(j) Cards of Identity and Registration as U.S. citizens;
(k) Lookout files which identify those persons whose applications for a consular or related services required other than routine examination or action;
(l) Lost, Stolen or Revoked passport status; and/or
(m) Miscellaneous materials, which are documents and/or records maintained separately, if not in the application, including but not limited to the following types of documents:
• Investigatory reports compiled in connection with granting or denying passport and related services or prosecuting violations of passport criminal statutes;
• Transcripts and opinions on administrative hearings, appeals and civil actions in Federal courts;
• Legal briefs, memoranda, judicial orders and opinions arising from administrative determinations relating to passports and citizenship;
• Birth and baptismal certificates;
• Copies of state-issued driver's licenses and identity cards;
• Court orders;
• Arrest warrants;
• Medical, personal and financial reports;
• Affidavits;
• Inter-agency and intra-agency memoranda, telegrams, letters and other miscellaneous correspondence;
• An electronic index of all passport applications records created since 1978, and passport applications records created between 1962 and 1978; and/or
• An electronic index of Department of State Reports of Birth of American Citizens abroad.
(a) 8 U.S.C. 1401–1503 (2010) (Acquisition and Loss of U.S. Citizenship or U.S. Nationality; Use of U.S. Passport);
(b) 18 U.S.C. 911, 1001, 1541–1546 (2010) (Crimes and Criminal Procedure);
(c) 22 U.S.C. 211a–218, 2651a, 2705 (2010); Executive Order 11295, August 5, 1966, 31 FR 10603 (Authority of the Secretary of State in granting and issuing U.S. passports); and
(d) 8 U.S.C. 1185 (2010) (Travel Control of Citizens).
The information maintained in the Passport Services records is used to establish the U.S. citizenship and identity of persons for a variety of legal purposes including, but not limited to, the adjudication of passport applications and requests for related services, social security benefits, employment applications, estate settlements, and Federal and state law enforcement and counterterrorism purposes.
The principal users of this information outside the Department of State include the following users:
(a) Department of Homeland Security for border patrol, screening, and security purposes; law enforcement, counterterrorism, and fraud prevention activities; and for verification of passport validity to support employment eligibility and identity corroboration for public and private employment;
(b) Department of Justice, including the Federal Bureau of Investigation, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the U.S. Marshals Services, and other components, for law enforcement, counterterrorism, border security, fraud prevention, and criminal and civil litigation activities;
(c) Internal Revenue Service for the mailing and permanent addresses of specifically identified taxpayers in connection with pending actions to collect taxes accrued, for examinations, and/or other tax-related assessment and collection activities; and an annual transmission of certain data from the applications of those U.S. citizens residing abroad consistent with applicable requirements of 26 U.S.C. Section 6039E;
(d) INTERPOL and other international organizations for law enforcement, counterterrorism, fraud prevention, and criminal activities related to lost and stolen passports;
(e) National Counterterrorism Center to support strategic operational planning and counterterrorism intelligence activities;
(f) Office of Personnel Management (OPM), other Federal agencies, or contracted outside entities to support the investigations OPM, other Federal agencies and contractor personnel conduct for the Federal government in connection with verification of employment eligibility and/or the issuance of a security clearance;
(g) Social Security Administration to support employment-eligibility verification for public and private employers and for support in verification of social security numbers used in processing U.S. passport applications;
(h) Federal law enforcement and intelligence agencies to support their efforts in identifying, verifying identity, and investigating individuals potentially involved in or associated with criminal or terrorist activities and individuals with other ties or connections to terrorism who may pose a threat to the United States;
(i) Federal, state, local, or other agencies having information on an individual's history, nationality, or identity, to the extent necessary to obtain information from these agencies relevant to adjudicating an application for a passport or related service, or where there is reason to believe that an individual has applied for or is in possession of a U.S. passport fraudulently or has violated the law;
(j) Federal, state, local or other agencies for use in legal proceedings as government counsel deems appropriate, in accordance with any understanding reached by the agency with the U.S. Department of State;
(k) Public and private employers seeking to confirm the authenticity of the U.S. passport when it is presented as evidence of identity and eligibility to work in the United States;
(l) Immediate family members when the information is required by an individual of the immediate family;
(m) Private U.S. citizen “wardens” designated by U.S. embassies and consulates to serve, primarily in emergency and evacuation situations, as channels of communication with other U.S. citizens in the local community;
(n) Attorneys representing an individual in administrative or judicial passport proceedings when the individual to whom the information pertains are the client of the attorney making the request;
(o) Members of Congress when the information is requested on behalf of or at the request of the individual to whom the record pertains;
(p) Contractor personnel conducting data entry, scanning, corrections, and modifications on behalf of an entity, and for a purpose, otherwise covered by this notice;
(q) Commercial vendors conducting applicant identity verification against commercial databases upon request of the Department of State;
(r) Foreign governments, to permit such governments to fulfill passport control and immigration duties and their own law enforcement, counterterrorism, and fraud prevention functions, and to support U.S. law enforcement, counterterrorism, and fraud prevention activities; and
(s) Government agencies other than the ones listed above that have statutory or other lawful authority to maintain such information may also receive
The Department of State periodically publishes in the
Hard copy and electronic media.
By individual name, social security number, passport book or passport card number.
All users are given cyber security awareness training which covers the procedures for handling Sensitive but Unclassified information, including personally identifiable information (PII). Annual refresher training is mandatory. In addition, all Foreign Service and Civil Service employees and those Locally Engaged Staff (LES) who handle PII are required to take the FSI distance learning course instructing employees on privacy and security requirements, including the rules of behavior for handling PII and the potential consequences if it is handled improperly. Before being granted access to, Passport Records a user must first be granted access to the Department of State computer system.
Remote access to the Department of State network from non-Department owned systems is authorized only through a Department-approved access program. Remote access to the network is configured with the Office of Management and Budget Memorandum M–07–16 security requirements, which include but are not limited to two-factor authentication and time out function.
All Department of State employees and contractors with authorized access have undergone a thorough background security investigation. Access to the Department of State, its annexes and posts abroad is controlled by security guards and admission is limited to those individuals possessing a valid identification card or individuals under proper escort. All paper records containing personal information are maintained in secured file cabinets in restricted areas, access to which is limited to authorized personnel. Access to computerized files is password-protected and under the direct supervision of the system manager. The system manager has the capability of printing audit trails of access from the computer media, thereby permitting regular and ad hoc monitoring of computer usage.
When it is determined that a user no longer needs access, the user account is disabled.
Retention of these records varies depending upon the specific record involved. They are retired or destroyed in accordance with published record schedules of the Department of State and as approved by the National Archives and Records Administration. More specific information may be obtained by writing to the Director; Office of Information Programs and Services; A/GIS/IPS; SA–2; Department of State; 515 22nd Street, NW., Washington, DC 20522–8100.
Deputy Assistant Secretary of State for Passport Services; Room 6811; Department of State; 2201 C Street, NW., Washington DC 20520–4818.
An individual seeking to determine whether Passport Services maintains records must submit a signed and notarized written request including all pertinent facts associated with the occasion or justification for the request, along with a copy of the requester's valid photo identification. Only the subject, a parent of a minor, or legal guardian may request notification of whether the system of records contains a record pertaining to the subject. The following information must be included in the request:
(a) General Background Information
• Date of request
• Purpose/justification for request
• Document requested
• Number of documents requested
• Current mailing address, daytime telephone number, and e-mail address
• Each parent's name
• Each parent's date and place (state/country) of birth
(b) Previous Passport Information (If Known)
• Date of issuance
• Passport number
• Date of inclusion (passport issued in another name but included you)
(c) Current Passport Information
• Name of bearer
• Date of issuance
• Passport number (if known)
A request to search Passport Records, State-26, will be treated also as a request to search Overseas Citizens Services Records, State-05, when it pertains to passport, registration, citizenship, birth, or death records transferred from State-05 to State-26. Requests should be mailed to the following address: Department of State; Passport Services; Office of Law Enforcement Liaison Division; Room 500; 1111 19th Street NW., Washington, DC 20523–1705. Responses to such requests will consist of a letter indicating the records that exist in the passport records system. Additional information regarding applicable fees, third-party requests, certified copies, and frequently asked questions is available at
Individuals who wish to gain access to or amend records pertaining to themselves or their minor children should write to the appropriate address listed below. There are several ways individuals may gain access to or amend passport records pertaining to themselves or their minor children. First, individuals may request access to records in their name and the records of any minor children under the Privacy Act of 1974, 5 U.S.C. 552a (2010). Alternatively, third parties may request access to records under the guidelines of the Freedom of Information Act, 5 U.S.C. 552 (2010). Additionally, individuals may request access to their passport and/or vital records through the applicable Passport Office request process, as described below. Access may be granted to third parties to the extent provided under applicable laws and regulations. Please refer to
Under the Privacy Act of 1974, individuals have the right to request access to their records at no charge, and to request that the Department of State amend any such records that they believe are not accurate, relevant, timely or complete, 5 U.S.C. 552a(d)(2) (2010). Additionally, third parties may request passport and vital records information from 1925 to the present, within the guidelines of the Privacy Act and/or the Freedom of Information Act, 5 U.S.C. 552 (2010). Written requests for access to or amendment of records must comply with the Department's
In accordance with 22 CFR 171.32 and 171.33, amendment requests must include the following information:
(a) Verification of personal identity (including full name, current address, and date and place of birth), either notarized or submitted under penalty of perjury;
(b) Any additional information if it would be needed to locate the record at issue;
(c) A description of the specific correction requested;
(d) An explanation of why the existing record is not accurate, relevant, timely or complete; and
(e) Any available documents, arguments or other data to support the request.
Requests under the Privacy Act and/or the Freedom of Information Act must be made in writing to the following office: Director; Office of Information Programs and Services; U.S. Department of State; SA–2; Room 8100; 515 22nd Street, NW., Washington, DC 20522–8100.
An individual seeking Passport Records must submit a signed and notarized written request including all pertinent facts associated with the occasion or justification for request, along with a copy of the requester's valid photo identification. Only the subject, a parent (if the subject is a minor), legal representative, or law enforcement authority may request for notification of whether the system of records contains a record pertaining to the subject. The following information must be included in the request:
• Date of request
• Purpose/Justification for request
• Document requested
• Number of documents requested
• Current mailing address, daytime telephone number, and e-mail address
• Each parent's name
• Each parent's date and place (state/country) of birth
• Date of issuance
• Passport number
• Date of inclusion (passport issued in another name but included you)
• Name of bearer
• Date of issuance
• Passport number (if known)
All requests for passport records issued from 1925 to the present should be submitted to the following address: Department of State; Passport Services; Law Enforcement Liaison Division; Room 500; 1111 19th Street, NW., Washington, DC 20522–1705.
The National Archives and Records Administration maintains records for passport issuances prior to 1925, which may be requested by writing to the following address: National Archives and Records Administration; Archives 1; Reference Branch; 8th & Pennsylvania Ave., NW., Washington, DC 20408–0002.
An individual seeking Passport Records must submit a signed and notarized written request including all pertinent facts associated with the occasion or justification for request, along with a copy of the requester's valid photo identification. Only the subject, a parent of a minor, or legal representative may request for notification of whether the system of records contains a record pertaining to him/her. The following information must be included in the request:
• Date of request
• Purpose of request
• Document Requested (Certificate of Birth, Report of Death, Certificate of Witness of Marriage (prior to 1985), PCZ birth or death certificate, or Certification of No Record).
• Number of documents requested
• Current mailing address and daytime telephone number
• Name (at birth/death/marriage)
• Name after adoption (if applicable)
• Country of birth/death/marriage
• Each parent's full name and date and place (state/country) of birth
• Passport used to first enter the United States (if applicable).
• Name of bearer
• Date of issuance
• Passport number
• Date of inclusion (if applicable, and if passport was not issued to the subject)
• Name of bearer
• Date of issuance
• Passport number (if known)
If requesting an amendment or correction to a Consular Report of Birth Aboard, please include certified copies of all documents appropriate for effecting the change (
All requests for vital records through the Passport Office Request Process should be mailed to the following address: U.S. Department of State; Passport Services; Vital Records Section; 1111 19th Street, NW., Suite 510, Washington, DC 20522–1705.
See above.
These records contain information obtained primarily from the individual who is the subject of these records; law enforcement agencies; investigative intelligence sources, investigative security sources and officials of foreign governments.
Certain records contained within this system of records may be exempt from the requirements of the Privacy Act for reasons including when it is necessary to:
(a) Protect material required to be kept secret in the interest of national defense and security and foreign policy;
(b) Prevent individuals who are the subject of investigation from frustrating the investigatory process, to ensure the proper functioning and integrity of law enforcement activities, to prevent disclosure of investigative techniques, to maintain the confidence of foreign governments in the integrity of the procedures under which privileged or confidential information may be provided, and to fulfill commitments made to sources to protect their identities and the confidentiality of information and to avoid endangering these sources and law enforcement personnel; or
(c) Preclude impairment of the Department's effective performance in carrying out its lawful protective responsibilities under 18 U.S.C. 3056 and 22 U.S.C. 4802.
Records meeting any of the above criteria are exempt from the following subsections of 5 U.S.C. 552a(c)(3), (d),
Pursuant to Section 7086(c)(2) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2010 (Division F, Pub. L.111–117), as carried forward by the Full-Year Continuing Appropriations Act, 2011 (Div. B, Pub. L. 112–10) (“the Act”), and Department of State Delegation of Authority Number 245–1, I hereby determine that it is important to the national interest of the United States to waive the requirements of Section 7086(c)(1) of the Act with respect to Uzbekistan and I hereby waive such restriction.
This determination shall be reported to the Congress, and published in the
Tennessee Valley Authority.
Issuance of Record of Decision.
This notice is provided in accordance with the Council on Environmental Quality's regulations (40 CFR parts 1500 to 1508) and TVA's procedures for implementing the National Environmental Policy Act (NEPA). TVA has decided to adopt the preferred alternative in its final environmental impact statement (EIS) for the Integrated Resource Plan (IRP). The notice of availability (NOA) of the
Charles P. Nicholson, NEPA Compliance Manager, Tennessee Valley Authority, 400 West Summit Hill Drive, WT 11D, Knoxville, Tennessee 37902–1499; telephone 865–632–3582, or e-mail
TVA is an agency and instrumentality of the United States, established by an act of Congress in 1933, to foster the social and economic welfare of the people of the Tennessee Valley region and to promote the proper use and conservation of the region's natural resources. One component of this mission is the generation, transmission, and sale of reliable and affordable electric energy. TVA operates the nation's largest public power system, producing 4 percent of all the electricity in the nation. TVA provides electricity to about 9 million people in an 80,000-square mile area comprised of most of Tennessee and parts of Virginia, North Carolina, Georgia, Alabama, Mississippi, and Kentucky. It provides wholesale power to 155 independent power distributors and 56 directly served large industrial and Federal customers. The TVA Act requires the TVA power system to be self-supporting and operating on a non-profit basis and directs TVA to sell power at rates as low as are feasible.
Dependable generating capacity on the TVA power system is about 37,200 megawatts (MW). TVA generates most of this power with 3 nuclear plants, 11 coal-fired plants, 9 combustion-turbine plants, 3 combined cycle plants, 29 hydroelectric plants, a pumped-storage facility, and several small renewable facilities. A portion of delivered power is provided through long-term power purchase agreements. TVA has generated an annual average of about 153,100 gigawatt hours (GWh) of power in recent years. The major sources for this power were coal (52 percent), nuclear (28 percent), hydroelectric (6 percent), and natural gas (1 percent). Other sources comprised less than 1 percent of TVA generation.
The recently completed IRP updates TVA's 1995 IRP, entitled
TVA uses state-of-the-art energy forecasting models to predict future demands on its system. Because of the uncertainty in predicting future demands, TVA developed high, medium, and low forecasts for both peak load (in MW) and annual net system energy (in GWh) through 2029. Peak load is predicted to grow at an average annual rate of 1.3 percent in the medium-growth Spring 2010 Reference Case, decrease slightly and then remain flat under the low-growth forecast, and grow at an annual rate of 2.0 percent under the high-growth forecast. Net system energy is predicted to grow at an average annual rate of 1.1 percent in the medium-growth case, decrease slightly and then remain flat under the low-growth forecast, and grow at an annual rate of 1.9 percent under the high-growth forecast.
Based on these load growth forecasts, TVA's current firm capacity (including TVA generation, energy efficiency and demand response (EEDR) measures, and power purchase agreements), and a 15 percent reserve capacity requirement, TVA would need additional capacity and generation or EEDR in the future. The medium growth case need for additional generating capacity or EEDR programs is about 9,600 MWs and 29,100 GWhs of generation in 2019 and about 15,500 MWs and 45,000 GWhs in 2029. Corresponding needs for the high growth forecast are about 15,000 MWs and 63,000 GWhs in 2019 and 27,000 MWs and 98,000 GWhs in 2020. Corresponding needs for the low growth forecast are about 1,500 MWs in 2019 and 2,000 MWs in 2029; no additional generation would be required.
Five alternative energy resource strategies were evaluated in the Draft EIS and IRP. These resource planning strategies were identified as potential alternative means to meet future electrical energy needs on the TVA system (load demand) and achieve a sustainable future, consistent with the Board's vision and the TVA Environmental Policy. These alternative strategies are:
The strategies were analyzed in the context of eight different scenarios. A scenario is a set of uncertainties relevant to power system planning and describes plausible future economic, financial, regulatory and legislative conditions, as well as social trends and adoption of technological innovations. One of the eight scenarios served as the IRP reference or baseline case. Potential 20-year energy resource plans or portfolios were developed for each combination of strategy and scenario using a capacity planning model. The capacity planning model built each portfolio from a range of potential energy resource options that included TVA's existing demand-side and supply-side resources and new EEDR programs, coal-fired generation with carbon capture and sequestration, natural gas-fired generation, nuclear generation, renewable generation such as hydroelectric, solar, biomass, and wind energy, and energy storage resources. Each portfolio was optimized for the lowest net Present Value of Revenue Requirements while meeting energy balance, reserve, operational, and other requirements. The portfolios were then evaluated using an hourly production costing program to determine detailed revenue requirements and short-term rates. Additional metrics developed to rank the portfolios included financial risk, carbon dioxide emissions, thermal cooling requirements, waste handling costs, and changes in total employment and personal income.
The two alternative strategies ranked highest for the cost and risk factors were Strategy C and Strategy E. Strategy B ranked in the middle of the range and Strategy D and Strategy A ranked lowest. Strategies D and E had the best (
Based on this comparison two alternative strategies, Strategy A—Limited Change Resource Portfolio and Strategy D—Nuclear Focused Resource Portfolio were eliminated from further consideration. An additional alternative strategy was later developed from a blend of features from the initial strategies in response to public comments on the Draft IRP and EIS and additional analyses.
• EEDR—3,600 to 5,100 MW (11,400 to 14,400 GWh) by 2020, with subsequent further investment depending upon program success;
• Renewable additions—1,500 to 2,500 MW of cost effective energy by 2020;
• Coal-fired capacity idled—2,400 to 4,700 MW of maximum net dependable capacity by 2017, with consideration for increasing the amount of coal capacity idled;
• Energy storage—850 MW of pumped storage capacity in 2020–2024;
• Nuclear additions—1,150 to 5,900 MW in 2013–2029;
• Coal additions—0 to 900 MW with carbon capture ability in 2025—2029;
• Natural gas additions—900 to 9,300 MW in 2012–2029 used as intermediate supply source.
This planning strategy is a blend of Strategies C and E which performed well financially, environmentally, and in terms of risk and was identified as the preferred alternative in the Final EIS.
TVA published a notice of intent to prepare the IRP EIS in the
The Notice of Availability of the Draft IRP and EIS was published in the
Alternative Strategy E—EEDR and Renewables Focused Resource Portfolio would result in the lowest overall environmental impacts and is the environmentally preferred alternative. Strategy R—Recommended Planning Direction had the second lowest level of impacts to most environmental resource areas. The difference in impacts between Strategy E and Strategy R would be reduced if the amount of coal generating capacity that is idled as Strategy R is implemented approaches or exceeds the upper end of the 2,400 to 4,700 MW range.
On April 14, 2011, the TVA Board of Directors accepted the IRP and authorized staff to implement the preferred alternative, the Recommended Planning Direction. The Board also directed staff to repeat the integrated resource planning process beginning no later than 2015.
Compared to the best-performing of the initially considered alternative strategies, Strategy C—Diversity Focused Resource Portfolio, and Strategy E—EEDR and Renewables Focused Resource Portfolio, the recommend planning direction typically performed best under the various scenarios on total plan cost and risk/benefit comparisons and performed similarly to these other strategies with respect to general economic conditions in the Tennessee Valley region represented by total employment and personal income. However, it performed slightly worse than Strategy E, but better than Strategy C, with respect to environmental impacts.
The reduction of environmental impacts was a major goal in TVA's integrated resource planning process. As TVA deploys specific energy resources, it will appropriately review and take measures to reduce their potential environmental impacts. TVA's siting processes for generation and transmission facilities, as well as processes for modifying these facilities, are designed to avoid and/or minimize potential adverse environmental impacts. Potential impacts will also be reduced through pollution prevention measures and environmental controls such as air pollution control systems, wastewater treatment systems, and thermal generating plant cooling systems. Other potentially adverse unavoidable impacts will be mitigated by measures such as compensatory wetlands mitigation, payments to in-lieu stream mitigation programs and related conservation initiatives, enhanced management of other properties, documentation and recovery of cultural resources, and infrastructure improvement assistance to local communities.
Surface Transportation Board, DOT.
Notice of Exemption.
Under 49 U.S.C. 10502, the Board is granting a petition for exemption from the prior approval requirements of 49 U.S.C. 11323–25, for CSX Transportation, Inc. (CSXT), to lease from Consolidated Rail Corporation (Conrail) approximately 1,303 feet of rail line (the Line) in the South Jersey/Philadelphia Shared Assets Area between mileposts 5.20 and 5.45 in Philadelphia, PA. Under the lease, CSXT proposes to construct an additional connection between its Trenton Subdivision Line (Trenton Line) and the Line. The new connection would facilitate operations on the Trenton Line and an Amtrak-owned, Conrail-operated line (the Delair Branch).
Petitioner has asked for expedited consideration of the petition; consequently, the exemption will be effective on July 16, 2011. Petitions to stay must be filed by July 11, 2011.
An original and 10 copies of all pleadings, referring to Docket No. FD 35495, must be filed with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423–0001. In addition, one copy of all pleadings must be served on petitioner's representative: Louis E. Gitomer, 600 Baltimore Ave., Suite 301, Towson, MD 21204.
Joseph H. Dettmar, (202) 245–0395. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1–800–877–8339.]
The Board granted the petition by decision served on July 6, 2011, subject to standard employee protective conditions.
Board decisions and notices are available on our Web site at:
By the Board, Chairman Elliott, Vice Chairman Begeman, and Commissioner Mulvey.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 8823, Low-Income Housing Credit Agencies Report of Noncompliance or Building Disposition.
Written comments should be received on or before September 6, 2011 to be assured of consideration.
Direct all written comments to, Yvette B. Lawrence, Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to, Joel Goldberger (202) 927–9368, or at Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224,
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 3491, Consumer Cooperative Exemption Application.
Written comments should be received on or before September 6, 2011 to be assured of consideration.
Direct all written comments to Yvette B. Lawrence, Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Evelyn J. Mack, (202) 622–7381, Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 1120–PC, U.S. Property and Casualty Insurance Company Income Tax Return.
Written comments should be received on or before September 6, 2011 to be assured of consideration.
Direct all written comments to Yvette B. Lawrence, Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Evelyn J. Mack, at (202) 622–7381, or at Internal Revenue Service, room 6231, 1111 Constitution, Avenue, NW., Washington, DC 20224, or through the Internet, at
On Form 1120–PC (Schedule M–3) two lines were added to monitor IRC sections 174 and 118, respectively, at the request of LMSB.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Office of Thrift Supervision (OTS), Treasury.
Notice of Termination of OMB No. 1550–0021, Monthly Median Cost of Funds Reporting, and Publication of Cost of Funds Indices.
The OTS is terminating the collection of data used to calculate and publish the Monthly Median Cost of Funds Index (MMCOF), the Quarterly Cost of Funds Index (QCOF), the Semiannual Cost of Funds Index (SCOF), and other related cost of funds ratios currently published monthly in the OTS's Cost of Funds (COF) Report.
For further information about the changes discussed in this notice, please contact Jim Caton, Managing Director—Economic and Industry Analysis, at (202) 906–5680.
Copies of the reporting form, OMB No. 1550–0021 (OTS Form 1568), and instructions for cost of funds reporting requirements are available on the OTS Web site through the following link:
Some institutions currently submit MMCOF data to the OTS monthly for the OTS's use in calculating a monthly median cost of funds index. Additionally, the OTS publishes two indices based on calculations from data included in the Thrift Financial Report (TFR):
1. A quarterly average cost of funds index, and
2. A semiannual average cost of funds index.
These indices are used by certain mortgage lenders as benchmarks from which to base rate adjustments for adjustable rate mortgages (ARMs).
The Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111–203 (the Dodd-Frank Act), was enacted into law on July 21, 2010. Title III of the Dodd-Frank Act abolishes the OTS, provides for its integration with the Office of the Comptroller of the Currency (OCC) effective as of July 21, 2011 (the “transfer date”), and transfers the OTS's functions to the OCC, the Board of Governors of the Federal Reserve System (Board), and the Federal Deposit Insurance Corporation (FDIC).
Under Title III of the Dodd-Frank Act, all functions of the OTS relating to Federal savings associations and rulemaking authority for all savings associations are transferred to the OCC. All functions of the OTS relating to state-chartered savings associations (other than rulemaking) are transferred
On February 8, 2011, the OTS requested public comment (76 FR 7089)
The OTS received two comments regarding its notice of intent. One comment was from a bank/thrift trade association and the other comment was from a savings association. The bank/thrift trade association did not object to the proposed changes becoming effective as of January 31, 2012, but requested that “OTS provide guidance regarding converting ARM loans to an alternative index.” In particular, the bank/thrift trade association requested that the guidance “recognize situations where loan contracts might address circumstances where use of an alternative index may be necessary, as well as certain legacy ARM contracts that we understand may be silent or non-specific regarding such circumstances.”
The other comment was from a savings association. The commenter noted that there are “numerous adjustable interest rate home loans including loans sold to the Federal National Mortgage Association (FNMA or Fannie Mae) and to the Federal Home Loan Mortgage Corporation (FHLMC or Freddie Mac) that use these indices.” The commenter expressed concern for the difficulty of consumers agreeing “on a substitution of indices as the cost of fund indices are generally considered to be a “lagging index” and stated it would be hard to replace that feature to the satisfaction of the consumer.
The Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Public Law 101–73 (FIRREA), was enacted into law on August 9, 1989. Section 402(e)(4) of FIRREA requires the OTS to designate acceptable substitute indices should it discontinue publication of indices used for ARM rate adjustments. The Director of OTS must determine, after notice and opportunity for comment, that (A) the new indices are based upon data substantially similar to that of the original indices; and (B) the substitution of the new indices will result in an interest rate substantially similar to the rate in effect at the time the original index became unavailable. Any such substitute index may be substituted by the holder of any such adjustable rate mortgage instrument upon notice to the borrower.
As described in the February 8, 2011 notice, the OTS analyzed the values and changes of 17 publicly available indices on a monthly basis from January 1990 through August 2010 to help designate acceptable substitute indices for the MMCOF, QCOF, and SCOF indices. The OTS compared the values and changes of the publicly available indices to those of the MMCOF, QCOF, and SCOF. Correlation coefficients
The bank/thrift trade association noted that each of the indices identified have adequately high correlation with the OTS's COF indices and did not express a particular preference for one substitute over the others. The bank/thrift trade association's members consider the Monthly Treasury Average (MTA) index to be less suitable as a direct substitute because of recent changes in interest rate relationships resulting from monetary policy actions. The OTS agrees.
The OTS also finds that the MTA is less of a lagging market index (LMI) than the 11th District COF or the Federal COF indices. Similarly, the National Average Contract Mortgage Rate index is less of an LMI than either of these COF indices.
The bank/thrift trade association commented that the 11th District COF index has the strongest correlation to the OTS COF indices, but is not as well known outside the 11th Federal Home Loan Bank District as some other substitute indices that OTS analyzed. The OTS agrees with this comment. Further, the OTS notes that only Arizona, California, and Nevada savings associations that are members of the Federal Home Loan Bank of San Francisco are eligible to be considered for inclusion in this COF index. Thus, a limited number of savings associations in a limited geographic area participate in providing data for this index. Given that this is a weighted average index with a limited number of participating institutions, the resulting values can be skewed by a few very large institutions.
The bank/thrift trade association noted that the Federal COF index is well known and highly correlated to the OTS's MMCOF, QCOF, and SCOF indices, but the future of the Federal COF index may depend on the outcome of reform of government-sponsored enterprises (GSEs), including Freddie Mac. The OTS believes that any reform of the GSEs would by necessity provide for either a continuation of the Federal COF or an acceptable substitute index to the Federal COF similar to FIRREA's provision for substitutes for the OTS's COF indices.
The savings association commenter mentioned there may be a large volume of loans using the OTS COF indices that have been sold to FNMA and FHLMC. As described in the February 8, 2011 notice, the OTS analyzed the trends in savings associations' ARMs tied to LMIs and found the volumes of these ARMs declined precipitously over the past ten years to currently very low levels. Moreover, the OTS analyzed the usage and trends of various indices used to base rate adjustments for ARMs held by, or serviced by, lenders of all types throughout the United States from 1999 through 2010. This analysis, based on lenders of all types, confirmed the analysis based on savings association-specific data. For example, based on data analyzed from the CoreLogic/LoanPerformance Servicing Database,
The savings association commenter also expressed concern about the difficulty of obtaining borrowers' consent to substitute indices proposed
Given the Federal COF index's close correlation with the indices to be terminated, and pursuant to the requirements of FIRREA, the OTS is designating the Federal COF index
In summary, after considering the comments received on the notice of intent, the OTS will terminate the collection of data used to calculate and publish the MMCOF, the QCOF, the SCOF, and other related cost of funds ratios currently published monthly in the OTS's COF Report. Savings associations shall cease filing the MMCOF data after the December 31, 2011, report date. Until the effective date of these changes, savings associations shall continue to file MMCOF data in the current manner using existing processes.
The holder of any adjustable rate mortgage instrument whose interest rate is adjusted based on the discontinued MMCOF, QCOF, and SCOF indices shall provide notice as soon as possible after publication of this termination notice to each affected borrower of the termination of such index.
Holders of MMCOF adjustable rate mortgage instruments shall begin using the Federal COF index for the index rate at adjustment determination dates beginning after December 31, 2011. Holders of QCOF adjustable rate mortgage instruments shall begin using an index rate calculated as the average of the three monthly Federal COF index values that were published immediately previous to adjustment determination dates beginning after December 31, 2011. Holders of SCOF adjustable rate mortgage instruments shall begin using an index rate calculated as the average of the six monthly Federal COF index values that were published immediately previous to adjustment determination dates beginning after December 31, 2011.
Environmental Protection Agency (EPA) and National Highway Traffic Safety Administration (NHTSA), DOT.
Final rule.
The Environmental Protection Agency (EPA) and the National Highway Traffic Safety Administration (NHTSA) are issuing a joint final rule establishing new requirements for the fuel economy and environment label that will be posted on the window sticker of all new automobiles sold in the U.S. The labeling requirements apply for model year 2013 and later vehicles with a voluntary manufacturer option for model year 2012. The labeling requirements apply to passenger cars, light-duty trucks, and medium duty passenger vehicles such as larger sport-utility vehicles and vans. The redesigned label provides expanded information to American consumers about new vehicle fuel economy and fuel consumption, greenhouse gas and smog-forming emissions, and projected fuel costs and savings, and also includes a smartphone interactive code that permits direct access to additional Web resources. Specific label designs are provided for gasoline, diesel, ethanol flexible fuel, compressed natural gas, electric, plug-in hybrid electric, and hydrogen fuel cell vehicles. This rulemaking is in response to provisions in the Energy Independence and Security Act of 2007 that imposed several new labeling requirements and new advanced-technology vehicles entering the market. NHTSA and EPA believe that these changes will help consumers to make more informed vehicle purchase decisions, particularly as the future automotive marketplace provides more diverse vehicle technologies from which consumers may choose. These new label requirements do not affect the methodologies that EPA uses to generate consumer fuel economy estimates, or the automaker compliance values for NHTSA's corporate average fuel economy and EPA's greenhouse gas emissions standards. This action also finalizes a number of technical corrections to EPA's light-duty greenhouse gas emission standards program.
This final rule is effective on September 6, 2011. The incorporation by reference of certain publications listed in this regulation is approved by the Director of the Federal Register as of September 6, 2011.
EPA and NHTSA have established dockets for this action under Docket ID No. EPA–HQ–OAR–2009–0865 and NHTSA–2010–0087, respectively. All documents in the docket are listed on the
This action affects companies that manufacture or sell new light-duty vehicles, light-duty trucks, and medium-duty passenger vehicles, as defined under EPA's CAA regulations,
This list is not intended to be exhaustive, but rather provides guidance on entities likely to be regulated by this action. To determine whether particular activities may be regulated by this action, you should carefully examine the regulations. You may direct questions regarding the applicability of this action to the person listed in
EPA and NHTSA co-proposed two label designs, each meeting statutory requirements and relying on the same underlying data, but differing in how the data were presented.
This final rule requires that a revised fuel economy and environmental label be affixed to all new automobiles sold in the U.S. starting with the 2013 model year and optionally for the remaining portion of the 2012 model year. The agencies heard a wide range of viewpoints and considered a wealth of input from market research, an expert panel, hearings, and public comments in deciding on the final label design and content. We also consulted with ARB with the intention of harmonizing labels that address vehicle environmental performance. The agencies have chosen to require a label that combines the cost-saving element of Label 1 and the GHG rating of Label 3 with key elements of the co-proposed Label 2, using a single additional color besides black and white.
Labels are being required for seven different vehicle technologies: Gasoline, diesel, ethanol flexible fuel vehicles (FFV), compressed natural gas vehicles (CNG), battery electric vehicles (EV), fuel cell vehicles (FCV), and plug-in hybrid electric vehicles (PHEV). The final fuel economy and environment labels retain many of the attributes of the existing fuel economy label; specifically: Estimated annual fuel cost; city, highway, and combined MPG; and fuel economy relative to other vehicles in the same class will remain on the label, although their relative prominence is revised to create space for new features. Vehicles run on liquid fuels will display MPG, while vehicles run on other fuel types will display gasoline-energy equivalent MPG (or MPGe). Test procedures and methodologies for determining label values remain unchanged from proposal. This rulemaking action also requires fuel economy and emissions certification test procedure and calculation methodologies for electric and plug-in hybrid electric vehicles, essentially codifying the procedures that have been in use under EPA's general authority to develop procedures for technologies not specifically discussed in the regulations.
New label features include a vehicle fuel type identifier in the upper right corner, fuel consumption (the inverse of fuel economy), a fuel economy and greenhouse gas rating relative to all new vehicles, the vehicle's carbon dioxide emissions in grams per mile, the projected five-year fuel costs or savings of this vehicle compared to the average new vehicle, and an environmental rating for smog-forming pollutants. The vehicle's projected range when fully fueled will be required on dedicated alternative fuel vehicles such as compressed natural gas vehicles and battery electric vehicles, and also plug-in hybrid electric vehicles, and can be included at the manufacturer's discretion on flexible fuel vehicles, such as those that are E85-capable. This optional inclusion could potentially eliminate the need for manufacturers to apply a separate FTC-required Alternative Fuel Label, pending a formal decision by FTC. For vehicles that use an external electricity source, charge time at 220–240 V (or optionally at 120 V) will also be shown. Several features of the design of the label differ from the current labels, such as the removal of the large image of a fuel pump, the blocking of the label into various defined areas, and the name on the label, as well as other design changes.
Plug-in hybrid electric vehicle labels will reflect energy use during operation when the battery is fully charged (in this mode, some PHEVs operate on electricity only and others operate on both electricity and gasoline) and when the battery is not providing any assistance (the PHEV operates exclusively on gasoline or other non-electricity fuel). As with labels for other technologies, PHEV labels will feature a prominent MPG or MPGe metric, as well as fuel consumption values based on units of purchased fuel; for PHEV labels, these values will be presented for each operating mode. Several values on the label—fuel costs and savings, MPGe relative to other vehicles, carbon dioxide emissions in grams per mile, and the ratings—will be based on assumptions of the relative use of the two fuels, using a standard utility factor approach. For further information on utility factors, please see section III.N. PHEVs which do not operate in blended mode (
The final label for gasoline-fueled vehicles is illustrated in Figure I–1. Discussion of the placement of specific label elements, along with illustrations of the labels for other vehicle technologies and fuel types, can be found in Section IV, along with information on where to find and view full color versions of the labels.
This joint final rule by EPA and NHTSA represents the most significant overhaul of the Federal government's fuel economy label or “sticker” since its inception over 30 years ago.
The current fuel economy label required by EPA on all new passenger cars, light-duty trucks, and medium-duty passenger vehicles focuses on city and highway fuel economy values in units of MPG, a comparison of the vehicle's combined city/highway fuel economy to a range of comparable vehicles, and estimated annual fuel cost. This final rule expands the current fuel economy label to a more comprehensive fuel economy and environment label that includes additional information related to vehicle fuel consumption, GHG and smog-forming emissions, and fuel costs or savings over a 5-year period relative to the average vehicle, a smartphone interactive code that links to a Web site for more detailed information and options for direct vehicle comparisons, and additional information for advanced technology vehicles such as driving range and battery charge time. Label designs for gasoline, diesel, ethanol flexible fuel, compressed natural gas, electric, plug-in hybrid electric, and hydrogen fuel cell vehicles are shown and discussed in section IV.
NHTSA and EPA are undertaking this joint final rule for several reasons.
First, both agencies have statutory responsibilities with respect to vehicle labels. This final rule satisfies each agency's statutory responsibilities in a manner that maximizes usefulness for the consumer, while avoiding unnecessary burden on the manufacturers who prepare the vehicle labels. The Energy Policy and Conservation Act (EPCA) of 1975
(1) The fuel economy of the automobile;
(2) the estimated annual fuel cost of operating the automobile;
(3) the range of fuel economy of comparable vehicles of all manufacturers;
(4) a statement that a booklet is available from the dealer to assist in making a comparison of fuel economy of other automobiles manufactured by all manufacturers in that model year;
(5) the amount of the automobile fuel efficiency tax (“gas guzzler tax”) imposed on the sale of the automobile under section 4064 of the Internal Revenue Code of 1986 (26 U.S.C. 4064); and
(6) other information required or authorized by the EPA Administrator that is related to the information required by (1) through (4) above.
In the Energy Independence and Security Act (EISA) of 2007,
Second, NHTSA and EPA believe that a single, coordinated fuel economy and environment label is the most appropriate way to meet the statutory requirements described above. The agencies believe that a single, joint label is preferable to a separate label addressing the new EISA requirements that could contain duplicative and overlapping information with the current fuel economy label, causing consumer confusion and imposing unnecessary burden on the manufacturers.
Third, the agencies believe this is an opportune time to revise the label given the likelihood of a much more diverse vehicle technology marketplace in the near future that will require different label content to inform consumers of the capabilities of these new technologies. Since the fuel economy label was first established by EPA in 1977, over 99 percent of all new cars and light-duty trucks have been conventional, internal-combustion engine vehicles that run on petroleum-based fuels (or a liquid fuel blend dominated by petroleum). When manufacturers occasionally marketed a non-conventional technology, such as a compressed natural gas (CNG) vehicle, EPA generally addressed labels for new technology vehicles on a case-by-case basis.
Over the next several model years, however, the agencies expect to see increasing numbers of advanced technology vehicles entering the marketplace. By 2012, it is expected that there will be at least one original equipment manufacturer offering of a CNG vehicle, an electric vehicle (EV) and a plug-in hybrid electric vehicle (PHEV) with nationwide availability.
Finally, the agencies believe these new labeling requirements will improve the presentation of relevant information to consumers and thus promote more informed choices, and that the new requirements fit well with current consumer interests and potential changes in coming years. Based on projections from the U.S. Energy Information Administration that future inflation-adjusted gasoline prices will increase over coming decades due to global economic growth and oil demand, we expect that it is likely that consumer interest in fuel economy will continue to grow over time.
The new labels also have the potential to help consumers learn about fuel economy and vehicle emissions, and informed consumers may decide to place more weight on fuel economy and vehicle emissions for economic or environmental reasons. In this domain, consumers' tastes and values change over time. Of course, individual consumers will always determine the relative priority of fuel economy and environmental considerations vis-a-vis the many factors that go into a new vehicle purchase decision.
As discussed above, the fuel economy and environment label must contain certain pieces of information by statute and may also contain other pieces of related information EPA considers helpful to consumers. Given that all of the label information should be presented so as to maximize usefulness and minimize confusion for the consumer, EPA and NHTSA embarked upon a consumer research program.
When EPA last redesigned the fuel economy label in 2006, consumer research was valuable in helping to inform the development of that label.
Focus groups were held beginning in late February through May 2010 in four cities: Charlotte, Houston, Chicago, and Seattle. Overall, 32 focus groups were convened with a total of 256 participants. The focus groups were valuable in helping us to identify individual metrics that consumers wanted to see on labels as well as effective label designs. Overall, focus groups indicated that redesigned labels should:
Following the focus group research, we convened an expert panel for a one-day consultation on June 9, 2010, in Washington, DC. The expert panel provided individual feedback on the draft label designs we developed based on key findings from the focus groups.
• Consumers are likely to view the labels for a very short time—roll ratings and metrics up into a single score
• Use cost savings information—a very strong consumer motivator
• Develop a Web site that would be launched in conjunction with the new label. This consumer-focused Web site could provide more detailed information, along with access to tools, applications, and social media.
We also undertook an Internet survey that was administered at the time of the release of the proposed rule in September, 2010, to determine whether any of the label designs had flaws that could undermine their ability to convey the desired information to the U.S. new car buying population. For the co-proposed labels and the alternative label, we designed the survey to test the understandability of the labels as well as whether the label designs affected consumers' abilities to select efficient and environmentally-friendly vehicles, given their typical travel pattern. The survey had nearly 3200 respondents of self-identified U.S. new vehicle purchasers, each of whom saw only one of the three label designs. Respondents were asked questions that sought to reveal understanding of the information on the label, as well as questions that sought to reveal variations in vehicle selection based on label design.
Overall, the results showed that the differences between the three label designs with respect to understandability were small in magnitude, with label 2 appearing to be a little more understandable than label 1.
Under EPCA, EPA is responsible for developing the fuel economy labels that are posted on all new light duty cars and trucks sold in the U.S and, beginning in MY 2011, all new medium-duty passenger vehicles as well. Medium-duty passenger vehicles are a subset of vehicles between 8,500 and 10,000 pounds gross vehicle weight that includes large sport utility vehicles and vans, but not pickup trucks.
EPCA specifies the information that is minimally required on every fuel economy label.
• The fuel economy of the automobile,
• The estimated annual fuel cost of operating the automobile.
• The range of fuel economy of comparable automobiles of all manufacturers,
• A statement that a booklet is available from the dealer to assist in making a comparison of fuel economy of other automobiles manufactured by all manufacturers in that model year,
• The amount of the automobile fuel efficiency tax imposed on the sale of the automobile under section 4064 of the Internal Revenue Code of 1986;
• Other information required or authorized by the Administrator that is related to the information required [within the first four items].
Under the provision for “other information” EPA has previously required the statements “your actual mileage will vary depending on how you drive and maintain your vehicle,” and cost estimates “based on 15,000 miles at $2.80 per gallon” be placed on vehicle labels. EPA is adopting all of the labeling requirements discussed below and specified in EPA's regulations, based on its authority under section 32908(b). In addition, the regulations adopted by EPA satisfy the requirement to develop criteria for purposes of section 32908(g).
Additional labeling requirements are found in EPCA for “dedicated” automobiles and “dual fueled” automobiles. A dedicated automobile is an automobile that operates only on an alternative fuel.
A dual fueled vehicle is a vehicle which is “capable of operating on alternative fuel or a mixture of biodiesel and diesel fuel * * *, and on gasoline or diesel fuel” for the minimum driving range (defined by the DOT).
• Indicate the fuel economy of the automobile when operated on gasoline or diesel fuel.
• Clearly identify the automobile as a dual fueled automobile.
• Clearly identify the fuels on which the automobile may be operated; and
• Contain a statement informing the consumer that the additional information required by subsection (c)(2) [the information booklet] is published and distributed by the Secretary of Energy.
EPCA defines “fuel economy” for purposes of these vehicles as “the average number of miles traveled by an automobile for each gallon of gasoline (or equivalent amount of other fuel) used, as determined by the Administrator [of the EPA] under section 32904(c) [of this title].”
Moreover, EPA is required under EPCA to prepare a fuel economy booklet containing information that is “simple and readily understandable.”
In this rule where we refer to EPA's statutory authority under EPCA, we are referring to these provisions.
The 2007 passage of the Energy Independence and Security Act (EISA) amended EPCA by introducing additional new vehicle labeling requirements, to be implemented by the National Highway Traffic Safety Administration (NHTSA).
Specifically, and for purposes of this rulemaking, subsection “(g) Consumer Information” was added to 49 U.S.C. 32908. Subsection (g), in relevant part, directed the Secretary of Transportation (by delegation, the NHTSA Administrator) to “develop and implement by rule a program to require manufacturers—
(A) to label new automobiles sold in the United States with—
(i) information reflecting an automobile's performance on the basis of criteria that the [EPA] Administrator shall develop, not later than 18 months after the date of the of the Ten-in-Ten Fuel Economy Act, to reflect fuel economy and greenhouse gas and other emissions over the useful life of the automobile:
(ii) a rating system that would make it easy for consumers to compare the fuel economy and greenhouse gas and other emissions of automobiles at the point of purchase, including a designation of automobiles—
(I) with the lowest greenhouse gas emissions over the useful life of the vehicles; and
(II) the highest fuel economy* * *”
Thus, both EPA and NHTSA have authority over labeling requirements related to fuel economy and environmental information under EPCA and EISA, respectively. In order to implement that authority in the most coordinated and efficient way, the agencies are issuing this joint final rule with the revised labels presented below.
The agencies proposed the joint label rule on September 23, 2010,
This section addresses the key issues on which public comments were received on the proposed rule and discusses the agencies' final decisions on those issues. Our more detailed responses to public comments are available in the docket in the Response to Comments document associated with this final rule.
The agencies proposed to retain the current practice of placing MPG on the label for vehicles that use liquid fuels such as gasoline and diesel. There are two main reasons for this. First, representing the vehicle's fuel economy performance on the label with an estimate of miles per gallon is a core element of the fuel economy information requirements of EPCA, which specifically states that the label must display “the fuel economy of the automobile”
For those vehicles that do not use liquid fuels—such as EVs, PHEVs operating on electricity, and CNG vehicles
On the other hand, the agencies discussed in the proposal that MPGe has some drawbacks for a fuel such as electricity: electricity is never purchased by the gallon, and MPGe requires the conversion of electricity to an energy-equivalent amount of gasoline, a fuel which is very different in many ways. An alternative approach for such vehicles that the agencies considered is miles per unit of purchased fuel—for example, miles per kilowatt-hour. Such a metric would be in terms of the fuel that the consumer purchases, which could be more useful for calculating fuel costs and for comparing with other vehicles of the same technology but would not be comparable across technologies. The agencies specifically asked for comments on the merits of using MPGe for non-liquid fuels.
Comments overwhelmingly supported the use of MPG for liquid fuels, although one commenter advocated that diesel vehicle fuel economy values be calculated on an MPGe basis in order to reflect the higher energy content of diesel fuel. The agencies are requiring the use of MPG for liquid fuels for the same reasons articulated in the proposal: Historical implementation of the EPCA requirements, consumer familiarity, and the fact that these fuels are purchased by the gallon. We believe that changing to MPGe for the fuel economy of diesel vehicles would be very confusing to consumers, as label MPGe values would then be inconsistent with all consumer calculations of fuel economy (since diesel is sold in volumetric gallons) as well as fuel economy values shown on vehicle dashboard displays.
The agencies proposed a range of options for ethanol flexible fuel vehicles, including maintaining the current policy of requiring only gasoline-based MPG on the label (with optional inclusion of E85-based MPG), requiring the addition of E85-based MPG, and requiring the addition of E85-based MPGe. Only a few commenters addressed ethanol flexible fuel vehicles, and most who commented on this option supported the current policy. The agencies are requiring a label for ethanol flexible fuel vehicles that is consistent with the principles of the current policy: All label metrics are based on gasoline operation, a statement is provided so that the consumer knows that the values are based on gasoline operation,
For non-liquid fuels, the comments on the use of MPGe as a fuel economy metric were split. Supportive comments focused on the value of having a metric that consumers could use to compare across technologies and that was similar to the MPG metric with which people are accustomed. These commenters supported the use of energy equivalency, as proposed, and agreed that this mathematical conversion was the best approach to create a practical comparative tool. One automaker explicitly viewed the MPGe metric to be in direct alignment with EPCA statutory authority for the new label to show a comparison of fuel economy of comparable automobiles.
Those opposed to the use of MPGe for non-liquid fuels directly challenged whether it was, in fact, a good comparative tool for consumers. These commenters argued that MPGe would be misleading by implying that different fuel types were substantially equivalent and ignoring the many effects of obtaining and using very different fuels, such as shifting dependence on foreign oil; that is, that MPGe oversimplifies a complex situation. Some also commented that mathematically converting between gasoline and other fuels on an energy equivalency basis ignores the energy loss inherent in any conversion process. As an alternative, one automaker suggested using miles per purchased unit of energy. No commenter, however, suggested an alternative fuel economy metric that would allow consumers to compare across technologies.
The agencies are requiring the use of MPGe as the fuel economy metric for non-liquid fuels.
In the past few years, many stakeholders and academics have suggested that a fuel consumption metric—such as gallons per 100 miles—could be beneficial on the fuel economy label as either a replacement for, or a complement to, MPG. The use of a fuel consumption metric could serve to address the fact that, with fuel economy, there is a non-linear relationship between gallons (or gasoline-equivalent gallons) used over a given distance and MPG (or MPGe). Accordingly, a certain MPG improvement at a lower MPG level saves much more fuel (and thus money) than the same MPG improvement at a higher MPG level. If a consumer trades in a car with a 14 MPG rating for one with a 17 MPG rating, he or she will save approximately as much gas and money for a given distance as does a consumer who replaces a 33 MPG car with a 50 MPG car. The non-linearity of the MPG measure is not widely understood and hence many consumers misunderstand the measure. In the empirical literature, this is known as the “MPG illusion.”
Pointing to the MPG illusion, some stakeholders suggest that the public would be better equipped to make economically sound purchasing decisions with a metric that directly reflects fuel consumption and, correspondingly, fuel costs. In response to these suggestions and concerns over the MPG illusion, the proposal introduced fuel consumption on the label, in the form of gallons per 100 miles for combined city/highway operation, as a complement to the MPG metric for liquid fuels.
For non-petroleum fuels, EPA proposed to include fuel consumption based on the units in which each fuel is sold. For example, CNG is sold in gasoline-equivalent gallons; we proposed the fuel consumption metric of gasoline-equivalent gallons per 100 miles. Similarly, for EVs and PHEVs with all-electric operation, EPA proposed to show fuel consumption in kilowatt-hours per 100 miles. For blended PHEVs, EPA proposed gallons of gasoline equivalent per 100 miles, which represents the inverse of MPGe and combines the two fuels into one consumption metric; for the sake of reducing label clutter, EPA proposed to not show separate electricity and gasoline consumption values.
We received many comments on the general question of whether a fuel consumption metric should be added to gasoline vehicle labels, and there was broad support for doing so. Most supporters cited the non-linearity associated with the MPG illusion and suggested that it was important to begin the process of educating consumers about fuel consumption, while also keeping fuel economy metrics. There were a few opponents to including fuel consumption metrics, who generally argued that it was not important enough to warrant adding yet more numbers to the label.
The widespread commenter support for including fuel consumption metrics echoed EPA's concerns about the MPG illusion. EPA agrees that a fuel consumption metric is a better tool for making economically sound decisions and recognize that it will not become widely utilized if it is not first introduced on the label. Therefore, EPA is requiring the use of fuel consumption on the label—in the form of gallons per 100 miles for combined city/highway operation for liquid fuels—though in reduced prominence relative to the traditional MPG metric. As with MPGe, a further advantage of the energy consumption metric is that it allows consumers to compare the relative energy use of various EVs, thus providing an additional metric that differentiates between EVs.
The issue of the specific fuel consumption metrics for most types of vehicles that operate on non-liquid fuels generated little or no comment, with the exception of PHEVs operated in blended mode. EPA continues to believe that the metrics for vehicles other than blended PHEVs are reasonable and appropriate and are therefore requiring the proposed approaches for EVs and all-electric operation for PHEVs (kilowatt-hours per 100 miles) and for CNG vehicles (gasoline equivalent gallons per 100 miles). EPA is similarly requiring kilograms per 100 miles as the consumption metric for hydrogen FCVs, since hydrogen is sold by the kilogram.
Several comments were received on how to treat blended PHEVs, which use electricity and gasoline simultaneously. The commenters who opposed the use of MPGe also generally opposed the proposed approach of a single fuel consumption metric for blended PHEVs, pointing out that this would not allow a PHEV shopper to compare the relative use of electricity and gasoline. A few commenters suggested that labels for blended PHEVs should report both electricity and gasoline consumption.
While EPA recognizes the tradeoffs associated with adding yet more values to an already busy PHEV label, upon further consideration, EPA agrees with the commenters who suggested that consumers need to be able to differentiate between electricity and gasoline use in a blended PHEV. This will allow the consumer to assess and weigh the relative use of each type of energy as they deem appropriate. In addition, the fuel consumption metric for all other fuels is being finalized on the basis of the units in which the fuel is purchased, and it is reasonable to adopt a parallel approach for blended PHEVs. Accordingly, EPA is requiring fuel consumption separately for both gasoline (in gallons per 100 miles) and electricity (in kilowatt-hours per 100 miles) for a blended PHEV, rather than the gasoline-equivalent gallons per 100 miles as proposed. EPA believes that the combination of the MPGe metric (for those who want a simple comparative metric) and the two separate fuel consumption metrics (for those who want to compare relative gasoline and electricity use) will help to satisfy different consumer needs.
EISA requires that the label include a “rating system that would make it easy for consumers to compare the fuel economy and greenhouse gas and other emissions at the point of purchase . . . ”, including a designation of the automobiles with the lowest greenhouse gas emissions over the useful life of the vehicles, and the highest fuel economy . . . ”
The co-proposed label designs presented two primary variations on ratings systems for fuel economy and greenhouse gas emissions, based on two interpretations of the statutory language. The first approach, shown on labels 1
The majority of those who commented on this topic said that these factors should each be displayed separately on the label. The key reason cited was that individual ratings would best provide clarity and transparency for those wishing to take these factors into consideration. On the other hand, some commenters felt that it is appropriate for the government to combine factors into a single rating in order to distill complex information into a more useable format. These commenters focused primarily on the relationship between energy consumption and greenhouse gas emissions, and suggested that a combined rating made sense. Other commenters on this topic contended that it was important for the ratings to show that greenhouse gases and fuel economy do diverge across fuel types, and so the ratings should be separate. Commenters also stated that there was no clear methodology for incorporating emissions of other air pollutants with greenhouse gases and did not support the proposed methodologies for doing so.
We are requiring separate ratings for fuel economy, greenhouse gases, and other emissions. The fuel economy and greenhouse gas ratings will be displayed on the same slider bar, and vehicles that have the same ratings for both factors will combine the two ratings with a single indicator. Vehicles operating on gasoline will always combine the two ratings since they will, by definition, receive the same score for both ratings. The agencies believe that this approach is consistent with the language in EISA, is allowed under the EPCA provisions, and will best allow consumers to compare each of these elements. The agencies also believe that using one slider bar for the fuel economy and greenhouse gas rankings will simplify the design of the label (an important consideration) and will improve the effectiveness of the label. The ratings for fuel economy, greenhouse gases, and other emissions are subsequently described in sections III.C, III.D, and III.F.
Each of the ratings systems, as proposed, would include all new vehicles for which labeling is required in a single rating system;
Many commenters supported the proposed approach of having universal rating systems that apply across all vehicle classes. These commenters stated that most people shop in more than one class, and, therefore, a rating system that was solely within class was not particularly useful because it would not allow these consumers to compare the vehicles in which they had interest. Commenters stated that a within-class approach could be misleading by displaying ratings that appear to be comparable but in fact are not, since ratings based on individual classes are not broadly applicable across all vehicles; they are applicable only within the class on which they are based. As such, a within-class approach could assign a high rating to a vehicle that does relatively well within its class, but which emits at relatively high levels compared to vehicles in other, lower-emitting classes. For example, a large car that is low-emitting relative to other large cars could score a 7, while a midsize car with average emissions for its class would score a 5, even though the midsize is lower-emitting than the large car. With a purely within-class approach, the consumer who is considering both of these vehicles would have no way to know that the midsize car is a better environmental choice.
On the other hand, several auto manufacturers commented that many consumers shop solely within vehicle classes, and that therefore a rating that applied across all classes would not be helpful, as it would not indicate the best performers within a class. One auto manufacturer further commented that NHTSA's interpretation of the EISA language is overly restrictive, stating that, in its view, the most useful information to consumers would compare among vehicles of the same class, and that doing so would be consistent with the EISA requirement for easy comparisons.
We are requiring, as proposed, ratings that span all vehicle classes for which labels are required. Although the agencies' consumer research indicates that many consumers narrow their vehicle choices early in the buying decision, our research also indicates that many and perhaps most do not focus narrowly on a single class. Focus group participants indicated that they shopped, on average, across two to three vehicle classes.
Additionally, as discussed in the NPRM, NHTSA believes that the clearest interpretation of EISA is that fuel economy, GHG, and other emissions rating systems should apply to all automobiles rather than to specific classes. 49 U.S.C. 32908(g)(1)(A)(ii) states that the agency must develop label rating systems “that would make it easy for consumers to compare the fuel economy and greenhouse gas and other emissions of automobiles at the point of purchase,” in clear contrast to EPCA's requirement, codified at 49 U.S.C. 32908(b)(1)(C) that fuel economy range information be presented for “comparable automobiles.” 32908(g)(1)(A)(ii) also requires that rating systems include designations of the automobiles with the “lowest greenhouse gas emissions” and “highest fuel economy,” which NHTSA believes
In order to satisfy EPCA requirements,
EISA requires that the label include a “rating system that would make it easy for consumers to compare the fuel economy and greenhouse gas and other emissions at the point of purchase . . .”
In addition to this new EISA requirement, EPCA specifies that fuel economy labels must include the range of fuel economy of comparable vehicles.
The agencies proposed an absolute slider bar-type fuel economy rating system bounded by specific MPG values for the “best” and the “worst” vehicles in the fleet, and with specific fuel economy values for the vehicle model type in question identified in the appropriate location on the scale. The scales proposed on label 2 were essentially larger versions of those on label 1, with the addition of a within-class indicator on the fuel economy scale to meet the EPCA requirement for comparison across comparable vehicles. This latter requirement was addressed on label 1 through text indicating the fuel economy for all new vehicles in the model's fuel economy class.
The agencies received relatively few comments on this topic. One auto manufacturer supported the graphical representation of the within-class information as proposed on label 2. A government laboratory commented that the comparison should be on the basis of fuel consumption rather than fuel economy, to provide a linear comparison of the vehicle's energy use and to avoid a visual representation of the fuel economy illusion.
The agencies are requiring a one-to-ten relative fuel economy slider bar similar to the one on alternative label 3 included in the NPRM, which is combined with a one-to-ten relative greenhouse gas slider bar as discussed below. While the rating is expressed in terms of fuel economy, the methodology for determining vehicle ratings will be defined based on fuel consumption in order to mitigate the “MPG illusion” and to provide a more linear representation of vehicle energy use between ratings. The EISA requirement for indicating the highest fuel economy vehicle and the EPCA requirement for providing the fuel economy of vehicles in a comparable class will be met with text located near the vehicle's fuel economy numbers. The methodology for determining the combined fuel economy and greenhouse gas ratings is provided in section III.D.
The agencies proposed several systems to address the EISA requirement for a rating that allows consumers to compare greenhouse gas emissions across new vehicles. Specifically, both labels 1 and 2 included an absolute rating scale that presented the specific tailpipe GHG emission values for the vehicle in grams per mile, bounded by emission rates for the “best” and “worst” vehicles in the fleet in the model year. In addition, label 1 featured a prominent letter grade that reflected the relative levels of tailpipe greenhouse gas emissions (and, for gasoline vehicles, fuel economy, given the inverse relationship of tailpipe GHG emissions and fuel consumption for gasoline vehicles) on an A+ to D scale. The agencies also sought comment on label 3, which, like label 1, included a rating that reflected relative tailpipe GHG emission rates; this approach substituted the letter grade with a numerical rating on a scale of one to ten. NHTSA sought comment on whether this would be an appropriate interpretation of EISA's requirements. The agencies proposed that GHG ratings would be based on combined 5-cycle tailpipe CO
About two-thirds of the more than 6,000 public comments expressed a preference either for or against the letter grade, and nearly every one of the more detailed comments submitted by corporations and organizations addressed the topic, indicating the strong level of interest in this proposed element. As a general rule, the letter grade was supported by consumer organizations, environmental organizations, and academics; about half of the general public that commented on the letter grade supported it. Conversely, it was opposed by most auto companies, auto dealers and their organizations, Federal laboratories, and about half of the general public that commented on this topic.
Commenters in favor of the letter grade spoke to its ease of use and eye-catching appeal; many said that it would be useful for those who do not find more detailed numerical information helpful or compelling and would, for the first time, take their needs into consideration on the label. The letter grade was likened to the New Car Assessment Program (NCAP) safety stars in its potential ability to spark public demand for new vehicle attributes—in this case, relative environmental and energy impact. For these commenters, the influential nature of the letter grade was viewed as a positive attribute.
On the other hand, those opposed to the letter grade commented that it implied an inappropriate value judgment of the vehicle, either in whole or in part. Many commenters indicated that letter grades, in particular, convey an assessment that is value-laden and not in accordance with the intent of the label. These commenters suggested that a prominent letter grade could be misleading insofar as it might imply an assessment of a vehicle's overall quality on a number of attributes beyond fuel economy and tailpipe greenhouse gas emissions. Finally, some commenters felt that its prominence was problematic, either by minimizing other important label elements, such as MPG,
A few commenters stated that the absolute tailpipe greenhouse gas rating in grams per mile was the most straightforward approach and felt that it would be helpful for those wishing to compare emissions across vehicles and clearly meet the EISA requirement. Others found the absolute scale unhelpful, stating that today's public has little awareness of tailpipe greenhouse gas emissions expressed in grams per mile. In particular, these commenters said that an absolute scale for GHGs would be confusing, given that the label also contained a one to ten rating for other emissions, and suggested that a consistent one to ten system for both ratings would be more understandable. Several commenters noted that one to ten ratings are readily understood and are in use today for vehicle emission ratings on both the EPA Green Vehicle Guide Web site and on the California Environmental Performance Label, and that it would be logical to extend that approach to this label.
The agencies are requiring a relative greenhouse gas rating on a one to ten scale, based on combined 5-cycle tailpipe CO
We also agree that having consistent systems for the two environmental ratings on the label may help to minimize confusion and increase comprehension. Finally, the use here of a one to ten system is a logical extension of its use on the EPA Green Vehicle Guide Web site and the California Environmental Performance Label, where it serves a similar purpose. The absolute tailpipe greenhouse gas emissions in grams per mile of the best performing vehicle will be noted in text near the slider bar. This approach meets the EISA requirements for displaying GHG performance information
Finally, to address concerns raised by some commenters that fuel economy ratings overshadow safety ratings component of the Monroney label, NHTSA is planning to conduct comprehensive consumer research to develop revised safety ratings based on revisions to the fuel economy component of the label under this rule. NHTSA will publish details of the consumer testing in a future
The agencies proposed a variety of ways to provide information that would rank or rate a vehicle model compared to the rest of the fleet, based on its performance on greenhouse gases and fuel economy, including both absolute and relative scales. In the proposal, one method for a relative fuel economy and greenhouse gas rating was laid out, based on even increments of greenhouse gas emissions. One proposed rating system used a letter grade to represent relative performance. Since fuel economy and greenhouse gases are closely related, this rating was used to represent both of these factors. The CO
For this rating scale, the agencies proposed a system that assigned a letter grade rating for each vehicle relative to the tailpipe GHG emissions of all new vehicle models. Specifically, each of the ratings corresponded to a distinct range of combined 5-cycle tailpipe CO
The majority of comments on this rating system focused on the form of the rating, generally, the use of a letter grade and its merits and drawbacks. However, some manufacturers and consumer organizations did provide feedback specific to the methodology used to define the ratings. These commenters all examined the distribution of vehicle ratings that resulted from the proposed methodology and requested that the agencies consider strategies to somewhat “flatten” the distribution. This would, in effect, provide more differentiation between vehicles and prevent the ratings from not being—or appearing to not be—technology-neutral. On the other hand, one automaker requested that the agencies consider reserving the highest rating exclusively for specific, pre-defined vehicle technologies.
Commenters also provided feedback on the impact of basing the fuel economy rating on greenhouse gases. Several noted that they are closely related and that having a single rating represent both is appropriate. Others indicated that the relationship between these two factors varies across fuels and that it is important for the label to reflect this fact.
As discussed previously, the label we are adopting will provide relative one to ten ratings for fuel economy and for greenhouse gases. Since fuel economy and tailpipe greenhouse gas emissions are closely related, the agencies have decided to simplify the label by using one slider bar for the two ratings and to combine the two ratings for vehicles that receive the same fuel economy and greenhouse gas scores. We will define the range of CO
We agree with some commenters that the ratings would be more meaningful and useful for both relative scales if it allowed greater differentiation between vehicles, and that therefore it would be beneficial to alter the rating methodology such that the resulting distribution of vehicle ratings is flatter than proposed, while still reflecting the distribution of the fleet. We also agree with the majority of commenters on this topic that the ratings should avoid the appearance of not being technology-neutral. The challenge to the agencies was to implement this change with a methodology that is simple to implement, robust enough to work for future vehicle fleets, and results in an appropriately flatter distribution of vehicle ratings over the fleet. Finally, the agencies also agreed with some commenters that the fuel economy rating would be most beneficial to consumers if it were in fact based on fuel consumption instead of fuel economy. Basing the rating on fuel consumption allows it to be directly proportional to the actual amount of energy used by the vehicle (and hence to refueling costs) and avoids the “MPG illusion” discussed previously. The range of performance that defines each number in the rating system is determined based on approximately equal increments of fuel consumption, with one adjustment. The use of a system based on equal increments means that the distribution of the fleet will be reflected in the distribution of the ratings.
We believe that, since fuel economy and fuel consumption are simply different mathematical representations of the same characteristic, that a fuel consumption-based rating system is consistent with the EISA requirement for a fuel economy rating system. To ensure that the fuel economy ratings correspond to the MPG or MPGe values displayed on the label, the thresholds for purposes of assigning this rating will be in terms of fuel economy (MPG or MPGe).
The fuel economy rating scale will be created by converting the fuel consumption thresholds into their corresponding fuel economy values and assigning a numeric one to ten rating based on 5-cycle combined fuel economy, rounded to the nearest integer (as reflected on the label). The combined fuel economy value prominently displayed on the label will be used by vehicle manufacturers to determine the fuel economy rating, thus making the connection between the two unambiguous and avoiding situations where two vehicles with the same fuel economy value would receive different fuel economy ratings—an outcome the agencies believe would be confusing to the public.
In the proposal, the agencies divided the range of all vehicle CO
For example, we considered a system where the range of each rating effectively “grows” by 25% with each step away from the mean. This approach does somewhat flatten the distribution of ratings over the fleet. However, the agencies decided not to pursue this or similar options because choices such as the rate of bin growth appeared too subjective and would likely have to be reevaluated every year. We also considered a decile system, in which an equal number of vehicles are distributed into each rating, thus completely flattening the distribution. However, because vehicles tend to be clustered on the basis of fuel economy values, it is not possible to equally distribute them across the ratings. This approach also goes further than commenters suggested in flattening the curve.
The fuel consumption rate, and correspondingly, the CO
Thus, for a given year, the highest rating, a 10, will be defined by subtracting two standard deviations from the mean of the data from the most recent model year available, such that any vehicle that achieves a fuel consumption rate less than or equal to two standard deviations below the mean will receive a rating of 10. Conversely, any vehicle that is more than or equal to two standard deviations above the mean will receive the lowest rating, which is a 1. The ratings of 2 through 9, in turn, are defined based on even increments of 5-cycle combined fuel consumption rates between the highest and lowest ratings, with the following adjustment.
The break point of the rating system, which denotes the difference between a CO
Because the 2012–2016 estimated achieved CAFE levels intended to be used to anchor the break point of the rating scale are based on the 2-cycle test, while label values are based in the 5-cycle test, EPA evaluated vehicle test data across all new light duty vehicles to determine an adjustment factor between the projected achieved fleet wide CAFE fuel economy values and the label values. This adjustment factor is derived in the same manner as an individual model's mpg value for CAFE compliance is adjusted for use on the label. Using this adjustment, EPA determined that the fuel economy midpoint values from 2012–2016 will be as shown in Table D.1.
Using
The agencies then had to consider how to structure the rating scale for GHG emissions, since it is combined for the final labels with the rating scale for fuel economy. Given the close relationship between fuel economy and greenhouse gases, the rating scales will be defined to give the same rating on each of these factors for gasoline vehicles, since gasoline-fueled vehicles constitute the great majority of the vehicles sold. Thus, the GHG rating scale will be determined by converting the fuel economy rating thresholds into gasoline equivalent GHG rating thresholds using a constant conversion factor of 8887 grams of tailpipe carbon dioxide emissions per gallon of consumed gasoline.
The methodology for determining the fuel economy and GHG rating scales defined above is based on a simple statistical approach that should be applicable to a changing fleet of vehicles over time. The agencies believe that this is a straightforward and robust methodology for rating vehicle fuel economy and tailpipe GHG emissions that will result in a flatter distribution of vehicle ratings across the entire fleet. We intend to update the scoring thresholds in the future to reflect the prevailing CAFE and GHG standards and the evolution of the vehicle fleet. Any updates to the rating scale will be included in the annual label manufacturer guidance document or in the regulations via rulemaking.
In the proposal, the agencies recognized that upstream GHG emissions are associated with the production and distribution of all automotive fuels used by motor vehicles, that certain emerging automotive fuels might have very different upstream and tailpipe GHG characteristics depending on how those fuels are produced, that providing accurate upstream GHG emissions values for individual consumers can be a complex challenge, and that whether, and if so how, to account for these upstream GHG emissions was an important decision.
We proposed to limit the label to tailpipe-only GHG emissions, while providing more detailed information on upstream GHG emissions on a Web site. For details on the Web site content and accessibility, please refer to Section III.I. In addition, the agencies requested comment on alternative options for the label that, in addition to presenting tailpipe emissions, refer to or identify in some manner the upstream GHG emissions associated with fuel production and distribution. One such alternative would continue to base the label's GHG emissions value on tailpipe emissions values only but would supplement the numerical value with a symbol or asterisk and explanatory text such as “the only CO
A second alternative for the label would be to, provide a tailpipe-only GHG emissions value and also to provide a numerical value for upstream GHG emissions associated with production and distribution of the fuel(s) used by the vehicle. While recognizing the arguments for this approach, the agencies identified many challenges associated with developing a single numerical value for upstream GHG emissions. For electricity, for example, challenges include significant regional variability in electricity feedstocks and GHG emissions, potential changes in feedstocks and GHG emissions over time, and potential differences in GHG emissions between daytime and nighttime charging depending on the energy source used. The agencies asked for comments on how they could best address these complexities on a consumer label.
The agencies received a large number of comments on this topic, almost all of which focused primarily on the upstream GHG emissions issues associated with the electricity used in EVs and PHEVs.
Automotive associations, electric vehicle associations, electric utility companies, and nearly all automakers who commented on this topic supported the proposal to include only tailpipe GHG emissions on the label and provide more detailed information on upstream GHG emissions on a Web site. Automakers typically stated that labels have always reflected vehicle performance only and have not addressed upstream petroleum emissions, that they have no control over upstream emissions, and that including electricity upstream GHG emissions on the label could discourage future sales of EVs and PHEVs. EV and PHEV advocacy organizations generally supported the proposal as well, also citing that past label designs focused exclusively on vehicle performance and arguing that regional differences in electricity feedstocks make it impossible to provide a single upstream GHG emissions value for EVs and PHEVs that would be meaningful to consumers. One environmental group supported the proposal, but argued for a more prominent display of the text indicating that the values are tailpipe-only.
Nearly all environmental groups, academics, a Federal lab, and non-electricity fuel advocacy groups who commented on this topic opposed the proposal and endorsed the concept of including upstream GHG emissions on the label. The primary argument was that providing tailpipe-only GHG emissions would be confusing and/or misleading, as some consumers might infer that operating a vehicle on grid electricity has no greenhouse gas emissions impacts, and that this could lead to adverse consumer purchase decisions if “zero emissions” was an overriding selling point for a consumer.
A second argument from many of these commenters, as well as from one automaker, was that the primary purpose of the label should be to provide relevant consumer information, and that a label is not an appropriate way to promote an individual technology, which they argued this approach would do for electric vehicles if upstream emissions were not included on the label. California Air Resources Board (ARB) stated that upstream emissions would need to be reflected on the label in order to adopt the national label in California. ARB later indicated that, in the interest of a unified national label, this requirement could be met through a label statement about additional emissions and reference to a Web site where upstream values could be obtained.
However, only a few commenters endorsed a specific methodology for determining upstream GHG emissions values. One joint environmental group comment supported a universal upstream GHG emissions factor for all vehicle operation off of the electric grid, similar to the approach currently used by the ARB. Another environmental group suggested that the label CO
The agencies are requiring a label which, as was proposed, will be limited to tailpipe-only GHG emissions but will have more prominent text to better emphasize the tailpipe-only metric. EVs will include the clarifying statement, “Does not include emissions from producing electricity.” Vehicles fueled without grid electricity will include the statement, “Producing and distributing fuel also create emissions; learn more at fueleconomy.gov.” For PHEVs, the text “& electricity” will be added after the word “fuel.” Detailed information (including regional-specific values, when appropriate) regarding upstream emissions for fuels will be provided on a Web site. For details on the Web site
The agencies considered the merits of arguments both for and against inclusion of upstream emissions information on the label itself but ultimately concluded that retaining a tailpipe-only approach is more appropriate for this consumer-oriented label. While the agencies acknowledge, as discussed above, that substantial GHG emissions can be created during the upstream production and distribution of various automotive fuels, our reasoning for adopting a tailpipe-only approach starts with the fact that the label's fundamental purpose is to present information about the vehicle itself, rather than on a broader system. Emissions from the tailpipe fall under the automaker's control; they are a result of the product that the manufacturer produces.
The agencies agree that information on a vehicle's upstream emissions may be useful for consumers, even if it is not central to the purpose of the label. We also concluded that including upstream GHG emissions on a Web site instead of the label is a more appropriate way to communicate information regarding upstream emissions to consumers. Because of the substantial variation in emissions associated with electricity production from region to region, a label that presented a single national average of upstream emissions could be more likely to confuse consumers rather than help them, particularly if consumers are aware that their regional electricity generation mix is different from the national average, and could thereby detract from the label's purpose. Due to different electricity generation fuels and technologies, this level of variation is significant: from one region to another, the highest-to-lowest upstream average GHG emission ratios are roughly 3-to-1.
Even if the agencies were to conclude that including upstream GHG emissions on the label were appropriate, given our concerns that a national-average upstream value might not be helpful, we do not believe that it would be practical for the label to present regional-specific upstream data for every vehicle sold. Under that scenario, automakers would not only need to reflect regional differences in power generation fuel mixes but would also need to consider how state regulations could affect emissions from electricity generation in the future; that is, a label that adequately reflects expected GHG emissions over the vehicle's useful life would need to project future changes in electric utility emission rates on a regional-specific basis, which would be challenging to accomplish in a meaningful way. Further, producing individualized labels would be difficult and would introduce additional complexity and costs for manufacturers, which the agencies did not account for in our proposal.
However, the agencies believe that it is important and beneficial to provide information on upstream GHG emissions to consumers for certain advanced technology vehicles and are in the process of developing a Web site in order to make such information available. We believe that providing such data on a Web site has advantages over presenting upstream information on the label. A Web site allows consumers to access regionally specific data on electricity upstream emissions and allows the agencies to present further information on methodologies as needed. The information can also be updated more quickly as new data becomes available. Further, presenting the information online, rather than on the label, allows the label to present more comprehensive information in a clearer, simpler manner, which we believe will benefit consumers.
The agencies recognize that biofuels, such as the E85 that FFVs use, will play an important role in reducing the nation's dependence on foreign oil, thereby increasing domestic energy security. While the majority of comments on upstream emissions pertained to emissions from electricity production, the agencies also recognize that biofuels have unique GHG emission characteristics. When considered on a lifecycle basis (including both tailpipe and upstream emissions), the net GHG emission impact of individual biofuels can vary significantly from both petroleum-based fuels and from one biofuel to another. EPA's Renewable Fuel Standard program, as modified by EISA, examined these differences in lifecycle emissions in detail.
The agencies recognize that in the case of biofuels, “upstream emissions” include not only GHG emissions, but also any biological sequestration that takes place. For purposes of this discussion, the term “upstream emissions,” when considered in the case of biofuels, should be construed to encompass both GHG emissions and sequestration.
The agencies note that to the extent future policy decisions involve upstream emissions, the agencies will need to consider not only upstream emissions from electricity production, but also the unique emission characteristics associated with biofuels.
Finally, the agencies agree with one commenter's suggestion to indicate more clearly that the GHG emission values presented on the label represent tailpipe-only emissions. In response, the agencies are adopting a label with more prominent “tailpipe only” text as well as a statement that information on upstream emissions can be found at the Web site.
We have made this decision on the treatment of upstream emissions for the fuel economy label for the reasons explained in this preamble. This conclusion does not necessarily reflect any decisions that will be made regarding upstream emissions in future greenhouse gas and fuel economy rulemakings. In addition, the agencies will continue to consider this issue over time.
In summary, the agencies are requiring a label with a tailpipe-only GHG emissions rating as well as more clear and prominent text that the rating includes only tailpipe GHG emissions
In addition to fuel economy and greenhouse gas information, EISA also requires that new vehicles be labeled with information reflecting a vehicle's performance in terms of “other emissions,” using a rating system that would make it easy for consumers to compare the other emissions of automobiles at the point of purchase.
• NMOG—non-methane organic gases;
• NO
• PM—particulate matter;
• CO—carbon monoxide; and
• HCHO—formaldehyde.
The agencies proposed and requested comment on a one-to-ten rating for “other emissions” in which each rating is associated with a bin from the Federal Tier 2 emissions standards,
The majority of comments received were supportive of the proposed option, indicating that it was a reasonable approach to distilling complex information and was consistent with the approach used on the EPA Green Vehicle Guide Web site and the California Environmental Performance Label. Several commenters advocated changing the name on the label from “other air pollutants” to the term “smog,” which they felt was more meaningful for the general public and would be even more directly consistent with the California Environmental Performance Label. Finally, a few comments suggested that “other air pollutants” should be disaggregated and displayed separately for each air pollutant.
The agencies are requiring, as proposed and as supported by most comments, a label that displays a relative one-to-ten rating based on Federal vehicle emission standards or comparable California emissions standards. We are also requiring the suggested name change, as consumers are already familiar with the connection between vehicle emissions and smog, whereas “other air pollutants” is not currently as meaningful. This will have the added benefit of promoting label harmonization by better aligning with the California Environmental Performance Label “Smog Score” that has been in existence for many years.
Despite the fact that the EPCA and EISA language could be interpreted to allow multiple “other emissions” rating scales on the label, the agencies were not persuaded that having disaggregated pollutant information on the label would benefit consumers. Based on our consumer research,
The agencies acknowledge that this rating will multiply the number of distinct labels relative to current labeling because of the interaction between model types and test groups. Current labels are based only on model types and present only fuel economy information. However, emissions are based on test groups, and there may be multiple test groups within a given model type. For example, a manufacturer with two otherwise identical vehicles within a model type, where one is certified to EPA emission standards and the other to more stringent California standards, would only need one label today for all the vehicles in that model type. This final rule would require that—despite identical fuel economy results—the different vehicles have different smog ratings and thus different label information. Any incremental costs associated with this increase in distinct labels have been addressed; as discussed in Section VI.A., the agencies received comment from auto makers on the startup costs of the new labels, including estimates of the IT needs to address new label requirements, and incorporated their comments into the cost estimates.
The Smog Rating System for model year 2013 vehicles is shown in Table F–1. The proposal discussed ratings based on current emission standards; however, if those standards were to change in the future, the ratings would no longer have a basis on which to be assigned. Therefore, we clarify here that we intend to update the scoring thresholds in the future to reflect the prevailing Federal and California emissions standards. Any updates to the Smog Rating will be included in the annual label manufacturer guidance document or in the regulations via rulemaking.
As described in Section II.A, EPCA requires that labels shall contain “the estimated annual fuel cost of operating the automobile.” In addition EPCA states that the labels shall contain other information required or authorized by the EPA Administrator that is related to the required information,
Focus groups conducted prior to the proposal provided mixed feedback on the value of annual fuel cost. When asked, participants were skeptical of the
Comments on annual fuel cost generally acknowledged the statutory requirement under EPCA and agreed that it provides a useful comparison metric. Several commenters indicated that it was the most important metric on the current fuel economy label, after MPG. The majority of those who commented on it agreed that annual fuel cost should be retained. Several commenters suggested that the $2.80 per gallon cost figure shown on the example labels be made more realistic. Comments on electric operation indicated that 15,000 miles per year is not attainable for an EV unless it were to recharge more than once a day, and suggested cents per mile as a useful metric; they did acknowledge, however, that the annual cost could be used as a comparative tool. One comment regarding PHEVs noted that annual fuel cost will vary significantly depending on the relative use of gasoline and electricity.
EPA is requiring the retention of annual fuel cost and its underlying assumptions on the label. This satisfies the EPCA requirement and provides continuity with the historical approach to annual fuel cost, which is used by some consumers as a comparative tool. EPA agrees that, as vehicle technologies diverge and it becomes increasingly challenging to find comparative metrics, fuel cost is a useful point of comparison. Consumers may compare the annual fuel cost of various vehicles and consider that cost to be part of the “price” of the vehicle. Because of the importance of annual fuel cost, the required label will make that cost quite prominent and conspicuous. EPA will continue its practice of issuing annual guidance updating the mileage and fuel cost assumptions, in consultation with the U.S. Department of Energy's Energy Information Administration.
EPA also proposed and requested comment on another approach to presenting fuel cost information: Focusing on the savings attainable by purchasing a vehicle that is relatively more fuel efficient or the spending incurred when purchasing a vehicle that is relatively less fuel efficient. This approach was specifically recommended by the expert panel discussed in Section I.D, which noted that savings is a more powerful message than annual cost.
In the proposal, EPA explored a number of methods for calculating savings and spending, and proposed a method that calculated the difference in fuel costs of a vehicle over five years compared to the projected median new vehicle for that model year. EPA proposed that some vehicles would show a savings, while others would show consumers spending more for fuel over five years compared to the reference vehicle; these values would increase in magnitude the further the vehicle is from the average vehicle in terms of fuel consumption. The proposed approach appropriately reflects the fact that fuel cost savings become larger as the fuel efficiency of a vehicle improves, and conversely that fuel costs increase as fuel efficiency decreases compared to the reference vehicle.
As with the fuel economy and greenhouse gas rating system and comparable class information, EPA proposed to provide annual guidance indicating the reference against which the fuel cost savings would be measured, as well as the prices for all fuels.
EPA sought comment on this and alternative approaches to conveying fuel cost and savings information. EPA also sought comment on whether there is a potential for consumer confusion caused by two different dollar figures: the estimated annual fuel cost of operating the vehicle and the five-year relative fuel savings/spending value compared to a reference vehicle.
Many individual consumers, consumer advocacy groups, and environmental advocacy groups expressed strong support for a five year save or spend value compared to the average vehicle. These commenters stated that clearly communicated operating costs or savings based on fuel efficiency would be a useful comparison metric, and that the five year save or spend value is a more powerful metric than annual fuel cost. They suggested that, for those consumers considering advanced technology vehicles with a higher sticker price but also a higher fuel economy than conventional vehicles, the five year save or spend value would be a valuable piece of information that would allow them to weigh the impact of fuel savings over time against the up-front vehicle purchase price.
Several industry organizations commented that a fuel cost or savings value should be limited to a within class comparison. Automotive manufacturers were primarily opposed to including the five year save or spend value on the label, suggesting that the statutorily-
EPA believes that the utility of the five year save or spend value compared to the average vehicle outweighs the concerns expressed by commenters. Although the literature is mixed, many studies have indicated that consumers may significantly undervalue (or overvalue) potential fuel savings when deciding which vehicle to purchase.
In response to a concern that the median vehicle and the average vehicle are not the same, EPA is requiring a simple change to the proposed algorithm for estimating the reference vehicle for fuel costs over five years. For consistency, EPA will use the same reference point that is used to define the break between a rating of 5 and a rating of 6 on the fuel economy and greenhouse gas scale (see Section III.D). This addresses the concerns expressed in comment, as the term “average” now is represented by the label MPG value that corresponds with the projected achieved CAFE level for the fleet on a sales-weighted basis for that same model year. That is, the vehicles indicated on the label as “you save” in fuel costs over five years will have a fuel economy that is better than the projected average level for the fleet for that model year, while those indicating “you spend” will be below the projected average. The five-year average cost will be calculated for this average vehicle, using the same annual mileage and gasoline fuel cost assumptions used for the annual cost estimate, multiplied by five years. As proposed, this reference five-year cost value representing the average vehicle will be published in EPA guidance, along with the upcoming projected fuel costs and annual mileage assumptions.
While EPA agrees that some consumers may not fully understand the reference point for the five year save or spend value, EPA nevertheless believes that showing relative costs or savings has significant value in helping consumers understand that fuel efficiency can substantially affect the relative operating costs among vehicles. In particular, EPA believes that communicating to consumers a vehicle's fuel costs relative to the costs of the average new model offered for sale, and over a timeframe commensurate with vehicle ownership, will highlight the importance of future fuel costs and allow them to be more readily factored into the buying decision. To clarify the average vehicle reference point, the “Compared to the average vehicle” text is being increased in prominence. In addition, explanatory text is being added to the label which says “The average new vehicle gets X MPG and costs $Y to fuel over 5 years.” The agencies believe that this additional text should aid consumer understanding about the reference point.
EPA considered using five-year fuel cost (annual fuel cost multiplied by five-years) instead of the comparative five year save or spend value. However, as discussed above, EPA concluded that showing the relative costs or savings has additional merit that is not immediately gleaned from a five-year cost value. EPA and the Department of Energy provide similar information online for appliances as part of their Energy Star program.
EPA also considered using economic projections of future dollar values and fuel costs to calculate the five year save or spend value, but concluded that doing so would make the calculations unnecessarily confusing to the consumer while providing limited additional value. Many people in the public think in terms of simple calculations or payback periods when considering long-term costs or savings. As EPA learned from the focus groups, consumers are skeptical of any calculations involving fuel costs, because the price of fuel fluctuates greatly, and personal driving habits also vary. Adding additional complexities to the calculation would probably further confuse consumers and thus contribute to their skepticism. Our hope is that consumers will recognize that this value is most useful for comparison purposes, and not as an exact measure of actual fuel costs.
EPA does not agree with comments suggesting that the five year save or spend value should be based on a within class comparison, because EPA's research demonstrated that most shoppers search for vehicles that fall into more than one class. In addition, having multiple reference vehicles—one for each class—would create unnecessary confusion for the consumer. Therefore, the relative five year save or spend value will be compared to one reference vehicle, as described above.
EPA acknowledges that there is some potential for confusion created by having both annual fuel costs and the relative five year save or spend values on the label. It believes, however, that for many consumers, the two figures may prove complementary: Consumers are able both to see absolute cost on an annual basis and to learn how much they will save or spend compared to the average vehicle over a relevant period. To reduce the risk of confusion, the label will display the five year save or spend value and the annual fuel cost in distinct locations on the label, with
Vehicle cruising range—the calculated distance that a vehicle can travel given its fuel economy and fuel tank capacity—has not historically been provided on the fuel economy label. However, in the focus groups conducted for this rulemaking, it became clear that many people were interested in this piece of information, but only for advanced technology vehicles, with which there is little familiarity. Accordingly, EPA proposed that vehicle range be included on the label for vehicles that use electricity, proposed that it not be included on labels for vehicles that operate on liquid fuels, and sought comment on whether range should be included on labels for vehicles that operate on non-petroleum fuels other than electricity.
EPA did not receive a large number of comments on range. Of the comments that were received, nearly all supported including range for some or all alternative fuel vehicles. Several commenters supported the inclusion of range for all alternative fuel vehicles, with the goal of harmonizing with the Federal Trade Commission
EPA is requiring the inclusion of range on all non-petroleum and advanced technology vehicle labels,
EPA is also finalizing an option for vehicle manufacturers to voluntarily include E85 range information on the labels for ethanol flexible fuel vehicles. The potential benefit to a manufacturer is that, should it take advantage of this option, the Federal Trade Commission might decide that a separate driving range label is no longer required. The final regulations provide templates that illustrate how labels with this optional information should appear, and any company choosing to provide driving range information must display that information according to the regulations. EPA encourages manufacturers to provide this optional E85 driving range information, particularly in cases where refueling opportunities may be limited and/or the driving range is substantially less than what consumers are used to experiencing with typical conventional fuel vehicles.
Battery charging information was included on two of the three EV and PHEV label designs in the proposed rule. As noted in the proposal, EPA believes that the amount of time it takes to charge an EV or PHEV battery is important to consumers. This was widely supported by the focus groups, where participants often expressed a strong interest in seeing battery charging information on the EV and PHEV labels. EPA proposed that the label include battery charging time using a standard wall outlet supplying 120 volts, with an option for the manufacturer to alternatively specify a 240 volt charge time if the higher voltage is recommended or required by the manufacturer.
A majority of commenters on the subject, including automotive manufacturers and consumer groups, supported including charge time information on the label. Some of these commenters suggested that charge time should be based on 240V, as this would be consistent with the recommendation in the owner's manual and would reflect the manner in which EVs and PHEVs are likely to be typically charged. Several comments suggested that a range of charge times should be provided, given the possible use of different voltage levels. A minority of commenters, largely comprised of electric vehicle manufactures and advocacy organizations, suggested that charging information should not be on the label, largely because of concerns of oversimplification of the range of possible charge times given charging conditions, as well as label overcrowding. These commenters suggested that the charging information could be provided on EPA's Web site instead.
EPA is requiring charging time information on the label of EVs and PHEVs, with one key difference from the proposal. The final regulations require that manufacturers display charging time based on the use of a dedicated 240 volt charging system, with the option of displaying charging time based on the use of a standard 120 volt wall outlet. It is our belief that the owners of these vehicles will, in a significant majority of cases, install dedicated 240 volt outlets to use for charging their vehicles.
EPA proposed and requested comment on adding a new, prominent URL on the label that would direct consumers to a detailed, interactive consumer Web site. EPA also proposed including a QR Code® that could be scanned by a device such as a smartphone and reach the same Web site.
All those who commented on the topic supported the development of a comprehensive Web site, indicating that it is crucial to achieving a simpler label while also providing consumers with access to detailed information. Commenters also liked the idea of having a Web site that can more accurately reflect their likely personal experience with a vehicle. The majority of comments received also supported the inclusion of the QR Code® on the label. EPA evaluated other two-dimensional bar codes suggested by commenters and found that the advantages of the QR Code® significantly outweighed the potential advantages of other options. The QR Code® is free to use, in the public domain, does not require entering into a business relationship with private industry, and perhaps most significantly, is described in an ISO standard which is incorporated by reference in the final regulations. The ISO standard allows the agencies to clearly and completely describe in regulatory language the process for generating a QR Code®, a necessity of the structure of our program.
EPA is moving forward with developing new Web site content on the existing fueleconomy.gov site. New content will be available prior to the date that labels are required to appear on vehicles (MY 2013), and will further explain the label's content, metrics, and methodologies. In addition to the label-specific information, consumers can use fueleconomy.gov's tools to compare and personalize fuel economy and environmental values across vehicles. New content on this Web site will include an enhanced emissions calculator that will allow consumers to determine an EV's or PHEV's potential upstream greenhouse gas emissions, based on the vehicle's efficiency and regional electricity emissions rates. This functionality will give consumers more accurate, regional-specific upstream emissions information than is possible on a static, national label. The Web calculator may also allow consumers to estimate the upstream GHG emissions associated with the operation of gasoline, diesel, and CNG vehicles using national averages.
In order to address consumers' growing interest in having information accessible via smartphones, EPA is including a QR Code® on the new label.
All of the proposed labels utilized color to draw attention and highlight information for consumers. However, each of the two proposed label options used color in different ways. The color on Label 1 was assigned based on the letter grade rating of the vehicle, using color as a comparison tool, whereas the color on Label 2 was determined by the vehicle technology and fuel type, using color as a vehicle identifier.
NHTSA and EPA received comments from a wide variety of organizations supporting the use of color on the label. These commenters noted that color draws attention and results in a more influential label than black and white, and that the incremental cost of achieving color would be worthwhile. These comments especially supported using colors to differentiate important information for the consumer, such as vehicle ratings or five-year fuel costs. On the other hand, automobile manufacturers were concerned about the use of color on the label, especially any label design that would require color printing at the point of vehicle assembly or port of entry. In addition, they expressed concern that colors in the labels might fade, that they might be difficult to see through tinted windows, that the increased complexity of these labels would lead to compliance concerns, and that some colors might deter consumers from considering some vehicles. The manufactures were specifically concerned with the “warning” connotation that the colors red, orange, and yellow convey.
Currently, several manufacturers use color on their Monroney labels; however, most of those manufactures utilize a standard, preprinted color background (for example, a company logo in color) for all vehicles and then print with black ink on top of the preprinted background. The proposed labels would require either printing the entire label in color, or managing several preprinted color backgrounds and printing with black ink on top of the preprinted and collated backgrounds. Either of these methods would increase the amount of lead time required by manufacturers and would add cost and complexity to the printing process. These concerns ultimately led the agencies to simplify the color scheme on the final label.
The final label will use one color, blue, for all vehicles to highlight important aspects of the label. The agencies chose not to use red as the primary color on the label due to the perceived “warning” message that it can convey. Conversely, we decided not to use green on all of the labels because we did not want to imply that all vehicles are green (
The agencies proposed that the new label take effect for the 2012 model year, in anticipation of advanced technology vehicles entering the market that would require labels which addressed their particular attributes. For those advanced technology vehicles expected to enter the market in model year 2011, EPA indicated that we would work with individual manufacturers to develop interim labels that would be consistent with the proposal on a case by case basis, using our current authority. The proposed timing would also coincide with the recent joint rulemaking by EPA and NHTSA that established harmonized Federal GHG emissions and CAFE standards for new cars, sport utility vehicles, minivans, and pickup trucks for model years 2012 through 2016.
Automakers commented that they would need significantly more lead-time to adopt a revised label, explaining that the implementation process was much more complex than buying off-the shelf colors printers. Specifically, these commenters referenced (1) a detailed process of integrating multiple Information Technology systems in order to properly assign the new label elements to the correct vehicle, (2) redesign of the vehicle Monroney label if the footprint for the fuel economy and environment label changed from that of the current fuel economy label, and (3) the need to print new label stock or acquire and integrate new printers in order to launch a new label. Automakers typically expected that implementing these procedures would take on the order of six to ten months, although comments suggested lead-times from a low end of 19 weeks to a high end of the model year following the one year anniversary of the final rule. Several automotive commenters suggested making the new label requirements effective with the 2013 model year, assuming that sufficient lead-time was also allotted.
Some commenters supported the proposal to implement the new label at the start of a model year, noting that this would dovetail with the changeover in manufacturing processes. Implementing the label at the beginning of the model year would thus allow for a change in the labeling procedure when the production line was idle, minimizing costs and the chances of mislabeling. Doing so would also minimize public confusion that could arise from two different label designs appearing on two vehicles of the same model and model year. However, not all those who commented on lead-time felt that a change at the start of a model year was important, given their particular manufacturing procedures, and requested the flexibility for voluntary early adoption, which could prevent having duplicate systems in place.
The detailed description of the required procedural steps persuaded EPA and NHTSA that additional lead-time is necessary for automakers to properly implement the revised label without undue burden and error. NHTSA and EPA also agree that, for many manufacturers, switching at the start of the model year would be the least burdensome and most logical approach. Finally, the rulemaking is being completed several months beyond when originally planned, which would capture only a portion of the 2012 model year. An EPA analysis of the timeframe of vehicle certifications over the past several years, using confidential information submitted by automotive manufacturers, revealed that fewer than 20% of the total labels for the model year are typically issued by the end of May, 40% by the end of June, and 60–70% by mid-August. We do not think it would enhance public understanding for a new label to be required on less than half of the vehicle models in that model year.
Thus, the agencies are requiring that the revised label be applied to all model year 2013 and later vehicles. The rule will be effective 30 days after publication, and manufacturers may optionally adopt the label for the remaining portion of the 2012 model year after that date. This approach provides the manufacturers with the most flexibility and several extra months of lead-time prior to the start of the 2013 model year, while providing consistency across the entire 2013 model year to minimize public confusion. We acknowledge that this lead-time, while significantly longer than that proposed, is less than that requested by certain commenters. However, the final label designs address many of the considerations that manufacturers raised as necessitating additional lead-time. Specifically, the minimum footprint of the current fuel economy label has been retained, thus eliminating the need for redesign of the Monroney label layout. In addition, the labels have been designed to eliminate the need for color printers on the line and, for the most part, to use a single pre-printed card stock, thus removing the lead-time steps that would have been needed to integrate either color printers or multiple card stocks in continuous use. We therefore believe that it will be possible for manufacturers to make the necessary changes in their labeling processes in the lead-time allotted.
As noted previously, Executive Order 13563, section 3, specifically draws attention to the importance of avoiding redundant, inconsistent, or overlapping requirements, and directs agencies to take steps to reduce “costs by simplifying and harmonizing rules.”
The Federal Trade Commission (FTC) currently requires that alternative fuel vehicles display a label that reports the driving range of the vehicle.
EPA did not specifically propose to harmonize with the FTC regulations such that a single label would satisfy the multiple and sometimes overlapping EPA, DOT, and FTC requirements. However, EPA did recognize in the proposal that there could be an opportunity for such harmonization that would depend on whether or not the FTC ultimately could conclude that the EPA/DOT label could satisfy their statutory requirements.
The agencies are requiring a label for ethanol flexible fuel vehicles that is consistent with the principles of the current policy: all label metrics are based on gasoline operation, a statement is provided so that the consumer knows that the values are based on gasoline
The FTC has indicated that they will evaluate the labels in this final rule and ultimately make a determination as to whether or not the labels for alternative fuel vehicles that include range information are sufficient to meet the FTC statutory requirements.
To provide vehicle emissions information to consumers, the California Air Resources Board (ARB) has required new vehicles to have a Smog Index label since the 1998 model year, and an Environmental Performance Label (EPL), with both the Smog Index and a Global Warming Index, for all vehicles produced since Jan 1, 2009.
Nevertheless, many auto manufacturers and their associations commented about the desirability of a single, unified national label. These comments stated that it would be a cost-saving measure, increase clear space on the window, and reduce the potential for consumer confusion that could occur with two different labels presenting vehicle emissions information. Notably, the California Air Resources Board (ARB) commented that it believed that two labels with environmental information would be confusing and that its goal is to accept a national fuel economy and environment label that would meet its statutory obligations under the California Assembly Bill 1229 of 2005.
In discussing the possibility of harmonization, the California Air Resources Board commented specifically that it is obligated to address upstream emissions of greenhouse gases, stating that, “One suggested solution, should EPA and NHTSA decide not to include upstream emissions on the label nationally, would be to set aside a blank space for automakers to include upstream emissions for California. This may be a workable compromise that would allow us to adopt the National Label.”
In order to try to facilitate label harmonization to reduce OEM costs associated with labeling and potential consumer confusion at the possibility of two environment-related labels on new vehicles, NHTSA and EPA are adopting label provisions that the agencies believe will address California's requirements. Specifically, the label includes both “smog” (“other emissions,” as discussed above) and greenhouse gas ratings relative to all new vehicles, using a one-to-ten format that is consistent with ARB's historical approach. In response to ARB's request to address upstream emissions, the label will include language pointing the public to a Web site that will provide upstream emissions values, including regional-specific values for electricity generation. EVs will include the statement, “Does not include emissions from producing electricity.” Vehicles fueled without grid electricity will include the statement, “Producing and distributing fuel also create emissions; learn more at fueleconomy.gov.” For PHEVs, the text “& electricity” will be added after the word “fuel.” The label will also address California's requirement for additional consumer language by including this statement, “Vehicle emissions are a significant cause of climate change and smog.”
The agencies have worked closely with ARB in developing a label that will meet their needs. We believe that ARB will evaluate the labels in this final rule with the intention of making a positive determination that the labels can serve to meet their statutory requirements as an alternative to the California Environmental Performance Label.
In the NPRM, EPA proposed that, for fuel economy and emissions certification testing of electric vehicles, manufacturers continue to use the Society of Automotive Engineers recommended practice SAE J1634, Electric Vehicle Energy Consumption and Range Test Procedure, as published in October 2002. EPA also proposed that the reissued SAE J1634 may be referenced by the EPA after the reissued SAE J1634 is published.
Comments in regard to the continued use of the procedures in SAE J1634 and EPA's continued involvement with SAE, ARB, and industry were generally positive. Some commenters were concerned with the potential length of test time required to follow SAE J1634, as EV range is expected to increase throughout the industry. Other commenters were concerned over the complexity associated with new test procedures and recommended that EPA and NHTSA consider a flexible regulatory mechanism to address any technical or procedural issues in the future.
In the final rule EPA will continue to require the same procedures as described in SAE J1634 as published in October 2002. The EPA will review SAE J1634 after revision. Manufacturers may use alternate methods of testing to the procedures described in SAE J1634 with prior Administrator approval. In addition, EPA will no longer reference the ARB document entitled “California Exhaust Emission Standards and Test Procedures for 2003 and Subsequent Model Zero-Emission Vehicles and 2001
EPA may add additional allowable test procedures in the future. As electric vehicle testing experience develops, technical or procedural changes may also be addressed in the future.
Fuel economy and electric range estimates are measured during “city” and “highway” operation. Electric vehicles are tested to fulfill several requirements including Corporate Average Fuel Economy, fuel economy label values, and other compliance programs. Beginning in the 2008 model year,
The 2-cycle testing includes the Federal test procedure (FTP) and the highway fuel economy dynamometer procedure. The FTP, or “city”, and HFED, or “highway”, procedures are used for calculating CAFE and can be used to calculate appropriate fuel economy label values and other compliance requirements.
The 5-cycle testing methodology for electric vehicles is still under development at the time of this final rule. This final rule will address 2-cycle and the derived adjustments to the 2-cycle testing, for electric vehicles. As 5-cycle testing methodology develops, EPA may address alternate test procedures. EPA regulations allow test methods alternate to the 2-cycle and derived 5-cycle to be used with Administrator approval.
The proposed procedure for testing and measuring fuel economy and vehicle driving range for electric vehicles was similar to the process used by the average consumer to calculate the fuel economy of their personal vehicle, using the distance the vehicle can operate until the battery would be discharged to the point where it could no longer provide sufficient propulsive energy. For range testing, the distance used to calculate electrical consumption is defined as the point at which an electric vehicle cannot maintain the speed tolerances as expressed in 40 CFR 86.115–78. This distance would be measured and divided by the total amount of electrical energy necessary to fully recharge the battery. The resulting electrical consumption and range would be the raw test values used in calculating CAFE city and calculating fuel economy label city values.
Several commenters voiced concern over the test procedures associated with electric vehicles and the ongoing efforts in industry, specifically in SAE taskgroup SAE J1634, to address electric vehicle testing issues. SAE J1634 efforts include not only abbreviating the repetitive nature of the currently referenced version of SAE J1634 but also addressing the “cold, fully charged start” portion of EV testing and how this portion affects the range and fuel consumption. EPA may allow future SAE practices. Manufacturers may use test procedures other than the procedures described with prior Administrator approval.
The final stage of the electric vehicle FTP test procedure is the measurement of the electrical energy used to operate the vehicle. The end of test recharging procedure is intended to return the rechargeable energy storage system (RESS) to the full charge equivalent of the pre-test conditions. The recharging procedure must start within three hours after completing the EV testing. The vehicle will remain on charge for a minimum of 12 hours to a maximum of 36 hours. After reaching full charge and the minimum soak time of 12 hours, the manufacturer may physically disconnect the RESS from the grid. The alternating current (AC) watt-hours must be recorded throughout the charge time. It is important that the vehicle soak conditions must not be violated. The measured AC watt-hours must include the efficiency of the charging system. The measured AC watt hours are intended to reflect all applicable electricity consumption including charger losses, battery and vehicle conditioning during the recharge and soak, and the electricity consumption during the drive cycles. The AC integrated amp-hours are to be measured between the outlet and the Electric Vehicle Service Equipment. If there is no EVSE, for example in 120V charging, the amperage is to be measured between the outlet and the charger. Manufacturers may use voltage stabilizing equipment with prior Administrator approval.
The raw electricity consumption rate is calculated by dividing the above recharge AC watt-hours by the distance traveled before the end of the test criteria is reached. For electric vehicles that are not low powered, the end of test criteria is the point at which the vehicle can no longer maintain the speed tolerances as expressed in 40 CFR 86.115–78. Both the city consumption and city range procedures are as proposed in the NPRM with the above additions.
The Highway Fuel Economy Dynamometer Procedure or “Highway” Test actually consists of 2 cycles of the Highway Fuel Economy Driving Schedule (HFEDS). Similar to the FTP test procedure, the “highway” test will require procedures as described in SAE J1634 as published October 2002. The dynamometer procedures will be conducted pursuant to 40 CFR 600.111 with the exceptions that electric vehicles will run consecutive cycles of the HFEDS until the end of test criteria is reached. Subsequent HFEDS pairs may require up to 30 minutes of soak time between HFEDS pairs due to facility limitations. Between cycle pairs, the vehicle hood is to be closed and the cooling fans shut off. Between starts, the RESS is not to be charged.
Comments, specific to electric vehicle highway testing, included concern over the “cold” highway test. Conventional vehicles have no equivalent requirement to highway test from a “cold start”. As with the FTP or “city” test, alternate “highway” test method procedures as described in SAE J1634 may be used with prior Administrator approval. The Administrator may approve alternative methods or test procedures to account for “cold” highway losses.
Both the highway consumption and highway range procedures are as proposed in the NPRM with the above additions. The recharging procedures following the highway testing are as proposed in the NPRM with the above additions from the recharging event following the “city” testing.
Commenters expressed concern over possible testing and measurement issues that may be of issue with emergent EV technologies. Due to the unforeseeable nature of possible issues of yet-to-be-
Several commenters voiced concern over the need for a procedure for measuring charge time. Charge time is meant to estimate the required time needed to bring the EV from “empty” or minimum usable battery energy to “full” or maximum usable battery energy. The “empty” or minimum usable battery energy would be the battery state of charge at the end of the range test. A vehicle that has completed the range and consumption test would be considered “empty” until it was recharged, provided no regenerative braking or other charging was allowed before the actual recharge procedure.
Defining the “full” or maximum usable battery energy state is required for charge time measurement. The “full” charge is the energy battery state of charge required to achieve the range as measured during the range tests above. Since vehicles may have electrical parasitic losses after the “full” charge is met, end of charge for the purposes of charge time may be less than the recharge and soak time associated with range and consumption testing. EPA may define charge time procedures as experience allows.
Test procedures for plug-in hybrid electric vehicles (PHEV) are required to quantify some operation unique to plug-in hybrids. The PHEV test procedures in this rule use existing test cycles and test procedures where applicable. PHEV operation can be generally classified into two modes of operation, charge-depleting and charge-sustaining operation. Charge-depleting operation can be described as vehicle operation where the rechargeable energy storage system (RESS), commonly batteries, is being depleted of its “wall” charge. Charge-sustaining operation can best be described as conventional hybrid operation, where the energy from consumption of fuel by the internal combustion engine is directly or indirectly the source of charge or recharging of the RESS.
EPA has largely referenced SAE recommended practice SAE J1711, Recommended Practice for Measuring the Exhaust Emissions and Fuel Economy of Hybrid-Electric Vehicles, Including Plug-in Hybrid Vehicles, as published June 2010. EPA worked with stakeholders in developing SAE J1711 including manufacturers, Department of Energy, and the California Air Resources Board. EPA involvement in SAE J1711 was to help develop testing procedures that could be used as “building blocks” from which regulatory requirements could be determined.
Several commenters requested EPA expand the SAE J1711 references beyond just sections 3 and 4. EPA will reference additional sections for SAE J1711 but will refrain from referencing SAE J1711 in total. EPA has referenced SAE J1711 test procedures as required to fulfill regulatory requirements. For conditions not specifically addressed in this rule, where conflicts exist between SAE J1711 and 40 CFR Part 86, Part 86 shall apply.
As described above, charge-sustaining operation can best be described as conventional hybrid operation. Commenters to the proposed rule expressed concern in having different procedures for plug-in hybrid charge-sustaining testing than for conventional hybrid electric vehicles (HEV). The intent of the proposed rule was to test PHEVs in charge-sustaining mode the same as equivalent HEVs. Major differences in proposed PHEV charge-sustaining testing and HEV testing included RESS state of charge tolerances and RESS state of charge correction. This rule establishes the same exhaust test procedures for both HEVs and PHEVs while in charge-sustaining operation. This includes referencing Appendix C of SAE J1711 for net energy change correction. Manufacturers intending to use net energy correction methods will need prior Administrator approval. EPA may adopt state of charge (SOC) tolerances and net energy change (NEC) correction methods as testing experience develops.
For the purposes of fuel economy label values, PHEVs may continue to use the derived 5-cycle adjustment while in charge-depleting mode. Commenters voiced concern and asked for clarification over the method of applying the derived 5-cycle correction to charge-depleting label values. As clarification, the derived 5-cycle adjustment will be applied to the total city and total highway fuel economies, separately. The total fuel economies in charge-depleting mode include all of the fuels consumed, typically gas and electricity, as expressed in a miles per gallon of gasoline equivalent unit. Applying the derived 5-cycle correction to the gasoline and electricity consumption, in charge depleting mode, separately could lead to a larger adjustment than other single fueled vehicles since the 5-cycle correction is not linear with respect to fuel economy.
While in charge-sustaining mode, PHEV label value testing is subject to the same test procedures as conventional hybrid electric vehicles. This includes all the 5-cycle implications.
PHEVs must meet all applicable emissions standards regardless of RESS state of charge. Some commenters wanted EPA to average criteria pollutants over multiple modes of operation based upon projected fractions of driving in each respective mode. While this may be acceptable for CO
The Alliance of Automobile Manufactures, along with several of its members, expressed concern over the possibility of a “double cold” penalty while transitioning from charge-depleting to charge-sustaining operation during FTP testing. The concern was that the “cold penalty” could be the result of two circumstances.
One “cold penalty” could be shifting the cold engine start to the hot restart portion of the FTP. Currently, for the FTP, the hot start portion is weighted 57% and the cold start is weighted 43% of calculating the final emissions result. By shifting the cold start or multiple cold starts to the hot start phase, the Alliance argues that PHEVs are potentially held to a higher standard than conventional vehicles or conventional hybrids. EPA does not agree with this line of reasoning. The cold and hot start phases of the FTP are not only engine but also vehicle
The second “cold penalty” could be cold starting the engine at the very end of the stabilized portion of the cold start phase and then starting the engine again in the hot start phase with a nearly cold engine. Commenters had the similar concerns that a “double cold” start would hold PHEVs to a higher standard than other vehicles. Commenters argued that current conventional vehicle “drive through” their cold starts whereas a PHEV that starts late in the cold start phase would be similar to a conventional or conventional hybrid vehicle that was driven a very short distance and turned off, only to be restarted soon afterward. These commenters believed PHEVs would only undergo one cold start per trip, much like conventional vehicles, just that the test procedure technicalities may force a “double cold” that will likely not exist in the real world anymore than conventional vehicle “double cold” starts. EPA agrees that PHEVs would normally have only one cold start during typical continuous driving of 12 miles, which the FTP represents. To remedy this concern of PHEVs being held to driving cycle than results in more than the one typical cold start, this rule will allow manufacturers to substitute the charge-sustaining data for the second Urban Dynamometer Driving Schedule (UDDS), or the hot start test, for the second UDDS of charge-depleting ftp for emissions other than CO
(b) PHEV Test Procedure and Calculations
The EPA has incorporated by reference SAE J1711, as published in June 2010, chapters 3 and 4 for definitions and test procedures, where appropriate. For conditions not specifically addressed in this rule, where conflicts exist between SAE J1711 and 40 CFR Part 86, Part 86 shall apply. In this rule, where SAE J1711 is referenced, the June 2010 revision is assumed to be the referenced version. Commenters were concerned over an increased void rate of charge-depleting tests due to the length of repetitive cycles needed to finish the charge-depleting testing. To address this concern, this rule will adopt the speed tolerance violation section, 3.6.2, in SAEJ1711. Additional speed tolerance violations may be approved by the Administrator. The Administrator may also approve deviations outside of currently allowed ambient vehicle soak conditions to reduce the likelihood of voiding extended testing.
For the purposes of charge-depleting CO
End of test recharging procedure is intended to return the rechargeable energy storage system (RESS) to a full charge equivalent to pre test conditions. The recharge AC watt-hours must be recorded throughout the charge time. The measured AC watt-hours are intended to reflect all applicable electricity consumption including charger losses, battery and vehicle conditioning during the recharge and soak, and the electricity consumption during the drive cycles. To capture all the losses, the AC amp-hours and voltage would be measured between the “wall” and the Electric Vehicle Service Equipment. Alternate recharge measurements may be approved by the Administrator.
Net Energy Change (NEC) tolerance is to be applied to the RESS to confirm charge-sustaining operation. The EPA is adopting the 1% of fuel energy NEC state of charge criteria as expressed in SAE J1711. The Administrator may approve alternate NEC tolerances and or state of charge correction factors.
Preconditioning special procedures are optional for traditional “warm” test cycles that are now required to test starting at full RESS charge due to charge-depleting range testing. If the vehicle is equipped with a charge-sustaining switch, the preconditioning cycle may be conducted per 600.111 provided that the RESS is not charged. Exhaust emission measurements are not required in preconditioning drives. Alternate vehicle warm up strategies may be approved by the Administrator. This will allow a method for starting “warm” test cycles with a fully charged battery.
The EPA has incorporated by reference SAE J1711 Chapters 3 and 4 for definitions and test procedures, where appropriate. For conditions not specifically addressed in this rule, where conflicts exist between SAE J1711 and 40 CFR Part 86, Part 86 shall apply.
Commenters expressed the need for aligning test procedures between hybrids and PHEVs, while in charge-sustaining operation. The intent of this rule is to test hybrid and plug-in hybrids, while in charge-sustaining operation, in the same manner. This will in effect negate the requirement in 40 CFR 86.1811–04(n) that manufacturers must use ARB procedures in the document entitled California Exhaust Emission Standards and Test Procedures and Subsequent Model Zero-Emission Vehicles and 2001 and Subsequent Hybrid Electric Vehicles, in the Passenger Car, Light Duty Truck, and Medium-Duty Vehicle Classes. Therefore, this requirement will be deleted from the regulation.
NECtolerance, is to be applied to the RESS to confirm charge-sustaining operation. The EPA is adopting the 1% of fuel energy NEC state of charge criteria as expressed in SAE J1711. The Administrator may approve alternate NEC tolerances and or state of charge correction factors.
Commenters were concerned that the charge-depleting range determination as proposed was not specific enough and could be prone to variation from “false trigger” electrical noise. To address commenter concern and due to recent testing experience, this rule references sections 6.1.3.1 and 6.1.3.2 of SAE J1711
Calculation of R
Several commenters voiced concern over applying SAE J1711 to test cycles other than the FTP and HFED. PHEV and electric vehicle testing over the SC03, US06, or Cold CO test cycles follow the same general procedure as the FTP and HFED. Applying possible 5-cycle calculations to produce charge-depleting fuel economy and CO
Commenters supported the flexibility of allowing increased state of charge tolerances and correction factors. As proposed, state of charge tolerance correction factors may be approved by the Administrator. RESS state of charge tolerances beyond the 1% of fuel energy as specified in SAE J1711 may be approved by the Administrator.
Several commenters expressed concern over the minimum and maximum allowable test vehicle accumulated mileage for both EVs and PHEVs. Manufacturers claimed that, due to the nature of PHEV and EV operation, testing may require many more vehicle miles than conventional vehicles. Furthermore, electric motors may not receive the same benefit of vehicle mileage to fuel consumption. This rule will allow manufacturers to subtract non-engine operating miles from the vehicle mileage, with prior Administrator approval. The EV maximum accumulated mileage may also be extended with prior Administrator approval. The Administrator may approve additional or alternate maximum mileage and fuel economy correction.
As proposed, electric vehicles and PHEVs are to be recharged using the supplied manufacturer method provided that the methods are available to consumers. This method could include the electricity service requirements such as service amperage, voltage, and phase. Commenters were supportive of the allowance for manufacturers to employ voltage regulators in order to reduce test to test variability with prior Administrator approval. Therefore, this rule will allow voltage regulators with prior Administrator approval, as proposed.
Plug-in hybrid electric vehicle and electric vehicles share many of the same requirements and concerns. This rule will use the same general charge time procedure for PHEVs as expressed above for electric vehicles.
Current PHEV designs use two types of energy sources: (1) An onboard battery, charged by plugging the vehicle into the electrical grid, that powers an electric motor, as well as (2) a conventional engine. Depending on how these vehicles are operated, they could, in any particular mode of operation, use “wall” or grid electricity exclusively, operate like a conventional hybrid, or operate in some combination of these two modes. For those metrics where a single, overall value is desired, a method is required to combine metrics from multiple modes of operation into a single value. The agencies proposed to use a utility factor (UF) approach for calculating these overall metrics. Most commenters agreed with the general approach of using UFs.
The new labels require overall metrics for 5-year fuel savings, annual fuel cost, CO
EPA has worked closely with stakeholders including vehicle manufacturers, the Society of Automotive Engineers (SAE), the State of California, the Department of Energy (DOE), and others to develop an approach for calculating and applying UFs. UFs were developed using data from the 2001 Department of Transportation “National Household Travel Survey.” A detailed method of UF development can be found in the Society of Automotive Engineers (SAE) J2841 “Utility Factor Definitions for Plug-In Hybrid Electric Vehicles Using Travel Survey Data,” as published in September 2010. Where SAEJ2841 is referenced in this rule, the 2010 revision is assumed to be the referenced version. SAE documents can be obtained at
For the purposes of PHEVs, UF development makes several assumptions. Assumptions include: The first mode of operation is always electric assist or all electric drive, vehicles will be charged once per day, and future PHEV drivers will follow drive patterns exhibited by the drivers in the surveys used in SAE J2841. EPA acknowledges that current understanding of the above assumptions and the data upon which UFs were developed may change. Some commenters believed that these assumptions may change quickly; therefore, EPA may change the application of UFs in the light of new data.
Utility factors can be applied cycle-specific (urban/highway) and with respect to fleet miles or to an individual's expected driving behavior.
Cycle-specific UFs portray the different driving behaviors of highway versus urban driving. This is to say that typical highway driving is generally at greater speeds and for greater distances than urban driving.
Fleet UFs weight driving behavior based upon miles traveled over a fleet of vehicles. The data used to develop fleet UFs are distance weighted. Distance weighting allows for a truer reflection in CO
The data used in developing individual UFs equally weight driver behavior data regardless of distance travelled over several days. Individual UFs would be used to project an “average consumer's” fuel economy or vehicle CO
Since cycle-specific fleet UFs best predict fleet CO
Since individual UFs best predict an individual's experience, individual UFs, specifically multi-day individual UFs, will be used in calculating the combined MPGe label value reflected in the fuel economy and greenhouse gas rating on the label. Some commenters preferred the use of cycle-specific individual multi-day UFs for this purpose. However, EPA could not mathematically justify applying the multi-day data to both the cycle-specific approach and the 55/45 city/highway average used in calculating combined label MPGe values; individual UFs do not lend themselves to the 55/45 city/highway split. In addition, the multi-day individual utility factors (MDIUFs) are listed in SAEJ2841, whereas only a calculation method for the cycle-specific MDIUF is listed in SAEJ2841. The fact that only combined MPGe values will be reflected on the label also limits the differences between MDIUFs and cycle-specific MDIUFs. This assessment was shared by some commenters. Therefore, MDIUFs will be used for all FE label applications that require the use of UFs.
Commenters requested that UFs and examples of their use be in the final rule. This rule contains the calculated UFs for each application. As proposed, cycle distance is used in calculating UFs rather than distance driven. In the case of derived 5-cycle adjusted values, UFs are adjusted appropriately to reflect the increased fuel consumption and decreased charge-depleting range. Detailed calculation examples and work sheets for each required value may follow this rule in guidance.
Since PHEVs shall use UFs assigned by test cycle length, a provision is needed for low-powered vehicles that cannot drive the entire test cycle distance. Using assigned UFs for low powered vehicles could over-estimate UFs. Due to the possible significant difference in cycle versus driven distances, PHEVs using the low-powered vehicle provision in 40 CFR 86.115–78(b)(4) shall use the provisions for low-powered vehicles as written in this rule.
This section addresses the agencies' final decisions on the fuel economy and environment label designs, describing the relative placement of the elements on the label and discussing how the agencies have chosen to incorporate the decisions described in Section III. We show designs for gasoline, diesel, and flexible-fuel vehicles and for CNG, electric, plug-in electric hybrid, and fuel cell vehicles. We note that, if vehicle technologies come onto the market that are not addressed by any of these final labels, the agencies will use their existing authority to develop labels as needed and, to the extent possible, will make those labels consistent with those being finalized today.
All descriptions in this section are meant to reflect the label designs as illustrated; if in question, please refer to the illustrated labels for clarification. All label designs are specific as shown; that is, labels in use on actual vehicles are to reflect the label elements, colors, shape, size, wording, and graphics, as shown and without change, unless otherwise noted. It is important to note that although all of the label designs shown in this section make use of color, this
Each label will have a minimum size requirement of 4.5 inches tall by 7 inches wide, identical to the minimum size requirements for the current fuel economy label. Labels will have a black border that is consistent in relative size across all labels. This content includes, in the upper border, elements that identify the label and the vehicle type: from left to right, the acronyms “EPA” and “DOT”, stacked as shown; the label title, “Fuel Economy and Environment” and a descriptor of the vehicle fuel type, using both an icon and specific wording—
The lower border includes, starting at the left, the statement, “Actual results will vary for many reasons, including driving conditions and how you drive and maintain your vehicle,” thus continuing a tradition of having a statement on the label informing the buyer that the values on the label are not guaranteed, and reasons why they might vary. This is followed by a statement about the mileage and fuel price assumptions used to make the cost estimates on the label; the fuel price assumptions will be specific to the fuel type(s) and to the model year.
Beneath this text, the label border prominently displays “fueleconomy.gov,” the government Web site that consumers can visit to obtain more information about the values on the label and to compare those values among vehicles, and a brief statement describing the function of the Web site, “Calculate personalized estimates and compare vehicles.” This Web site name and statement takes the place of and serves the same purpose as the former statement on the label, which informed the public where they could obtain copies of the Fuel Economy Guide to compare vehicles.
The upper box of the label contains the information the agencies have determined have the most meaning to and importance for the public. Key elements from the current label are grouped together on the left, and new elements are primarily on the right.
Specifically, the upper left position displays fuel economy
This portion of the label has a different format for vehicles that have two modes of consuming energy, such as plug-in hybrid electric vehicles. For these vehicles, the energy use of the first (charge-depleting) mode is conveyed separately from the energy use of the second (charge-sustaining) mode. These values are coupled with the likely cruising range of the first mode on a full charge, displayed on the driving range bar just below these values. Each mode contains the combined city/highway MPG or MPGe value, the fuel consumption value(s), and a title describing the fuel type (
For those labels displaying driving range, the range bar graphics will be placed directly below the fuel economy and fuel consumption values. This placement was chosen because of the correlation between range and energy use and in recognition of the significant public interest in range for advanced technology vehicles. All PHEV labels show an all electric range value. For those PHEVs with no blended operation (
The right side of the upper box contains the five-year fuel cost saving value, in a relatively large size, to introduce this new metric in a way that will maximize the opportunity for it to be recognized and used.
The lower left portion of the label provides the annual fuel cost estimate, which, like fuel economy, is contained on the current label as required by EPCA.
The lower right portion of the label contains the slider bars that consumers can use to determine the relative fuel economy and environmental ratings of a vehicle. The fuel economy and greenhouse gas rating slider bar, discussed above in Section III.C., is placed on the left.. This slider bar conveys the estimated fuel economy and tailpipe greenhouse gas emissions of the vehicle relative to all new vehicles, in accordance with the EISA requirement.
For most vehicles, including all gasoline vehicles, the fuel economy and greenhouse gas ratings will be the same and will share a single marker on the slider bar. Some non-gasoline vehicles may have slightly different fuel economy and greenhouse gas ratings, and in these cases two different markers will be used. Immediately below the fuel economy and greenhouse gas rating will be text giving the grams CO
The right portion of the lower part of the label contains the relative one-to-ten slider bar for tailpipe emissions of smog-forming “other emissions” pollutants.
Example labels do not represent real vehicles or the numerical values to be included on any specific label.
EPCA requires that the label include the range of fuel economy of comparable vehicles of all manufacturers.
Consistent with the distinction currently made between small and large pickup trucks, EPA proposed to divide the SUV class into small and large SUVs. We do not believe that it is appropriate, for example, to include a Toyota RAV4 in the same class as a Toyota Sequoia, or a Ford Escape in the same class as a Ford Expedition. Starting with the 2013 model year the single SUV category currently described in the regulations is replaced by the two following proposed categories:
• Small sport utility vehicles: Sport utility vehicles with a gross vehicle weight rating less than 6,000 pounds.
• Standard sport utility vehicles: Sport utility vehicles with a gross vehicle weight rating of 6,000 pounds up to 10,000 pounds.
EPA received generally favorable comments regarding this proposed change to the class structure and is finalizing these provisions as proposed.
EPA proposed a number of non-controversial amendments and corrections to the existing regulations. These received essentially no attention in the public comments. EPA is thus finalizing these provisions essentially as proposed.
First, we are making a number of corrections to the recently required regulations for controlling automobile greenhouse gas emissions.
Second, we are correcting an oversight from the 2006 labeling rule regarding the applicability of testing requirements to independent commercial importers (ICIs). Currently several vehicle categories (dedicated alternative fuel, dual fuel while operating on alternative fuel, and MDPVs) are exempted from having to perform full 5-cycle fuel economy testing.
Third, we are clarifying the altitude applicability of evaporative emission standards. This clarification is needed in part because of an error that was made in the rulemaking requiring greenhouse gas emission standards for light-duty vehicles and trucks, and in part because the original language was found to lack sufficient clarity. Revisions to the regulations in 86.1810–09 to accommodate greenhouse gas provisions unintentionally eliminated a phrase regarding the high altitude applicability of the “Tier 2” evaporative emission standards.
Fourth, we are taking steps to further clarify the regulatory language. This involves removing several sections that apply only for model years before 2008 and moving or combining several of the remaining sections to provide a clearer organization. We are also being more careful with regulatory references pointing to other sections within 40 CFR Part 600 and to sections in 40 CFR Part 86. This largely addresses the concern that regulatory sections numbered for
Vehicle manufacturers have been required to provide fuel economy labels on vehicles since 1977. The costs and benefits of label revisions would be those associated with changes to the current label, not the costs and benefits associated with production of the label itself. The change in cost from this proposed rule comes in the physical revisions to the label itself and the possible efficiencies achieved by meeting EPCA and EISA labeling requirements in one label, as well as proposed modified vehicle testing procedures. The benefits of the rule come from providing labels for mass-market advanced technology vehicles for the first time and from any improvements in the effectiveness of labels for conventional vehicles in providing accurate and useful consumer information on fuel consumption and environmental performance.
Testing requirements for vehicles are not new. Advanced technology and alternative fuel vehicles have been required to undergo testing requirements in the past. For advanced technology vehicles, though, the test procedures have not previously been standardized; they have been handled on a case-by-case basis. Because the agencies expect more advanced technology vehicles to come to market, this rule codifies testing procedures, as discussed in sections III.M. and III.N. of this preamble. The testing costs described here therefore are not completely new costs for manufacturers, since they would have to test the vehicles even in the absence of this rule, but the procedures have not previously been established. The cost estimates are included here because they have previously not been presented. The agencies received no comments on the cost estimates for the vehicle testing to support the label program.
As discussed in the NPRM, the analysis of the projected costs of this rule follows conceptually the approach in the 2006 (“five-cycle”) fuel economy labeling rule. Increased on-going operations and maintenance (O&M) costs and labor hours result from increases in testing costs for electric vehicles (EVs) and plug-in hybrids (PHEVs) specified in this rule. We also allow for the costs of increased facility capacity to accommodate the increased testing time involved for these two categories of vehicles. Startup costs are treated as capital costs and are amortized over ten years at 3% and 7% interest. Startup costs for this rule include testing equipment for those manufacturers subject to new testing. As an aid to the analysis and to help articulate the range of uncertainty, we include both low and high cost estimates for each of these cost and labor hour elements. The cost estimates, excluding potential cost savings from harmonization of label requirements with California and the Federal Trade Commission, are $0.7 million per year for the low estimate and $5.5 million per year for the high estimate. For details of this analysis, see the “Final Supporting Statement for Information Collection Request, Fuel Economy Labeling of Motor Vehicles”, in the docket.
To date, EPA has performed some fuel economy testing connected with certification applications for electric vehicles using the procedures developed by the Society of Automotive Engineers (SAE), specifically SAE J1634, as published October 2002. The proposal spelled out EV testing requirements that are similar to SAE J1634. This rule finalizes the test procedures.
In estimating the costs of this action, there is no clear baseline cost that manufacturers of EVs would have incurred in satisfying Federal requirements, because fuel economy measurements were either optional
The NPRM described the use of SAE J1634 as the basis for the costs of testing procedures for EVs, based on range testing requirements of the Federal Trade Commission for “alternative fueled vehicles.” Preparation costs were estimated to be $3,163 and 30 hours per vehicle, per Information Collection Request (ICR) 0783.54 (OMB 2060–0104), the certification ICR for conventional vehicles. The low and high EV test distances for Federal Test Procedure (FTP) and Highway Fuel Economy Test (HFET) tests are estimated as 50 to 250 miles. For purposes of this estimate, the cost of an FTP/HFET pair is $1,860, allocated 70% to the FTP and 30% to the HFET and incremented either by 50 or 250 divided by 7.45 (the distance of a normal FTP), or by 50 or 250 divided by 10.3 (the distance of the normal HFET). These increases are applied to an estimated five to eight EV families in the years through MY2013. Labor hours, estimated at 30 hours per FTP/HFET pair, are allocated and incremented in a similar manner. The bottom line is a cost between $75,300 and $486,784 and 1,073 to 7,625 hours, per year for the EV industry. With the cost of labor estimated to be $61.49 per hour, labor costs would add between $65,988 and $468,871 in annual costs. No comments were received on these estimates.
As explained in Section III.M., the proposed EPA test procedure for PHEVs is an extension of the existing test procedure for hybrid vehicles. Off-cycle tests are already required for test groups that do not meet the “litmus test;” others would use the derived five-cycle adjustment. Hybrid vehicles already do FTP and HFET tests for fuel economy determination. The new FTP procedure for PHEVs would essentially run repeated FTPs until the charge is
For purposes of this cost analysis, the charge-sustaining FTP and HFET cycles along with potential other cycles mandated by emissions and fuel economy testing requirements are considered to be continuations of existing requirements. The cost increment due to this proposal consequently derives entirely from the increased testing time in depleting mode. The duration of the depleting modes is estimated as 7.45 to 50 miles over the repeated 7.45-mile FTP or 10.3-mile HFET test cycles. These together, applied to 5 to 8 families with no carryovers, add an estimated $8,528 to $80,564 in operation and maintenance (O&M) costs and 138 to 923 labor hours to existing hybrid testing costs. With the cost of labor estimated to be $61.49 per hour, labor costs would add between $8,458 and $56,764 in annual costs.
The O&M costs and labor hours discussed above are summarized in Table VI.A.1–1:
As estimated in the proposal, each manufacturer who has not previously produced hybrid-electric vehicles is assumed to need new testing equipment costing $25,000 for an ammeter and $50,000 for voltage stabilizers; we estimate that 5–8 manufacturers will fall in this category. No comments were received on this estimate.
In addition to new equipment, establishing testing requirements for EVs and PHEVs will in theory require expanded testing facilities for those manufacturers choosing to produce and sell them in the U.S. Because the cost of new facility capacity is highly dependent on manufacturer-specific factors (the costs of capital, the availability of land, the structure of work shifts, the existing excess capacity, etc.), we use the approximation of unitizing increased test costs by assuming that a facility capable of performing 750 FTP/HFET pairs would cost $4 million. Here, the new tests are deemed to require these facilities in proportion to the increases in test time, and the costs are then annualized over ten years and amortized at 3% and 7% interest compounded monthly. This assumption is more likely to produce an overestimate of costs rather than an underestimate, since it does not attempt to account for the current excess capacity that exists in manufacturers' current test facilities. We assume that there is no excess capacity in our analysis. Note that other features of the EV and PHEV test cycles, such as recharging times, have been harmonized with existing test protocols. Furthermore, consistent with other information burden analyses for the emissions and fuel economy programs, we consider these as ongoing rather than startup costs (
Facility and equipment costs are summarized in Table VI.A.2–1:
Startup costs are counted as one-time costs that are amortized or discounted at an interest rate of 3% or 7% over ten years. The proposal separated the costs for updating information systems and testing equipment from the costs of label redesign, and estimated total startup costs between $8.1 and 8.6 million. When annualized and subjected to 7% loan repayment/discounting, the startup costs total in the proposal was estimated at $1.16 to $1.22 million per year.
Written comments from GM did not break down costs in these categories. Instead, their “initial estimate,” which included designing, releasing, testing, and validating the system, would cost “more than $800,000.” Suzuki estimated its costs as $70,000 for software, $111,144 for printers, and $20,250 for IT costs, for a total of $201,394. Because color printers are no longer required, these costs are therefore estimated to be $90,250. Other cost estimates provided to the agencies for non-color printing included $174,000 from one manufacturer and $500,000 from another.
For this cost analysis, the agencies are using these two estimates as upper and lower bounds specifically of additional startup costs for the labels. These estimates are then applied to the universe of separate manufacturer entities subject to the rule. Many specific automotive brands are parts of marketing groups or are owned and managed by other, parent companies. Allowing for these relationships, the agencies estimate that the rule would apply to 24 manufacturers and 11 independent commercial importers (ICIs) importing nonconforming vehicles into the U.S. for sale. Applied to 35 companies, then, the label redesign cost is estimated to be between $3.2 million and $28 million. When annualized at 3% and 7% over ten years, these costs are estimated to be between $370,000 and $3,987,000 per year.
The proposed labels in the NPRM included different colors, reflecting either different technologies or differences in fuel economy and greenhouse gas emissions. Auto companies commented that the use of multiple colors would add significantly to label costs and lead time, due to the need to purchase new printers and to increased maintenance costs. In addition, they expressed concern that colors in the labels might fade, that they might be difficult to see through tinted windows, that the increased complexity of these labels would lead to compliance concerns, and that some colors might deter consumers from considering some vehicles. As discussed in Section III.J. of this preamble, the agencies have decided for the final label to use one color (in addition to black) that can be pre-printed on the feedstock that will go into the printers used for the vehicle labels. The acceptance of this approach by many auto manufacturers suggests that the addition of color in a manner that allows it to be pre-printed on feedstock does not have a material effect on costs; indeed, some manufacturers already use a color besides black. Thus, printing costs associated with the final label are not expected to change from the baseline costs. Because of this change in label requirements from the proposal, the agencies believe that there will be no additional costs associated with label printing. Thus, the additional printing costs estimated in the proposal to be $294,690 to $1,274,634 per year are now estimated to be zero.
Table VI.A.4–1 summarizes the costs presented here. The total costs of this rule, excluding labor, are estimated to be between $0.7 and $5.5 million per year.
EPCA and EISA create similar but not necessarily identical requirements for labeling vehicles. EPA conducts a labeling program under EPCA, and NHTSA is required to conduct a labeling program under EISA, in consultation with EPA. While the agencies could require that manufacturers produce two separate labels to meet the requirements of the statutes, much of the information on the two labels would be duplicative. In addition, two different fuel economy
Because NHTSA's labeling under EISA is a new requirement that has not previously been implemented, there is no cost reduction associated with the proposal to use a joint label. The use of the joint label avoids a cost increase that would result from two separate labels. EPA and NHTSA are not including this cost saving in the cost analysis because we believe that the benefits of coordinating labeling requirements outweigh any possible disadvantages.
Section III.L. discusses harmonization of this label with labeling requirements for the Federal Trade Commission (FTC) and the State of California. To the extent that the new label can reduce the need for separate labels due to these requirements, there are additional cost reductions associated with this rule. The California Air Resources Board in 2007 estimated the annual cost of its label to be $245,000 per year for all companies operating in California.
The NPRM discussed the difficulties of quantitatively estimating benefits of this rulemaking. Measuring benefits would depend on predicting what vehicles consumers would purchase in the absence of the rule; predicting what vehicles consumers would purchase with implementation of the rule; and then measuring the benefits associated with the changed vehicle purchases. One commenter (the New York University Law School Institute for Policy Integrity) argued that the agencies should quantify these effects, on the ground that the effects of the rule on the economy are likely to be significant: if the revised labels lead even to small changes in behavior, the effects on fuel purchases alone would be large.
The agencies recognize that Executive Order 13563 directs agencies “to use the best available techniques to quantify anticipated present and future benefits as accurately as possible.” In this context, however, quantitative information is not available, and the agencies have therefore chosen instead to continue with a qualitative assessment of benefits. It is difficult to develop a good baseline for the fleet using the existing label, partly because the existing label is not designed to incorporate advanced technology vehicles. It is even more difficult to develop a comparison for the fleet with the new labels, because the effects of label designs on vehicle purchases are not known. Thus, any assessment of quantitative effects of label design on vehicle sales involves a great deal of speculation. The agencies believe that informed choice is an end in itself, even if it is hard to quantify; the agencies also believe that the new labels will provide significant benefits for consumers, including economic benefits, though these benefits cannot be quantified at this time.
The existing label is not suitable for providing information on advanced technologies, and it does not include new information required by EISA; it must be revised. Sections III and IV of this preamble discuss the rationales for the label that is being required. The benefits of this rule will come from the improved provision of information to vehicle buyers and from more informed consumer decisions resulting from the changes. To the extent that the new labels fulfill these functions, they will save consumers money, help them find the most satisfactory vehicles for their needs, and probably contribute to improvements in environmental quality. These effects will be difficult to measure even after rule implementation, because these labels are being introduced at the same time that new vehicle technologies and fuels are coming into the market and vehicles' fuel economy is improving. Nevertheless, the agencies' research suggests that a well-designed label will assist people in making informed decisions about their vehicles.
The primary benefits associated with this rule are associated with improved consumer decision-making resulting from improved presentation of information. At this time, EPA and NHTSA do not have data to quantify these impacts.
The primary costs associated with this proposed rule come from revisions to the fuel economy label and additional testing procedures. These costs, not including any cost reductions from harmonizing label designs with California or the FTC, are estimated to be $0.7 to $5.5 million per year. The agencies have concluded, consistent with Executive Order 13563, that the likely benefits justify the costs.
The Automobile Information Disclosure Act (AIDA) requires the affixing of a retail price sticker to the windshield or side window of new automobiles indicating the Manufacturer's Suggested Retail Price, the “sticker price.”
Under EPCA, EPA may allow manufacturers of new automobiles to comply with the EPCA labeling requirements by placing the fuel economy information on the label required by AIDA.
EPCA requires that “Gas Guzzler” tax information under 26 U.S.C. 4064 be included on the fuel economy label. The new labels provide for this requirement. The Internal Revenue code contains the provisions governing the administration of the Gas Guzzler Tax. It contains the table of applicable taxes and defines which vehicles are subject to the taxes.
EPCA states that fuel economy tests shall, to the extent practicable, be carried out with the emissions tests required under Section 206 of the Clean Air Act.
In the mid-1970's when EPCA was passed, the Federal Trade Commission (FTC) “took note of the dramatic increase in the number of fuel economy claims then being made and of the proliferation of test procedures then being used as the basis for such claims.”
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action” because the action raises novel legal or policy issues. Accordingly, EPA and NHTSA submitted this action to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in response to OMB recommendations have been documented in the docket for this action.
NHTSA is also subject to the Department of Transportation's Regulatory Policies and Procedures. This final rule is also significant within the meaning of the DOT Regulatory Policies and Procedures. Executive Order 12866 also requires NHTSA to submit this action to OMB for review and document any changes made in response to OMB recommendations.
In addition, EPA and NHTSA both prepared an analysis of the potential costs and benefits associated with this action. This analysis is available in Section VI of this document. In accordance with Executive Order 13563, section 1, the agencies have made “a reasoned determination that” the benefits of the rule “justify its costs (recognizing that some benefits and costs are difficult to quantify.” In accordance with Executive Order 13563, section 3, the agencies have reduced costs and promoted predictability and simplicity by coordinating and harmonizing regulatory requirements, both state and Federal.
Executive Order 13563, section 4, directs agencies to consider “flexible approaches” that maintain “freedom of choice for the public.” Such approaches include, under the Executive Order, “disclosure requirements as well as provision of information to the public in a form that is clear and intelligible.” This rule is specifically designed to promote the goals of section 4 of Executive Order 13563 by providing clear and intelligible information and by promoting informed choices.
The information collection requirements in this final rule have been submitted for approval to the Office of Management and Budget (OMB) under the
The information being collected is used by EPA to calculate the fuel economy estimates that appear on new automobile, light truck and medium-duty passenger vehicle sticker labels. EPA currently collects this information annually as part of its vehicle certification and fuel economy program, and will continue to do so. This final rule changes some of the content of the information submitted. Responses to this information collection are mandatory to obtain the benefit of vehicle certification under Title II of the Clean Air Act (42 U.S.C. 7521
The projected yearly increased cost within the three-year horizon of the pending information collection request is $2,812,000 including $2,286,000 in operations and maintenance costs and $526,000 in labor costs. The estimated number of likely respondent manufacturers is 35. Responses are submitted annually by engine family, with the number of responses per respondent varying widely depending on the number of engine families being certified. Under the current fuel economy information authorization, an average of 12.2 responses a year are approved for each of 33 respondents requiring 451.2 hours per response and 80 hours of recordkeeping at a total cost of $10,012 per response for an industry total of 184,127 hours and $4,274,932 million annually, including capital and
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.
The Regulatory Flexibility Act (RFA) generally requires agencies to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agencies certify that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this proposed rule on small entities, a small entity is defined as: (1) A small business as defined by the Small Business Administration (SBA) by category of business using North America Industrial Classification System (NAICS) and codified at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
Table VIII.B.3–1 provides an overview of the primary SBA small business categories included in the light-duty vehicle sector that are subject to the final rule:
After considering the economic impacts of today's final rule on small entities, we certify that this action will not have a significant economic impact on a substantial number of small entities. The small entities directly regulated by this final rule cover several types of small businesses including vehicle manufacturers, automobile dealers, limousine and hearse manufacturers, and independent commercial importers (ICIs). ICIs are companies that import used vehicles into the U.S. that must be certified for emissions compliance and labeled for fuel economy purposes. Small governmental jurisdictions and small organizations as described above will not be impacted. We have determined that the estimated effect of the final rule is to impact 5 small business vehicle manufacturers and 11 ICIs who currently certify vehicles with costs less than one percent of revenues. These 16 companies represent all of the small businesses impacted by the new regulations. The final regulations will have no new impacts on small business automobile dealers or small business limousine and hearse manufacturers. We requested comment on the impacts of the proposed regulations on small entities but received no feedback. An analysis of the impacts of the final rule on small businesses has been prepared and placed in the docket for this rulemaking.
Although this final rule will not have a significant impact on a substantial number of small entities, we nonetheless have tried to reduce the impact of this rule on small entities. As discussed in section V.B, EPA is requiring a reduction in the testing burden on ICIs that will be needed for the fuel economy label. Under the final regulations, ICIs will be allowed to test over two driving cycles when determining the fuel economy estimate for the fuel economy label instead of testing over five driving cycles as required for vehicle manufacturers.
This rule does not contain a Federal mandate that may result in expenditures of $100 million (adjusted for inflation) or more for state, local, and tribal governments, in the aggregate, or the private sector in any one year. This rule contains no Federal mandates for state, local, or tribal governments as defined by the provisions of Title II of the UMRA. The rule imposes no enforceable duties on any of these governmental entities. Nothing in the rule would significantly or uniquely affect small governments. The proposed rule only affects vehicle manufacturers and the agencies estimate annual costs of less than $100 million (adjusted for inflation). EPA and NHTSA believe that the rule represents the least costly, most cost-effective approach to achieve the statutory requirements of the rule. The agencies' estimated costs are provided in Section VI. Thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA.
This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. As noted above, the rule only affects vehicle manufacturers.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule applies to manufacturers of motor vehicles and not to state or local governments. Thus, Executive Order 13132 does not apply to this action. Although section 6 of Executive Order 13132 does not apply to this action, EPA and NHTSA did consult with representatives of state governments in developing this action.
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This final rule would be implemented at the Federal level and imposes compliance costs only on vehicle manufacturers. Tribal governments would be affected only to the extent they purchase and use regulated vehicles. Thus, Executive Order 13175 does not apply to this action.
EPA and NHTSA interpret E.O. 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5–501 of the E.O. has the potential to influence the regulation. This action is not subject to E.O. 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.
This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This action does not require manufacturers to improve or otherwise change the fuel economy of their vehicles. The purpose of this action is to provide consumers with better information on which to base their vehicle purchasing decisions and that may have a positive effect on the energy supply. Therefore, we have concluded that this rule is not likely to have any adverse energy effects.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104–113 (15 U.S.C. 272 note) directs the agencies to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
The EPA portion of this rulemaking involves technical standards. EPA has decided to use the following testing standards developed with the Society of Automotive Engineers (SAE) related to measurement procedures for electric vehicles and plug-in hybrid electric vehicles: SAEJ1711, SAE J2841, and SAE J1634. SAE reference documents can be obtained at
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
The agencies have determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. The final regulations do not require manufacturers to improve or otherwise change the emissions control or fuel economy of their vehicles. The purpose of this final regulation is to provide consumers with better information on which to base their vehicle purchasing decisions.
The Congressional Review Act, 5 U.S.C. 801
Confidential business information, Imports, Labeling, Motor vehicle pollution, Reporting and recordkeeping requirements, Research, Warranties.
Administrative practice and procedure, Confidential business information, Labeling, Motor vehicle pollution, Reporting and recordkeeping requirements.
Administrative practice and procedure, Electric power, Fuel economy, Incorporation by reference, Labeling, Reporting and recordkeeping requirements.
Administrative practice and procedure, Consumer protection, Fuel economy, Motor vehicles, Motor vehicle safety, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Environmental Protection Agency amends parts 85, 86, and 600 of title 40, Chapter I of the Code of Federal Regulations as follows:
42 U.S.C. 7401–7671q.
(b) * * *
(2) A defect in the design, materials, or workmanship in one or more emissions control or emission-related parts, components, systems, software or elements of design which must function properly to ensure continued
42 U.S.C. 7401–7671q.
(d) * * *
(4) Measure and record the continuous CO
(f) * * *
(1) All emission standards apply at low altitude conditions and at high altitude conditions, with the following exceptions:
(i) The supplemental exhaust emission standards as described in § 86.1811–04(f) apply only at low altitude conditions;
(ii) The cold temperature NMHC emission standards as described in § 86.1811–10(g) apply only at low altitude conditions;
(iii) The evaporative emission standards specified in § 86.1811–09(e) apply at low altitude conditions. The evaporative emission standards specified in § 86.1811–04(e) continue to apply at high altitude conditions for 2009 and later model year vehicles.
(e)
(b) * * *
(3) Manufacturer has the meaning given by the Department of Transportation at 49 CFR 531.4.
(c) * * *
(1) For a given individual model year's production of passenger automobiles and light trucks, manufacturers must comply with a full useful life fleet average CO
(d)
(m) * * *
(2) * * *
(iii) For the 2012 through 2014 model years only, manufacturers may use alternative deterioration factors. For N
(3)
(a) * * *
(3) Compliance with full useful life CO
(c) * * *
(9) * * *
(i) Failure to meet the fleet average CO
(a) * * *
(1) Unless otherwise exempted under the provisions of § 86.1801–12(j) or (k), CO
(d)
(j) * * *
(1) Compliance and enforcement requirements are provided in this section and § 86.1848–10(c)(9).
(k) * * *
(7) * * *
(i) Credits generated and calculated according to the method in paragraphs (k)(4) and (5) of this section may not be used to offset deficits other than those deficits accrued with respect to the standard in § 86.1818. Credits may be banked and used in a future model year in which a manufacturer's average CO
(8) * * *
(iii) EPA will determine the vehicles not covered by a certificate because the condition on the certificate was not satisfied by designating vehicles in those test groups with the highest carbon-related exhaust emission values first and continuing until reaching a number of vehicles equal to the calculated number of non-complying vehicles as determined in this paragraph (k)(8). If this calculation determines that only a portion of vehicles in a test group contribute to the debit situation, then EPA will designate actual vehicles in that test group as not covered by the certificate, starting with the last vehicle produced and counting backwards.
(iv)(A) If a manufacturer ceases production of passenger cars and light trucks, the manufacturer continues to be responsible for offsetting any debits outstanding within the required time period. Any failure to offset the debits will be considered a violation of paragraph (k)(8)(i) of this section and may subject the manufacturer to an enforcement action for sale of vehicles not covered by a certificate, pursuant to paragraphs (k)(8)(ii) and (iii) of this section.
(B) If a manufacturer is purchased by, merges with, or otherwise combines with another manufacturer, the controlling entity is responsible for offsetting any debits outstanding within the required time period. Any failure to offset the debits will be considered a violation of paragraph (k)(8)(i) of this section and may subject the manufacturer to an enforcement action for sale of vehicles not covered by a certificate, pursuant to paragraphs (k)(8)(ii) and (iii) of this section.
(v) For purposes of calculating the statute of limitations, a violation of the requirements of paragraph (k)(8)(i) of this section, a failure to satisfy the conditions upon which a certificate(s) was issued and hence a sale of vehicles not covered by the certificate, all occur upon the expiration of the deadline for offsetting debits specified in paragraph (k)(8)(i) of this section.
(9) * * *
(iv) * * *
(B) Failure to offset the debits within the required time period will be considered a failure to satisfy the conditions upon which the certificate(s) was issued and will be addressed pursuant to paragraph (k)(8) of this section.
(v) A manufacturer may only trade credits that it has generated pursuant to paragraphs (k)(4) and (5) of this section or acquired from another party.
(b) * * *
(2) The CO
(i) Passenger automobiles:
(ii) Light trucks:
(c) * * *
(5) * * *
(iv) Air conditioning systems with compressors that are powered solely by electricity shall submit Air Conditioning Idle Test Procedure data to be eligible to generate credits in 2014 and later model years, but such systems are not required to meet a specific threshold to be eligible to generate such credits, as long as the engine is off for at least 2 cumulative minutes during the air conditioning-on portion of the Idle Test Procedure in § 86.165–12(d).
(d) * * *
(1)
(a) * * *
(1) * * *
(i) An average carbon-related exhaust emission value calculation will be made for the combined LDV/LDT1 averaging set, where the terms LDV and LDT1 are as defined in § 86.1803.
(ii) An average carbon-related exhaust emission value calculation will be made for the combined LDT2/HLDT/MDPV averaging set, where the terms LDT2, HLDT, and MDPV are as defined in § 86.1803.
(iii) * * *
(A) [Reserved]
(3) * * *
(iv) * * *
(A) Vehicles sold in California and the section 177 states determined in paragraph (a)(2)(i) of this section shall not be included.
(F) Electric, fuel cell, and plug-in hybrid electric model type carbon-related exhaust emission values shall be included in the fleet average determined under paragraph (a)(1) of this section only to the extent that such vehicles are not being used to generate early advanced technology vehicle credits under paragraph (c) of this section.
(vi) Credits are earned on the last day of the model year. Manufacturers must calculate, for a given model year, the number of credits or debits it has generated according to the following equation, rounded to the nearest megagram:
(4) Pathway 4. Pathway 4 credits are those credits earned under Pathway 3 as described in paragraph (a)(3) of this section in the set of states that does not include California and the section 177 states determined in paragraph (a)(2)(i) of this section and calculated according to paragraph (a)(3) of this section. Credits may only be generated by vehicles sold in the set of states that does not include California and the section 177 states determined in paragraph (a)(2)(i) of this section.
(b) * * *
(2) Manufacturers must be participating in one of the early fleet average credit pathways described in paragraphs (a)(1), (2), or (3) of this section in order to generate early air conditioning credits for vehicles sold in California and the section 177 states as determined in paragraph (a)(2)(i) of this section. Manufacturers that select Pathway 4 as described in paragraph (a)(4) of this section may not generate early air conditioning credits for vehicles sold in California and the section 177 states as determined in paragraph (a)(2)(i) of this section. Manufacturers not participating in one of the early fleet average credit pathways described in this section may
(e) * * *
(4) * * *
(ii) The leakage and efficiency credit values and all the information required to determine these values.
49 U.S.C. 32901–23919q, Pub. L. 109–58.
§ 600.001–08.
§ 600.001–86.
§ 600.001–93.
§ 600.002–85.
§ 600.002–93.
§ 600.004–77.
§ 600.006–86.
§ 600.006–87.
§ 600.006–89.
§ 600.007–80.
§ 600.008–01.
§ 600.008–77.
§ 600.010–86.
(a) The provisions of this part apply to 2008 and later model year automobiles that are not medium duty passenger vehicles, and to 2011 and later model year automobiles including medium-duty passenger vehicles.
(b) The provisions of subparts A, D, and F of this part are optional through the 2011 model year in the following cases:
(1) Manufacturers that produce only electric vehicles are exempt from the requirements of this subpart, except with regard to the requirements in those sections pertaining specifically to electric vehicles.
(2) Manufacturers with worldwide production (excluding electric vehicle production) of less than 10,000 gasoline-fueled and/or diesel powered passenger automobiles and light trucks may optionally comply with the electric vehicle requirements in this subpart.
(c) Unless stated otherwise, references to fuel economy or fuel economy data in this part shall also be interpreted to mean the related exhaust emissions of CO
(d) The model year of initial applicability for sections in this part is indicated by the section number. The two digits following the hyphen designate the first model year for which a section is applicable. An individual section continues to apply for later model years until it is replaced by a different section that applies starting in a later model year. Sections that have no two-digit suffix apply for all 2008 and later model year vehicles, except as noted in those sections. If a section has a two-digit suffix but the regulation references that section without including the two-digit suffix, this refers to the section applicable for the appropriate model year. This also applies for references to part 86 of this chapter. As an example, § 600.113–08 applies to the 2008 and subsequent model years until § 600.113–12 is applicable beginning with the 2012 model year. Section 600.111–08 would then apply only for 2008 through 2011 model year vehicles.
The following definitions apply throughout this part:
(1) Which is designed to operate on alcohol and on gasoline or diesel fuel; and
(2) Which provides equal or greater energy efficiency as calculated in accordance with § 600.510–08(g)(1) or § 600.510–12(g)(1) while operating on alcohol as it does while operating on gasoline or diesel fuel; and
(3) Which, in the case of passenger automobiles, meets or exceeds the minimum driving range established by the Department of Transportation in 49 CFR part 538.
(1) Methanol.
(2) Denatured ethanol.
(3) Other alcohols.
(4) A mixture containing at least 85 percent (or an alternative percentage as specified by the Secretary of Transportation under 49 U.S.C.
(5) Natural gas.
(6) Liquefied petroleum gas.
(7) Hydrogen.
(8) Coal derived liquid fuels.
(9) Fuels (except alcohol) derived from biological materials.
(10) Electricity (including electricity from solar energy).
(11) Any other fuel the Secretary of Transportation prescribes by regulation under 49 U.S.C. 32901(a)(1)(K).
(1) The fuel economy value determined for a vehicle (or vehicles) by harmonically averaging the city and highway fuel economy values, weighted 0.55 and 0.45, respectively.
(2) For electric vehicles, the term means the equivalent petroleum-based fuel economy value as determined by the calculation procedure promulgated by the Secretary of Energy.
(1) Which is designed to operate on an alternative fuel and on gasoline or diesel fuel; and
(2) Which provides equal or greater energy efficiency as calculated in accordance with § 600.510–08(g)(1) or § 600.510–12(g)(1) while operating on the alternative fuel as it does while operating on gasoline or diesel fuel; and
(3) Which, in the case of passenger automobiles, meets or exceeds the minimum driving range established by the Department of Transportation in 49 CFR part 538.
(1) Gasoline and diesel fuel for gasoline- or diesel-powered automobiles; or
(2) Electrical energy for electrically powered automobiles; or
(3) Alcohol for alcohol-powered automobiles; or
(4) Natural gas for natural gas-powered automobiles; or
(5) Liquid Petroleum Gas (LPG), commonly referred to as “propane,” for LPG-powered automobiles; or
(6) Hydrogen for hydrogen fuel cell automobiles and for automobiles equipped with hydrogen internal combustion engines.
(1) The average number of miles traveled by an automobile or group of automobiles per volume of fuel consumed as calculated in this part; or
(2) For the purpose of calculating average fuel economy pursuant to the provisions of part 600, subpart F, fuel economy for electrically powered automobiles means the equivalent petroleum-based fuel economy as determined by the Secretary of Energy in accordance with the provisions of 10 CFR 474.
(1) Is an “incomplete truck” as defined in this subpart; or
(2) Has a seating capacity of more than 12 persons; or
(3) Is designed for more than 9 persons in seating rearward of the driver's seat; or
(4) Is equipped with an open cargo area (for example, a pick-up truck box or bed) of 72.0 inches in interior length or more. A covered box not readily accessible from the passenger compartment will be considered an open cargo area for purposes of this definition.
(1) Which is designed to operate on natural gas and on gasoline or diesel fuel;
(2) Which provides equal or greater energy efficiency as calculated in § 600.510–08(g)(1) while operating on natural gas as it does while operating on gasoline or diesel fuel; and
(3) Which, in the case of passenger automobiles, meets or exceeds the minimum driving range established by the Department of Transportation in 49 CFR part 538.
The abbreviations and acronyms used in this part have the same meaning as those in part 86 of this chapter, with the addition of the following:
(a) “MPG” or “mpg” means miles per gallon. This may be used to generally describe fuel economy as a quantity, or it may be used as the units associated with a particular value.
(b) MPGe means miles per gallon equivalent. This is generally used to quantify a fuel economy value for vehicles that use a fuel other than gasoline. The value represents miles the vehicle can drive with the energy equivalent of one gallon of gasoline.
(c) SCF means standard cubic feet.
(d) SUV means sport utility vehicle.
(e) CREE means carbon-related exhaust emissions.
The provisions of this section are applicable to all fuel economy data vehicles. Certification vehicles are required to meet the provisions of § 86.1844 of this chapter.
(a) The manufacturer of any new motor vehicle subject to any of the standards or procedures prescribed in this part shall establish, maintain, and retain the following adequately organized and indexed records:
(1)
(ii) A description of all procedures used to test each vehicle.
(iii) A copy of the information required to be submitted under § 600.006 fulfills the requirements of paragraph (a)(1)(i) of this section.
(2)
(i) The steps taken to ensure that the vehicle with respect to its engine, drive train, fuel system, emission control system components, exhaust after treatment device, vehicle weight, or any other device or component, as applicable, will be representative of production vehicles. In the case of electric vehicles, the manufacturer should describe the steps taken to ensure that the vehicle with respect to its electric traction motor, motor controller, battery configuration, or any other device or component, as applicable, will be representative of production vehicles.
(ii) A complete record of all emission tests performed under part 86 of this chapter, all fuel economy tests performed under this part 600 (except tests actually performed by EPA personnel), and all electric vehicle tests performed according to procedures promulgated by DOE, including all individual worksheets and other documentation relating to each such test or exact copies thereof; the date, time, purpose, and location of each test; the number of miles accumulated on the vehicle when the tests began and ended; and the names of supervisory personnel responsible for the conduct of the tests.
(iii) A description of mileage accumulated since selection of buildup of such vehicles including the date and time of each mileage accumulation listing both the mileage accumulated and the name of each driver, or each operator of the automatic mileage accumulation device, if applicable. Additionally, a description of mileage accumulated prior to selection or buildup of such vehicle must be maintained in such detail as is available.
(iv) If used, the record of any devices employed to record the speed or mileage, or both, of the test vehicle in relationship to time.
(v) A record and description of all maintenance and other servicing performed, within 2,000 miles prior to fuel economy testing under this part, giving the date and time of the maintenance or service, the reason for it, the person authorizing it, and the names of supervisory personnel responsible for the conduct of the maintenance or service. A copy of the maintenance information to be submitted under § 600.006 fulfills the requirements of this paragraph (a)(2)(v).
(vi) A brief description of any significant events affecting the vehicle during any of the period covered by the history not described in an entry under one of the previous headings including such extraordinary events as vehicle accidents or driver speeding citations or warnings.
(3)
(c) The manufacturer shall submit the following fuel economy data:
(1) For vehicles tested to meet the requirements of part 86 of this chapter (other than those chosen in accordance with the provisions related to durability demonstration in § 86.1829 of this chapter or in-use verification testing in § 86.1845 of this chapter), the FTP, highway, US06, SC03 and cold temperature FTP fuel economy results, as applicable, from all tests on that vehicle, and the test results adjusted in accordance with paragraph (g) of this section.
(2) For each fuel economy data vehicle, all individual test results (excluding results of invalid and zero mile tests) and these test results adjusted in accordance with paragraph (g) of this section.
(3) For diesel vehicles tested to meet the requirements of part 86 of this chapter, data from a cold temperature FTP, performed in accordance with § 600.111–08(e), using the fuel specified in § 600.107–08(c).
(4) For all vehicles tested in paragraph (c)(1) through (3) of this section, the individual fuel economy results measured on a per-phase basis, that is, the individual phase results for all sample phases of the FTP, cold temperature FTP and US06 tests.
(5) Starting with the 2012 model year, the data submitted according to paragraphs (c)(1) through (4) of this section shall include total HC, CO, CO
(e) In lieu of submitting actual data from a test vehicle, a manufacturer may provide fuel economy, CO
(g)(1) The manufacturer shall adjust all test data used for fuel economy label calculations in subpart D and average fuel economy calculations in subpart F for the classes of automobiles within the categories identified in paragraphs of § 600.510(a)(1) through (4). The test data shall be adjusted in accordance with paragraph (g)(3) or (4) of this section as applicable.
(2) [Reserved]
(3)(i) The manufacturer shall adjust all fuel economy test data generated by vehicles with engine-drive system combinations with more than 6,200 miles by using the following equation:
(ii)(A) The manufacturer shall adjust all carbon-related exhaust emission (CREE) and all CO
(B) Emissions test values and results used and determined in the calculations in this paragraph (g)(3)(ii) shall be rounded in accordance with § 86.1837 of this chapter as applicable. CO
(C) Note that the CREE test results are determined using the unadjusted CO
(4) For vehicles with 6,200 miles or less accumulated, the manufacturer is not required to adjust the data.
(5) The Administrator may specify a different adjustment calculation for electric vehicles, plug-in hybrid electric vehicles, and fuel cell vehicles to allow for properly characterizing the fuel economy and emissions of these vehicles.
(a) All certification vehicles and other vehicles tested to meet the requirements of part 86 of this chapter (other than those chosen under the durability-demonstration provisions in § 86.1829 of this chapter), are considered to have met the requirements of this section.
(b) Any vehicle not meeting the provisions of paragraph (a) of this section must be judged acceptable by the Administrator under this section in order for the test results to be reviewed for use in subpart C or F of this part. The Administrator will judge the acceptability of a fuel economy data vehicle on the basis of the information supplied by the manufacturer under § 600.006(b). The criteria to be met are:
(1) A fuel economy data vehicle may have accumulated not more than 10,000 miles. A vehicle will be considered to have met this requirement if the engine and drivetrain have accumulated 10,000 or fewer miles. The Administrator may specify a different maximum value for electric vehicles, plug-in hybrid electric vehicles, and fuel cell vehicles that allows for the necessary operation for properly evaluating and characterizing those vehicles under this part. The components installed for a fuel economy test are not required to be the ones with which the mileage was accumulated,
(2) A vehicle may be tested in different vehicle configurations by change of vehicle components, as specified in paragraph (b)(1) of this section, or by testing in different inertia weight classes. Also, a single vehicle may be tested under different test conditions,
(3) The mileage on a fuel economy data vehicle must be, to the extent possible, accumulated according to § 86.1831 of this chapter.
(4) Each fuel economy data vehicle must meet the same exhaust emission standards as certification vehicles of the respective engine-system combination during the test in which the city fuel economy test results are generated. This may be demonstrated using one of the following methods:
(i) The deterioration factors established for the respective engine-system combination per § 86.1841 of this chapter as applicable will be used; or
(ii) The fuel economy data vehicle will be equipped with aged emission control components according to the provisions of § 86.1823 of this chapter.
(5) The calibration information submitted under § 600.006(b) must be representative of the vehicle configuration for which the fuel economy, CO
(6) Any vehicle tested for fuel economy, CO
(7) For vehicles imported under § 85.1509 or § 85.1511(b)(2), (b)(4), (c)(1), (c)(2) or (d) of this chapter (when applicable), only the following requirements must be met:
(i) For vehicles imported under § 85.1509 of this chapter, a highway fuel economy value must be generated contemporaneously with the emission tests used for purposes of demonstrating compliance with § 85.1509 of this chapter. No modifications or adjustments should be made to the vehicles between the highway fuel economy, FTP, US06, SC03 and Cold temperature FTP tests.
(ii) For vehicles imported under § 85.1509 or § 85.1511(b)(2), (b)(4), (c)(1), or (c)(2) of this chapter (when applicable) with over 10,000 miles, the equation in § 600.006(g)(3) shall be used as though only 10,000 miles had been accumulated.
(iii) Any required fuel economy testing must take place after any safety modifications are completed for each vehicle as required by regulations of the Department of Transportation.
(iv) Every vehicle imported under § 85.1509 or § 85.1511(b)(2), (b)(4), (c)(1), or (c)(2) of this chapter (when applicable) must be considered a separate type for the purposes of calculating a fuel economy label for a manufacturer's average fuel economy.
(e) If, based on a review of the emission data for a fuel economy data vehicle, submitted under § 600.006(b), or emission data generated by a vehicle tested under § 600.008(e), the Administrator finds an indication of non-compliance with section 202 of the Clean Air Act, 42 U.S.C. 1857 et seq. of the regulation thereunder, he may take such investigative actions as are appropriate to determine to what extent emission non-compliance actually exists.
(1) The Administrator may, under the provisions of § 86.1830 of this chapter, request the manufacturer to submit production vehicles of the configuration(s) specified by the Administrator for testing to determine to what extent emission noncompliance of a production vehicle configuration or of a group of production vehicle configurations may actually exist.
(2) If the Administrator determines, as a result of his investigation, that substantial emission non-compliance is exhibited by a production vehicle configuration or group of production vehicle configurations, he may proceed with respect to the vehicle configuration(s) as provided under section 206 or 207, as applicable, of the Clean Air Act, 42 U.S.C. 1857
(a) * * *
(1)(i) The Administrator may require that any one or more of the test vehicles be submitted to the Agency, at such place or places as the Agency may designate, for the purposes of
(ii) Starting with the 2012 model year for carbon-related exhaust emissions and with the 2013 model year for CO
(2) * * *
(i) The manufacturer's fuel economy data (or harmonically averaged data if more than one test was conducted) will be compared with the results of the Administrator's test.
(a) The manufacturer may request a hearing on the Administrator's decision if the Administrator rejects any of the following:
(1) The use of a manufacturer's fuel economy data vehicle, in accordance with § 600.008(e) or (g), or
(2) The use of fuel economy data, in accordance with § 600.008(c), or (f), or
(3) The determination of a vehicle configuration, in accordance with § 600.206(a), or
(4) The identification of a car line, in accordance with § 600.002, or
(5) The fuel economy label values determined by the manufacturer under § 600.312–08(a), then:
(b) The request for a hearing must be filed in writing within 30 days after being notified of the Administrator's decision. The request must be signed by an authorized representative of the manufacturer and include a statement specifying the manufacturer's objections to the Administrator's determinations, with data in support of such objection.
(c) If, after the review of the request and supporting data, the Administrator finds that the request raises one or more substantial factual issues, the Administrator shall provide the manufacturer with a hearing in accordance with the provisions of 40 CFR part 1068, subpart G.
(d) A manufacturer's use of any fuel economy data which the manufacturer challenges pursuant to this section shall not constitute final acceptance by the manufacturer nor prejudice the manufacturer in the exercise of any appeal pursuant to this section challenging such fuel economy data.
(a) Unless otherwise exempted from specific emission compliance requirements, for each certification vehicle defined in this part, and for each vehicle tested according to the emission test procedures in part 86 of this chapter for addition of a model after certification or approval of a running change (§ 86.1842 of this chapter, as applicable):
(c)
(i) Data required for emission certification under §§ 86.1828 and 86.1842 of this chapter.
(ii)(A) FTP and HFET data from the highest projected model year sales subconfiguration within the highest projected model year sales configuration for each base level, and
(B) If required under § 600.115, for 2011 and later model year vehicles, US06, SC03 and cold temperature FTP data from the highest projected model year sales subconfiguration within the highest projected model year sales configuration for each base level. Manufacturers may optionally generate this data for any 2008 through 2010 model years, and, 2011 and later model year vehicles, if not otherwise required.
(iii) For additional model types established under § 600.208–08(a)(2), § 600.208–12(a)(2) § 600.209–08(a)(2), or § 600.209–12(a)(2) FTP and HFET data, and if required under § 600.115, US06, SC03 and Cold temperature FTP data from each subconfiguration included within the model type.
(2) For the purpose of recalculating fuel economy label values as required under § 600.314–08(b), the manufacturer shall submit data required under § 600.507.
(d)
(a) Certain material is incorporated by reference into this part with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in this section, the Environmental Protection Agency must publish a notice of the change in the
(b) American Society for Testing and Materials, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA, 19428–2959, (610) 832–9585,
(1) ASTM D975–11 Standard Specification for Diesel Fuel Oils, approved March 1, 2011, IBR approved for § 600.107–08(b).
(2) ASTM D 1298–99 (Reapproved 2005) Standard Practice for Density, Relative Density (Specific Gravity), or API Gravity of Crude Petroleum and Liquid Petroleum Products by Hydrometer Method, approved
(3) ASTM D 1945–03 (Reapproved 2010) Standard Test Method for Analysis of Natural Gas By Gas Chromatography, approved January 1, 2010, IBR approved for §§ 600.113–08(f) and 600.113–12(f).
(4) ASTM D 3338/D 3338M –09 Standard Test Method for Estimation of Net Heat of Combustion of Aviation Fuels, approved April 15, 2009, IBR approved for §§ 600.113–08(f) and 600.113–12(f).
(5) ASTM D 3343–05 (Reapproved 2010) Standard Test Method for Estimation of Hydrogen Content of Aviation Fuels, approved October 1, 2010, IBR approved for §§ 600.113–08(f) and 600.113–12(f).
(c) Society of Automotive Engineers, 400 Commonwealth Dr., Warrendale, PA 15096–0001, (877) 606–7323 (U.S. and Canada) or (724) 776–4970 (outside the U.S. and Canada),
(1) Motor Vehicle Dimensions—Recommended Practice SAE 1100a (Report of Human Factors Engineering Committee, Society of Automotive Engineers, approved September 1973 as revised September 1975), IBR approved for § 600.315–08(c).
(2) SAE J1634, Electric Vehicle Energy Consumption and Range Test Procedure, Cancelled October 2002, IBR approved for §§ 600.116–12(a) and 600.311–12(j) and (k).
(3) SAE J1711, Recommended Practice for Measuring the Exhaust Emissions and Fuel Economy of Hybrid-Electric Vehicles, Including Plug-In Hybrid Vehicles, June 2010, IBR approved for §§ 600.116–12(b) and 600.311–12(d), (j), and (k).
(d) International Organization for Standardization, Case Postale 56, CH–1211 Geneva 20, Switzerland, (41) 22749 0111,
(1) ISO/IEC 18004:2006(E), Information technology—Automatic identification and data capture techniques—QR Code 2005 bar code symbology specification, Second Edition, September 1, 2006, IBR approved for § 600.302–12(b).
(2) [Reserved]
§ 600.101–12.
§ 600.101–86.
§ 600.101–93.
§ 600.102–78.
§ 600.103–78.
§ 600.104–78.
§ 600.105–78.
§ 600.106–78.
§ 600.107–78.
§ 600.107–93.
§ 600.109–78.
§ 600.110–78.
§ 600.111–80.
§ 600.111–93.
§ 600.112–78.
§ 600.113–78.
§ 600.113–88
§ 600.113–93.
The requirements for test equipment to be used for all fuel economy testing are given in subparts B and C of part 86 of this chapter.
(a) The test fuel specifications for gasoline, diesel, methanol, and methanol-petroleum fuel mixtures are given in § 86.113 of this chapter, except for cold temperature FTP fuel requirements for diesel and alternative fuel vehicles, which are given in paragraph (b) of this section.
(b)(1) Diesel test fuel used for cold temperature FTP testing must comprise a winter-grade diesel fuel as specified in ASTM D975 (incorporated by reference in § 600.011). Alternatively, EPA may approve the use of a different diesel fuel, provided that the level of kerosene added shall not exceed 20 percent.
(2) The manufacturer may request EPA approval of the use of an alternative fuel for cold temperature FTP testing.
(c) Test fuels representing fuel types for which there are no specifications provided in § 86.113 of this chapter may be used if approved in advance by the Administrator.
(b) * * *
(3) A graphic representation of the range of acceptable speed tolerances is found in § 86.115 of this chapter.
This section provides test procedures for the FTP, highway, US06, SC03, and the cold temperature FTP tests. Testing shall be performed according to test procedures and other requirements contained in this part 600 and in part 86 of this chapter, including the provisions of part 86, subparts B, C, and S.
(a)
(b)
(2) The HFET is designated to simulate non-metropolitan driving with an average speed of 48.6 mph and a maximum speed of 60 mph. The cycle is 10.2 miles long with 0.2 stop per mile and consists of warmed-up vehicle operation on a chassis dynamometer through a specified driving cycle. A proportional part of the diluted exhaust emission is collected continuously for subsequent analysis of hydrocarbons, carbon monoxide, carbon dioxide using a constant volume (variable dilution) sampler. Diesel dilute exhaust is continuously analyzed for hydrocarbons using a heated sample line and analyzer. Methanol and formaldehyde samples are collected and individually analyzed for methanol-fueled vehicles (measurement of methanol and formaldehyde may be omitted for 1993 through 1994 model year methanol-fueled vehicles provided a HFID calibrated on methanol is used for measuring HC plus methanol).
(3) Except in cases of component malfunction or failure, all emission control systems installed on or incorporated in a new motor vehicle must be functioning during all procedures in this subpart. The Administrator may authorize maintenance to correct component malfunction or failure.
(4) The provisions of § 86.128 of this chapter apply for vehicle transmission operation during highway fuel economy testing under this subpart.
(5) Section 86.129 of this chapter applies for determination of road load power and test weight for highway fuel economy testing. The test weight for the testing of a certification vehicle will be that test weight specified by the Administrator under the provisions of part 86 of this chapter. The test weight for a fuel economy data vehicle will be that test weight specified by the Administrator from the test weights covered by that vehicle configuration. The Administrator will base his selection of a test weight on the relative projected sales volumes of the various test weights within the vehicle configuration.
(6) The HFET is designed to be performed immediately following the Federal Emission Test Procedure, §§ 86.127 through 86.138 of this chapter. When conditions allow, the tests should be scheduled in this sequence. In the event the tests cannot be scheduled within three hours of the Federal Emission Test Procedure (including one hour hot soak evaporative loss test, if applicable) the vehicle should be preconditioned as in paragraph (b)(6)(i) or (ii) of this section, as applicable.
(i) If the vehicle has experienced more than three hours of soak (68 °F–86 °F) since the completion of the Federal Emission Test Procedure, or has experienced periods of storage outdoors, or in environments where soak temperature is not controlled to 68 °F–86 °F, the vehicle must be preconditioned by operation on a dynamometer through one cycle of the EPA Urban Dynamometer Driving Schedule, § 86.115 of this chapter.
(ii) EPA may approve a manufacturer's request for additional preconditioning in unusual circumstances.
(7) Use the following procedure to determine highway fuel economy:
(i) The dynamometer procedure consists of two cycles of the Highway Fuel Economy Driving Schedule (§ 600.109–08(b)) separated by 15 seconds of idle. The first cycle of the Highway Fuel Economy Driving Schedule is driven to precondition the test vehicle and the second is driven for the fuel economy measurement.
(ii) The provisions of § 86.135 of this chapter, except for the overview and the allowance for practice runs, apply for highway fuel economy testing.
(iii) Only one exhaust sample and one background sample are collected and analyzed for hydrocarbons (except diesel hydrocarbons which are analyzed continuously), carbon monoxide, and carbon dioxide. Methanol and formaldehyde samples (exhaust and dilution air) are collected and analyzed for methanol-fueled vehicles (measurement of methanol and formaldehyde may be omitted for 1993 through 1994 model year methanol-fueled vehicles provided a HFID calibrated on methanol is used for measuring HC plus methanol). Methanol, ethanol, formaldehyde, and acetaldehyde samples are collected and analyzed for ethanol fueled vehicles.
(iv) The fuel economy measurement cycle of the test includes two seconds of idle indexed at the beginning of the second cycle and two seconds of idle indexed at the end of the second cycle.
(8) If the engine is not running at the initiation of the highway fuel economy test (preconditioning cycle), the start-up procedure must be according to the manufacturer's recommended procedures. False starts and stalls during the preconditioning cycle must be treated as in § 86.136 of this chapter. If the vehicle stalls during the measurement cycle of the highway fuel economy test, the test is voided, corrective action may be taken according to § 86.1834 of this chapter, and the vehicle may be rescheduled for testing. The person taking the corrective action shall report the action so that the test records for the vehicle contain a record of the action.
(9) The following steps must be taken for each test:
(i) Place the drive wheels of the vehicle on the dynamometer. The vehicle may be driven onto the dynamometer.
(ii) Open the vehicle engine compartment cover and position the cooling fan(s) required. Manufacturers may request the use of additional cooling fans or variable speed fan(s) for additional engine compartment or under-vehicle cooling and for controlling high tire or brake temperatures during dynamometer operation. With prior EPA approval, manufacturers may perform the test with the engine compartment closed,
(iii) Preparation of the CVS must be performed before the measurement highway driving cycle.
(iv) The provisions of § 86.137–94(b)(3) through (6) of this chapter apply for highway fuel economy test, except that only one exhaust sample collection bag and one dilution air sample collection bag need to be connected to the sample collection systems.
(v) Operate the vehicle over one Highway Fuel Economy Driving Schedule cycle according to the dynamometer driving schedule specified in § 600.109–08(b).
(vi) When the vehicle reaches zero speed at the end of the preconditioning cycle, the driver has 17 seconds to prepare for the emission measurement cycle of the test.
(vii) Operate the vehicle over one Highway Fuel Economy Driving Schedule cycle according to the dynamometer driving schedule specified in § 600.109–08(b) while sampling the exhaust gas.
(viii) Sampling must begin two seconds before beginning the first acceleration of the fuel economy measurement cycle and must end two seconds after the end of the deceleration to zero. At the end of the deceleration to zero speed, the roll or shaft revolutions must be recorded.
(10) For alcohol-based dual fuel automobiles, the procedures of § 600.111–08(a) and (b) shall be performed for each of the fuels on which the vehicle is designed to operate.
(c)
(d)
(e)
(f)
(f)(1) Gasoline test fuel properties shall be determined by analysis of a fuel sample taken from the fuel supply. A sample shall be taken after each addition of fresh fuel to the fuel supply. Additionally, the fuel shall be resampled once a month to account for any fuel property changes during storage. Less frequent resampling may be permitted if EPA concludes, on the basis of manufacturer-supplied data, that the properties of test fuel in the manufacturer's storage facility will remain stable for a period longer than one month. The fuel samples shall be analyzed to determine the following fuel properties:
(i) Specific gravity per ASTM D 1298 (incorporated by reference in § 600.011).
(ii) Carbon weight fraction per ASTM D 3343 (incorporated by reference in § 600.011).
(iii) Net heating value (Btu/lb) per ASTM D 3338/D 3338M (incorporated by reference in § 600.011).
(2) Methanol test fuel shall be analyzed to determine the following fuel properties:
(i) Specific gravity using ASTM D 1298 (incorporated by reference in § 600.011). You may determine specific gravity for the blend, or you may determine specific gravity for the gasoline and methanol fuel components separately before combining the results using the following equation:
(ii)(A) Carbon weight fraction using the following equation:
(B) Upon the approval of the Administrator, other procedures to measure the carbon weight fraction of the fuel blend may be used if the manufacturer can show that the procedures are superior to or equally as accurate as those specified in this paragraph (f)(2)(ii).
(3) Natural gas test fuel shall be analyzed to determine the following fuel properties:
(i) Fuel composition per ASTM D 1945 (incorporated by reference in § 600.011).
(ii) Specific gravity (based on fuel composition per ASTM D 1945 (incorporated by reference in § 600.011).
(iii) Carbon weight fraction based on the carbon contained only in the HC constituents of the fuel = weight of carbon in HC constituents divided by the total weight of fuel.
(iv) Carbon weight fraction of fuel = total weight of carbon in the fuel (
The Administrator will use the calculation procedure set forth in this paragraph for all official EPA testing of vehicles fueled with gasoline, diesel, alcohol-based or natural gas fuel. The calculations of the weighted fuel economy and carbon-related exhaust emission values require input of the weighted grams/mile values for total hydrocarbons (HC), carbon monoxide (CO), and carbon dioxide (CO
(a) Calculate the FTP fuel economy as follows:
(1) Calculate the weighted grams/mile values for the FTP test for CO
(2) Calculate separately the grams/mile values for the cold transient phase, stabilized phase and hot transient phase of the FTP test. For vehicles with more than one source of propulsion energy, one of which is a rechargeable energy storage system, or vehicles with special features that the Administrator determines may have a rechargeable energy source, whose charge can vary during the test, calculate separately the grams/mile values for the cold transient phase, stabilized phase, hot transient phase and hot stabilized phase of the FTP test.
(b) Calculate the HFET fuel economy as follows:
(1) Calculate the mass values for the highway fuel economy test for HC, CO and CO
(2) Calculate the grams/mile values for the highway fuel economy test for HC, CO and CO
(c) Calculate the cold temperature FTP fuel economy as follows:
(1) Calculate the weighted grams/mile values for the cold temperature FTP test
(2) Calculate separately the grams/mile values for the cold transient phase, stabilized phase and hot transient phase of the cold temperature FTP test in § 86.244 of this chapter.
(3) Measure and record the test fuel's properties as specified in paragraph (f) of this section.
(d) Calculate the US06 fuel economy as follows:
(1) Calculate the total grams/mile values for the US06 test for HC, CO and CO
(2) Calculate separately the grams/mile values for HC, CO and CO
(3) Measure and record the test fuel's properties as specified in paragraph (f) of this section.
(e) Calculate the SC03 fuel economy as follows:
(1) Calculate the grams/mile values for the SC03 test for HC, CO and CO
(2) Measure and record the test fuel's properties as specified in paragraph (f) of this section.
(f) Analyze and determine fuel properties as follows:
(1) Gasoline test fuel properties shall be determined by analysis of a fuel sample taken from the fuel supply. A sample shall be taken after each addition of fresh fuel to the fuel supply. Additionally, the fuel shall be resampled once a month to account for any fuel property changes during storage. Less frequent resampling may be permitted if EPA concludes, on the basis of manufacturer-supplied data, that the properties of test fuel in the manufacturer's storage facility will remain stable for a period longer than one month. The fuel samples shall be analyzed to determine the following fuel properties:
(i) Specific gravity measured using ASTM D 1298 (incorporated by reference in § 600.011).
(ii) Carbon weight fraction measured using ASTM D 3343 (incorporated by reference in § 600.011).
(iii) Net heating value (Btu/lb) determined using ASTM D 3338/D 3338M (incorporated by reference in § 600.011).
(2) Methanol test fuel shall be analyzed to determine the following fuel properties:
(i) Specific gravity using ASTM D 1298 (incorporated by reference in § 600.011). You may determine specific gravity for the blend, or you may determine specific gravity for the gasoline and methanol fuel components separately before combining the results using the following equation:
(ii)(A) Carbon weight fraction using the following equation:
(B) Upon the approval of the Administrator, other procedures to measure the carbon weight fraction of the fuel blend may be used if the manufacturer can show that the procedures are superior to or equally as accurate as those specified in this paragraph (f)(2)(ii).
(3) Natural gas test fuel shall be analyzed to determine the following fuel properties:
(i) Fuel composition measured using ASTM D 1945 (incorporated by reference in § 600.011).
(ii) Specific gravity measured as based on fuel composition per ASTM D 1945 (incorporated by reference in § 600.011).
(iii) Carbon weight fraction, based on the carbon contained only in the hydrocarbon constituents of the fuel. This equals the weight of carbon in the hydrocarbon constituents divided by the total weight of fuel.
(iv) Carbon weight fraction of the fuel, which equals the total weight of carbon in the fuel (
(4) Ethanol test fuel shall be analyzed to determine the following fuel properties:
(i) Specific gravity using ASTM D 1298 (incorporated by reference in § 600.011). You may determine specific gravity for the blend, or you may determine specific gravity for the gasoline and methanol fuel components separately before combining the results using the following equation:
(ii)(A) Carbon weight fraction using the following equation:
(B) Upon the approval of the Administrator, other procedures to measure the carbon weight fraction of the fuel blend may be used if the manufacturer can show that the procedures are superior to or equally as accurate as those specified in this paragraph (f)(4)(ii).
(g) Calculate separate FTP, highway, US06, SC03 and Cold temperature FTP fuel economy and carbon-related exhaust emissions from the grams/mile values for total HC, CO, CO
(1)
(2)
(ii) If the emission values (obtained per paragraph (a) through (e) of this section, as applicable) were not obtained from testing with aged exhaust emission control components as allowed under § 86.1823 of this chapter, then these test values shall be adjusted by the appropriate deterioration factor determined according to § 86.1823 of this chapter before being used in the calculations of carbon-related exhaust emissions in this section. For vehicles within a test group, the appropriate NMOG deterioration factor may be used in lieu of the deterioration factors for CH
(iii) The emission values determined in paragraph (g)(2)(i) or (ii) of this section shall be rounded in accordance with § 86.1837 of this chapter. The CO
(iv) For manufacturers complying with the fleet averaging option for N
(A) The FTP and HFET test values as determined for the emission data vehicle according to the provisions of § 86.1835 of this chapter. These values shall apply to all vehicles tested under this section that are included in the test group represented by the emission data vehicle and shall be adjusted by the appropriate deterioration factor determined according to § 86.1823 of this chapter before being used in the calculations of carbon-related exhaust emissions in this section, except that in-use test data shall not be adjusted by a deterioration factor.
(B) The FTP and HFET test values as determined according to testing conducted under the provisions of this subpart. These values shall be adjusted by the appropriate deterioration factor determined according to § 86.1823 of this chapter before being used in the calculations of carbon-related exhaust emissions in this section, except that in-use test data shall not be adjusted by a deterioration factor.
(C) For the 2012 through 2014 model years only, manufacturers may use an assigned value of 0.010 g/mi for N
(3) The specific gravity and the carbon weight fraction (obtained per paragraph (f) of this section) shall be recorded using three places to the right of the decimal point. The net heating value (obtained per paragraph (f) of this section) shall be recorded to the nearest whole Btu/lb.
(4) For the purpose of determining the applicable in-use CO
(h)(1) For gasoline-fueled automobiles tested on a test fuel specified in § 86.113 of this chapter, the fuel economy in miles per gallon is to be calculated using the following equation and rounded to the nearest 0.1 miles per gallon:
(2)(i) For 2012 and later model year gasoline-fueled automobiles tested on a test fuel specified in § 86.113 of this chapter, the carbon-related exhaust emissions in grams per mile is to be calculated using the following equation and rounded to the nearest 1 gram per mile:
(ii) For manufacturers complying with the fleet averaging option for N
(i)(1) For diesel-fueled automobiles, calculate the fuel economy in miles per gallon of diesel fuel by dividing 2778 by the sum of three terms and rounding the quotient to the nearest 0.1 mile per gallon:
(i)(A) 0.866 multiplied by HC (in grams/miles as obtained in paragraph (g)(1) of this section), or
(B) Zero, in the case of cold FTP diesel tests for which HC was not collected, as permitted in § 600.113–08(c);
(ii) 0.429 multiplied by CO (in grams/mile as obtained in paragraph (g)(1) of this section); and
(iii) 0.273 multiplied by CO
(2)(i) For 2012 and later model year diesel-fueled automobiles, the carbon-related exhaust emissions in grams per mile is to be calculated using the following equation and rounded to the nearest 1 gram per mile:
(ii) For manufacturers complying with the fleet averaging option for N
(j)(1) For methanol-fueled automobiles and automobiles designed to operate on mixtures of gasoline and methanol, the fuel economy in miles per gallon is to be calculated using the following equation:
(2)(i) For 2012 and later model year methanol-fueled automobiles and automobiles designed to operate on mixtures of gasoline and methanol, the carbon-related exhaust emissions in grams per mile is to be calculated using the following equation and rounded to the nearest 1 gram per mile:
(ii) For manufacturers complying with the fleet averaging option for N
(k)(1) For automobiles fueled with natural gas, the fuel economy in miles per gallon of natural gas is to be calculated using the following equation:
CWF
(2)(i) For automobiles fueled with natural gas, the carbon-related exhaust emissions in grams per mile is to be calculated for 2012 and later model year vehicles using the following equation and rounded to the nearest 1 gram per mile:
(ii) For manufacturers complying with the fleet averaging option for N
(l)(1) For ethanol-fueled automobiles and automobiles designed to operate on mixtures of gasoline and ethanol, the fuel economy in miles per gallon is to be calculated using the following equation:
(2)(i) For 2012 and later model year ethanol-fueled automobiles and automobiles designed to operate on mixtures of gasoline and ethanol, the carbon-related exhaust emissions in grams per mile is to be calculated using the following equation and rounded to the nearest 1 gram per mile:
(ii) For manufacturers complying with the fleet averaging option for N
(m) Manufacturers shall determine CO
(1) For 2012 and later model year electric vehicles, but not including fuel cell vehicles, the carbon-related exhaust emissions in grams per mile is to be calculated using the following equation and rounded to the nearest one gram per mile:
(3) For 2012 and later model year fuel cell vehicles, the carbon-related exhaust emissions in grams per mile shall be calculated using the method specified in paragraph (m)(1) of this section, except that CREE
(n) Equations for fuels other than those specified in paragraphs (h) through (l) of this section may be used with advance EPA approval. Alternate calculation methods for fuel economy and carbon-related exhaust emissions may be used in lieu of the methods described in this section if shown to yield equivalent or superior results and if approved in advance by the Administrator.
Paragraphs (a) through (f) of this section apply to data used for fuel economy labeling under subpart D of this part. Paragraphs (d) through (f) of this section are used to calculate 5-cycle carbon-related exhaust emission values for the purpose of determining optional credits for CO
(a)
(2) Terms used in the equations in this paragraph (a) are defined as follows:
(b)
(2) If the condition specified in § 600.115–08(b)(2)(iii)(B) is met, in lieu of using the calculation in paragraph (b)(1) of this section, the manufacturer may optionally determine the highway fuel economy using the following modified 5-cycle equation which utilizes data from FTP, HFET, and US06 tests, and applies mathematic
(i) Perform a US06 test in addition to the FTP and HFET tests.
(ii) Determine the 5-cycle highway fuel economy according to the following formula:
(3) Terms used in the equations in this paragraph (b) are defined as follows:
(c)
(1)
(i)
(ii)
(2)
(i)
(ii)
(3) For hybrid electric vehicles using the modified 5-cycle highway calculation in paragraph (b)(2) of this section, the equation in paragraph (b)(2)(ii)(A) of this section applies except that the equation for Start Fuel
(i) The equation for Start Fuel
(ii) The equation for Start Fuel
(4) Terms used in the equations in this paragraph (b) are defined as follows:
(d)
(2) To determine the City CO
(3) Terms used in the equations in this paragraph (d) are defined as follows:
(e)
(2) If the condition specified in § 600.115–08(b)(2)(iii)(B) is met, in lieu of using the calculation in paragraph (e)(1) of this section, the manufacturer may optionally determine the highway carbon-related exhaust emissions using the following modified 5-cycle equation which utilizes data from FTP, HFET, and US06 tests, and applies mathematic adjustments for Cold FTP and SC03 conditions:
(i) Perform a US06 test in addition to the FTP and HFET tests.
(ii) Determine the 5-cycle highway carbon-related exhaust emissions according to the following formula:
(3) To determine the Highway CO
(4) Terms used in the equations in this paragraph (e) are defined as follows:
(f)
(1)
(i)
(ii)
(2)
(i)
(ii)
(3) For hybrid electric vehicles using the modified 5-cycle highway calculation in paragraph (e)(2) of this section, the equation in paragraph (e)(2)(ii)(A) of this section applies except that the equation for Start CREE
(i) The equation for Start CREE
(ii) The equation for Start CREE
(4) To determine the City and Highway CO
(5) Terms used in the equations in this paragraph (e) are defined as follows:
This section provides the criteria to determine if the derived 5-cycle method for determining fuel economy label values, as specified in § 600.210–08(a)(2) or (b)(2) or § 600.210–12(a)(2) or (b)(2), as applicable, may be used to determine label values. Separate criteria apply to city and highway fuel economy for each test group. The provisions of this section are optional. If this option is not chosen, or if the criteria provided in this section are not met, fuel economy label values must be determined according to the vehicle-specific 5-cycle method specified in § 600.210–08(a)(1) or (b)(1) or § 600.210–12(a)(1) or (b)(1), as applicable. However, dedicated alternative-fuel vehicles, dual fuel vehicles when operating on the alternative fuel, plug-in hybrid electric vehicles, MDPVs, and vehicles imported by Independent Commercial Importers may use the derived 5-cycle method for determining fuel economy label values whether or not the criteria provided in this section are met.
(a)
(i) The vehicle-specific 5-cycle city fuel economy from the official FTP, HFET, US06, SC03 and Cold FTP tests for the test group is determined according to the provisions of § 600.114–08(a) or (c) or § 600.114–12(a) or (c) and rounded to the nearest one tenth of a mile per gallon.
(ii) Using the same FTP data as used in paragraph (a)(1)(i) of this section, the corresponding derived 5-cycle city fuel economy is calculated according to the following equation:
(2) The derived 5-cycle fuel economy value determined in paragraph (a)(1)(ii) of this section is multiplied by 0.96 and rounded to the nearest one tenth of a mile per gallon.
(3) If the vehicle-specific 5-cycle city fuel economy determined in paragraph (a)(1)(i) of this section is greater than or equal to the value determined in paragraph (a)(2) of this section, then the manufacturer may base the city fuel economy estimates for the model types covered by the test group on the derived 5-cycle method specified in § 600.210–08(a)(2) or (b)(2) or § 600.210–12(a)(2) or (b)(2), as applicable.
(b)
(1) If the city determination for a test group made in paragraph (a)(3) of this section does not allow the use of the derived 5-cycle method, then the highway fuel economy values for all model types represented by the test group are likewise not allowed to be determined using the derived 5-cycle method, and must be determined according to the vehicle-specific 5-cycle method specified in § 600.210–08(a)(1) or (b)(1) or § 600.210–12(a)(1) or (b)(1), as applicable.
(2) If the city determination made in paragraph (a)(3) of this section allows the use of the derived 5-cycle method, a separate determination is made for the highway fuel economy labeling method as follows:
(i) For each test group certified for emission compliance under § 86.1848 of this chapter, the FTP, HFET, US06, SC03 and Cold FTP tests determined to be official under § 86.1835 of this chapter are used to calculate the vehicle-specific 5-cycle highway fuel economy, which is then compared to the derived 5-cycle highway fuel economy, as follows:
(A) The vehicle-specific 5-cycle highway fuel economy from the official FTP, HFET, US06, SC03 and Cold FTP tests for the test group is determined according to the provisions of § 600.114–08(b)(1) or § 600.114–12(b)(1) and rounded to the nearest one tenth of a mile per gallon.
(B) Using the same HFET data as used in paragraph (b)(2)(i)(A) of this section, the corresponding derived 5-cycle highway fuel economy is calculated using the following equation:
(ii) The derived 5-cycle highway fuel economy calculated in paragraph (b)(2)(i)(B) of this section is multiplied by 0.95 and rounded to the nearest one tenth of a mile per gallon.
(iii) (A) If the vehicle-specific 5-cycle highway fuel economy of the vehicle tested in paragraph (b)(2)(i)(A) of this section is greater than or equal to the value determined in paragraph (b)(2)(ii) of this section, then the manufacturer may base the highway fuel economy estimates for the model types covered by the test group on the derived 5-cycle method specified in § 600.210–08(a)(2) or (b)(2) or § 600.210–12(a)(2) or (b)(2), as applicable.
(B) If the vehicle-specific 5-cycle highway fuel economy determined in paragraph (b)(2)(i)(A) of this section is less than the value determined in paragraph (b)(2)(ii) of this section, the manufacturer may determine the highway fuel economy for the model types covered by the test group on the modified 5-cycle equation specified in § 600.114–08(b)(2) or § 600.114–12(b)(2).
(c) The manufacturer will apply the criteria in paragraph (a) and (b) of this section to every test group for each model year.
(d) The tests used to make the evaluations in paragraphs (a) and (b) of this section will be the procedures for official test determinations under § 86.1835. Adjustments and/or substitutions to the official test data may be made with advance approval of the Administrator.
(a) Determine fuel economy label values for electric vehicles as specified in §§ 600.210 and 600.311 using the procedures of SAE J1634 (incorporated by reference in § 600.011), with the following clarifications and modifications:
(1) Use one of the following approaches to define end-of-test criteria for vehicles whose maximum speed is less than the maximum speed specified in the driving schedule, where the vehicle's maximum speed is determined, to the nearest 0.1 mph, from observing the highest speed over the first duty cycle (FTP, HFET, etc.):
(i) If the vehicle can follow the driving schedule within the speed tolerances specified in § 86.115 of this chapter up to its maximum speed, the end-of-test criterion is based on the point at which the vehicle can no longer meet the specified speed tolerances up to and including its maximum speed.
(ii) If the vehicle cannot follow the driving schedule within the speed tolerances specified in § 86.115 of this chapter up to its maximum speed, the end-of-test criterion is based on the following procedure:
(A) Measure and record the vehicle's speed (to the nearest 0.1 mph) while making a best effort to follow the specified driving schedule.
(B) This recorded sequence of driving speeds becomes the driving schedule for the test vehicle. Apply the end-of-test criterion based on the point at which the vehicle can no longer meet the specified speed tolerances over this new driving schedule. The driving to establish the new driving schedule may be done separately, or as part of the measurement procedure.
(2) Soak time between repeat duty cycles (four-bag FTP, HFET, etc.) may be up to 30 minutes. No recharging may occur during the soak time.
(3) Recharging the vehicle's battery must start within three hours after the end of testing.
(4) Do not apply the C coefficient adjustment specified in Section 4.4.2.
(5) We may approve alternate measurement procedures with respect to electric vehicles if they are necessary or appropriate for meeting the objectives of this part.
(b) Determine performance values for plug-in hybrid electric vehicles as specified in §§ 600.210 and 600.311 using the procedures of SAE J1711 (incorporated by reference in § 600.011), with the following clarifications and modifications:
(1) To determine fuel economy and CREE values to demonstrate compliance with CAFE and GHG standards, calculate composite values representing combined operation during charge-deplete and charge-sustain operation using the following utility factors except as specified in this paragraph (b):
(2) To determine fuel economy and CO
(3) You may calculate performance values under paragraphs (b)(1) and (2) of this section by combining phases during FTP testing. For example, you may treat the first 7.45 miles as a single phase by adding the individual utility factors for that portion of driving and assigning emission levels to the combined phase. Do this consistently throughout a test run.
(4) Instead of the utility factors specified in paragraphs (b)(1) and (2) of this section, calculate utility factors using the following equation for vehicles whose maximum speed is less than the maximum speed specified in the driving schedule, where the vehicle's maximum speed is determined, to the nearest 0.1 mph, from observing the highest speed over the first duty cycle (FTP, HFET, etc.):
(5) The end-of-test criterion is based on a 1 percent Net Energy Change as specified in Section 3.8. The Administrator may approve alternate Net Energy Change tolerances as specified in Section 3.9.1 or Appendix C if the 1 percent threshold is insufficient or inappropriate for marking the end of charge-deplete operation.
(6) Use the vehicle's Actual Charge-Depleting Range, R
(7) Measure and record AC watt-hours throughout the recharging procedure. Position the measurement appropriately to account for any losses in the charging system.
(8) We may approve alternate measurement procedures with respect to plug-in hybrid electric vehicles if they are necessary or appropriate for meeting the objectives of this part.
§ 600.201–08.
§ 600.201–12.
§ 600.201–86.
§ 600.201–93.
§ 600.202–77.
§ 600.203–77.
§ 600.204–77.
§ 600.205–77.
§ 600.206–86.
§ 600.206–93.
§ 600.207–86.
§ 600.207–93.
§ 600.208–77.
§ 600.209–85.
§ 600.209–95.
§ 600.211–08.
(a) Fuel economy, CO
(1) If only one set of FTP-based city and HFET-based highway fuel economy values is accepted for a vehicle configuration, these values, rounded to the nearest tenth of a mile per gallon, comprise the city and highway fuel economy values for that configuration. If only one set of FTP-based city and HFET-based highway CO
(2) If more than one set of FTP-based city and HFET-based highway fuel economy and/or carbon-related exhaust emission values are accepted for a vehicle configuration:
(i) All data shall be grouped according to the subconfiguration for which the data were generated using sales projections supplied in accordance with § 600.208–12(a)(3).
(ii) Within each group of data, all fuel economy values are harmonically averaged and rounded to the nearest 0.0001 of a mile per gallon and all CO
(iii) All FTP-based city fuel economy, CO
(3)(i) For the purpose of determining average fuel economy under § 600.510, the combined fuel economy value for a vehicle configuration is calculated by harmonically averaging the FTP-based city and HFET-based highway fuel economy values, as determined in paragraph (a)(1) or (2) of this section, weighted 0.55 and 0.45 respectively, and rounded to the nearest 0.0001 mile per gallon. A sample of this calculation appears in Appendix II of this part.
(ii) For the purpose of determining average carbon-related exhaust emissions under § 600.510, the combined carbon-related exhaust emission value for a vehicle configuration is calculated by arithmetically averaging the FTP-based city and HFET-based highway carbon-related exhaust emission values, as determined in paragraph (a)(1) or (2) of this section, weighted 0.55 and 0.45 respectively, and rounded to the nearest tenth of gram per mile.
(4) For alcohol dual fuel automobiles and natural gas dual fuel automobiles the procedures of paragraphs (a)(1) or (2) of this section, as applicable, shall be used to calculate two separate sets of FTP-based city, HFET-based highway, and combined values for fuel economy, CO
(i) Calculate the city, highway, and combined fuel economy, CO
(ii) Calculate the city, highway, and combined fuel economy, CO
(b) If only one equivalent petroleum-based fuel economy value exists for an electric vehicle configuration, that value, rounded to the nearest tenth of a mile per gallon, will comprise the petroleum-based fuel economy for that configuration.
(c) If more than one equivalent petroleum-based fuel economy value exists for an electric vehicle configuration, all values for that vehicle configuration are harmonically averaged and rounded to the nearest 0.0001 mile per gallon for that configuration.
(a) Fuel economy and CO
(1) If only one set of 5-cycle city and highway fuel economy and CO
(2) If more than one set of 5-cycle city and highway fuel economy and CO
(i) All data shall be grouped according to the subconfiguration for which the data were generated using sales projections supplied in accordance with § 600.209–12(a)(3).
(ii) Within each subconfiguration of data, all fuel economy values are harmonically averaged and rounded to the nearest 0.0001 of a mile per gallon in order to determine 5-cycle city and highway fuel economy values for each subconfiguration at which the vehicle configuration was tested, and all CO
(iii) All 5-cycle city fuel economy values and all 5-cycle highway fuel economy values calculated in paragraph (a)(2)(ii) of this section are (separately for city and highway) averaged in proportion to the sales fraction (rounded to the nearest 0.0001) within the vehicle configuration (as provided to the Administrator by the manufacturer) of vehicles of each tested subconfiguration. The resultant values, rounded to the nearest 0.0001 mile per gallon, are the 5-cycle city and 5-cycle highway fuel economy values for the vehicle configuration.
(iv) All 5-cycle city CO
(3) [Reserved]
(4) For alcohol dual fuel automobiles and natural gas dual fuel automobiles the procedures of paragraphs (a)(1) and (2) of this section shall be used to calculate two separate sets of 5-cycle city and highway fuel economy and CO
(i) Calculate the 5-cycle city and highway fuel economy and CO
(ii) Calculate the 5-cycle city and highway fuel economy and CO
(b) If only one equivalent petroleum-based fuel economy value exists for an electric configuration, that value, rounded to the nearest tenth of a mile per gallon, will comprise the petroleum-based 5-cycle fuel economy for that configuration.
(c) If more than one equivalent petroleum-based 5-cycle fuel economy value exists for an electric vehicle configuration, all values for that vehicle configuration are harmonically averaged and rounded to the nearest 0.0001 mile per gallon for that configuration.
(a) Fuel economy, CO
(1) If the Administrator determines that automobiles intended for sale in the State of California and in section 177 states are likely to exhibit significant differences in fuel economy, CO
(2) In order to highlight the fuel efficiency, CO
(i) Each additional model type resulting from division of another model type has a unique car line name and that name appears on the label and on the vehicle bearing that label;
(ii) The subconfigurations included in the new base levels are not included in any other base level which differs only by basic engine (
(iii) All subconfigurations within the new base level are represented by test data in accordance with § 600.010(c)(1)(ii).
(3) The manufacturer shall supply total model year sales projections for each car line/vehicle subconfiguration combination.
(i) Sales projections must be supplied separately for each car line-vehicle subconfiguration intended for sale in California and each car line/vehicle subconfiguration intended for sale in the rest of the states if required by the Administrator under paragraph (a)(1) of this section.
(ii) Manufacturers shall update sales projections at the time any model type value is calculated for a label value.
(iii) The provisions of paragraph (a)(3) of this section may be satisfied by providing an amended application for certification, as described in § 86.1844 of this chapter.
(4) Vehicle configuration fuel economy, CO
(i) If only one vehicle configuration within a base level has been tested, the fuel economy, CO
(ii) If more than one vehicle configuration within a base level has been tested, the vehicle configuration fuel economy values are harmonically averaged in proportion to the respective sales fraction (rounded to the nearest 0.0001) of each vehicle configuration and the resultant fuel economy value rounded to the nearest 0.0001 mile per gallon; and the vehicle configuration CO
(5) The procedure specified in paragraph (a)(1) through (4) of this section will be repeated for each base level, thus establishing city, highway, and combined fuel economy, CO
(6) [Reserved]
(7) For alcohol dual fuel automobiles and natural gas dual fuel automobiles, the procedures of paragraphs (a)(1) through (6) of this section shall be used to calculate two separate sets of city, highway, and combined fuel economy, CO
(i) Calculate the city, highway, and combined fuel economy, CO
(ii) Calculate the city, highway, and combined fuel economy, CO
(b) For each model type, as determined by the Administrator, a city, highway, and combined fuel economy value, CO
(1) If the Administrator determines that automobiles intended for sale in the State of California and in section 177 states are likely to exhibit significant differences in fuel economy, CO
(2) The sales fraction for each base level is calculated by dividing the projected sales of the base level within the model type by the projected sales of the model type and rounding the quotient to the nearest 0.0001.
(3)(i) The FTP-based city fuel economy values of the model type (calculated to the nearest 0.0001 mpg) are determined by dividing one by a sum of terms, each of which corresponds to a base level and which is a fraction determined by dividing:
(A) The sales fraction of a base level; by
(B) The FTP-based city fuel economy value for the respective base level.
(ii) The FTP-based city carbon-related exhaust emission value of the model type (calculated to the nearest gram per mile) are determined by a sum of terms, each of which corresponds to a base level and which is a product determined by multiplying:
(A) The sales fraction of a base level; by
(B) The FTP-based city carbon-related exhaust emission value for the respective base level.
(iii) The FTP-based city CO
(A) The sales fraction of a base level; by
(B) The FTP-based city CO
(4) The procedure specified in paragraph (b)(3) of this section is repeated in an analogous manner to determine the highway and combined fuel economy, CO
(5) For alcohol dual fuel automobiles and natural gas dual fuel automobiles, the procedures of paragraphs (b)(1) through (4) of this section shall be used to calculate two separate sets of city, highway, and combined fuel economy values and two separate sets of city, highway, and combined CO
(i) Calculate the city, highway, and combined fuel economy, CO
(ii) Calculate the city, highway, and combined fuel economy, CO
(a)
(1) If the Administrator determines that automobiles intended for sale in the State of California are likely to exhibit significant differences in fuel economy and CO
(2) In order to highlight the fuel efficiency and CO
(i) Each additional model type resulting from division of another model type has a unique car line name and that name appears on the label and on the vehicle bearing that label;
(ii) The subconfigurations included in the new base levels are not included in any other base level which differs only by basic engine (
(iii) All subconfigurations within the new base level are represented by test data in accordance with § 600.010(c)(i)(ii).
(3) The manufacturer shall supply total model year sales projections for each car line/vehicle subconfiguration combination.
(i) Sales projections must be supplied separately for each car line-vehicle subconfiguration intended for sale in California and each car line/vehicle subconfiguration intended for sale in the rest of the states if required by the Administrator under paragraph (a)(1) of this section.
(ii) Manufacturers shall update sales projections at the time any model type value is calculated for a label value.
(iii) The provisions of this paragraph (a)(3) may be satisfied by providing an amended application for certification, as described in § 86.1844 of this chapter.
(4) 5-cycle vehicle configuration fuel economy and CO
(i) If only one vehicle configuration within a base level has been tested, the fuel economy and CO
(ii) If more than one vehicle configuration within a base level has been tested, the vehicle configuration
(iii) If more than one vehicle configuration within a base level has been tested, the vehicle configuration CO
(5) The procedure specified in § 600.209–12(a) will be repeated for each base level, thus establishing city and highway fuel economy and CO
(6) [Reserved]
(7) For alcohol dual fuel automobiles and natural gas dual fuel automobiles, the procedures of paragraphs (a)(1) through (6) of this section shall be used to calculate two separate sets of city, highway, and combined fuel economy and CO
(i) Calculate the city and highway fuel economy and CO
(ii) If 5-cycle testing was performed on the alcohol or natural gas test fuel, calculate the city and highway fuel economy and CO
(b)
(1) If the Administrator determines that automobiles intended for sale in the State of California are likely to exhibit significant differences in fuel economy and CO
(2) The sales fraction for each base level is calculated by dividing the projected sales of the base level within the model type by the projected sales of the model type and rounding the quotient to the nearest 0.0001.
(3)(i) The 5-cycle city fuel economy values of the model type (calculated to the nearest 0.0001 mpg) are determined by dividing one by a sum of terms, each of which corresponds to a base level and which is a fraction determined by dividing:
(A) The sales fraction of a base level; by
(B) The 5-cycle city fuel economy value for the respective base level.
(ii) The 5-cycle city CO
(A) The sales fraction of a base level; by
(B) The 5-cycle city CO
(4) The procedure specified in paragraph (b)(3) of this section is repeated in an analogous manner to determine the highway and combined fuel economy and CO
(5) For alcohol dual fuel automobiles and natural gas dual fuel automobiles the procedures of paragraphs (b)(1) through (4) of this section shall be used to calculate two separate sets of city and highway fuel economy and CO
(i) Calculate the city and highway fuel economy and CO
(ii) Calculate the city, highway, and combined fuel economy and CO
(f)
(a)
(1)
(2)
(i)(A) For each model type, determine the derived five-cycle city fuel economy using the following equation and coefficients determined by the Administrator:
(B) For each model type, determine the derived five-cycle city CO
(ii)(A) For each model type, determine the derived five-cycle highway fuel economy using the equation below and coefficients determined by the Administrator:
(B) For each model type, determine the derived five-cycle highway CO
(iv) The Administrator will periodically update the slopes and intercepts through guidance and will determine the model year that the new coefficients must take effect. The Administrator will issue guidance no later than six months prior to the earliest starting date of the effective model year (
(3)
(i)(A) City and Highway fuel economy label values for dual fuel alcohol-based and natural gas vehicles when using the alternate fuel are separately determined by the following calculation:
The result, rounded to the nearest whole number, is the alternate fuel label value for dual fuel vehicles.
(B) City and Highway CO
The result, rounded to the nearest whole number, is the alternate fuel CO
(ii) Optionally, if complete 5-cycle testing has been performed using the alternate fuel, the manufacturer may choose to use the alternate fuel label city or highway fuel economy and CO
(4)
(5)
(b)
(1)
(2)
(i)(A) Determine the derived five-cycle city fuel economy of the configuration using the equation below and coefficients determined by the Administrator:
(B) Determine the derived five-cycle city CO
(ii)(A) Determine the derived five-cycle highway fuel economy of the configuration using the equation below and coefficients determined by the Administrator:
(B) Determine the derived five-cycle highway CO
(iii) The slopes and intercepts of paragraph (a)(2)(iii) of this section apply.
(3)
The result, rounded to the nearest whole number, is the alternate fuel label value for dual fuel vehicles.
(B) Specific city and highway CO
The result, rounded to the nearest whole number, is the alternate fuel CO
(ii) Optionally, if complete 5-cycle testing has been performed using the alternate fuel, the manufacturer may choose to use the alternate fuel label city or highway fuel economy and CO
(4)
(5)
(c)
(i) For gasoline-fueled, diesel-fueled, alcohol-fueled, and natural gas-fueled automobiles, and for dual fuel automobiles that can operate on gasoline or diesel fuel, harmonically average the unrounded city and highway fuel economy values, determined in paragraphs (a)(1) or (2) of this section and (b)(1) or (2) of this section, weighted 0.55 and 0.45 respectively. Round the result to the nearest whole mpg. (An example of this calculation procedure appears in Appendix II of this part).
(ii) For alcohol dual fuel and natural gas dual fuel automobiles operated on the alternate fuel, harmonically average the unrounded city and highway values from the tests performed using the alternative fuel as determined in paragraphs (a)(3) and (b)(3) of this section, weighted 0.55 and 0.45 respectively. Round the result to the nearest whole mpg.
(iii) For electric vehicles, calculate the combined fuel economy, in miles per kW-hr and miles per gasoline gallon equivalent, by harmonically averaging the unrounded city and highway values, weighted 0.55 and 0.45 respectively. Round miles per kW-hr to the nearest 0.001 and round miles per gasoline gallon equivalent to the nearest whole number.
(iv) For plug-in hybrid electric vehicles, calculate a combined fuel economy value, in miles per gasoline gallon equivalent as follows:
(A) Determine city and highway fuel economy values for vehicle operation after the battery has been fully discharged (“gas only operation” or “charge-sustaining mode”) as described in paragraphs (a) and (b) of this section.
(B) Determine city and highway fuel economy values for vehicle operation starting with a full battery charge (“all-electric operation” or “gas plus electric operation”, as appropriate, or “charge-depleting mode”) as described in § 600.116. For battery energy, convert W-hour/mile results to miles per gasoline gallon equivalent or miles per diesel gallon equivalent, as applicable. Note that you must also express battery-based fuel economy values in miles per kW-hr for calculating annual fuel cost as described in § 600.311.
(C) Calculate a composite city fuel economy value and a composite highway fuel economy value by combining the separate results for battery and engine operation using the procedures described in § 600.116). Apply the derived 5-cycle adjustment to these composite values. Use these values to calculate the vehicle's combined fuel economy as described in paragraph (c)(1)(i) of this section.
(v) For fuel cell vehicles, calculate the combined fuel economy, in miles per kilogram and miles per gasoline gallon equivalent, by harmonically averaging the unrounded city and highway values, weighted 0.55 and 0.45 respectively. Round miles per kilogram to the nearest whole number and round miles per gasoline gallon equivalent to the nearest whole number.
(2) For the purposes of calculating the combined CO
(i) For gasoline-fueled, diesel-fueled, alcohol-fueled, and natural gas-fueled automobiles, and for dual fuel automobiles that can operate on gasoline or diesel fuel, arithmetically average the unrounded city and highway values, determined in
(ii) For alcohol dual fuel and natural gas dual fuel automobiles operated on the alternate fuel, arithmetically average the unrounded city and highway CO
(iii) CO
(iv) For plug-in hybrid electric vehicles, calculate combined CO
(A) Determine city and highway CO
(B) Determine city and highway CO
(C) Calculate a composite city CO
(d)
(2) If the criteria in § 600.115 are not met for a model type, the city and highway fuel economy and CO
(3) Manufacturers may use any of the following methods for determining 5-cycle values for fuel economy and CO
(i) Generate 5-cycle data as described in paragraph (a)(1) of this section.
(ii) Decrease fuel economy values by 30 percent and increase CO
(iii) Manufacturers may ask the Administrator to approve adjustment factors for deriving 5-cycle fuel economy results from 2-cycle test data based on operating data from their in-use vehicles. Such data should be collected from multiple vehicles with different drivers over a range of representative driving routes and conditions. The Administrator may approve such an adjustment factor for any of the manufacturer's vehicle models that are properly represented by the collected data.
(e)
(2) For advanced technology vehicles, the Administrator may prescribe special methods for determining information other than fuel economy that is required to be displayed on fuel economy labels as specified in § 600.302–12(e).
(f)
§ 600.301–08.
§ 600.301–12.
§ 600.301–86.
§ 600.301–95.
§ 600.302–77.
§ 600.303–77.
§ 600.304–77.
§ 600.305–77.
§ 600.306–86.
§ 600.307–86.
§ 600.307–95.
§ 600.310–86.
§ 600.311–86.
§ 600.313–86.
§ 600.314–01.
§ 600.314–86.
§ 600.315–82.
(a) Prior to being offered for sale, each manufacturer shall affix or cause to be affixed and each dealer shall maintain or cause to be maintained on each automobile:
(1) A general fuel economy label (initial, or updated as required in § 600.314) as described in § 600.302 or:
(2) A specific label, for those automobiles manufactured or imported before the date that occurs 15 days after general labels have been determined by the manufacturer, as described in § 600.210–08(b) or § 600.210–12(b).
(i) If the manufacturer elects to use a specific label within a model type (as defined in § 600.002, he shall also affix specific labels on all automobiles within this model type, except on those automobiles manufactured or imported before the date that labels are required to bear range values as required by paragraph (b) of this section, or determined by the Administrator, or as permitted under § 600.310.
(ii) If a manufacturer elects to change from general to specific labels or vice versa within a model type, the manufacturer shall, within five calendar days, initiate or discontinue as applicable, the use of specific labels on all vehicles within a model type at all facilities where labels are affixed.
(3) For any vehicle for which a specific label is requested which has a combined FTP/HFET-based fuel economy value, as determined in § 600.513, at or below the minimum tax-free value, the following statement must appear on the specific label:
“[Manufacturer's name] may have to pay IRS a Gas Guzzler Tax on this vehicle because of the low fuel economy.”
(4)(i) At the time a general fuel economy value is determined for a model type, a manufacturer shall, except as provided in paragraph (a)(4)(ii) of this section, relabel, or cause to be relabeled, vehicles which:
(A) Have not been delivered to the ultimate purchaser, and
(B) Have a combined FTP/HFET-based model type fuel economy value (as determined in § 600.208–08(b) or § 600.208–12(b) of 0.1 mpg or more below the lowest fuel economy value at which a Gas Guzzler Tax of $0 is to be assessed.
(ii) The manufacturer has the option of re-labeling vehicles during the first five working days after the general label value is known.
(iii) For those vehicle model types which have been issued a specific label and are subsequently found to have tax liability, the manufacturer is responsible for the tax liability regardless of whether the vehicle has been sold or not or whether the vehicle has been relabeled or not.
(b) The manufacturer shall include the current range of fuel economy of comparable automobiles (as described in §§ 600.311 and 600.314) in the label of each vehicle manufactured or imported more than 15 calendar days after the current range is made available by the Administrator.
(1) Automobiles manufactured or imported before a date 16 or more calendar days after the initial label range is made available under § 600.311 shall include the range from the previous model year.
(2) Automobiles manufactured or imported more than 15 calendar days after the label range is made available under § 600.311 shall be labeled with the current range of fuel economy of comparable automobiles as approved for that label.
(c) The fuel economy label must be readily visible from the exterior of the automobile and remain affixed until the time the automobile is delivered to the ultimate consumer.
(1) It is preferable that the fuel economy label information be incorporated into the Automobile Information Disclosure Act label, provided that the prominence and legibility of the fuel economy label is maintained. For this purpose, all fuel economy label information must be placed on a separate section in the Automobile Information Disclosure Act label and may not be intermixed with that label information, except for vehicle descriptions as noted in § 600.303–08(d)(1).
(2) The fuel economy label must be located on a side window. If the window is not large enough to contain both the Automobile Information Disclosure Act label and the fuel economy label, the manufacturer shall have the fuel economy label affixed on another window and as close as possible to the Automobile Information Disclosure Act label.
(3) The manufacturer shall have the fuel economy label affixed in such a manner that appearance and legibility are maintained until after the vehicle is delivered to the ultimate consumer.
(d) The labeling requirements specified in this subpart for 2008 model year vehicles continue to apply through the 2011 model year. In the 2012 model year, manufacturers may label their vehicles as specified in this subpart for either 2008 or 2012 model years. The labeling requirements specified in this subpart for 2012 model year vehicles are mandatory for 2013 and later model years.
This section describes labeling requirements and specifications that apply to all vehicles. The requirements and specifications in this section and those in §§ 600.304 through 600.310 are illustrated in Appendix VI of this part.
(a)
(b)
(1) In the left portion of the upper border, include “EPA” and “DOT” with a horizontal line in between (“EPA divided by DOT”).
(2) Immediately to the right of the Agency names, include the heading “Fuel Economy and Environment”.
(3) Identify the vehicle's fuel type on the right-most portion of the upper border in a blue-colored field as follows:
(i) For vehicles designed to operate on a single fuel, identify the appropriate fuel. For example, identify the vehicle as “Gasoline Vehicle”, “Diesel Vehicle”, “Compressed Natural Gas Vehicle”, “Hydrogen Fuel Cell Vehicle”, etc. This includes hybrid electric vehicles that do not have plug-in capability. Include a logo corresponding to the fuel to the left of this designation as follows:
(A) For gasoline, include a fuel pump logo.
(B) For diesel fuel, include a fuel pump logo with a “D” inscribed in the base of the fuel pump.
(C) For natural gas, include the established CNG logo.
(D) For hydrogen fuel cells, include the expression “H
(ii) Identify flexible-fuel vehicles and dual-fuel vehicles as “Flexible-Fuel Vehicle Gasoline-Ethanol (E85)”, “Flexible-Fuel Vehicle Diesel-Natural Gas”, etc. Include a fuel pump logo or a combination of logos to the left of this designation as appropriate. For example, for vehicles that operate on gasoline or ethanol, include a fuel pump logo and the designation “E85”.
(iii) Identify plug-in hybrid electric vehicles as “Plug-In Hybrid Vehicle Electricity-Gasoline” or “Plug-In Hybrid Vehicle Electricity-Diesel”. Include a fuel pump logo as specified in paragraph (b)(3)(i) of this section and an electric plug logo to the left of this designation.
(iv) Identify electric vehicles as “Electric Vehicle”. Include an electric plug logo to the left of this designation.
(4) Include the following statement in the upper left portion of the lower border: “Actual results will vary for many reasons, including driving conditions and how you drive and maintain your vehicle. The average new vehicle gets
(5) In the lower left portion of the lower border, include the Web site reference, “fueleconomy.gov”, and the following statement: “Calculate
(6) Include a field in the right-most portion of the lower border to allow for accessing interactive information with mobile electronic devices. To do this, include an image of a QR code that will direct mobile electronic devices to an EPA-specified Web site with fuel economy information. Generate the QR code as specified in ISO/IEC 18004 (incorporated by reference in § 600.011). To the left of the QR code, include the vertically oriented caption “Smartphone QR Code
(7) Along the lower edge of the lower border, to the left of the field with the QR Code, include the logos for EPA, the Department of Transportation, and the Department of Energy.
(c)
(1) The elements specified in this paragraph (c)(1) for vehicles that run on gasoline or diesel fuel with no plug-in capability. See §§ 600.304 through 600.310 for specifications that apply for other vehicles.
(i) The heading “Fuel Economy” near the top left corner of the field.
(ii) The combined fuel economy value as determined in § 600.311 below the heading. Include the expression “combined city/hwy” below this number.
(iii) The fuel pump logo to the left of the combined fuel economy value. For diesel fuel, include a fuel pump logo with a “D” inscribed in the base of the fuel pump.
(iv) The units identifier and specific fuel economy values to the right of the combined fuel economy rating as follows:
(A) Include the term “MPG” in the upper portion of the designated space.
(B) Include the city fuel economy value determined in § 600.311 in the lower left portion of the designated space. Include the expression “city” below this number.
(C) Include the highway fuel economy value determined in § 600.311 in the lower right portion of the designated space. Include the expression “highway” below this number.
(v) The fuel consumption rate determined in § 600.311, below the combined fuel economy value, followed by the expression “gallons per 100 miles”.
(2) In the upper middle portion of the field, include the following statement: “___ range from
(3) Include one of the following statements in the right side of the field:
(i) For vehicles with calculated fuel costs higher than the average vehicle as specified in § 600.311: “You spend $
(ii) For all other vehicles: “You save $
(d)
(e)
(1) The heading, “Fuel Economy and Greenhouse Gas Rating (tailpipe only)” in the top left corner of the field.
(2) A slider bar below the heading in the left portion of the field to characterize the vehicle's fuel economy and greenhouse gas ratings, as determined in § 600.311. Position a box with a downward-pointing wedge above the slider bar positioned to show where that vehicle's fuel economy rating falls relative to the total range; include the vehicle's fuel economy rating inside the box. If the greenhouse gas rating from § 600.311 is different than the fuel economy rating, position a second box with an upward-pointing wedge below the slider bar positioned to show where that vehicle's greenhouse gas rating falls relative to the total range; include the vehicle's greenhouse gas rating inside the box. Include the expression “CO
(3) The heading, “Smog Rating (tailpipe only)” in the top right corner of the field.
(4) Insert a slider bar in the right portion of the field to characterize the vehicle's level of emission control for ozone-related air pollutants relative to that of all vehicles. Position a box with a downward-pointing wedge above the slider bar positioned to show where that vehicle's emission rating falls relative to the total range. Include the vehicle's emission rating (as described in § 600.311) inside the box. Include the number 1 in the border at the left end of the slider bar and add the expression “Smog Rating” under the slider bar, directly below the number. Include the number 10 in the border at the right end of the slider bar and add the term “Best” below the slider bar, directly under the number. EPA will periodically calculate and publish updated range values as described in § 600.311. Add color to the slider bar such that it is blue at the left end of the range, white at the right end of the range, and shaded continuously across the range.
(5) The following statements below the slider bars: “This vehicle emits
(f)
(1) Model year.
(2) Vehicle car line.
(3) Engine displacement, in cubic inches, cubic centimeters, or liters whichever is consistent with the customary description of that engine.
(4) Transmission class.
(5) Other descriptive information, as necessary, such as number of engine cylinders, to distinguish otherwise identical model types or, in the case of
(g) [Reserved]
(h)
(i)
(j)
(k)
Fuel economy labels for flexible-fuel vehicles must meet the specifications described in § 600.302, the modifications described in this section. This section describes how to label vehicles equipped with gasoline engines. If the vehicle has a diesel engine, all the references to “gas” or “gasoline” in this section are understood to refer to “diesel” or “diesel fuel”, respectively.
(a) For qualifying vehicles, include the following additional sentence in the statement identified in § 600.302–12(b)(4): “This is a dual fueled automobile.” See the definition of “dual fueled automobile” in § 600.002.
(b) You may include fuel economy information as described in § 600.302–12(c)(1), or you may include the following elements instead:
(1) The heading “Fuel Economy” near the top left corner of the field.
(2) The combined fuel economy value as determined in § 600.311 below the heading. Include the expression “combined city/hwy” below this number.
(3) The fuel pump logo and other logos as specified in § 600.302–12(b)(3)(ii) to the left of the combined fuel economy value.
(4) The units identifier and specific fuel economy values to the right of the combined fuel economy value as follows:
(i) Include the term “MPG” in the upper portion of the designated space.
(ii) Include the city fuel economy value determined in § 600.311 in the lower left portion of the designated space. Include the expression “city” below this number.
(iii) Include the highway fuel economy value determined in § 600.311 in the lower right portion of the designated space. Include the expression “highway” below this number.
(5) The fuel consumption rate determined in § 600.311, to the right of the fuel economy information. Include the expression “gallons per 100 miles” below the numerical value.
(6) The sub-heading “Driving Range” below the combined fuel economy value, with range bars below this sub-heading as follows:
(i) Insert a horizontal range bar nominally 80 mm long to show how far the vehicle can drive from a full tank of gasoline. Include a vehicle logo at the right end of the range bar. Include the following left-justified expression inside the range bar: “Gasoline:
(ii) Insert a second horizontal range bar as described in paragraph (b)(7)(i) of this section that shows how far the vehicle can drive from a full tank with the second fuel. Establish the length of the line based on the proportion of driving ranges for the different fuels. Identify the appropriate fuel in the range bar.
(c) Add the following statement after the statements described in § 600.302–12(c)(2): “Values are based on gasoline and do not reflect performance and ratings based on E85.” Adjust this statement as appropriate for vehicles designed to operate on different fuels.
Fuel economy labels for hydrogen fuel cell vehicles must meet the specifications described in § 600.302, with the following modifications:
(a) Include the following statement instead of the statement specified in § 600.302–12(b)(4): “Actual results will vary for many reasons, including driving conditions and how you drive and maintain your vehicle. The average new vehicle gets
(b) Include the following elements instead of the information identified in § 600.302–12(c)(1):
(1) The heading “Fuel Economy” near the top left corner of the field.
(2) The combined fuel economy value as determined in § 600.311 below the heading. Include the expression “combined city/hwy” below this number.
(3) The logo specified in § 600.302–12(b)(3)(ii) to the left of the combined fuel economy value.
(4) The units identifier and specific fuel economy values to the right of the combined fuel economy value as follows:
(i) Include the term “MPGe” in the upper portion of the designated space.
(ii) Include the city fuel economy value determined in § 600.311 in the lower left portion of the designated space. Include the expression “city” below this number.
(iii) Include the highway fuel economy value determined in § 600.311 in the lower right portion of the designated space. Include the expression “highway” below this number.
(5) The fuel consumption rate determined in § 600.311, to the right of the fuel economy information. Include the expression “kg H
(6) The sub-heading “Driving Range” below the combined fuel economy value. Below this sub-heading, insert a horizontal range bar nominally 80 mm long to show how far the vehicle can drive when fully fueled. Include a vehicle logo at the right end of the range bar. Include the following left-justified expression inside the range bar: “When fully fueled, vehicle can travel about
Fuel economy labels for dedicated natural gas vehicles must meet the specifications described in § 600.302, with the following modifications:
(a) Include the following statement instead of the statement specified in § 600.302–12(b)(4): “Actual results will vary for many reasons, including driving conditions and how you drive and maintain your vehicle. The average new vehicle gets
(b) Include the following elements instead of the information identified in § 600.302–12(c)(1):
(1) The heading “Fuel Economy” near the top left corner of the field.
(2) The combined fuel economy value as determined in § 600.311 below the heading. Include the expression “combined city/hwy” below this number.
(3) The logo specified in § 600.302–12(b)(3)(ii) to the left of the combined fuel economy value.
(4) The units identifier and specific fuel economy ratings to the right of the combined fuel economy value as follows:
(i) Include the term “MPGe” in the upper portion of the designated space.
(ii) Include the city fuel economy value determined in § 600.311 in the lower left portion of the designated space. Include the expression “city” below this number.
(iii) Include the highway fuel economy value determined in § 600.311 in the lower right portion of the designated space. Include the expression “highway” below this number.
(5) The fuel consumption rate determined in § 600.311, to the right of the fuel economy information. Include the expression “equivalent gallons per 100 miles” below the numerical value.
(6) The sub-heading “Driving Range” below the combined fuel economy value. Below this sub-heading, insert a horizontal range bar nominally 80 mm long to show how far the vehicle can drive when fully fueled. Include a vehicle logo at the right end of the range bar. Include the following left-justified expression inside the range bar: “When fully fueled, vehicle can travel about * * *””. Below the right end of the range bar, include the expression “
Fuel economy labels for plug-in hybrid electric vehicles must meet the specifications described in § 600.302, with the exceptions and additional specifications described in this section. This section describes how to label vehicles equipped with gasoline engines. If the vehicle has a diesel engine, all the references to “gas” or “gasoline” in this section are understood to refer to “diesel” or “diesel fuel”, respectively.
(a) Include the following statement instead of the statement specified in § 600.302–12(b)(4): “Actual results will vary for many reasons, including driving conditions and how you drive and maintain your vehicle. The average new vehicle gets
(b) Include the following elements instead of the information identified in § 600.302–12(c)(1):
(1) The heading “Fuel Economy” near the top left corner of the field. Include the statement specified in § 600.312–12(c)(2) to the right of the heading.
(2) An outlined box below the heading with the following information:
(i) The sub-heading “Electricity” if the vehicle's engine starts only after the battery is fully discharged, or “Electricity + Gasoline” if the vehicle uses combined power from the battery and the engine before the battery is fully discharged.
(ii) The expression “Charge Time:
(iii) The combined fuel economy value for the charge-depleting mode of operation as determined in § 600.311 below the charge time. Include the expression “combined city/highway” below this number.
(iv) An electric plug logo to the left of the combined fuel economy value. For vehicles that use combined power from the battery and the engine before the battery is fully discharged, also include the fuel pump logo.
(v) The units identifier and consumption ratings to the right of the combined fuel economy value as follows:
(A) Include the term “MPGe” in the upper portion of the designated space.
(B) If the vehicle's engine starts only after the battery is fully discharged, identify the vehicle's electricity consumption rate as specified in § 600.311. Below the number, include the expression: “kW-hrs per 100 miles”.
(C) If the vehicle uses combined power from the battery and the engine before the battery is fully discharged, identify the vehicle's gasoline consumption rate as specified in § 600.311; to the right of this number, include the expression: “gallons per 100 miles”. Below the gasoline consumption rate, identify the vehicle's electricity consumption rate as specified in § 600.311; to the right of this number, include the expression: “kW-hrs per 100 miles”.
(3) A second outlined box to the right of the box described in paragraph (b)(2) of this section with the following information:
(i) The sub-heading “Gasoline Only”.
(ii) The combined fuel economy value for operation after the battery is fully discharged as determined in § 600.311 below the sub-heading. Include the expression “combined city/highway” below this number.
(iii) A fuel pump logo to the left of the combined fuel economy value.
(iv) The units identifier and consumption rating to the right of the combined fuel economy value as follows:
(A) Include the term “MPG” in the upper portion of the designated space.
(B) Identify the vehicle's gasoline consumption rate as specified in § 600.311.
Below this number, include the expression: “gallons per 100 miles”.
(4) Insert a horizontal range bar below the boxes specified in paragraphs (b)(2) and
(3) of this section that shows how far the vehicle can drive before the battery is fully discharged, and also how far the vehicle can drive before running out of fuel, as described in § 600.311. Scale the range bar such that the driving range at the point of fully discharging the battery is directly between the two boxes. Identify the driving range up to fully discharging the battery underneath that point on the range bar (
(c) Include the following statement instead of the one identified in § 600.302–12(c)(5): “This vehicle emits
Fuel economy labels for electric vehicles must meet the specifications described in § 600.302, with the following modifications:
(a) Include the following statement instead of the statement specified in § 600.302–12(b)(4): “Actual results will vary for many reasons, including driving conditions and how you drive and maintain your vehicle. The average new vehicle gets
(b) Include the following elements instead of the information identified in § 600.302–12(c)(1):
(1) The heading “Fuel Economy” near the top left corner of the field.
(2) The combined fuel economy value as determined in § 600.311 below the heading. Include the expression “combined city/hwy” below this number.
(3) An electric plug logo to the left of the combined fuel economy value.
(4) The units identifier and specific fuel economy values to the right of the combined fuel economy value as follows:
(i) Include the term “MPGe” in the upper portion of the designated space.
(ii) Include the city fuel economy value determined in § 600.311 in the lower left portion of the designated space. Include the expression “city” below this number.
(iii) Include the highway fuel economy value determined in § 600.311 in the lower right portion of the designated space. Include the expression “highway” below this number.
(5) The fuel consumption rate determined in § 600.311, to the right of the fuel economy information. Include the expression “kW-hrs per 100 miles” below the numerical value.
(6) The sub-heading “Driving Range” below the combined fuel economy value. Below this sub-heading, insert a horizontal range bar nominally 80 mm long to show how far the vehicle can drive when fully fueled. Include a vehicle logo at the right end of the range bar. Include the following left-justified expression inside the range bar: “When fully charged, vehicle can travel about * * *”. Below the right end of the range bar, include the expression “
(7) Below the driving range information, the expression “Charge Time:
(c) Include the following statement instead of the one identified in § 600.302–12(c)(5): “This vehicle emits
(a)
(b)
(c)
(1) For vehicles with engines that are not plug-in hybrid electric vehicles, calculate the fuel consumption rate in gallons per 100 miles (or gasoline gallon equivalent per 100 miles for fuels other than gasoline or diesel fuel) with the following formula, rounded to the first decimal place:
(2) For plug-in hybrid electric vehicles, calculate two separate fuel consumption rates as follows:
(i) Calculate the fuel consumption rate based on engine operation after the
(ii) Calculate the fuel consumption rate during operation before the battery is fully discharged in kW-hours per 100 miles as described in SAE J1711 (incorporated by reference in § 600.011), as described in § 600.116.
(3) For electric vehicles, calculate the fuel consumption rate in kW-hours per 100 miles with the following formula, rounded to the nearest whole number:
(4) For hydrogen fuel cell vehicles, calculate the fuel consumption rate in kilograms of hydrogen per 100 miles with the following formula, rounded to the nearest whole number:
(d)
(1) For gasoline-fueled vehicles that are not plug-in hybrid electric vehicles (including flexible fuel vehicles that operate on gasoline), establish a single rating based only on the vehicle's combined fuel economy from paragraph (a) of this section. For all other vehicles, establish a fuel economy rating based on the vehicle's combined fuel economy and establish a separate greenhouse gas rating based on combined CO
(2) We will establish the fuel economy rating based on fuel consumption values specified in paragraph (c) of this section. We will establish the value dividing the 5 and 6 ratings based on the fuel consumption corresponding to the projected achieved Corporate Average Fuel Economy level for the applicable model year. This is intended to prevent below-average vehicles from getting an above-average fuel economy rating for the label. We will establish the remaining cutpoints based on a statistical evaluation of available information from the certification database for all model types. Specifically, the mean value plus two standard deviations will define the point between the 1 and 2 ratings. The mean value minus two standard deviations will define the point between the 9 and 10 ratings. The 1 rating will apply for any vehicle with higher fuel consumption rates than the 2 rating; similarly, the 10 rating will apply for any vehicle with lower fuel consumption rates than the 9 rating. We will calculate range values for the remaining intermediate ratings by dividing the range into equal intervals. We will convert the resulting range intervals to equivalent miles-per-gallon values. We will define the greenhouse gas ratings by converting the values from the fuel economy rating intervals to equivalent CO
(e)
(1) Except as specified in paragraph (e)(3) of this section, calculate the total annual fuel cost with the following formula, rounded to nearest $50:
(2) For dual fuel vehicles and flexible fuel vehicles, disregard operation on the alternative fuel.
(3) For plug-in hybrid electric vehicles, calculate annual fuel cost as described in this paragraph (e)(3). This description applies for vehicles whose engine starts only after the battery is fully discharged. Use good engineering judgment to extrapolate this for calculating annual fuel cost for vehicles that use combined power from the battery and the engine before the battery is fully discharged. Calculate annual fuel cost as follows:
(i) Determine the charge-depleting ranges for city and highway operation as described in paragraph (j)(4)(i) of this section. Adjust each of these values for 5-cycle operation.
(ii) Calculate multi-day individual utility factors (UF) as described in § 600.116 corresponding to the driving ranges from paragraph (e)(3)(i) of this section.
(iii) Calculate values for the vehicle's average fuel economy over the charge-depleting range (in miles per kW-hr) for city and highway operation as described in § 600.210. Adjust each of these values for 5-cycle operation. Convert these to $/mile values by dividing the appropriate fuel price from paragraph (e)(1) of this section by the average fuel economy determined in this paragraph (e)(3)(iii).
(iv) Calculate values for the vehicle's average fuel economy over the charge-sustaining range (in miles per gallon) for city and highway operation as described in § 600.210–12. Adjust each of these values for 5-cycle operation. Convert these to $/mile values by dividing the appropriate fuel price from paragraph (e)(1) of this section by the average fuel economy determined in this paragraph (e)(3)(iv).
(v) Calculate a composite $/mile value for city driving using the following equation:
(vi) Repeat the calculation in paragraph (e)(3)(v) of this section for highway driving.
(vii) Calculate the annual fuel cost based the combined values for city and highway driving using the following equation:
(f)
(g)
(h)
(i) [Reserved]
(j)
(1) For vehicles operating on nonpressurized liquid fuels, determine the vehicle's driving range in miles by multiplying the combined fuel economy described in paragraph (a) of this section by the vehicle's usable fuel storage capacity, rounded to the nearest whole number.
(2) For electric vehicles, determine the vehicle's overall driving range as described in Section 8 of SAE J1634 (incorporated by reference in § 600.011), as described in § 600.116. Determine separate range values for FTP-based city and HFET-based highway driving, then calculate a combined value by arithmetically averaging the two values, weighted 0.55 and 0.45 respectively, and rounding to the nearest whole number.
(3) For natural gas vehicles, determine the vehicle's driving range in miles by multiplying the combined fuel economy described in paragraph (a) of this section by the vehicle's usable fuel storage capacity (expressed in gasoline gallon equivalents), rounded to the nearest whole number.
(4) For plug-in hybrid electric vehicles, determine the battery driving range and overall driving range as described in SAE J1711 (incorporated by reference in § 600.011), as described in § 600.116, as follows:
(i) Determine the vehicle's Actual Charge-Depleting Range, R
(ii) Use good engineering judgment to calculate the vehicle's operating distance before the fuel tank is empty when starting with a full fuel tank and a fully charged battery, consistent with the procedure and calculation specified in this paragraph (j), rounded to the nearest 10 miles.
(5) For hydrogen fuel cell vehicles, determine the vehicle's driving range in miles by multiplying the combined fuel economy described in paragraph (a) of this section by the vehicle's usable fuel storage capacity (expressed in kilograms of hydrogen), rounded to the nearest whole number.
(k)
(l)
(a) The label values established in § 600.312 shall remain in effect for the model year unless updated in accordance with paragraph (b) of this section.
(b)(1) The manufacturer shall recalculate the model type fuel economy values for any model type containing
(2) For separate model types created in § 600.209–08(a)(2) or § 600.209–12(a)(2), the manufacturer shall recalculate the model type values for any additions or deletions of subconfigurations to the model type. Minimum data requirements specified in § 600.010(c) shall be met prior to recalculation.
(3) Label value recalculations shall be performed as follows:
(i) The manufacturer shall use updated total model year projected sales for label value recalculations.
(ii) All model year data approved by the Administrator at the time of the recalculation for that model type shall be included in the recalculation.
(iii) Using the additional data under this paragraph (b), the manufacturer shall calculate new model type city and highway values in accordance with § 600.210 except that the values shall be rounded to the nearest 0.1 mpg.
(iv) The existing label values, calculated in accordance with § 600.210, shall be rounded to the nearest 0.1 mpg.
(4)(i) If the recalculated city or highway fuel economy value in paragraph (b)(3)(iii) of this section is less than the respective city or highway value in paragraph (b)(3)(iv) of this section by 1.0 mpg or more, the manufacturer shall affix labels with the recalculated model type values (rounded to the nearest whole mpg) to all new vehicles of that model type beginning on the day of implementation of the running change.
(ii) If the recalculated city or highway fuel economy value in paragraph (b)(3)(iii) of this section is higher than the respective city or highway value in paragraph (b)(3)(iv) of this section by 1.0 mpg or more, then the manufacturer has the option to use the recalculated values for labeling the entire model type beginning on the day of implementation of the running change.
(c) For fuel economy labels updated using recalculated fuel economy values determined in accordance with paragraph (b) of this section, the manufacturer shall concurrently update all other label information (
(d) The Administrator shall periodically update the range of fuel economies of comparable automobiles based upon all label data supplied to the Administrator.
(e) The manufacturer may request permission from the Administrator to calculate and use label values based on test data from vehicles which have not completed the Administrator-ordered confirmatory testing required under the provisions of § 600.008–08(b). If the Administrator approves such a calculation the following procedures shall be used to determine if relabeling is required after the confirmatory testing is completed.
(1) The Administrator-ordered confirmatory testing shall be completed as quickly as possible.
(2) Using the additional data under paragraph (e)(1) of this section, the manufacturer shall calculate new model type city and highway values in accordance with §§ 600.207 and 600.210 except that the values shall be rounded to the nearest 0.1 mpg.
(3) The existing label values, calculated in accordance with § 600.210, shall be rounded to the nearest 0.1 mpg.
(4) The manufacturer may need to revise fuel economy labels as follows:
(i) If the recalculated city or highway fuel economy value in paragraph (b)(3)(iii) of this section is less than the respective city or highway value in paragraph (b)(3)(iv) of this section by 0.5 mpg or more, the manufacturer shall affix labels with the recalculated model type MPG values (rounded to the nearest whole number) to all new vehicles of that model type beginning 15 days after the completion of the confirmatory test.
(ii) If both the recalculated city or highway fuel economy value in paragraph (b)(3)(iii) of this section is less than the respective city or highway value in paragraph (b)(3)(iv) of this section by 0.1 mpg or more and the recalculated gas guzzler tax rate determined under the provisions of § 600.513–08 is larger, the manufacturer shall affix labels with the recalculated model type values and gas guzzler tax statement and rates to all new vehicles of that model type beginning 15 days after the completion of the confirmatory test.
(5) For fuel economy labels updated using recalculated fuel economy values determined in accordance with paragraph (e)(4) of this section, the manufacturer shall concurrently update all other label information (
(a) * * *
(2) The Administrator will classify light trucks (nonpassenger automobiles) into the following classes: Small pickup trucks, standard pickup trucks, vans, minivans, and SUVs. Starting in the 2013 model year, SUVs will be divided between small sport utility vehicles and standard sport utility vehicles. Pickup trucks and SUVs are separated by car line on the basis of gross vehicle weight rating (GVWR). For a product line with more than one GVWR, establish the characteristic GVWR value for the product line by calculating the arithmetic average of all distinct GVWR values less than or equal to 8,500 pounds available for that product line. The Administrator may determine that specific light trucks should be most appropriately placed in a different class or in the special purpose vehicle class as provided in paragraphs (a)(3)(i) and (ii) of this section, based on the features and characteristics of the specific vehicle, consumer information provided by the manufacturer, and other information available to consumers.
(i) Small pickup trucks. Pickup trucks with a GVWR below 6,000 pounds.
(ii) Standard pickup trucks. Pickup trucks with a GVWR at or above 6,000 pounds and at or below 8,500 pounds.
(iii) Vans.
(iv) Minivans.
(v) Small sport utility vehicles. Sport utility vehicles with a GVWR below 6,000 pounds.
(vi) Standard sport utility vehicles. Sport utility vehicles with a GVWR at or above 6,000 pounds and at or below 10,000 pounds.
(c) All interior and cargo dimensions are measured in inches to the nearest 0.1 inch. All dimensions and volumes shall be determined from the base vehicles of each body style in each car line, and do not include optional equipment. The dimensions H61, W3, W5, L34, H63, W4, W6, L51, H201, L205, L210, L211, H198, W201, and volume V1 are to be determined in accordance with the procedures outlined in Motor Vehicle Dimensions SAE 1100a (incorporated by reference in § 600.011), except as follows:
Where more than one person is the manufacturer of a vehicle, the final stage manufacturer (as defined in 49 CFR 529.3) is treated as the vehicle manufacturer for purposes of compliance with this subpart.
§ 600.401–77.
§ 600.402–77.
§ 600.403–77.
§ 600.404–77.
§ 600.405–77.
§ 600.406–77.
§ 600.407–77.
§ 600.501–12.
§ 600.501–85.
§ 600.501–86.
§ 600.501–93.
§ 600.503–78.
§ 600.504–78.
§ 600.505–78.
§ 600.507–86.
§ 600.510–86.
§ 600.510–93.
§ 600.512–01.
§ 600.512–86.
§ 600.513–81.
§ 600.513–91.
The following definitions apply to this subpart in addition to those in § 600.002:
(a) The
(1) The value at which components are declared by the importer to the U.S. Customs Service at the date of entry into the customs territory of the United States; or
(2) With respect to imports into Canada, the declared value of such components as if they were declared as imports into the United States at the date of entry into Canada; or
(3) With respect to imports into Mexico, the declared value of such components as if they were declared as imports into the United States at the date of entry into Mexico.
(b)
(1) The average U.S. dealer wholesale price for such car line as computed from each official dealer price list effective during the course of a model year, and
(2) The number of automobiles within the car line produced during the part of the model year that the price list was in effect.
(c)
(a) Except as specified in paragraph (d) of this section, the manufacturer shall submit additional running change fuel economy and carbon-related exhaust emissions data as specified in paragraph (b) of this section for any running change approved or implemented under § 86.1842 of this chapter, which:
(c) The manufacturer shall submit the fuel economy data required by this section to the Administrator in accordance with § 600.314.
(g) * * *
(1) * * *
(ii)(A) The net heating value for alcohol fuels shall be premeasured using a test method which has been approved in advance by the Administrator.
(B) The density for alcohol fuels shall be determined per ASTM D 1298 (incorporated by reference at § 600.011).
73. Section 600.510–12 is amended by revising paragraphs (b)(2) introductory text, (b)(3) introductory text, (c)(2)(iv)(B), (g)(1), (i) introductory text (and equation), and (j)(2) to read as follows:
(b) * * *
(2) The combined city/highway fuel economy and carbon-related exhaust emission values will be calculated for each model type in accordance with § 600.208 except that:
(3) The fuel economy and carbon-related exhaust emission values for each vehicle configuration are the combined fuel economy and carbon-related exhaust emissions calculated according to § 600.206–12(a)(3) except that:
(c) * * *
(2) * * *
(iv) * * *
(B) The combined model type fuel economy value for operation on alcohol fuel as determined in § 600.208–12(b)(5)(ii) divided by 0.15 provided the requirements of paragraph (g) of this section are met; or
(g)(1) Alcohol dual fuel automobiles and natural gas dual fuel automobiles must provide equal or greater energy efficiency while operating on alcohol or natural gas as while operating on gasoline or diesel fuel to obtain the CAFE credit determined in paragraphs (c)(2)(iv) and (v) of this section or to obtain the carbon-related exhaust emissions credit determined in paragraphs (j)(2)(ii) and (iii) of this section. The following equation must hold true:
D
(i) The equation must hold true for both the FTP city and HFET highway fuel economy values for each test of each test vehicle.
(ii)(A) The net heating value for alcohol fuels shall be premeasured using a test method which has been approved in advance by the Administrator.
(B) The density for alcohol fuels shall be premeasured using ASTM D 1298 (incorporated by reference at § 600.011).
(iii) The net heating value and density of gasoline are to be determined by the manufacturer in accordance with § 600.113.
(i) For model years 2012 through 2015, and for each category of automobile identified in paragraph (a)(1) of this section, the maximum decrease in average carbon-related exhaust emissions determined in paragraph (j) of this section attributable to alcohol dual fuel automobiles and natural gas dual fuel automobiles shall be calculated using the following formula, and rounded to the nearest tenth of a gram per mile:
(j) * * *
(2) A sum of terms, each of which corresponds to a model type within that category of automobiles and is a product determined by multiplying the number of automobiles of that model type produced by the manufacturer in the model year by:
(i) For gasoline-fueled and diesel-fueled model types, the carbon-related exhaust emissions value calculated for that model type in accordance with paragraph (b)(2) of this section; or
(ii)(A) For alcohol-fueled model types, for model years 2012 through 2015, the carbon-related exhaust emissions value calculated for that model type in accordance with paragraph (b)(2) of this section multiplied by 0.15 and rounded to the nearest gram per mile, except that manufacturers complying with the fleet averaging option for N
(B) For alcohol-fueled model types, for model years 2016 and later, the carbon-related exhaust emissions value calculated for that model type in accordance with paragraph (b)(2) of this section; or
(iii)(A) For natural gas-fueled model types, for model years 2012 through 2015, the carbon-related exhaust emissions value calculated for that model type in accordance with paragraph (b)(2) of this section multiplied by 0.15 and rounded to the nearest gram per mile, except that manufacturers complying with the fleet averaging option for N
(B) For natural gas-fueled model types, for model years 2016 and later, the carbon-related exhaust emissions value calculated for that model type in accordance with paragraph (b)(2) of this section; or
(iv) For alcohol dual fuel model types, for model years 2012 through 2015, the arithmetic average of the following two terms, the result rounded to the nearest gram per mile:
(A) The combined model type carbon-related exhaust emissions value for operation on gasoline or diesel fuel as determined in § 600.208–12(b)(5)(i); and
(B) The combined model type carbon-related exhaust emissions value for operation on alcohol fuel as determined in § 600.208–12(b)(5)(ii) multiplied by 0.15 provided the requirements of paragraph (g) of this section are met, except that manufacturers complying with the fleet averaging option for N
(v) For natural gas dual fuel model types, for model years 2012 through 2015, the arithmetic average of the following two terms; the result rounded to the nearest gram per mile:
(A) The combined model type carbon-related exhaust emissions value for operation on gasoline or diesel as determined in § 600.208–12(b)(5)(i); and
(B) The combined model type carbon-related exhaust emissions value for operation on natural gas as determined in § 600.208–12(b)(5)(ii) multiplied by 0.15 provided the requirements of paragraph (g) of this section are met, except that manufacturers complying with the fleet averaging option for N
(vi) For alcohol dual fuel model types, for model years 2016 and later, the combined model type carbon-related exhaust emissions value determined according to the following formula and rounded to the nearest gram per mile:
(vii) For natural gas dual fuel model types, for model years 2016 and later, the combined model type carbon-related exhaust emissions value determined according to the following formula and rounded to the nearest gram per mile:
CREE = (F × CREE
F = 0.00 unless otherwise approved by the Administrator according to the provisions of paragraph (k) of this section;
(c) The model year report must include the following information:
(1)(i) All fuel economy data used in the FTP/HFET-based model type calculations under § 600.208, and subsequently required by the Administrator in accordance with § 600.507;
(ii) All carbon-related exhaust emission data used in the FTP/HFET-based model type calculations under § 600.208, and subsequently required by the Administrator in accordance with § 600.507;
(2) (i) All fuel economy data for certification vehicles and for vehicles tested for running changes approved under § 86.1842 of this chapter;
(ii) All carbon-related exhaust emission data for certification vehicles and for vehicles tested for running changes approved under § 86.1842 of this chapter;
(3) Any additional fuel economy and carbon-related exhaust emission data submitted by the manufacturer under § 600.509;
(4)(i) A fuel economy value for each model type of the manufacturer's product line calculated according to § 600.510–12(b)(2);
(ii) A carbon-related exhaust emission value for each model type of the manufacturer's product line calculated according to § 600.510–12(b)(2);
(5)(i) The manufacturer's average fuel economy value calculated according to § 600.510–12(c);
(ii) The manufacturer's average carbon-related exhaust emission value calculated according to § 600.510–12(j);
(6) A listing of both domestically and nondomestically produced car lines as determined in § 600.511 and the cost information upon which the determination was made; and
(7) The authenticity and accuracy of production data must be attested to by the corporation, and shall bear the signature of an officer (a corporate executive of at least the rank of vice-president) designated by the corporation. Such attestation shall constitute a representation by the manufacturer that the manufacturer has established reasonable, prudent procedures to ascertain and provide production data that are accurate and authentic in all material respects and that these procedures have been followed by employees of the manufacturer involved in the reporting process. The signature of the designated officer shall constitute a representation by the required attestation.
(8) [Reserved]
(9) The “required fuel economy level” pursuant to 49 CFR parts 531 or 533, as applicable. Model year reports shall include information in sufficient detail to verify the accuracy of the calculated required fuel economy level, including but is not limited to, production information for each unique footprint within each model type contained in the model year report and the formula used to calculate the required fuel economy level. Model year reports shall include a statement that the method of measuring vehicle track width, measuring vehicle wheelbase and calculating vehicle footprint is accurate and complies with applicable Department of Transportation requirements.
(10) The “required fuel economy level” pursuant to 49 CFR parts 531 or 533 as applicable, and the applicable fleet average CO
(11) A detailed (but easy to understand) list of vehicle models and the applicable in-use CREE emission standard. The list of models shall include the applicable carline/subconfiguration parameters (including carline, equivalent test weight, road-load horsepower, axle ratio, engine code, transmission class, transmission configuration and basic engine); the test parameters (ETW and a, b, c, dynamometer coefficients) and the associated CREE emission standard. The manufacturer shall provide the method of identifying EPA engine code for applicable in-use vehicles.
(a) This section applies only to passenger automobiles sold after December 27, 1991, regardless of the model year of those vehicles. For alcohol dual fuel and natural gas dual fuel automobiles, the fuel economy while such automobiles are operated on gasoline will be used for Gas Guzzler Tax assessments.
(1) The provisions of this section do not apply to passenger automobiles exempted for Gas Guzzler Tax assessments by applicable Federal law and regulations. However, the manufacturer of an exempted passenger automobile may, in its discretion, label such vehicles in accordance with the provisions of this section.
(2) For 1991 and later model year passenger automobiles, the combined FTP/HFET-based model type fuel economy value determined in § 600.208 used for Gas Guzzler Tax assessments shall be calculated in accordance with the following equation, rounded to the nearest 0.1 mpg:
Any calculated value of IW less than zero shall be set equal to zero.
(b)(1) For passenger automobiles sold after December 31, 1990, with a combined FTP/HFET-based model type fuel economy value of less than 22.5 mpg (as determined in § 600.208), calculated in accordance with paragraph (a)(2) of this section and rounded to the nearest 0.1 mpg, each vehicle fuel economy label shall include a Gas Guzzler Tax statement pursuant to 49 U.S.C. 32908(b)(1)(E). The tax amount stated shall be as specified in paragraph (b)(2) of this section.
(2) For passenger automobiles with a combined general label model type fuel economy value of:
(b) * * *
(4) Assume that the same vehicle was tested by the Federal Highway Fuel Economy Test Procedure and a calculation similar to that shown in (b)(3) of this section resulted in a highway fuel economy of MPG
This appendix illustrates label content and format for 2013 and later model years. Manufacturers must make a good faith effort to conform to these templates and follow these formatting specifications. EPA will make available electronic files for creating labels.
(a) Fuel economy labels must be printed on white or very light paper. Any label markings for which colors are not specified must be in black and white as shown. Some portions of the label must be filled with a blue or blue-shaded color as specified in subpart D of this part. Use the color blue defined in CMYK values of 40c–10m–0y–0k, or it may be specified as Pantone 283.
(b) Use a Univers font from Adobe or another source that properly reproduces the labels as shown in the samples. Use Light (L), Roman (R), Bold (B) or Black (Bl) font weights as noted. Font size is shown in points, followed by leading specifications in points to indicate line spacing (if applicable). Use white characters in black fields; use black characters in all other places. Unless noted otherwise, text is left-justified with a 1.6 millimeter margin. Some type may need tracking adjustments to fit in the designated space.
(c) Use the following conventions for lines and borders:
(1) Narrow lines defining the border or separating the main fields are 1.6 millimeter thick.
(2) Each rectangular shape or area, including the overall label outline, has an upper left corner that is square (0 radius). All other corners have a 3.2 millimeter radius.
(d) Fuel and vehicle icons, range and slider bars, and agency names and logos are available electronically.
(e) The following figures illustrate the formatting specifications:
In consideration of the foregoing, under the authority of 15 U.S.C. 1232 and 49 U.S.C. 32908 and delegation of authority at 49 CFR 1.50, NHTSA amends 49 CFR Chapter V as follows:
49 U.S.C. 32302, 32304A, 30111, 30115, 30117, 30166, 32908, and 20168, Pub. L. 104–414, 114 Stat. 1800, Pub. L. 109–59, 119 Stat. 1144, 15 U.S.C. 1232(g), Pub. L. 110–140, 121 Stat. 1492; delegation of authority at 49 CFR 1.50.
(a)
(b)
(c)
(1)
(2)
(3)
(4)
(5)
(6)
(d)
(e)
(2)
(3)
(4)
(i)
(B) Immediately to the right of the agency names, the heading “Fuel Economy and Environment” must be in boldface letters that are light in color.
(ii)
(A) For vehicles designed to operate on a single fuel, identify the appropriate fuel. For example, identify the vehicle with the words “Gasoline Vehicle,” “Diesel Vehicle,” “Compressed Natural Gas Vehicle,” “Hydrogen Fuel Cell Vehicle,” etc. This includes hybrid electric vehicles that do not have plug-in capability. Include a logo corresponding to the fuel to the left of this designation as follows:
(
(
(
(
(B) Identify dual-fueled (“flexible-fueled”) vehicles with the words “Flexible-Fuel Vehicle Gasoline-Ethanol (E85),” “Flexible-Fuel Vehicle Diesel-Natural Gas,” etc. Include a fuel pump logo or a combination of logos to the left of this designation as appropriate. For example, for vehicles that operate on gasoline or ethanol, include a fuel pump logo and the designation “E85,” as shown in the appendix to this section.
(C) Identify plug-in hybrid electric vehicles with the words “Plug-In Hybrid Vehicle Electricity-Gasoline” or “Plug-In Hybrid Vehicle Electricity-Diesel.” Include a fuel pump logo to the lower left of this designation and an electric plug logo to the upper left of this designation.
(D) Identify electric vehicles with the words “Electric Vehicle.” Include an electric plug logo to the left of this designation.
(iii)
(B) In the lower left portion of the lower border, include the Web site reference, “fueleconomy.gov,” and include the following statement: “Calculate personalized estimates and compare vehicles” beneath it.
(iv)
(v)
(5)
(i) The heading “Fuel Economy” near the top left corner of the field.
(ii) The vehicle's combined fuel economy determined as set forth in 40 CFR 600.210–12(c) in large font, with the words “combined city/hwy” below the number in smaller font.
(iii) A fuel pump logo to the left of the combined fuel economy value (for diesel fuel, include a fuel pump logo with a “D” inscribed in the base of the fuel pump).
(iv) The units identifier and specific fuel economy values to the right of the combined fuel economy value as follows:
(A) Include the word “MPG” to the upper right of the combined fuel economy value.
(B) Include the value for the city and highway fuel economy determined as set forth in 40 CFR 600.210–12(a) and (b) to the right of the combined fuel economy value in smaller font, and below the word “MPG.” Include the expression “city” in smaller font below the city fuel economy value, and the expression “highway” in smaller font below the highway fuel economy value.
(v) Below the fuel economy performance values set forth in paragraphs (e)(5)(ii) and (iv) of this section, include the value for the fuel consumption rate required by EPA and determined as set forth in 40 CFR 600.302–12(c)(1).
(vi) To the right of the word “MPG” described in paragraph (e)(5)(iv)(A) of this section, include the information about the range of fuel economy of comparable vehicles as required by EPA and set forth in 40 CFR 600.302–12(c)(2) and below that information, include the expression “The best vehicle rates 99 MPGe.”
(6)
(7)
(8)
(i) Include the heading “Fuel Economy & Greenhouse Gas Rating (tailpipe only)” in the top left corner of the field.
(ii) Include a slider bar in the left portion of the field as shown in the appendix to this section to characterize the vehicle's fuel economy and CO
(iii) Include the heading “Smog Rating (tailpipe only)” in the top right corner of the field.
(iv) Include a slider bar in the right portion of the field to characterize the vehicle's level of emission control for other air pollutants relative to that of all vehicles. Position a black box with a downward-pointing wedge above the slider bar positioned to show where that vehicle's emission rating falls relative to the total range. Include the vehicle's emission rating determined as set forth in 40 CFR 600.311–12(g) inside the box in white text. Include the number “1” in white text in the black border at the left end of the slider bar, and include the number “10” in white text in the black border at the right end of the slider bar, with the expression “Best” in black text under the slider bar directly below the “10.” Add color to the slider bar such that it is blue at the left end of the range, white at the right end of the range, and shaded continuously across the range.
(v) Below the slider bars described in paragraphs (e)(8)(ii) and (e)(8)(iv) to this section, include the statement, “This vehicle emits
(9)
(10)
(f)
(2) For qualifying vehicles, include the following additional expression in the statement identified in paragraph (e)(iv)(3)(A) of this section as shown in the appendix to this section: “This is a dual fueled automobile.”
(3) Include the following elements instead of the information identified in paragraph (e)(5) of this section:
(i) The heading “Fuel Economy” near the top left corner of the field.
(ii) The vehicle's combined fuel economy as set forth in 40 CFR 600.210–12(c) in large font, with the words “combined city/hwy” below the number in smaller font.
(iii) A fuel pump logo and other logos as specified in paragraph (e)(4)(ii)(A) of this section to the left of the combined fuel economy value.
(iv) The units identifier and specific fuel economy values to the right of the combined fuel economy value as follows:
(A) Include the word “MPG” to the upper right of the combined fuel economy value.
(B) Include the value for the city and highway fuel economy determined as set forth in 40 CFR 600.210–12(a) and (b) to the right of the combined fuel economy value in smaller font, and below the word “MPG.” Include the expression “city” in smaller font below the city fuel economy value, and the expression “highway” in smaller font below the highway fuel economy value.
(v) Below the fuel economy performance value set forth in paragraph (f)(iii)(2) of this section, include the value for the fuel consumption rate required by EPA and determined as set forth in 40 CFR 600.302–12(c)(1).
(vi) To the right of the word “MPG” described in paragraph (e)(5)(iv)(A) of this section, include the information about the range of fuel economy of comparable vehicles as required by EPA and set forth in 40 CFR 600.302–12(c)(2), and below that information, include the expression “The best vehicle rates 99 MPGe. Values are based on gasoline and do not reflect performance and ratings based on E85.” Adjust this statement as appropriate for vehicles designed to operate on different fuels.
(vii) Below the combined fuel economy value, the manufacturer may include information on the vehicle's driving range as shown in the appendix to this section, with the sub-heading “Driving Range,” and with range bars below this sub-heading as required by EPA and set forth in 40 CFR 600.303–12(b)(6).
(g)
(2) Include the following statement in the upper left portion of the lower border instead of the statement specified in paragraph (e)(4)(iii)(A) of this section: “Actual results will vary for many reasons, including driving conditions and how you drive and maintain your vehicle. The average new vehicle gets
(3) Include the following elements instead of the information identified above in paragraph (e)(5) of this section:
(i) The heading “Fuel Economy” near the top left corner of the field.
(ii) The vehicle's combined fuel economy determined as set forth in 40 CFR 600.210–12(c) in large font, with the words “combined city/hwy” below the number in smaller font.
(iii) The “H
(iv) The units identifier and specific fuel economy values to the right of the combined fuel economy value as follows:
(A) Include the word “MPGe” to the upper right of the combined fuel economy value.
(B) Include the value for the city and highway fuel economy determined as set forth in 40 CFR 600.311–12(a) and (b) to the right of the combined fuel economy value in smaller font, and below the word “MPG.” Include the expression “city” in smaller font below the city fuel economy value, and the expression “highway” in smaller font below the highway fuel economy value.
(v) To the right of the fuel economy performance values set forth in paragraph (iv)(B) of this section, include the value for the fuel consumption rate required by EPA and determined as set forth in 40 CFR 600.302–12(c)(1).
(vi) To the right of the word “MPGe” described in paragraph (g)(3)(iv)(A) of this section, include the information about the range of fuel economy of comparable vehicles as required by EPA and set forth in 40 CFR 600.302–12(c)(2) and below that information, include the expression “The best vehicle rates 99 MPGe.”
(vii) Below the combined fuel economy value, include information on the vehicle's driving range as shown in the appendix to this section, as required by EPA and set forth in 40 CFR 600.304–12(b)(6)
(h)
(2) Include the following statement in the upper left portion of the lower border instead of the statement specified in paragraph (e)(4)(iii)(A) of this section: “Actual results will vary for many reasons, including driving conditions and how you drive and maintain your vehicle. The average new vehicle gets
(3) Include the following elements instead of the information identified in paragraph (e)(5) of this section:
(i) The heading “Fuel Economy” near the top left corner of the field.
(ii) The vehicle's combined fuel economy determined as set forth in 40 CFR 600.210–12(c) in large font, with the words “combined city/hwy” below the number in smaller font.
(iii) The compressed natural gas logo as specified in paragraph (e)(4)(ii)(A) of this section to the left of the combined fuel economy value.
(iv) The units identifier and specific fuel economy values to the right of the combined fuel economy value as follows:
(A) Include the word “MPGe” to the upper right of the combined fuel economy value.
(B) Include the value for the city and highway fuel economy determined as set forth in 40 CFR 600.311–12(a) and (b) to the right of the combined fuel economy value in smaller font, and below the word “MPGe.” Include the expression “city” in smaller font below the city fuel economy value, and the expression “highway” in smaller font below the highway fuel economy value.
(v) To the right of the fuel economy performance values described in paragraph (h)(3)(iv)(B) of this section, include the value for the fuel consumption rate required by EPA and determined as set forth in 40 CFR 600.302–12(c)(1).
(vi) To the right of the word “MPGe” described in paragraph (g)(3)(iv)(A) of this section, include the information about the range of fuel economy of comparable vehicles as required by EPA and set forth in 40 CFR 600.302–12(c)(2), and below that information, include the expression “The best vehicle rates 99 MPGe.”
(vii) Below the combined fuel economy value, include information on the vehicle's driving range as shown in the appendix to this section, as required by EPA and set forth in 40 CFR 600.306–12(b)(6).
(i)
(2) Include the following statement in the upper left portion of the lower border instead of the statement specified in paragraph (e)(4)(iii)(A) of this section: “Actual results will vary for many reasons, including driving conditions and how you drive and maintain your vehicle. The average new vehicle gets
(3) Include the following elements instead of the information identified above in paragraph (e)(5):
(i) The heading “Fuel Economy” near the top left corner of the field.
(ii) An outlined box below the heading with the following information:
(A) The sub-heading “Electricity” if the vehicle's engine starts only after the battery is fully discharged, or the sub-heading “Electricity + Gasoline” if the vehicle uses combined power from the battery and the engine before the battery is fully discharged.
(B) The expression “Charge Time: x hours (240 V),” as required by EPA and as set forth in 40 CFR 600.308–12(b)(2)(ii).
(C) The vehicle's combined fuel economy determined as set forth in 40 CFR 600.210–12(c) in large font, with the words “combined city/hwy” below the number in smaller font.
(D) An electric plug logo as specified in paragraph (e)(4)(ii)(A) of this section to the left of the combined fuel economy value. For vehicles that use combined power from the battery and the engine before the battery is fully discharged, also include the fuel pump logo as shown in the appendix to this section.
(E) The units identifier and specific fuel economy values to the right of the combined fuel economy value as follows:
(
(
(
(iii) A second outlined box to the right of the box described in paragraph (i)(3)(ii) of this section with the following information:
(A) The sub-heading “Gasoline Only.”
(B) The vehicle's combined fuel economy determined as set forth in 40 CFR 600.210–12(c) in large font, with the words “combined city/hwy” below the number in smaller font.
(C) A fuel pump logo to the left of the combined fuel economy value.
(D) The units identifier and consumption values to the right of the combined fuel economy value as follows:
(
(
(iv) Below the boxes specified in paragraphs (i)(3)(ii) and (iii) of this section, include information on the vehicle's driving range as shown in the appendix to this section, as required by EPA and as set forth in 40 CFR 600.308–12(b)(4).
(v) To the right of the heading “Fuel Economy” described in paragraph (i)(3)(i) of this section, include the information about the range of fuel economy of comparable vehicles as required by EPA and set forth in 40 CFR 600.302–12(c)(2) and to the right of that information, include the expression “The best vehicle rates 99 MPGe.”
(4) Include the following statement instead of the statement identified in paragraph (e)(8)(v) of this section: “This vehicle emits
(j)
(2) Include the following statement in the upper left portion of the lower border instead of the statement specified above in paragraph (e)(4)(iii)(A) of this section: “Actual results will vary for many reasons, including driving conditions and how you drive and maintain your vehicle. The average new vehicle gets
(3) Include the following elements instead of the information identified in paragraph (e)(5) of this section:
(i) The heading “Fuel Economy” near the top left corner of the field.
(ii) The vehicle's combined fuel economy determined as set forth in 40 CFR 600.210–12(c) in large font, with the words “combined city/hwy” below the number in smaller font.
(iii) The electric plug logo as specified in paragraph (e)(4)(ii)(A) of this section to the left of the combined fuel economy value.
(iv) The units identifier and specific fuel economy values to the right of the combined fuel economy value as follows:
(A) Include the word “MPGe” to the upper right of the combined fuel economy value.
(B) Include the value for the city and highway fuel economy determined as set forth in 40 CFR 600.311–12(a) and (b) to the right of the combined fuel economy value in smaller font, and below the word “MPGe.” Include the expression “city” in smaller font below the city fuel economy value, and the expression “highway” in smaller font below the highway fuel economy value.
(v) To the right of the fuel economy performance values described in
(vi) Below the combined fuel economy value, include information on the vehicle's driving range as shown in the appendix to this section, as required by EPA and as set forth in 40 CFR 600.310–12(b)(6).
(vii) Below the driving range information and left-justified, include information on the vehicle's charge time, as required by EPA and as set forth in 40 CFR 600.310–12(b)(7).
(4) Include the following statement instead of the statement identified in paragraph (e)(8)(v) of this section: “This vehicle emits 0 grams CO
Office of Innovation and Improvement, Department of Education.
Notice of final priorities, requirements, definitions, and selection criteria.
The Secretary of Education (Secretary) announces priorities, requirements, definitions, and selection criteria under the legislative authority of the Fund for the Improvement of Education Program (FIE), title V, part D, subpart 1, sections 5411 through 5413 of the Elementary and Secondary Education Act of 1965, as amended (ESEA). The Secretary may use one or more of these priorities, requirements, definitions, and selection criteria for Promise Neighborhoods competitions for fiscal year (FY) 2011 and later years.
We take this action to focus Federal assistance on projects that are designed to create a comprehensive continuum of solutions, including education programs and family and community supports, with great schools at the center. The continuum of solutions must be designed to significantly improve the educational and developmental outcomes of children and youth, from birth through college and to a career. We intend that these projects support organizations that focus on serving high-need neighborhoods, have a strategy to build a continuum of solutions, and have the capacity to achieve results.
Jane Hodgdon, U.S. Department of Education, 400 Maryland Avenue, SW., Room 4W220, Washington, DC 20202. Telephone: (202) 453–6615 or by e-mail:
If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
The purpose of the Promise Neighborhoods program is to significantly improve the educational and developmental outcomes of children and youth in our most distressed communities, and to transform those communities by—
(1) Identifying and increasing the capacity of eligible organizations (as defined in this notice) that are focused on achieving results for children and youth throughout an entire neighborhood;
(2) Building a complete continuum of cradle-through-college-to-career solutions (continuum of solutions) (as defined in this notice) of both educational programs and family and community supports (both as defined in this notice), with great schools at the center. All solutions in the continuum of solutions must be accessible to children with disabilities (CWD) (as defined in this notice) and English learners (ELs) (as defined in this notice).
(3) Integrating programs and breaking down agency “silos” so that solutions are implemented effectively and efficiently across agencies;
(4) Developing the local infrastructure of systems and resources needed to sustain and scale up proven, effective solutions across the broader region beyond the initial neighborhood; and
(5) Learning about the overall impact of the Promise Neighborhoods program and about the relationship between particular strategies in Promise Neighborhoods and student outcomes, including through a rigorous evaluation of the program.
We published a notice of proposed priorities, requirements, definitions, and selection criteria in the
There are differences between the proposed priorities, requirements, definitions, and selection criteria in the NPP and these final priorities, requirements, definitions, and selection criteria, as discussed in the
Generally, we do not address technical and other minor changes. In addition, we do not address general comments that raised concerns not directly related to the proposed priorities, requirements, definitions, and selection criteria.
We received many comments expressing general support or making general recommendations for this program. In most cases, these general comments and recommendations were similar to the comments that supported specific provisions or made specific recommendations for the program's proposed priorities, requirements, definitions, or selection criteria, which we discuss in the sections that follow. We, therefore, do not include a separate discussion of the general comments and recommendations.
We also received a number of comments relating to issues that may have been discussed in communications from the Department or in the application and review process for the FY 2010 Promise Neighborhoods competition, but were not proposed as part of the NPP. These issues include: The length of discretionary grant periods, the application process, and technical assistance for applicants. We do not address comments on these issues here. We note, however, that information on these issues will be made available through other Department documents, including the notice inviting applications for this program.
Compared to white students, American Indian students have poorer academic outcomes and higher poverty rates (Institute for Education Sciences. Status and Trends in the Education of American Indians and Alaska Natives, 2008). American Indian and Alaska Native students, who could be among those served under Absolute Priority 3, have a graduation rate of less than 50 percent nationally (The Civil Rights Project. The Dropout/Graduation Crisis Among American Indian and Alaska Native Students: Failure to Respond Places the Future of Native Peoples at Risk, 2010). While we recognize the challenges faced by small towns and mid-sized cities, we decline to add an absolute priority focused on these communities because their challenges are not as severe as the challenges faced by students in rural and tribal communities.
We believe that the comprehensive education programs that Promise Neighborhoods grantees implement should be consistent with efforts to reform these schools carried out under other programs supported by the Department, such as the RTT and School Improvement Grants (SIG) programs.
With regard to the comment recommending that the Department eliminate the requirement that grantees serve at least one low-performing school or persistently lowest-achieving school, we decline to make this change because we believe that Promise Neighborhoods must play an important role in turning around persistently-lowest achieving schools and improving low-performing schools.
With regard to the recommendation to include private child care providers in Priority 4, we agree that private child care providers should be included in both Final Planning Priority 4 and Final Implementation Priority 4 and are making this change accordingly.
Although the Department recognizes that the current fiscal climate may constrain Federal, State, and local financial support for early learning, we expect applicants to propose early learning networks that work across existing funded programs in a variety of early learning settings, including formal care (school-based or private providers) and family, friend, or neighbor care that is currently operating in the neighborhood. This important work to improve quality in existing programs has the potential to improve short-term and long-term educational and developmental outcomes for students.
Since June 13, 2009, all full-power U.S. stations have broadcast digital–only signals; we do not believe further incentive is needed to encourage use of digital television. Therefore, we did not include digital television as part of Final Planning Priority 5 or Final Implementation Priority 5.
While we appreciate the costs associated with the required data collection, activities associated with data collection and management are eligible uses of Promise Neighborhoods grant funds. Moreover, we believe that the costs and time involved in the required data collection and management activities are necessary to the overall success of Promise Neighborhoods.
To meet this priority, an applicant must submit a proposal for how it will plan to create a Promise Neighborhood. This proposal must describe the need in the neighborhood, a strategy to build a continuum of solutions, and the applicant's capacity to achieve results. Specifically, an applicant must—
(1) Describe the geographically defined area
(2) Describe how it will plan to build a continuum of solutions based on the best available evidence including, where available, strong or moderate evidence (as defined in this notice) designed to significantly improve educational outcomes and to support the healthy development and well-being of children and youth in the neighborhood. The applicant must also describe how it will build community support for and involvement in the development of the plan. The plan must be designed to ensure that over time, children and youth in the neighborhood who attend the target school or schools have access to a complete continuum of solutions, and ensure, as appropriate, that children and youth in the neighborhood who do not attend the target school or schools have access to solutions within the continuum of solutions. The plan must also ensure that students not living in the neighborhood who attend the target school or schools have access to solutions within the continuum of solutions.
The success of the applicant's strategy to build a continuum of solutions will be based on the results of the project, as measured against the project indicators defined in this notice and described in Table 1 and Table 2. In its strategy, the applicant must describe how it will determine which solutions within the continuum of solutions to implement, and must include—
(a) High-quality early learning programs and services designed to improve outcomes across multiple domains of early learning (as defined in this notice) for children from birth through third grade;
(b) Ambitious, rigorous, and comprehensive education reforms that are linked to improved educational outcomes for children and youth in preschool through the 12th grade. Public schools served through the grant may include persistently lowest-achieving schools (as defined in this notice) or low-performing schools (as defined in this notice) that are not also persistently lowest-achieving schools. An applicant (or one or more of its partners) may serve an effective school or schools (as defined in this notice) but only if the applicant (or one or more of its partners) also serves at least one low-performing school (as defined in this notice) or persistently lowest-achieving school (as defined in this notice). An applicant must identify in its application the public school or schools that would be served and the current status of reforms in the school or schools, including, if applicable, the type of intervention model being implemented. In cases where an applicant operates a school or partners with a school that does not serve all students in the neighborhood, the applicant must partner with at least one additional school or schools that also serves students in the neighborhood. An applicant proposing to work with a persistently lowest-achieving school must include as part of its strategy one of the four school intervention models (turnaround model, restart model, school closure, or transformation model) described in Appendix C of the Race to the Top (RTT) notice inviting applications for new awards for FY 2010 that was published in the
An applicant proposing to work with a low-performing school must include, as part of its strategy, ambitious, rigorous, and comprehensive interventions to assist, augment, or replace schools, which may include implementing one of the four school
So as not to penalize an applicant for proposing to work with an LEA that has implemented rigorous reform strategies prior to the publication of this notice, an applicant is not required to propose a new reform strategy in place of an existing reform strategy in order to be eligible for a Promise Neighborhoods planning grant. For example, an LEA might have begun to implement improvement activities that meet many, but not all, of the elements of a transformation model of school intervention. In this case, the applicant could propose, as part of its Promise Neighborhood strategy, to work with the LEA as the LEA continues with its reforms.
(c) Programs that prepare students to be college- and career-ready; and
(d) Family and community supports (as defined in this notice).
To the extent feasible and appropriate, the applicant must describe, in its plan, how the applicant and its partners will leverage and integrate high-quality programs, related public and private investments, and existing neighborhood assets into the continuum of solutions.
An applicant must also describe in its plan how it will identify Federal, State, or local policies, regulations, or other requirements that would impede its ability to achieve its goals and how it will report on those impediments to the Department and other relevant agencies.
As part of the description of how it will plan to build a continuum of solutions, the applicant must describe how it will participate in, organize, or facilitate, as appropriate, communities of practice (as defined in this notice) for Promise Neighborhoods.
(3) Specify how it will conduct a comprehensive needs assessment and segmentation analysis of children and youth in the neighborhood during the planning grant project period and explain how it will use this needs assessment and segmentation analysis to determine the children with the highest needs and ensure that those children receive the appropriate services from the continuum of solutions. In this explanation of how it will use the needs assessment and segmentation analysis, the applicant must identify and describe in the application both the educational indicators and the family and community support indicators that the applicant will use in conducting the needs assessment during the planning year. During the planning year, the applicant must—
(a) Collect data for the educational indicators listed in Table 1 and use them as both program and project indicators;
(b) Collect data for the family and community support indicators in Table 2 and use them as program indicators; and
(c) Collect data for unique family and community support indicators, developed by the applicant, that align with the goals and objectives of projects and use them as project indicators or use the indicators in Table 2 as project indicators.
Planning grant applicants are not required to propose solutions in their applications; however, they are required to describe how they will identify solutions, including the use of available evidence, during the planning year that will result in improvements on the project indicators.
The indicators in Table 1 and Table 2 are not intended to limit an applicant from collecting and using data for additional indicators. Examples of additional indicators are—
(i) The # and % of children who participate in high-quality learning activities during out-of-school hours or in the hours after the traditional school day ends;
(ii) The # and % of children who are suspended or receive discipline referrals during the school year;
(iii) The share of housing stock in the geographically defined area that is rent-protected, publicly assisted, or targeted for redevelopment with local, State, or Federal funds; and
(iv) The # and % of children who are homeless or in foster care and who have an assigned adult advocate.
While the Department believes there are many programmatic benefits of collecting data on every child in the proposed neighborhood, the Department will consider requests to collect data on only a sample of the children in the neighborhood for some indicators so long as the applicant describes in its application how it would ensure the sample would be representative of the children in the neighborhood.
(4) Describe the experience and lessons learned, and describe how the applicant will build the capacity of its management team and project director in all of the following areas:
(a) Working with the neighborhood and its residents, including parents and families that have children or other family members with disabilities or ELs, as well as with the school(s) described in paragraph (2) of this priority; the LEA in which the school or schools are located; Federal, State, and local government leaders; and other service providers.
(b) Collecting, analyzing, and using data for decision-making, learning, continuous improvement, and accountability. The applicant must describe—
(i) Its proposal to plan to build, adapt, or expand a longitudinal data system that integrates student-level data from multiple sources in order to measure progress on educational and family and community support indicators for all children in the neighborhood, disaggregated by the subgroups listed in section 1111(b)(3)(C)(xiii) of the ESEA;
(ii) How the applicant will link the longitudinal data system to school-based, LEA, and State data systems; make the data accessible to parents, families, community residents, program partners, researchers, and evaluators while abiding by Federal, State, and other privacy laws and requirements; and manage and maintain the system;
(iii) How the applicant will use rapid-time (as defined in this notice) data both in the planning year and, once the Promise Neighborhood strategy is implemented, for continuous program improvement; and
(iv) How the applicant will document the planning process, including by describing lessons learned and best practices;
(c) Creating formal and informal partnerships, for such purposes as providing solutions along the continuum of solutions and attaining resources to sustain and scale up what works. An applicant, as part of its application, must submit a preliminary memorandum of understanding, signed by each organization or agency with which it would partner in planning the proposed Promise Neighborhood. The preliminary memorandum of understanding must describe—
(i) Each partner's financial and programmatic commitment; and
(ii) How each partner's existing vision, theory of change (as defined in this notice), theory of action (as defined in this notice), and existing activities align with those of the proposed Promise Neighborhood strategy;
(d) The governance structure proposed for the Promise Neighborhood, including a system for holding partners accountable, how the eligible entity's governing board or advisory board is representative of the geographic area proposed to be served (as defined in this notice), and how residents of the geographic area would have an active role in the organization's decision-making; and
(e) Securing and integrating funding streams from multiple public and private sources from the Federal, State, and local level. Examples of public funds include Federal resources from the U.S. Department of Education, such as the 21st Century Community Learning Centers program and title I of the ESEA, and from other Federal agencies, such as the U.S. Departments of Health and Human Services, Housing and Urban Development, Justice, Labor, and Treasury.
(5) Describe the applicant's commitment to work with the Department, and with a national evaluator for Promise Neighborhoods or another entity designated by the Department, to ensure that data collection and program design are consistent with plans to conduct a rigorous national evaluation of the Promise Neighborhoods program and of specific solutions and strategies pursued by individual grantees. This commitment must include, but need not be limited to—
(a) Ensuring that, through memoranda of understanding with appropriate entities, the national evaluator and the Department have access to relevant program and project data (
(b) Developing, in consultation with the national evaluator, an evaluation strategy, including identifying a credible comparison group; and
(c) Developing, in consultation with the national evaluator, a plan for identifying and collecting reliable and valid baseline data for both program participants and a designated comparison group of non-participants.
To meet this priority, an applicant must propose to develop a plan for
To meet this priority, an applicant must propose to develop a plan for implementing a Promise Neighborhood strategy that (1) meets all of the requirements in
To meet this priority, an applicant must propose to develop a plan to expand, enhance, or modify an existing network of early learning programs and services to ensure that they are high-quality and comprehensive for children from birth through the third grade. The plan must also ensure that the network establishes a high standard of quality across early learning settings and is designed to improve outcomes across multiple domains of early learning. Distinct from the early learning solutions described in paragraph (2) of
The local early learning network must address or incorporate ongoing State-level efforts regarding the major components of high-quality early learning programs and services, such as State early learning and development standards, program quality standards, comprehensive assessment systems, workforce and professional development systems, health promotion, family and community engagement, a coordinated data infrastructure, and a method of measuring, monitoring, evaluating, and improving program quality. For example, an applicant might address how the Promise Neighborhoods project will use the State's early learning standards, as applicable, and the Head Start Child Development and Early Learning Framework (Framework), as applicable, to define the expectations of what children should know and be able to do before entering kindergarten. The Framework is available on the Office of Head Start's Web site at:
These early learning opportunities must be fully accessible to individuals with disabilities, including individuals who are blind or have low vision; otherwise, the plans must describe how accommodations or modifications will be provided to ensure that the benefits of the early learning opportunities are provided to children and youth with disabilities in an equally effective and equally integrated manner.
The proposal to develop a plan for a high-quality and comprehensive local early learning network must describe the governance structure and how the applicant will use the planning year to plan solutions that address the major components of high-quality early learning programs and services as well as establish goals, strategies, and benchmarks to provide early learning programs and services that result in improved outcomes across multiple domains of early learning (as defined in this notice). An applicant addressing this priority must designate an individual responsible for overseeing and integrating the early learning initiatives and must include a resume or position description and other supporting documentation to demonstrate that the individual designated, or individual hired to carry out those responsibilities, possesses the appropriate State certification, and has experience and expertise in managing and administering high-quality early learning programs, including in coordinating across various high-quality early learning programs and services.
To meet this priority, an applicant must propose to develop a plan to ensure that almost all students in the geographic area proposed to be served have broadband Internet access (as defined in this notice) at home and at school, the knowledge and skills to use broadband Internet access effectively, and a connected computing device to support schoolwork.
To meet this priority, an applicant must propose to develop a plan to include opportunities for children and youth to experience and participate actively in the arts and humanities in their community so as to broaden, enrich, and enliven the educational, cultural, and civic experiences available in the neighborhood. Applicants may propose to develop plans for offering these activities in school and in out-of-school settings and at any time during the calendar year.
To meet this priority, an applicant must propose to serve geographic areas that were the subject of an affordable housing transformation pursuant to a Choice Neighborhoods or HOPE VI grant awarded by the U.S. Department of Housing and Urban Development during FY 2009 or later years. To be eligible under this priority, the applicant must either (1) be able to demonstrate that it has received a Choice Neighborhoods or HOPE VI grant or (2) provide, in its application, a memorandum of understanding between it and a partner that is a recipient of Choice Neighborhoods or HOPE VI grant. The memorandum must indicate a commitment on the part of the applicant and partner to coordinate planning and align resources to the greatest extent practicable.
To meet this priority, an applicant must propose to develop a plan that is coordinated with adult education providers serving neighborhood residents, such as those funded through the Adult Education and Family Literacy Act, as amended. Coordinated services may include adult basic and secondary education and programs that provide training and opportunities for
To meet this priority, an applicant must submit a plan to create a Promise Neighborhood. The plan must describe the need in the neighborhood, a strategy to build a continuum of solutions, and the applicant's capacity to achieve results. Specifically, an applicant must—
(1) Describe the geographically defined area
(2) Describe the applicant's strategy for building a continuum of solutions over time that addresses neighborhood challenges as identified in the needs assessment and segmentation analysis. The applicant must also describe how it has built community support for and involvement in the development of the plan. The continuum of solutions must be based on the best available evidence including, where available, strong or moderate evidence (as defined in this notice), and be designed to significantly improve educational outcomes and to support the healthy development and well-being of children and youth in the neighborhood. The strategy must be designed to ensure that over time, a greater proportion of children and youth in the neighborhood who attend the target school or schools have access to a complete continuum of solutions, and must ensure that over time, a greater proportion of children and youth in the neighborhood who do not attend the target school or schools have access to solutions within the continuum of solutions. The strategy must also ensure that, over time, students not living in the neighborhood who attend the target school or schools have access to solutions within the continuum of solutions.
The success of the applicant's strategy to build a continuum of solutions will be based on the results of project, as measured against the project indicators as defined in this notice and described in Table 1 and Table 2. In its strategy, the applicant must propose clear and measurable annual goals during the grant period against which improvements will be measured using the indicators. The strategy must—
(a) Identify each solution that the project will implement within the proposed continuum of solutions, and must include—
(i) High-quality early learning programs and services designed to improve outcomes across multiple domains of early learning (as defined in this notice) for children from birth through third grade;
(ii) Ambitious, rigorous, and comprehensive education reforms that are linked to improved educational outcomes for children and youth in preschool through the 12th grade. Public schools served through the grant may include persistently lowest-achieving schools (as defined in this notice) or low-performing schools (as defined in this notice) that are not also persistently lowest-achieving schools. An applicant (or one or more of its partners) may serve an effective school or schools (as defined in this notice) but only if the applicant (or one or more of its partners) also serves at least one low-performing school (as defined in this notice) or persistently lowest-achieving school (as defined in this notice). An applicant must identify in its application the public school or schools it would serve and describe the current status of reforms in the school or schools, including, if applicable, the type of intervention model being implemented. In cases where an applicant operates a school or partners with a school that does not serve all students in the neighborhood, the applicant must partner with at least one additional school that also serves students in the neighborhood. An applicant proposing to work with a persistently lowest-achieving school must include in its strategy one of the four school intervention models (turnaround model, restart model, school closure, or transformation model) described in Appendix C of the Race to the Top (RTT) notice inviting applications for new awards for FY 2010 that was published in the
An applicant proposing to work with a low-performing school must include in its strategy ambitious, rigorous, and comprehensive interventions to assist, augment, or replace schools, which may include implementing one of the four school intervention models, or may include another model of sufficient ambition, rigor, and comprehensiveness to significantly improve academic and other outcomes for students. An applicant proposing to work with a low-performing school must include in its strategy an intervention that addresses the effectiveness of teachers and leaders and the school's use of time and resources, which may include increased learning time (as defined in this notice);
So as not to penalize an applicant for proposing to work with an LEA that has implemented rigorous reform strategies prior to the publication of this notice, an applicant is not required to propose a new reform strategy in place of an existing reform strategy in order to be eligible for a Promise Neighborhoods implementation grant. For example, an LEA might have begun to implement improvement activities that meet many, but not all, of the elements of a transformation model of school intervention. In this case, the applicant could propose, as part of its Promise Neighborhood strategy, to work with the LEA as the LEA continues with its reforms.
(iii) Programs that prepare students to be college- and career-ready; and
(iv) Family and community supports (as defined in this notice).
To the extent feasible and appropriate, the applicant must describe, in its plan, how the applicant and its partners will leverage and integrate high-quality programs, related public and private investments, and existing neighborhood assets into the continuum of solutions. An applicant must also include in its application an appendix that summarizes the evidence supporting each proposed solution and describes how the solution is based on the best available evidence, including, where available, strong or moderate evidence (as defined in this notice). An applicant must also describe in the appendix how and when—during the implementation process—the solution will be implemented; the partners that will participate in the implementation of each solution (in any case in which the applicant does not implement the solution directly); the estimated per-child cost, including administrative costs, to implement each solution; the
An applicant must also describe in its plan how it will identify Federal, State, or local policies, regulations, or other requirements that would impede its ability to achieve its goals and how it will report on those impediments to the Department and other relevant agencies.
As appropriate, considering the time and urgency required to dramatically improve outcomes of children and youth in our most distressed neighborhoods and to transform those neighborhoods, applicants must establish both short-term and long-term goals to measure progress.
As part of the description of its strategy to build a continuum of solutions, the applicant must also describe how it will participate in, organize, or facilitate, as appropriate, communities of practice for Promise Neighborhoods;
(b) Establish clear, annual goals for evaluating progress in improving systems, such as changes in policies, environments, or organizations that affect children and youth in the neighborhood. Examples of systems change could include a new school district policy to measure the results of family and community support programs, a new funding resource to support the Promise Neighborhoods strategy, or a cross-sector collaboration at the city level to break down municipal agency “silos” and partner with local philanthropic organizations to drive achievement of a set of results; and
(c) Establish clear, annual goals for evaluating progress in leveraging resources, such as the amount of monetary or in-kind investments from public or private organizations to support the Promise Neighborhoods strategy. Examples of leveraging resources are securing new or existing dollars to sustain and scale up what works in the Promise Neighborhood or integrating high-quality programs in the continuum of solutions. Applicants may consider, as part of their plans to scale up their Promise Neighborhood strategy, serving a larger geographic area by partnering with other applicants to the Promise Neighborhoods program from the same city or region;
(3) Explain how it used its needs assessment and segmentation analysis to determine the children with the highest needs and explain how it will ensure that children in the neighborhood receive the appropriate services from the continuum of solutions. In this explanation of how it used the needs assessment and segmentation analysis, the applicant must identify and describe in its application the educational indicators and family and community support indicators that the applicant used to conduct the needs assessment. Whether or not the implementation grant applicant received a Promise Neighborhoods planning grant, the applicant must describe how it—
(a) Collected data for the educational indicators listed in Table 1 and used them as both program and project indicators;
(b) Collected data for the family and community support indicators in Table 2 and used them as program indicators; and
(c) Collected data for unique family and community support indicators, developed by the applicant, that align with the goals and objectives of the project and used them as project indicators or used the indicators in Table 2 as project indicators.
An applicant must also describe how it will collect at least annual data on the indicators in Tables 1 and 2; establish clear, annual goals for growth on indicators; and report those data to the Department.
The indicators in Table 1 and Table 2 are not intended to limit an applicant from collecting and using data for additional indicators. Examples of additional indicators are—
(i) The # and % of children who participate in high-quality learning activities during out-of-school hours or in the hours after the traditional school day ends;
(ii) The # and % of students who are suspended or receive discipline referrals during the year;
(iii) The share of housing stock in the geographically defined area that is rent-protected, publicly assisted, or targeted for redevelopment with local, State, or Federal funds; and
(iv) The # and % of children who are homeless or in foster care and who have an assigned adult advocate.
While the Department believes there are many programmatic benefits of collecting data on every child in the proposed neighborhood, the Department will consider requests to collect data on only a sample of the children in the neighborhood for some indicators so long as the applicant describes in its application how it would ensure the sample would be representative of the children in the neighborhood;
(4) Describe the experience and lessons learned, and describe how the applicant will build the capacity of its management team and project director in all of the following areas:
(a) Working with the neighborhood and its residents, including parents and families that have children or other members with disabilities or ELs, as well as with the schools described in paragraph (2) of this priority; the LEA in which the school or schools are located; Federal, State, and local government leaders; and other service providers.
(b) Collecting, analyzing, and using data for decision-making, learning, continuous improvement, and accountability. The applicant must describe—
(i) Progress towards developing, launching, and implementing a longitudinal data system that integrates student-level data from multiple sources in order to measure progress on educational and family and community support indicators for all children in the neighborhood, disaggregated by the subgroups listed in section 1111(b)(3)(C)(xiii) of the ESEA;
(ii) How the applicant has linked or made progress to link the longitudinal data system to school-based, LEA, and State data systems; made the data accessible to parents, families, community residents, program partners, researchers, and evaluators while abiding by Federal, State, and other privacy laws and requirements; and managed and maintained the system;
(iii) How the applicant has used rapid-time (as defined in this notice) data in prior years and, how it will continue to use those data once the Promise Neighborhood strategy is implemented, for continuous program improvement; and
(iv) How the applicant will document the implementation process, including by describing lessons learned and best practices.
(c) Creating and strengthening formal and informal partnerships, for such purposes as providing solutions along the continuum of solutions and committing resources to sustaining and scaling up what works. Each applicant must submit, as part of its application, a memorandum of understanding, signed by each organization or agency with which it would partner in implementing the proposed Promise Neighborhood. The memorandum of understanding must describe—
(i) Each partner's financial and programmatic commitment; and
(ii) How each partner's existing vision, theory of change (as defined in this notice), theory of action (as defined in this notice), and current activities align with those of the proposed Promise Neighborhood;
(d) The governance structure proposed for the Promise Neighborhood, including a system for holding partners accountable, how the eligible entity's governing board or advisory board is representative of the geographic area proposed to be served (as defined in this notice), and how residents of the geographic area would have an active role in the organization's decision-making.
(e) Integrating funding streams from multiple public and private sources from the Federal, State, and local level. Examples of public funds include Federal resources from the U.S. Department of Education, such as the 21st Century Community Learning Centers program and title I of the ESEA, and from other Federal agencies, such as the U.S. Departments of Health and Human Services, Housing and Urban Development, Justice, Labor, and Treasury.
(5) Describe the applicant's commitment to work with the Department, and with a national evaluator for Promise Neighborhoods or another entity designated by the Department, to ensure that data collection and program design are consistent with plans to conduct a rigorous national evaluation of the Promise Neighborhoods program and of specific solutions and strategies pursued by individual grantees. This commitment must include, but need not be limited to—
(a) Ensuring that, through memoranda of understanding with appropriate entities, the national evaluator and the Department have access to relevant program and project data sources (
(b) Developing, in consultation with the national evaluator, an evaluation strategy, including identifying a credible comparison group (as defined in this notice); and
(c) Developing, in consultation with the national evaluator, a plan for identifying and collecting reliable and valid baseline data for both program participants and a designated comparison group of non-participants.
To meet this priority, an applicant must propose to implement a Promise Neighborhood strategy that (1) meets all of the requirements in Absolute Priority 1; and (2) serves one or more rural communities only.
To meet this priority, an applicant must propose to implement a Promise Neighborhood strategy that (1) meets all of the requirements in Absolute Priority 1; and (2) serves one or more Indian tribes (as defined in this notice).
To meet this priority, applications must include plans that propose to expand, enhance, or modify an existing network of early learning programs and services to ensure that they are high-quality and comprehensive for children from birth through the third grade. The plan must also ensure that the network establishes a high standard of quality across early learning settings and is designed to improve outcomes across multiple domains of early learning. Distinct from the early learning solutions described in paragraph (2) of Absolute Priority 1, this priority supports implementation plans that integrate various early learning services and programs in the neighborhood,
The early learning network must address or incorporate ongoing State-level efforts regarding the major components of high-quality early learning programs and services, such as State early learning and development standards, program quality standards, comprehensive assessment systems, workforce and professional development systems, health promotion, family and community engagement, a coordinated data infrastructure, and a method of measuring, monitoring, evaluating, and improving program quality. For example, an applicant might address how the Promise Neighborhoods project will use the State's early learning standards, as applicable, and the Head Start Child Development and Early Learning Framework (Framework), as applicable, to define the expectations of what children should know and be able to do before entering kindergarten. The Framework is available on the Office of Head Start's Web site at:
These early learning opportunities must be fully accessible to individuals with disabilities, including individuals who are blind or have low vision; otherwise, the plans must describe how accommodations or modifications will be provided to ensure that the benefits of the early learning opportunities are provided to children and youth with disabilities in an equally effective and equally integrated manner.
The implementation plan for a high-quality and comprehensive local early learning network must describe the governance structure and the major components of high-quality early learning programs and services as well as include goals, strategies, and benchmarks to provide early learning programs and services that result in improvements across multiple domains of early learning. The plan must result from a needs assessment and segmentation analysis (as defined in this notice) and must reflect input from a broad range of stakeholders. An application addressing this priority must designate an individual responsible for overseeing and coordinating the early learning initiatives and must include a resume or position description and other supporting documentation to demonstrate that the individual designated, or individual hired to carry out those responsibilities, possesses the appropriate State certification, and has experience and expertise in managing and administering high-quality early learning programs, including in coordinating across various high-quality early learning programs and services.
To meet this priority, an applicant must ensure that almost all students in the geographic area proposed to be served have broadband internet access (as defined in this notice) at home and at school, the knowledge and skills to use broadband internet access effectively, and a connected computing device to support schoolwork.
To meet this priority, an applicant must include in its plan opportunities for children and youth to experience and participate actively in the arts and humanities in their community so as to broaden, enrich, and enliven the educational, cultural, and civic experiences available in the neighborhood. Applicants may include plans for offering these activities in school and in out-of-school settings and at any time during the calendar year.
To meet this priority, an applicant must propose to serve geographic areas that were the subject of an affordable housing transformation pursuant to a Choice Neighborhoods or HOPE VI grant awarded by the U.S. Department of Housing and Urban Development during FY 2009 or later years. To be eligible under this priority, the applicant must either (1) be able to demonstrate that it has received a Choice Neighborhoods or HOPE VI grant or (2) provide, in its application, a memorandum of understanding between it and a partner that is a recipient of a Choice Neighborhoods or HOPE VI grant. The memorandum must indicate a commitment on the part of the applicant and partner to coordinate implementation and align resources to the greatest extent practicable.
To meet this priority, an applicant must include plans that are coordinated with adult education providers serving neighborhood residents, such as those funded through the Adult Education and Family Literacy Act, as amended. Coordinated services may include adult basic and secondary education and programs that provide training and opportunities for family members and other members of the community to support student learning and establish high expectations for student educational achievement. Examples of services and programs include preparation for the General Education Development (GED) test; English literacy, family literacy, and work-based literacy training; or other training that prepares adults for postsecondary education and careers, or supports adult engagement in the educational success of children and youth in the neighborhood.
The U.S. Department of Justice (DOJ) intends to provide an optional, supplemental funding opportunity for Promise Neighborhoods implementation grantees with plans that propose to analyze and resolve public safety concerns associated with violence, gangs, and illegal drugs utilizing strategies that include prevention, intervention, enforcement, and reentry of offenders back into communities upon release from prison and jail. Under this opportunity, DOJ, through an interagency agreement with the Department of Education, would provide additional funds to some Promise Neighborhoods implementation grantees. Specifically, DOJ would consider supporting Promise Neighborhoods grantees with plans that align with local leadership in implementing and sustaining innovative solutions that incorporate evidence and research into local program and policy decisions to address and reduce persistent crime. Additional information about this optional funding opportunity will be provided to Promise Neighborhoods implementation grantees after grant awards are announced.
When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the
The Department establishes the following eligibility requirements for the Promise Neighborhoods program. We may apply one or more of these requirements in any year in which we conduct a competition for this program.
1.
2.
(a)
(b)
Eligible sources of matching include sources of funds used to pay for solutions within the continuum of solutions, such as Head Start programs, initiatives supported by the LEA, or public health services for children in the neighborhood. At least 10 percent of an implementation applicant's total match must be cash or in-kind contributions from the private sector, which may include philanthropic organizations, private businesses, or individuals.
(c)
An applicant that is unable to meet the matching requirement must include in its application a request to the Secretary to reduce the matching requirement, including the amount of the requested reduction, the total remaining match contribution, and a statement of the basis for the request. An applicant should review the Department's cost-sharing and cost-matching regulations, which include specific limitations in 34 CFR 74.23 applicable to non-profit organizations and institutions of higher education and 34 CFR 80.24 applicable to State, local,
We establish the following definitions for this program. We may apply one or more of these definitions in any year in which this program is in effect.
(1) Include programs, policies, practices, services, systems, and supports that result in improving educational and developmental outcomes for children from cradle through college to career;
(2) Are based on the best available evidence, including, where available, strong or moderate evidence (as defined in this notice);
(3) Are linked and integrated seamlessly (as defined in this notice); and
(4) Include both education programs and family and community supports.
(1) High-quality early learning programs or services designed to improve outcomes across multiple domains of early learning for young children. Such programs must be specifically intended to align with appropriate State early learning and development standards, practices, strategies, or activities across as broad an age range as birth through third grade so as to ensure that young children enter kindergarten and progress through the early elementary school grades demonstrating age-appropriate functioning across the multiple domains;
(2) For children in preschool through the 12th grade, programs, inclusive of related policies and personnel, that are linked to improved educational outcomes. The programs—
(a) Must include effective teachers and effective principals;
(b) Must include strategies, practices, or programs that encourage and facilitate the evaluation, analysis, and use of student achievement, student growth (as defined in this notice), and other data by educators, families, and other stakeholders to inform decision-making;
(c) Must include college- and career-ready standards, assessments, and practices, including a well-rounded curriculum, instructional practices, strategies, or programs in, at a minimum, core academic subjects as defined in section 9101(11) of the ESEA, that are aligned with high academic content and achievement standards and with high-quality assessments based on those standards; and
(d) May include creating multiple pathways for students to earn regular high school diplomas (
(3) Programs that prepare students for college and career success, which may include programs that—
(a) Create and support partnerships with community colleges, four-year colleges, or universities and that help instill a college-going culture in the neighborhood;
(b) Provide dual-enrollment opportunities for secondary students to gain college credit while in high school;
(c) Provide, through relationships with businesses and other organizations, apprenticeship opportunities to students;
(d) Align curricula in the core academic subjects with requirements for industry-recognized certifications or credentials, particularly in high-growth sectors;
(e) Provide access to career and technical education programs so that individuals can attain the skills and industry-recognized certifications or credentials for success in their careers;
(f) Help college students, including CWD and ELs from the neighborhood to transition to college, persist in their academic studies in college, graduate from college, and transition into the workforce; and
(g) Provide opportunities for all youth (both in and out of school) to achieve academic and employment success by improving educational and skill competencies and providing connections to employers. Such activities may include opportunities for on-going mentoring, supportive services, incentives for recognition and achievement, and opportunities related to leadership, development, decision-making, citizenship, and community service.
(1) Significantly closed the achievement gaps between subgroups of students (as identified in section
(2)(a) Demonstrated success in significantly increasing student academic achievement in the school for all subgroups of students (as identified in section 1111(b)(3)(C)(xiii) of the ESEA) in the school; and (b) made significant improvements in other areas, such as graduation rates (as defined in this notice) or recruitment and placement of effective teachers and effective principals.
(1) Is representative of the geographic area proposed to be served (as defined in this notice);
(2) Is one of the following:
(a) A nonprofit organization that meets the definition of a nonprofit under 34 CFR 77.1(c), which may include a faith-based nonprofit organization.
(b) An institution of higher education as defined by section 101(a) of the Higher Education Act of 1965, as amended.
(c) An Indian tribe (as defined in this notice);
(3) Currently provides at least one of the solutions from the applicant's proposed continuum of solutions in the geographic area proposed to be served; and
(4) Operates or proposes to work with and involve in carrying out its proposed project, in coordination with the school's LEA, at least one public elementary or secondary school that is located within the identified geographic area that the grant will serve.
(1) Child and youth health programs, such as physical, mental, behavioral, and emotional health programs (
(2) Safety programs, such as programs in school and out of school to prevent, control, and reduce crime, violence, drug and alcohol use, and gang activity; programs that address classroom and school-wide behavior and conduct; programs to prevent child abuse and neglect; programs to prevent truancy and reduce and prevent bullying and harassment; and programs to improve the physical and emotional security of the school setting as perceived, experienced, and created by students, staff, and families;
(3) Community stability programs, such as programs that—
(a) Increase the stability of families in communities by expanding access to quality, affordable housing, providing legal support to help families secure clear legal title to their homes, and providing housing counseling or housing placement services;
(b) Provide adult education and employment opportunities and training to improve educational levels, job skills and readiness in order to decrease unemployment, with a goal of increasing family stability;
(c) Improve families' awareness of, access to, and use of a range of social services, if possible at a single location;
(d) Provide unbiased, outcome-focused, and comprehensive financial education, inside and outside the classroom and at every life stage;
(e) Increase access to traditional financial institutions (
(f) Help families increase their financial literacy, financial assets, and savings; and
(g) Help families access transportation to education and employment opportunities;
(4) Family and community engagement programs that are systemic, integrated, sustainable, and continue through a student's transition from K–12 school to college and career. These programs may include family literacy programs and programs that provide adult education and training and opportunities for family members and other members of the community to support student learning and establish high expectations for student educational achievement; mentorship programs that create positive relationships between children and adults; programs that provide for the use of such community resources as libraries, museums, television and radio stations, and local businesses to support improved student educational outcomes; programs that support the engagement of families in early learning programs and services; programs that provide guidance on how to navigate through a complex school system and how to advocate for more and improved learning opportunities; and programs that promote collaboration with educators and community organizations to improve opportunities for healthy development and learning; and
(5) 21st century learning tools, such as technology (
This definition is not meant to prevent a grantee from also collecting information about the reasons why students do not graduate from the target high school,
(1) Education need, which means—
(a) All or a portion of the neighborhood includes or is within the attendance zone of a low-performing school that is a high school, especially one in which the graduation rate (as defined in this notice) is less than 60 percent or a school that can be characterized as low-performing based on another proxy indicator, such as students' on-time progression from grade to grade; and
(b) Other indicators, such as significant achievement gaps between subgroups of students (as identified in
(2) Family and community support need, which means—
(a) Percentages of children with preventable chronic health conditions (
(b) Immunization rates;
(c) Rates of crime, including violent crime;
(d) Student mobility rates;
(e) Teenage birth rates;
(f) Percentage of children in single-parent or no-parent families;
(g) Rates of vacant or substandard homes, including distressed public and assisted housing; or
(h) Percentage of the residents living at or below the Federal poverty threshold.
(1) Developmental assets that allow residents to attain the skills needed to be successful in all aspects of daily life (
(2) Commercial assets that are associated with production, employment, transactions, and sales (
(3) Recreational assets that create value in a neighborhood beyond work and education (
(4) Physical assets that are associated with the built environment and physical infrastructure (
(5) Social assets that establish well-functioning social interactions (
(1) Any school receiving assistance through Title I that is in improvement, corrective action, or restructuring and that—
(a) Is among the lowest-achieving five percent of Title I schools in improvement, corrective action, or restructuring or the lowest-achieving five Title I schools in improvement, corrective action, or restructuring in the State, whichever number of schools is greater; or
(b) Is a high school that has had a graduation rate that is less than 60 percent over a number of years; and
(2) Any secondary school that is eligible for, but does not receive, Title I funds that—
(a) Is among the lowest-achieving five percent of secondary schools or the lowest-achieving five secondary schools in the State that are eligible for, but do not receive, Title I funds, whichever number of schools is greater; or
(b) Is a high school that has had a graduation rate that is less than 60 percent over a number of years.
(1) Residents who live in the geographic area proposed to be served, which may include residents who are representative of the ethnic and racial composition of the neighborhood's residents and the languages they speak;
(2) Residents of the city or county in which the neighborhood is located but who live outside the geographic area proposed to be served, and who are low-income (which means earning less than 80 percent of the area's median income as published by the Department of Housing and Urban Development);
(3) Public officials (as defined in this notice) who serve the geographic area proposed to be served (although not more than one-half of the governing board or advisory board may be made up of public officials); or
(4) Some combination of individuals from the three groups listed in paragraphs (1), (2), and (3) of this definition.
(1) Is served by an LEA that is currently eligible under the Small Rural School Achievement (SRSA) program or the Rural and Low-Income School (RLIS) program authorized under Title VI, Part B of the ESEA. Applicants may determine whether a particular LEA is eligible for these programs by referring to information on the following Department Web sites. For the SRSA program:
(2) Includes only schools designated with a school locale code of 42 or 43. Applicants may determine school locale codes by referring to the following Department Web site:
The analysis is intended to allow grantees to differentiate and more effectively target interventions based on what they learn about the needs of different populations in the geographic area.
(1) For tested grades and subjects:
(a) A student's score on the State's assessments under the ESEA; and, as appropriate,
(b) Other measures of student learning, such as those described in paragraph (2) of this definition, provided they are rigorous and comparable across classrooms and programs.
(2) For non-tested grades and subjects: Alternative measures of student learning and performance, such as student scores on pre-tests and end-of-course tests; student performance on English language proficiency assessments; and other measures of student achievement that are rigorous and comparable across classrooms.
This definition is not meant to limit a grantee from also collecting information about why students enter or withdraw from the school,
We establish the following selection criteria for evaluating a planning and implementation grant application under the Promise Neighborhoods program. These criteria are designed to align with the absolute priority for planning and implementation grants. Thus, the “need for project” criterion aligns with the absolute priority requirement that applicants describe the need in the neighborhood. The “quality of project design” and “quality of project services” criteria align with the absolute priority requirement that applicants describe a strategy to build a continuum of solutions with strong schools at the center. The “quality of the management plan” criterion aligns with the absolute priority requirement that applicants describe their capacity to achieve results.
In the notice inviting applications, the application package, or both, we will announce the maximum possible points assigned to each criterion. We may apply one or more of these criteria in any year in which this program is in effect.
The selection criteria for planning grant applicants are as follows:
(1)
(a) The Secretary considers the need for the proposed project.
(b) In determining the need for the proposed project, the Secretary considers—
(i) The magnitude or severity of the problems to be addressed by the proposed project as described by indicators of need and other relevant indicators; and
(ii) The extent to which the geographically defined area has been described.
(2)
(a) The Secretary considers the quality of the design of the proposed project.
(b) In determining the quality of the design of the proposed project, the Secretary considers—
(i) The extent to which the continuum of solutions will be aligned with an ambitious, rigorous, and comprehensive strategy for improvement of schools in the neighborhood;
(ii) The extent to which the applicant describes a proposal to plan to create a complete continuum of solutions, including early learning through grade 12, college- and career-readiness, and family and community supports, without time and resource gaps that will prepare all children in the neighborhood to attain an excellent education and successfully transition to college and a career; and
(iii) The extent to which solutions leverage existing neighborhood assets and coordinate with other efforts, including programs supported by Federal, State, local, and private funds.
(3)
(a) The Secretary considers the quality of the services to be provided by the proposed project.
(b) In determining the quality of the project services, the Secretary considers—
(i) The extent to which the applicant describes how the needs assessment and segmentation analysis, including identifying and describing indicators, will be used during the planning phase to determine each solution within the continuum; and
(ii) The extent to which the applicant describes how it will determine that solutions are based on the best available evidence including, where available, strong or moderate evidence, and ensure that solutions drive results and lead to changes on indicators.
(4)
(a) The Secretary considers the quality of the management plan for the proposed project.
(b) In determining the quality of the management plan for the proposed project, the Secretary considers the experience, lessons learned, and proposal to build capacity of the applicant's management team and project director in all of the following areas—
(i) Working with the neighborhood and its residents; the schools described in paragraph (2)(b) of Absolute Priority 1; the LEA in which those schools are located; Federal, State, and local government leaders; and other service providers;
(ii) Collecting, analyzing, and using data for decision-making, learning,
(iii) Creating formal and informal partnerships, including the alignment of the visions, theories of action, and theories of change described in its memorandum of understanding, and creating a system for holding partners accountable for performance in accordance with the memorandum of understanding; and
(iv) Integrating funding streams from multiple public and private sources, including its proposal to leverage and integrate high-quality programs in the neighborhood into the continuum of solutions.
The selection criteria for implementation grant applicants are as follows:
(1)
(a) The Secretary considers the need for the proposed project.
(b) In determining the need for the proposed project, the Secretary considers—
(i) The magnitude or severity of the problems to be addressed by the proposed project as described by indicators of need and other relevant indicators identified in part by the needs assessment and segmentation analysis; and
(ii) The extent to which the geographically defined area has been described.
(2)
(a) The Secretary considers the quality of the design of the proposed project.
(b) In determining the quality of the design of the proposed project, the Secretary considers the following factors:
(i) The extent to which the continuum of solutions is aligned with an ambitious, rigorous, and comprehensive strategy for improvement of schools in the neighborhood.
(ii) The extent to which the applicant describes an implementation plan to create a complete continuum of solutions, including early learning through grade 12, college- and career-readiness, and family and community supports, without time and resource gaps, that will prepare all children in the neighborhood to attain an excellent education and successfully transition to college and a career, and that will significantly increase the proportion of students in the neighborhood that are served by the complete continuum to reach scale over time.
(iii) The extent to which the applicant identifies existing neighborhood assets and programs supported by Federal, State, local, and private funds that will be used to implement a continuum of solutions.
(iv) The extent to which the applicant describes its implementation plan, including clear, annual goals for improving systems and leveraging resources as described in paragraph (2) of Absolute Priority 1.
(3)
(a) The Secretary considers the quality of the services to be provided by the proposed project.
(b) In determining the quality of the project services, the Secretary considers—
(i) The extent to which the applicant describes how the needs assessment and segmentation analysis, including identifying and describing indicators, were used to determine each solution within the continuum;
(ii) The extent to which the applicant documents that proposed solutions are based on the best available evidence including, where available, strong or moderate evidence; and
(iii) The extent to which the applicant describes clear, annual goals for improvement on indicators.
(4)
(a) The Secretary considers the quality of the management plan for the proposed project.
(b) In determining the quality of the management plan for the proposed project, the Secretary considers the experience, lessons learned, and proposal to build capacity of the applicant's management team and project director in all of the following areas—
(i) Working with the neighborhood and its residents; the schools described in paragraph (2)(b) of Absolute Priority 1; the LEA in which those schools are located; Federal, State, and local government leaders; and other service providers;
(ii) Collecting, analyzing, and using data for decision-making, learning, continuous improvement, and accountability, including whether the applicant has a plan to build, adapt, or expand a longitudinal data system that integrates student-level data from multiple sources in order to measure progress while abiding by privacy laws and requirements;
(iii) Creating formal and informal partnerships, including the alignment of the visions, theories of action, and theories of change described in its memorandum of understanding, and creating a system for holding partners accountable for performance in accordance with the memorandum of understanding; and
(iv) Integrating funding streams from multiple public and private sources, including its proposal to leverage and integrate high-quality programs in the neighborhood into the continuum of solutions.
This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.
This notice does not solicit applications. In any year in which we choose to use one or more of these proposed priorities, requirements, definitions, and selection criteria, we invite applications through a notice in the
This notice has been reviewed in accordance with Executive Order 12866. Under the terms of the order, we have assessed the potential costs and benefits of this proposed regulatory action.
The potential costs associated with this regulatory action are those resulting from statutory requirements and those we have determined as necessary for administering this program effectively and efficiently.
In assessing the potential costs and benefits—both quantitative and qualitative—of this regulatory action, we have determined that the benefits of the priorities, requirements, definitions, and selection criteria justify the costs.
We have determined, also, that this regulatory action does not unduly
This document provides early notification of our specific plans and actions for this program.
You may also access documents of the Department published in the
Office of Innovation and Improvement, Department of Education.
Notice.
Promise Neighborhoods Program—Implementation Grant Competition.
Notice inviting applications for new awards for fiscal year (FY) 2011.
The purpose of the Promise Neighborhoods program is to significantly improve the educational and developmental outcomes of children and youth in our most distressed communities, and to transform those communities by—
(1) Identifying and increasing the capacity of eligible organizations (as defined in this notice) that are focused on achieving results for children and youth throughout an entire neighborhood;
(2) Building a complete continuum of cradle-through-college-to-career solutions (continuum of solutions) (as defined in this notice) of both educational programs and family and community supports (both as defined in this notice), with great schools at the center. All solutions in the continuum of solutions must be accessible to children with disabilities (CWD) (as defined in this notice) and English learners (ELs) (as defined in this notice);
(3) Integrating programs and breaking down agency “silos” so that solutions are implemented effectively and efficiently across agencies;
(4) Developing the local infrastructure of systems and resources needed to sustain and scale up proven, effective solutions across the broader region beyond the initial neighborhood; and
(5) Learning about the overall impact of the Promise Neighborhoods program and about the relationship between particular strategies in Promise Neighborhoods and student outcomes, including through a rigorous evaluation of the program.
A Promise Neighborhood is both a place and a strategy. A place eligible to become a Promise Neighborhood is a geographic area that is distressed, often facing inadequate access to high-quality early learning programs and services, with struggling schools, low high-school and college graduation rates, high rates of unemployment, high rates of crime, and indicators of poor health. These conditions contribute to and intensify the negative outcomes associated with children and youth living in poverty. Children and youth who are from low-income families and grow up in neighborhoods of concentrated poverty face educational and life challenges above and beyond the challenges faced by children who are from low-income families who grow up in neighborhoods without a high concentration of poverty. A Federal evaluation of the reading and mathematics outcomes of elementary students in 71 schools in 18 districts and 7 States found that even when controlling for individual student poverty, there is a significant negative association between school-level poverty and student achievement.
A Promise Neighborhood is also a strategy for addressing the issues in distressed communities. Promise Neighborhoods are led by organizations that work to ensure that all children and youth in the target geographic area have access to the continuum of solutions needed to graduate from high school college- and career-ready. Within these geographic areas, Promise Neighborhoods create a high level of participation in cradle-to-career supports for children and youth, where over time a greater proportion of the neighborhood is served by programs and neighborhood indicators show significant progress. For this reason, each Promise Neighborhood grantee must have several core features: (1) Significant need in the neighborhood the grant serves; (2) a strategy to build a continuum of solutions with strong schools at the center; and (3) the capacity to achieve results. As the proportion of neighborhood children, students, and families accessing services and attending great schools increases, the entire neighborhood will be positively affected.
While there are a number of organizations and communities that are working on developing Promise Neighborhoods strategies, these entities are at different stages of readiness to create a Promise Neighborhood. Therefore, we have established priorities, requirements, definitions, and selection criteria for both planning and implementation grants in a notice of final priorities, requirements, definitions, and selection criteria published elsewhere in this issue of the
Planning grants will support eligible organizations that need to develop feasible plans to create a continuum of solutions with the potential to significantly improve the educational and developmental outcomes of children and youth in a neighborhood. These grants will support eligible organizations that demonstrate the need for creating a Promise Neighborhood in the geographic areas they are targeting, a sound strategy for developing a feasible plan to create a continuum of solutions, and the capacity to develop the plan.
Under Absolute Priority 1 for planning grants, Promise Neighborhoods planning grantees generally must undertake the following activities during the planning year (the complete and exact requirements of the priority are specified elsewhere in the notice):
(1) Conduct a comprehensive needs assessment and segmentation analysis (as defined in this notice) of children and youth in the neighborhood.
(2) Develop a plan to deliver a continuum of solutions with the potential to drive results. This includes building community support for and involvement in the development of the plan.
(3) Establish effective partnerships both to provide solutions along the continuum and to commit resources to sustain and scale up what works.
(4) Plan, build, adapt, or expand a longitudinal data system that will provide information that the grantee will use for learning, continuous improvement, and accountability.
(5) Participate in a community of practice (as defined in this notice).
Implementation grants will support eligible organizations in carrying out their plans to create a continuum of solutions that will significantly improve the educational and developmental outcomes of children and youth in the target neighborhood. These grants will aid eligible organizations that have developed a plan that demonstrates the need for the creation of a Promise Neighborhood in the geographic area they are targeting, a sound strategy for implementing a plan for creating a continuum of solutions, and the capacity to implement the plan. More specifically, grantees will use implementation grant funds to develop the administrative capacity necessary to successfully implement a continuum of solutions, such as managing partnerships, integrating multiple funding sources, and supporting the grantee's longitudinal data system. While implementation grantees will be best positioned to determine the allocation of grant funds given the results of their needs assessments and plans to build their organizational capacity, the Department expects that the majority of resources to provide solutions within the continuum of solutions will come from public and private funding sources that are integrated and aligned with the Promise Neighborhoods strategy.
Under Absolute Priority 1 for implementation grants, Promise Neighborhoods implementation grantees generally will undertake the following activities during the implementation years (the complete and exact requirements of the priority are specified elsewhere in the notice):
(1) Implement a continuum of solutions that addresses neighborhood challenges, as identified through a needs assessment and segmentation analysis, and that will improve results for children and youth in the neighborhood.
(2) Continue to build and strengthen partnerships that will provide solutions along the continuum of solutions and that will commit resources to sustain and scale up what works.
(3) Collect data on indicators at least annually, and use and improve a longitudinal data system for learning, continuous improvement, and accountability.
(4) Demonstrate progress on goals for improving systems, such as by making changes in policies and organizations, and by leveraging resources to sustain and scale up what works.
(5) Participate in a community of practice (as defined in this notice).
Considering the time and urgency required to dramatically improve outcomes of children and youth in our most distressed neighborhoods and to transform those neighborhoods, implementation grantees will establish both short- and long-term goals to define success.
Consistent with the approach of the Promise Neighborhoods program, we believe that it is important for communities to develop a comprehensive neighborhood revitalization strategy that addresses neighborhood assets (as defined in this notice) that are essential to transforming distressed neighborhoods into healthy and vibrant communities of opportunity. Although not a proposed requirement for planning or implementation applicants, we believe that a Promise Neighborhood will be most successful when it is part of, and contributing to, an area's broader neighborhood revitalization strategy. We believe that only through the development of such comprehensive neighborhood revitalization plans that embrace the coordinated use of programs and resources in order to effectively address the interrelated needs within a community will the
Because a diverse group of communities could benefit from Promise Neighborhoods, the Secretary has established an absolute priority for applicants that propose to serve one or more rural communities only (as defined in this notice) and an absolute priority for applicants that propose to serve one or more Indian Tribes (as defined in this notice).
In developing their strategies for planning or implementing a continuum of solutions, applicants should be mindful of the importance of ensuring that all children, including infants and toddlers in the neighborhood, have an opportunity to benefit. For example, individuals with disabilities and language minorities, particularly recent immigrants, may encounter unique challenges that prevent them from accessing the benefits of a Promise Neighborhoods project.
Successful applicants under this competition must comply with Federal civil rights laws that apply to recipients and subrecipients of Federal financial assistance including: Title VI of the Civil Rights Act of 1964 (prohibiting discrimination on the basis of race, color, or national origin); Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act (prohibiting discrimination on the basis of disability); Title IX of the Education Amendments of 1972 (prohibiting discrimination on the basis of sex); and the Age Discrimination Act of 1975 (prohibiting discrimination on the basis of age).
Applicants, therefore, in designing their projects and preparing their required General Education Provisions Act (GEPA) Section 427 assurance, will need to address barriers to participation for individuals, including individuals with disabilities and limited English proficiency, and must consider the steps they will take to ensure equitable participation of all children and families in the project, in compliance with civil rights obligations. (Section 427 requires each applicant to include in its application a description of the steps the applicant proposes to take to ensure equitable access to, and participation in, its federally-assisted program for students, teachers and other program beneficiaries with special needs.)
Applicants must indicate in their application whether they are applying under Implementation Grant Priority 1 (Absolute), Implementation Grant Priority 2 (Absolute), or Implementation Grant Priority 3 (Absolute). An applicant that applies under Implementation Grant Priority 2 (Absolute) but is not eligible for funding under Implementation Grant Priority 2 (Absolute), or applies under Implementation Grant Priority 3 (Absolute) but is not eligible for funding under Implementation Grant Priority 3 (Absolute), may be considered for funding under Implementation Grant Priority 1 (Absolute).
These priorities are:
To meet this priority, an applicant must submit a plan to create a Promise Neighborhood. The plan must describe the need in the neighborhood, a strategy to build a continuum of solutions, and the applicant's capacity to achieve results. Specifically, an applicant must—
(1) Describe the geographically defined area
(2) Describe the applicant's strategy for building a continuum of solutions over time that addresses neighborhood challenges as identified in the needs assessment and segmentation analysis. The applicant must also describe how it has built community support for and involvement in the development of the plan. The continuum of solutions must be based on the best available evidence including, where available, strong or moderate evidence (as defined in this notice), and be designed to significantly improve educational outcomes and to support the healthy development and well-being of children and youth in the neighborhood. The strategy must be designed to ensure that over time, a greater proportion of children and youth in the neighborhood who attend the target school or schools have access to a complete continuum of solutions, and must ensure that over time, a greater proportion of children and youth in the neighborhood who do not attend the target school or schools have access to solutions within the continuum of solutions. The strategy must also ensure that, over time, students not living in the neighborhood who attend the target school or schools have access to solutions within the continuum of solutions.
The success of the applicant's strategy to build a continuum of solutions will be based on the results of the project, as measured against the project indicators as defined in this notice and described in Table 1 and Table 2. In its strategy, the applicant must propose clear and measurable annual goals during the grant period against which improvements will be measured using the indicators. The strategy must—
(a) Identify each solution that the project will implement within the proposed continuum of solutions, and must include—
(i) High-quality early learning programs and services designed to improve outcomes across multiple domains of early learning (as defined in this notice) for children from birth through third grade;
(ii) Ambitious, rigorous, and comprehensive education reforms that are linked to improved educational outcomes for children and youth in preschool through the 12th grade. Public schools served through the grant may include persistently lowest-achieving schools (as defined in this notice) or low-performing schools (as defined in this notice) that are not also persistently lowest-achieving schools. An applicant (or one or more of its partners) may serve an effective school or schools (as defined in this notice) but only if the applicant (or one or more of its partners) also serves at least one low-performing school (as defined in this notice) or persistently lowest-achieving school (as defined in this notice). An applicant must identify in its application the public school or schools it would serve and describe the current status of reforms in the school or schools, including, if applicable, the type of intervention model being implemented. In cases where an applicant operates a school or partners with a school that does not serve all students in the neighborhood, the applicant must partner with at least one
An applicant proposing to work with a low-performing school must include in its strategy ambitious, rigorous, and comprehensive interventions to assist, augment, or replace schools, which may include implementing one of the four school intervention models, or may include another model of sufficient ambition, rigor, and comprehensiveness to significantly improve academic and other outcomes for students. An applicant proposing to work with a low-performing school must include in its strategy an intervention that addresses the effectiveness of teachers and leaders and the school's use of time and resources, which may include increased learning time (as defined in this notice);
So as not to penalize an applicant for proposing to work with an LEA that has implemented rigorous reform strategies prior to the publication of this notice, an applicant is not required to propose a new reform strategy in place of an existing reform strategy in order to be eligible for a Promise Neighborhoods implementation grant. For example, an LEA might have begun to implement improvement activities that meet many, but not all, of the elements of a transformation model of school intervention. In this case, the applicant could propose, as part of its Promise Neighborhood strategy, to work with the LEA as the LEA continues with its reforms.
(iii) Programs that prepare students to be college- and career-ready; and
(iv) Family and community supports (as defined in this notice).
To the extent feasible and appropriate, the applicant must describe, in its plan, how the applicant and its partners will leverage and integrate high-quality programs, related public and private investments, and existing neighborhood assets into the continuum of solutions. An applicant must also include in its application an appendix that summarizes the evidence supporting each proposed solution and describes how the solution is based on the best available evidence, including, where available, strong or moderate evidence (as defined in this notice). An applicant must also describe in the appendix how and when—during the implementation process—the solution will be implemented; the partners that will participate in the implementation of each solution (in any case in which the applicant does not implement the solution directly); the estimated per-child cost, including administrative costs, to implement each solution; the estimated number of children, by age, in the neighborhood who will be served by each solution and how a segmentation analysis was used to target the children and youth to be served; and the source of funds that will be used to pay for each solution. In the description of the estimated number of children to be served, the applicant must include the percentage of all children of the same age group within the neighborhood proposed to be served with each solution, and the annual goals required to increase the proportion of children served to reach scale over time.
An applicant must also describe in its plan how it will identify Federal, State, or local policies, regulations, or other requirements that would impede its ability to achieve its goals and how it will report on those impediments to the Department and other relevant agencies.
As appropriate, considering the time and urgency required to dramatically improve outcomes of children and youth in our most distressed neighborhoods and to transform those neighborhoods, applicants must establish both short-term and long-term goals to measure progress.
As part of the description of its strategy to build a continuum of solutions, the applicant must also describe how it will participate in, organize, or facilitate, as appropriate, communities of practice for Promise Neighborhoods;
(b) Establish clear, annual goals for evaluating progress in improving systems, such as changes in policies, environments, or organizations that affect children and youth in the neighborhood. Examples of systems change could include a new school district policy to measure the results of family and community support programs, a new funding resource to support the Promise Neighborhoods strategy, or a cross-sector collaboration at the city level to break down municipal agency “silos” and partner with local philanthropic organizations to drive achievement of a set of results; and
(c) Establish clear, annual goals for evaluating progress in leveraging resources, such as the amount of monetary or in-kind investments from public or private organizations to support the Promise Neighborhoods strategy. Examples of leveraging resources are securing new or existing dollars to sustain and scale up what works in the Promise Neighborhood or integrating high-quality programs in the continuum of solutions. Applicants may consider, as part of their plans to scale up their Promise Neighborhood strategy, serving a larger geographic area by partnering with other applicants to the Promise Neighborhoods program from the same city or region;
(3) Explain how it used its needs assessment and segmentation analysis to determine the children with the highest needs and explain how it will ensure that children in the neighborhood receive the appropriate services from the continuum of solutions. In this explanation of how it used the needs assessment and segmentation analysis, the applicant must identify and describe in its application the educational indicators and family and community support indicators that the applicant used to conduct the needs assessment. Whether or not the implementation grant applicant received a Promise Neighborhoods planning grant, the applicant must describe how it—
(a) Collected data for the educational indicators listed in Table 1 and used them as both program and project indicators;
(b) Collected data for the family and community support indicators in Table 2 and used them as program indicators; and
(c) Collected data for unique family and community support indicators, developed by the applicant, that align with the goals and objectives of the project and used them as project indicators or used the indicators in Table 2 as project indicators.
An applicant must also describe how it will collect at least annual data on the indicators in Tables 1 and 2; establish clear, annual goals for growth on indicators; and report those data to the Department.
The indicators in Table 1 and Table 2 are not intended to limit an applicant from collecting and using data for additional indicators. Examples of additional indicators are—
(i) The # and % of children who participate in high-quality learning activities during out-of-school hours or in the hours after the traditional school day ends;
(ii) The # and % of students who are suspended or receive discipline referrals during the year;
(iii) The share of housing stock in the geographically defined area that is rent-protected, publicly assisted, or targeted for redevelopment with local, State, or Federal funds; and
(iv) The # and % of children who are homeless or in foster care and who have an assigned adult advocate.
While the Department believes there are many programmatic benefits of collecting data on every child in the proposed neighborhood, the Department will consider requests to collect data on only a sample of the children in the neighborhood for some indicators so long as the applicant describes in its application how it would ensure the sample would be representative of the children in the neighborhood;
(4) Describe the experience and lessons learned, and describe how the applicant will build the capacity of its management team and project director in all of the following areas:
(a) Working with the neighborhood and its residents, including parents and families that have children or other members with disabilities or ELs, as well as with the school(s) described in paragraph (2) of this priority; the LEA in which the school or schools are located; Federal, State, and local government leaders; and other service providers.
(b) Collecting, analyzing, and using data for decision-making, learning, continuous improvement, and accountability. The applicant must describe—
(i) Progress towards developing, launching, and implementing a longitudinal data system that integrates student-level data from multiple sources in order to measure progress on educational and family and community support indicators for all children in the neighborhood, disaggregated by the subgroups listed in section 1111(b)(3)(C)(xiii) of the ESEA;
(ii) How the applicant has linked or made progress to link the longitudinal data system to school-based, LEA, and State data systems; made the data accessible to parents, families, community residents, program partners, researchers, and evaluators while abiding by Federal, State, and other privacy laws and requirements; and managed and maintained the system;
(iii) How the applicant has used rapid-time (as defined in this notice) data in prior years and, how it will continue to use those data once the Promise Neighborhood strategy is implemented, for continuous program improvement; and
(iv) How the applicant will document the implementation process, including by describing lessons learned and best practices.
(c) Creating and strengthening formal and informal partnerships, for such purposes as providing solutions along the continuum of solutions and committing resources to sustaining and scaling up what works. Each applicant must submit, as part of its application, a memorandum of understanding, signed by each organization or agency with which it would partner in implementing the proposed Promise Neighborhood. The memorandum of understanding must describe—
(i) Each partner's financial and programmatic commitment; and
(ii) How each partner's existing vision, theory of change (as defined in this notice), theory of action (as defined in this notice), and current activities align with those of the proposed Promise Neighborhood;
(d) The governance structure proposed for the Promise Neighborhood, including a system for holding partners accountable, how the eligible entity's governing board or advisory board is representative of the geographic area proposed to be served (as defined in this notice), and how residents of the geographic area would have an active role in the organization's decision-making.
(e) Integrating funding streams from multiple public and private sources from the Federal, State, and local level. Examples of public funds include Federal resources from the U.S. Department of Education, such as the 21st Century Community Learning Centers program and title I of the ESEA, and from other Federal agencies, such as the U.S. Departments of Health and Human Services, Housing and Urban Development, Justice, Labor, and Treasury.
(5) Describe the applicant's commitment to work with the Department, and with a national evaluator for Promise Neighborhoods or another entity designated by the Department, to ensure that data collection and program design are consistent with plans to conduct a rigorous national evaluation of the Promise Neighborhoods program and of specific solutions and strategies pursued by individual grantees. This commitment must include, but need not be limited to—
(a) Ensuring that, through memoranda of understanding with appropriate entities, the national evaluator and the Department have access to relevant program and project data sources (
(b) Developing, in consultation with the national evaluator, an evaluation strategy, including identifying a credible comparison group (as defined in this notice); and
(c) Developing, in consultation with the national evaluator, a plan for identifying and collecting reliable and valid baseline data for both program participants and a designated comparison group of non-participants.
To meet this priority, an applicant must propose to implement a Promise Neighborhood strategy that (1) meets all of the requirements in Absolute Priority 1; and (2) serves one or more rural communities only.
To meet this priority, an applicant must propose to implement a Promise Neighborhood strategy that (1) meets all of the requirements in Absolute Priority 1; and (2) serves one or more Indian tribes (as defined in this notice).
The Department will not review or award points under any competitive preference priority for an application that (1) Fails to clearly identify the competitive preference priority or the two priorities it wishes the Department to consider for purposes of earning the competitive preference priority points, or (2) identifies more than two competitive preference priorities.
These priorities are:
To meet this priority, an applicant must propose in its plan to expand, enhance, or modify an existing network of early learning programs and services to ensure that they are high-quality and comprehensive for children from birth through the third grade. The plan must also ensure that the network establishes a high standard of quality across early learning settings and is designed to improve outcomes across multiple domains of early learning. Distinct from the early learning solutions described in paragraph (2) of Absolute Priority 1, this priority supports implementation plans that integrate various early learning services and programs in the neighborhood,
The early learning network must address or incorporate ongoing State-level efforts regarding the major components of high-quality early learning programs and services, such as State early learning and development standards, program quality standards, comprehensive assessment systems, workforce and professional development systems, health promotion, family and community engagement, a coordinated data infrastructure, and a method of measuring, monitoring, evaluating, and improving program quality. For example, an applicant might address how the Promise Neighborhoods project will use the State's early learning standards, as applicable, and the Head Start Child Development and Early Learning Framework (Framework), as applicable, to define the expectations of what children should know and be able to do before entering kindergarten. The Framework is available on the Office of Head Start's Web site at:
These early learning opportunities must be fully accessible to individuals with disabilities, including individuals who are blind or have low vision; otherwise, the plans must describe how accommodations or modifications will be provided to ensure that the benefits of the early learning opportunities are provided to children and youth with disabilities in an equally effective and equally integrated manner.
The implementation plan for a high-quality and comprehensive local early learning network must describe the governance structure and the major components of high-quality early learning programs and services as well as include goals, strategies, and benchmarks to provide early learning programs and services that result in improvements across multiple domains of early learning. The plan must result from a needs assessment and segmentation analysis (as defined in this notice) and must reflect input from a broad range of stakeholders. An application addressing this priority must designate an individual responsible for overseeing and coordinating the early learning initiatives and must include a resume or position description and other supporting documentation to demonstrate that the individual designated, or individual hired to carry out those responsibilities, possesses the appropriate State certification, and has experience and expertise in managing and administering high-quality early learning programs, including in coordinating across various high-quality early learning programs and services.
To meet this priority, an applicant must ensure that almost all students in the geographic area proposed to be served have broadband internet access (as defined in this notice) at home and at school, the knowledge and skills to use broadband internet access effectively, and a connected computing device to support schoolwork.
To meet this priority, an applicant must include in its plan opportunities for children and youth to experience and participate actively in the arts and humanities in their community so as to broaden, enrich, and enliven the educational, cultural, and civic experiences available in the neighborhood. Applicants may include plans for offering these activities in school and in out-of-school settings and at any time during the calendar year.
To meet this priority, an applicant must propose to serve geographic areas that were the subject of an affordable housing transformation pursuant to a Choice Neighborhoods or HOPE VI grant awarded by the U.S. Department of Housing and Urban Development during FY 2009 or later years. To be eligible under this priority, the applicant must either (1) be able to demonstrate that it has received a Choice Neighborhoods or HOPE VI grant or (2) provide, in its application, a memorandum of understanding between it and a partner that is a recipient of a Choice Neighborhoods or HOPE VI grant. The memorandum must indicate a commitment on the part of the applicant and partner to coordinate implementation and align resources to the greatest extent practicable.
This priority is:
To meet this priority, an applicant must include a plan that is coordinated with adult education providers serving neighborhood residents, such as those funded through the Adult Education and Family Literacy Act, as amended. Coordinated services may include adult basic and secondary education and programs that provide training and opportunities for family members and other members of the community to support student learning and establish high expectations for student educational achievement. Examples of services and programs include preparation for the General Education Development (GED) test; English literacy, family literacy, and work-based literacy training; or other training that prepares adults for postsecondary education and careers, or supports adult engagement in the educational success of children and youth in the neighborhood.
The U.S. Department of Justice (DOJ) intends to provide an optional, supplemental funding opportunity for Promise Neighborhoods implementation grantees with plans that propose to analyze and resolve public safety concerns associated with violence, gangs, and illegal drugs utilizing strategies that include prevention, intervention, enforcement, and reentry of offenders back into communities upon release from prison and jail. Under this opportunity, DOJ, through an interagency agreement with the Department of Education, would provide additional funds to some Promise Neighborhoods implementation grantees. Specifically, DOJ would consider supporting Promise Neighborhoods grantees with plans that align with local leadership in implementing and sustaining innovative solutions that incorporate evidence and research into local program and policy decisions to address and reduce persistent crime. Additional information about this optional funding opportunity will be provided to Promise Neighborhoods implementation grantees after grant awards are announced.
The following definitions apply to this program:
(1) Include programs, policies, practices, services, systems, and supports that result in improving educational and developmental outcomes for children from cradle through college to career;
(2) Are based on the best available evidence, including, where available, strong or moderate evidence (as defined in this notice);
(3) Are linked and integrated seamlessly (as defined in this notice); and
(4) Include both education programs and family and community supports.
(1) High-quality early learning programs or services designed to improve outcomes across multiple domains of early learning for young children. Such programs must be specifically intended to align with appropriate State early learning and development standards, practices, strategies, or activities across as broad an age range as birth through third grade so as to ensure that young children enter kindergarten and progress through the early elementary school grades demonstrating age-appropriate functioning across the multiple domains;
(2) For children in preschool through the 12th grade, programs, inclusive of related policies and personnel, that are linked to improved educational outcomes. The programs—
(a) Must include effective teachers and effective principals;
(b) Must include strategies, practices, or programs that encourage and facilitate the evaluation, analysis, and use of student achievement, student growth (as defined in this notice), and other data by educators, families, and other stakeholders to inform decision-making;
(c) Must include college- and career-ready standards, assessments, and practices, including a well-rounded curriculum, instructional practices, strategies, or programs in, at a minimum, core academic subjects as defined in section 9101(11) of the ESEA, that are aligned with high academic content and achievement standards and with high-quality assessments based on those standards; and
(d) May include creating multiple pathways for students to earn regular high school diplomas (
(3) Programs that prepare students for college and career success, which may include programs that—
(a) Create and support partnerships with community colleges, four-year colleges, or universities and that help instill a college-going culture in the neighborhood;
(b) Provide dual-enrollment opportunities for secondary students to gain college credit while in high school;
(c) Provide, through relationships with businesses and other organizations, apprenticeship opportunities to students;
(d) Align curricula in the core academic subjects with requirements for industry-recognized certifications or credentials, particularly in high-growth sectors;
(e) Provide access to career and technical education programs so that individuals can attain the skills and industry-recognized certifications or credentials for success in their careers;
(f) Help college students, including CWD and ELs from the neighborhood to transition to college, persist in their academic studies in college, graduate from college, and transition into the workforce; and
(g) Provide opportunities for all youth (both in and out of school) to achieve academic and employment success by improving educational and skill competencies and providing connections to employers. Such activities may include opportunities for on-going mentoring, supportive services, incentives for recognition and achievement, and opportunities related to leadership, development, decision-making, citizenship, and community service.
(1) Significantly closed the achievement gaps between subgroups of students (as identified in section 1111(b)(3)(C)(xiii) of the ESEA) within the school or district; or
(2)(a) Demonstrated success in significantly increasing student academic achievement in the school for all subgroups of students (as identified in section 1111(b)(3)(C)(xiii) of the ESEA) in the school; and (b) made significant improvements in other areas, such as graduation rates (as defined in this notice) or recruitment and placement of effective teachers and effective principals.
(1) Is representative of the geographic area proposed to be served (as defined in this notice);
(2) Is one of the following:
(a) A nonprofit organization that meets the definition of a nonprofit under 34 CFR 77.1(c), which may include a faith-based nonprofit organization.
(b) An institution of higher education as defined by section 101(a) of the Higher Education Act of 1965, as amended.
(c) An Indian tribe (as defined in this notice);
(3) Currently provides at least one of the solutions from the applicant's proposed continuum of solutions in the geographic area proposed to be served; and
(4) Operates or proposes to work with and involve in carrying out its proposed project, in coordination with the school's LEA, at least one public elementary or secondary school that is located within the identified geographic area that the grant will serve.
(1) Child and youth health programs, such as physical, mental, behavioral, and emotional health programs (
(2) Safety programs, such as programs in school and out of school to prevent, control, and reduce crime, violence, drug and alcohol use, and gang activity; programs that address classroom and school-wide behavior and conduct; programs to prevent child abuse and neglect; programs to prevent truancy and reduce and prevent bullying and harassment; and programs to improve the physical and emotional security of the school setting as perceived, experienced, and created by students, staff, and families;
(3) Community stability programs, such as programs that—
(a) Increase the stability of families in communities by expanding access to quality, affordable housing, providing legal support to help families secure clear legal title to their homes, and providing housing counseling or housing placement services;
(b) Provide adult education and employment opportunities and training to improve educational levels, job skills and readiness in order to decrease unemployment, with a goal of increasing family stability;
(c) Improve families' awareness of, access to, and use of a range of social services, if possible at a single location;
(d) Provide unbiased, outcome-focused, and comprehensive financial education, inside and outside the classroom and at every life stage;
(e) Increase access to traditional financial institutions (
(f) Help families increase their financial literacy, financial assets, and savings; and
(g) Help families access transportation to education and employment opportunities;
(4) Family and community engagement programs that are systemic, integrated, sustainable, and continue through a student's transition from K–12 school to college and career. These programs may include family literacy programs and programs that provide adult education and training and opportunities for family members and other members of the community to support student learning and establish high expectations for student educational achievement; mentorship programs that create positive relationships between children and adults; programs that provide for the use of such community resources as libraries, museums, television and radio stations, and local businesses to support improved student educational outcomes; programs that support the engagement of families in early learning programs and services; programs that provide guidance on how to navigate through a complex school system and how to advocate for more and improved learning opportunities; and programs that promote collaboration with educators and community organizations to improve opportunities for healthy development and learning; and
(5) 21st century learning tools, such as technology (
This definition is not meant to prevent a grantee from also collecting information about the reasons why students do not graduate from the target high school,
(1) Education need, which means—
(a) All or a portion of the neighborhood includes or is within the attendance zone of a low-performing school that is a high school, especially one in which the graduation rate (as defined in this notice) is less than 60 percent or a school that can be characterized as low-performing based on another proxy indicator, such as students' on-time progression from grade to grade; and
(b) Other indicators, such as significant achievement gaps between subgroups of students (as identified in section 1111(b)(3)(C)(xiii) of the ESEA) within a school or LEA, high teacher and principal turnover, or high student absenteeism; and
(2) Family and community support need, which means—
(a) Percentages of children with preventable chronic health conditions (
(b) Immunization rates;
(c) Rates of crime, including violent crime;
(d) Student mobility rates;
(e) Teenage birth rates;
(f) Percentage of children in single-parent or no-parent families;
(g) Rates of vacant or substandard homes, including distressed public and assisted housing; or
(h) Percentage of the residents living at or below the Federal poverty threshold.
(1) Developmental assets that allow residents to attain the skills needed to be successful in all aspects of daily life (
(2) Commercial assets that are associated with production, employment, transactions, and sales (
(3) Recreational assets that create value in a neighborhood beyond work and education (
(4) Physical assets that are associated with the built environment and physical infrastructure (
(5) Social assets that establish well-functioning social interactions (
(1) Any school receiving assistance through Title I that is in improvement, corrective action, or restructuring and that—
(a) Is among the lowest-achieving five percent of Title I schools in improvement, corrective action, or restructuring or the lowest-achieving five Title I schools in improvement, corrective action, or restructuring in the State, whichever number of schools is greater; or
(b) Is a high school that has had a graduation rate that is less than 60 percent over a number of years; and
(2) Any secondary school that is eligible for, but does not receive, Title I funds that—
(a) Is among the lowest-achieving five percent of secondary schools or the lowest-achieving five secondary schools in the State that are eligible for, but do not receive, Title I funds, whichever number of schools is greater; or
(b) Is a high school that has had a graduation rate that is less than 60 percent over a number of years.
(1) Residents who live in the geographic area proposed to be served, which may include residents who are representative of the ethnic and racial composition of the neighborhood's residents and the languages they speak;
(2) Residents of the city or county in which the neighborhood is located but who live outside the geographic area proposed to be served, and who are low-income (which means earning less than 80 percent of the area's median income as published by the Department of Housing and Urban Development);
(3) Public officials (as defined in this notice) who serve the geographic area proposed to be served (although not more than one-half of the governing board or advisory board may be made up of public officials); or
(4) Some combination of individuals from the three groups listed in paragraphs (1), (2), and (3) of this definition.
(1) Is served by an LEA that is currently eligible under the Small Rural School Achievement (SRSA) program or the Rural and Low-Income School (RLIS) program authorized under Title VI, Part B of the ESEA. Applicants may determine whether a particular LEA is eligible for these programs by referring to information on the following Department Web sites. For the SRSA program:
(2) Includes only schools designated with a school locale code of 42 or 43. Applicants may determine school locale codes by referring to the following Department Web site:
The analysis is intended to allow grantees to differentiate and more effectively target interventions based on what they learn about the needs of different populations in the geographic area.
(1) For tested grades and subjects:
(a) A student's score on the State's assessments under the ESEA; and, as appropriate,
(b) Other measures of student learning, such as those described in paragraph (2) of this definition, provided they are rigorous and comparable across classrooms and programs.
(2) For non-tested grades and subjects: alternative measures of student learning and performance, such as student scores on pre-tests and end-of-course tests; student performance on English language proficiency assessments; and other measures of student achievement that are rigorous and comparable across classrooms.
This definition is not meant to limit a grantee from also collecting information about why students enter or withdraw from the school,
20 U.S.C.7243–7243b.
The regulations in 34 CFR Part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR Part 86 apply to institutions of higher education only.
These estimated available funds are only for Implementation grants under the Promise Neighborhoods program.
Contingent upon the availability of funds and the quality of the applications received, we may make additional awards in FY 2012 or later years from the list of unfunded applicants from this competition.
The maximum award amount is $6,000,000 per 12-month budget period. We may choose not to further consider or review applications with budget requests for any 12-month budget period that exceed this amount, if we conclude, during our initial review of the application, that the proposed goals and objectives cannot be obtained with the specified maximum amount.
The Department is not bound by any estimates in this notice.
1.
2.
To be eligible for an implementation grant under this competition, an applicant must demonstrate that it has established a commitment from one or more entities in the public or private sector, which may include Federal, State, and local public agencies, philanthropic organizations, private businesses, or individuals, to provide matching funds for the implementation process. An applicant for an implementation grant must obtain matching funds or in-kind donations equal to at least 100 percent of its grant award, except that an applicant proposing a project that meets
Eligible sources of matching include sources of funds used to pay for solutions within the continuum of solutions, such as Head Start programs, initiatives supported by the LEA, or public health services for children in the neighborhood. At least 10 percent of an implementation applicant's total match must be cash or in-kind contributions from the private sector, which may include philanthropic organizations, private businesses, or individuals.
Both planning and implementation applicants must demonstrate a commitment of matching funds in the applications. The applicants must specify the source of the funds or contributions and in the case of a third-party in-kind contribution, a description of how the value was determined for the donated or contributed goods or service. Applicants must demonstrate the match commitment by including letters in their applications explaining the type and quantity of the match commitment with original signatures from the executives of organizations or agencies providing the match. The Secretary may consider decreasing the matching requirement in the most exceptional circumstances, on a case-by-case basis.
An applicant that is unable to meet the matching requirement must include in its application a request to the Secretary to reduce the matching requirement, including the amount of the requested reduction, the total remaining match contribution, and a statement of the basis for the request. An applicant should review the Department's cost-sharing and cost-matching regulations, which include specific limitations in 34 CFR 74.23 applicable to non-profit organizations and institutions of higher education and 34 CFR 80.24 applicable to State, local, and Indian tribal governments, and the Office of Management and Budget (OMB) cost principles regarding donations, capital assets, depreciations and allowable costs. These circulars are available on OMB's Web site at
3.
1.
Ty Harris, U.S. Department of Education, 400 Maryland Avenue, SW., room 4W250, LBJ, Washington, DC 20202–5970. Telephone: (202) 453–5629 or by e-mail:
If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2.
We will be able to develop a more efficient process for reviewing grant applications if we know the approximate number of applicants that intend to apply for funding under this competition. Therefore, the Secretary strongly encourages each potential applicant to notify us of the applicant's intent to submit an application for funding by completing a web-based form. When completing this form, applicants will provide (1) the applicant organization's name and address, and (2) the type of grant for which the applicant intends to apply. Applicants may access this form online at
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative. Text in charts, tables, figures, and graphs may be single-spaced.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts is strongly encouraged: Times New Roman, Courier, Courier New, or Arial.
The suggested page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the page limit does apply to all of the application narrative section [Part III].
3.
Applications for grants under this competition must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 7.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the Central Contractor Registry (CCR), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active CCR registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one business day.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow 2–5 weeks for your TIN to become active.
The CCR registration process may take five or more business days to complete. If you are currently registered with the CCR, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your CCR registration on an annual basis. This may take three or more business days to complete.
In addition, if you are submitting your application via Grants.gov, you must: (1) Be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined in the Grants.gov 3-Step Registration Guide (
7.
Applications for grants under this competition must be submitted electronically unless you qualify for an exception to this requirement in
a.
Applications for grants under the Promise Neighborhoods Program—CFDA Number 84.215N (Implementation grants) must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement and submit, no later than two weeks before the application deadline date, a written statement to the Department that you qualify for one of these exceptions. Further information regarding calculation of the date that is two weeks before the application deadline date is provided later in this section under
You may access the electronic grant application for Promise Neighborhoods Implementation Grant Competition at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: the Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a .PDF (Portable Document) format only. If you upload a file type other than a .PDF or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system; and
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal
Address and mail or fax your statement to: Jane Hodgdon, U.S. Department of Education, 400 Maryland Avenue, SW., Room 4W220, Washington, DC. FAX: (202) 401–4123.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.215N), LBJ Basement Level 1, 400 Maryland Avenue, SW., Washington, DC 20202–4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application, by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA 84.215N), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202–4260.
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245–6288.
1.
A.
The Secretary considers the need for the proposed project.
In determining the need for the proposed project, the Secretary considers—
(1) The magnitude or severity of the problems to be addressed by the proposed project as described by indicators of need and other relevant indicators identified in part by the needs assessment and segmentation analysis (10 points); and
(2) The extent to which the geographically defined area has been described (5 points).
B.
The Secretary considers the quality of the design of the proposed project.
In determining the quality of the design of the proposed project, the Secretary considers—
(1) The extent to which the continuum of solutions is aligned with an ambitious, rigorous, and comprehensive strategy for improvement of schools in the neighborhood (10 points);
(2) The extent to which the applicant describes an implementation plan to create a complete continuum of solutions, including early learning through grade 12, college- and career-readiness, and family and community supports, without time and resource gaps, that will prepare all children in the neighborhood to attain an excellent education and successfully transition to college and a career, and that will significantly increase the proportion of students in the neighborhood that are served by the complete continuum to reach scale over time (5 points);
(3) The extent to which the applicant identifies existing neighborhood assets and programs supported by Federal, State, local, and private funds that will be used to implement a continuum of solutions (5 points); and
(4) The extent to which the applicant describes its implementation plan, including clear, annual goals for improving systems and leveraging resources as described in paragraph (2) of Absolute Priority 1 (5 points).
C.
The Secretary considers the quality of the services to be provided by the proposed project.
In determining the quality of the project services, the Secretary considers—
(1) The extent to which the applicant describes how the needs assessment and segmentation analysis, including identifying and describing indicators, were used to determine each solution within the continuum (5 points); and
(2) The extent to which the applicant documents that proposed solutions are based on the best available evidence including, where available, strong or moderate evidence (5 points); and
(3) The extent to which the applicant describes clear, annual goals for improvement on indicators (5 points).
D.
The Secretary considers the quality of the management plan for the proposed project.
In determining the quality of the management plan for the proposed project, the Secretary considers the experience, lessons learned, and proposal to build capacity of the applicant's management team and project director in all of the following areas:
(1) Working with the neighborhood and its residents; the schools described in paragraph (2)(b) of Absolute Priority 1; the LEA in which those schools are
(2) Collecting, analyzing, and using data for decision-making, learning, continuous improvement, and accountability, including whether the applicant has a plan to build, adapt, or expand a longitudinal data system that integrates student-level data from multiple sources in order to measure progress while abiding by privacy laws and requirements (15 points).
(3) Creating formal and informal partnerships, including the alignment of the visions, theories of action, and theories of change described in its memorandum of understanding, and creating a system for holding partners accountable for performance in accordance with the memorandum of understanding (10 points).
(4) Integrating funding streams from multiple public and private sources, including its proposal to leverage and integrate high-quality programs in the neighborhood into the continuum of solutions (10 points).
2.
The Department will use independent reviewers from various backgrounds and professions including: Pre-kindergarten-12 teachers and principals, college and university educators, researchers and evaluators, social entrepreneurs, strategy consultants, grant makers and managers, and others with education expertise. The Department will thoroughly screen all reviewers for conflicts of interest to ensure a fair and competitive review process.
Reviewers will read, prepare a written evaluation, and score the applications assigned to their panel, using the selection criteria provided in this notice.
For applications addressing Absolute Priority 1, Absolute priority 2, and Absolute Priority 3, the Secretary prepares a rank order of applications for each absolute priority based solely on the evaluation of their quality according to the selection criteria. The Department may use more than one tier of reviews in determining grantees, including possible site visits for Implementation grant applicants. Additional information about the review process will be published on the Department's Web site.
We remind potential applicants that in reviewing applications in any discretionary grant competition, the Secretary may consider, under 34 CFR 75.217(d)(3), the past performance of the applicant in carrying out a previous award, such as the applicant's use of funds, achievement of project objectives, and compliance with grant conditions. The Secretary may also consider whether the applicant failed to submit a timely performance report or submitted a report of unacceptable quality.
In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
4.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
4.
(a) Project indicators;
(b) Improving systems; and
(c) Leveraging resources.
All grantees will be required to submit annual performance reports documenting their contribution in assisting the Department in measuring the performance of the program against these indicators, as well as other information requested by the Department.
5.
Jane Hodgdon, U.S. Department of Education, 400 Maryland Avenue, SW., room 4W220, Washington, DC 20202–5900. Telephone: (202) 453–6615 or by e-mail:
If you use a TDD, call the FRS, toll free, at 1–800–877–8339.
You may also access documents of the Department published in the
Office of Innovation and Improvement, Department of Education.
Notice.
Promise Neighborhoods Program—Planning Grant Competition Notice inviting applications for new awards for fiscal year (FY) 2011.
The purpose of the Promise Neighborhoods program is to significantly improve the educational and developmental outcomes of children and youth in our most distressed communities, and to transform those communities by—
(1) Identifying and increasing the capacity of eligible organizations (as defined in this notice) that are focused on achieving results for children and youth throughout an entire neighborhood;
(2) Building a complete continuum of cradle-through-college-to-career solutions (continuum of solutions) (as defined in this notice) of both educational programs and family and community supports (both as defined in this notice), with great schools at the center. All solutions in the continuum of solutions must be accessible to children with disabilities (CWD)(as defined in this notice) and English learners (ELs) (as defined in this notice);
(3) Integrating programs and breaking down agency “silos” so that solutions are implemented effectively and efficiently across agencies;
(4) Developing the local infrastructure of systems and resources needed to sustain and scale up proven, effective solutions across the broader region beyond the initial neighborhood; and
(5) Learning about the overall impact of the Promise Neighborhoods program and about the relationship between particular strategies in Promise Neighborhoods and student outcomes, including through a rigorous evaluation of the program.
A Promise Neighborhood is both a place and a strategy. A place eligible to become a Promise Neighborhood is a geographic area that is distressed, often facing inadequate access to high-quality early learning programs and services, with struggling schools, low high school and college graduation rates, high rates of unemployment, high rates of crime, and indicators of poor health. These conditions contribute to and intensify the negative outcomes associated with children and youth living in poverty. Children who are from low-income families and grow up in neighborhoods of concentrated poverty face educational and life challenges above and beyond the challenges faced by children who are from low-income families who grow up in neighborhoods without a high concentration of poverty. A Federal evaluation of the reading and mathematics outcomes of elementary students in 71 schools in 18 districts and 7 States found that even when controlling for individual student poverty, there is a significant negative association between school-level poverty and student achievement.
A Promise Neighborhood is also a strategy for addressing the issues in distressed communities. Promise Neighborhoods are led by organizations
While there are a number of organizations and communities that are working on developing Promise Neighborhoods strategies, these entities are at different stages of readiness to create a Promise Neighborhood. Therefore, we have established priorities, requirements, definitions, and selection criteria for both planning and implementation grants in a notice of final priorities, requirements, definitions, and selection criteria published elsewhere in this issue of the
Planning grants will support eligible organizations that need to develop feasible plans to create a continuum of solutions with the potential to significantly improve the educational and developmental outcomes of children and youth in a neighborhood. These grants will support eligible organizations that demonstrate the need for creating a Promise Neighborhood in the geographic areas they are targeting, a sound strategy for developing a feasible plan to create a continuum of solutions, and the capacity to develop the plan.
Under Absolute Priority 1 for planning grants, Promise Neighborhoods planning grantees generally must undertake the following activities during the planning year (the complete and exact requirements of the priority are specified elsewhere in the notice):
(1) Conduct a comprehensive needs assessment and segmentation analysis (as defined in this notice) of children and youth in the neighborhood.
(2) Develop a plan to deliver a continuum of solutions with the potential to drive results. This includes building community support for and involvement in the development of the plan.
(3) Establish effective partnerships both to provide solutions along the continuum and to commit resources to sustain and scale up what works.
(4) Plan, build, adapt, or expand a longitudinal data system that will provide information that the grantee will use for learning, continuous improvement, and accountability.
(5) Participate in a community of practice (as defined in this notice).
Implementation grants will support eligible organizations in carrying out their plans to create a continuum of solutions that will significantly improve the educational and developmental outcomes of children and youth in the target neighborhood. These grants will aid eligible organizations that have developed a plan that demonstrates the need for the creation of a Promise Neighborhood in the geographic area they are targeting, a sound strategy for implementing a plan to create a continuum of solutions, and the capacity to implement the plan. More specifically, grantees will use implementation grant funds to develop the administrative capacity necessary to successfully implement a continuum of solutions, such as managing partnerships, integrating multiple funding sources, and supporting the grantee's longitudinal data system. While implementation grantees will be best positioned to determine the allocation of grant funds given the results of their needs assessments and plans to build their organizational capacity, the Department expects that the majority of resources to provide solutions within the continuum of solutions will come from public and private funding sources that are integrated and aligned with the Promise Neighborhoods strategy.
Under Absolute Priority 1 for implementation grants, Promise Neighborhoods implementation grantees generally will undertake the following activities during the implementation years (the complete and exact requirements of the priority are specified elsewhere in the notice):
(1) Implement a continuum of solutions that addresses neighborhood challenges, as identified through a needs assessment and segmentation analysis, and that will improve results for children and youth in the neighborhood.
(2) Continue to build and strengthen partnerships that will provide solutions along the continuum of solutions and that will commit resources to sustain and scale up what works.
(3) Collect data on indicators at least annually, and use and improve a longitudinal data system for learning, continuous improvement, and accountability.
(4) Demonstrate progress on goals for improving systems, such as by making changes in policies and organizations, and by leveraging resources to sustain and scale up what works.
(5) Participate in a community of practice (as defined in this notice).
Considering the time and urgency required to dramatically improve outcomes of children and youth in our most distressed neighborhoods and to transform those neighborhoods, implementation grantees will establish both short- and long-term goals to define success.
Consistent with the approach of the Promise Neighborhoods program, we believe that it is important for communities to develop a comprehensive neighborhood revitalization strategy that addresses neighborhood assets (as defined in this notice) that are essential to transforming distressed neighborhoods into healthy and vibrant communities of opportunity. Although not a proposed requirement for planning or implementation applicants, we believe that a Promise Neighborhood will be most successful when it is part of, and contributing to, an area's broader neighborhood revitalization strategy. We believe that only through the development of such comprehensive neighborhood revitalization plans that embrace the coordinated use of programs and resources in order to effectively address the interrelated needs within a community will the broader vision of neighborhood transformation occur.
Because a diverse group of communities could benefit from Promise Neighborhoods, the Secretary has established an absolute priority for applicants that propose to serve one or more rural communities only (as defined in this notice) and an absolute priority for applicants that propose to serve one or more Indian Tribes (as defined in this notice).
In developing their strategies for planning or implementing a continuum of
Successful applicants under this competition must comply with Federal civil rights laws that apply to recipients and subrecipients of Federal financial assistance including: Title VI of the Civil Rights Act of 1964 (prohibiting discrimination on the basis of race, color, or national origin); Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act (prohibiting discrimination on the basis of disability); Title IX of the Education Amendments of 1972 (prohibiting discrimination on the basis of sex); and the Age Discrimination Act of 1975 (prohibiting discrimination on the basis of age).
Applicants, therefore, in designing their projects and preparing their required General Education Provisions Act (GEPA) Section 427 assurance, will need to address barriers to participation for individuals, including individuals with disabilities and limited English proficiency, and must consider the steps they will take to ensure equitable participation of all children and families in the project, in compliance with civil rights obligations. (Section 427 requires each applicant to include in its application a description of the steps the applicant proposes to take to ensure equitable access to, and participation in, its federally-assisted program for students, teachers and other program beneficiaries with special needs.)
Applicants must indicate in their application whether they are applying under Planning Grant Priority 1 (Absolute), Planning Grant Priority 2 (Absolute), or Planning Grant Priority 3 (Absolute). An applicant that applies under Planning Grant Priority 2 (Absolute) but is not eligible for funding under Planning Grant Priority 2 (Absolute), or applies under Planning Grant Priority 3 (Absolute) but is not eligible for funding under Planning Grant Priority 3 (Absolute), may be considered for funding under Planning Grant Priority 1 (Absolute).
These priorities are:
To meet this priority, an applicant must submit a proposal for how it will plan to create a Promise Neighborhood. This proposal must describe the need in the neighborhood, a strategy to build a continuum of solutions, and the applicant's capacity to achieve results. Specifically, an applicant must—
(1) Describe the geographically defined area
(2) Describe how it will plan to build a continuum of solutions based on the best available evidence including, where available, strong or moderate evidence (as defined in this notice) designed to significantly improve educational outcomes and to support the healthy development and well-being of children and youth in the neighborhood. The applicant must also describe how it will build community support for and involvement in the development of the plan. The plan must be designed to ensure that over time, children and youth in the neighborhood who attend the target school or schools have access to a complete continuum of solutions, and ensure, as appropriate, that children and youth in the neighborhood who do not attend the target school or schools have access to solutions within the continuum of solutions. The plan must also ensure that students not living in the neighborhood who attend the target school or schools have access to solutions within the continuum of solutions.
The success of the applicant's strategy to build a continuum of solutions will be based on the results of the project, as measured against the project indicators defined in this notice and described in Table 1 and Table 2. In its strategy, the applicant must describe how it will determine which solutions within the continuum of solutions to implement, and must include—
(a) High-quality early learning programs and services designed to improve outcomes across multiple domains of early learning (as defined in this notice) for children from birth through third grade;
(b) Ambitious, rigorous, and comprehensive education reforms that are linked to improved educational outcomes for children and youth in preschool through the 12th grade. Public schools served through the grant may include persistently lowest-achieving schools (as defined in this notice) or low-performing schools (as defined in this notice) that are not also persistently lowest-achieving schools. An applicant (or one or more of its partners) may serve an effective school or schools (as defined in this notice) but only if the applicant (or one or more of its partners) also serves at least one low-performing school (as defined in this notice) or persistently lowest-achieving school (as defined in this notice). An applicant must identify in its application the public school or schools that would be served and the current status of reforms in the school or schools, including, if applicable, the type of intervention model being implemented. In cases where an applicant operates a school or partners with a school that does not serve all students in the neighborhood, the applicant must partner with at least one additional school or schools that also serves students in the neighborhood. An applicant proposing to work with a persistently lowest-achieving school must include as part of its strategy one of the four school intervention models (turnaround model, restart model, school closure, or transformation model) described in Appendix C of the Race to the Top (RTT) notice inviting applications for new awards for FY 2010 that was published in the
An applicant proposing to work with a low-performing school must include, as part of its strategy, ambitious, rigorous, and comprehensive interventions to assist, augment, or replace schools, which may include implementing one of the four school intervention models, or may include another model of sufficient ambition, rigor, and comprehensiveness to significantly improve academic and other outcomes for students. An applicant proposing to work with a low-performing school must include an intervention that addresses the effectiveness of teachers and leaders and
So as not to penalize an applicant for proposing to work with an LEA that has implemented rigorous reform strategies prior to the publication of this notice, an applicant is not required to propose a new reform strategy in place of an existing reform strategy in order to be eligible for a Promise Neighborhoods planning grant. For example, an LEA might have begun to implement improvement activities that meet many, but not all, of the elements of a transformation model of school intervention. In this case, the applicant could propose, as part of its Promise Neighborhood strategy, to work with the LEA as the LEA continues with its reforms.
(c) Programs that prepare students to be college- and career-ready; and
(d) Family and community supports (as defined in this notice).
To the extent feasible and appropriate, the applicant must describe, in its plan, how the applicant and its partners will leverage and integrate high-quality programs, related public and private investments, and existing neighborhood assets into the continuum of solutions.
An applicant must also describe in its plan how it will identify Federal, State, or local policies, regulations, or other requirements that would impede its ability to achieve its goals and how it will report on those impediments to the Department and other relevant agencies.
As part of the description of how it will plan to build a continuum of solutions, the applicant must describe how it will participate in, organize, or facilitate, as appropriate, communities of practice (as defined in this notice) for Promise Neighborhoods.
(3) Specify how it will conduct a comprehensive needs assessment and segmentation analysis of children and youth in the neighborhood during the planning grant project period and explain how it will use this needs assessment and segmentation analysis to determine the children with the highest needs and ensure that those children receive the appropriate services from the continuum of solutions. In this explanation of how it will use the needs assessment and segmentation analysis, the applicant must identify and describe in the application both the educational indicators and the family and community support indicators that the applicant will use in conducting the needs assessment during the planning year. During the planning year, the applicant must—
(a) Collect data for the educational indicators listed in Table 1 and use them as both program and project indicators;
(b) Collect data for the family and community support indicators in Table 2 and use them as program indicators; and
(c) Collect data for unique family and community support indicators, developed by the applicant, that align with the goals and objectives of projects and use them as project indicators or use the indicators in Table 2 as project indicators.
Planning grant applicants are not required to propose solutions in their applications; however, they are required to describe how they will identify solutions, including the use of available evidence, during the planning year that will result in improvements on the project indicators.
The indicators in Table 1 and Table 2 are not intended to limit an applicant from collecting and using data for additional indicators. Examples of additional indicators are—
(i) The # and % of children who participate in high-quality learning activities during out-of-school hours or in the hours after the traditional school day ends;
(ii) The # and % of children who are suspended or receive discipline referrals during the school year;
(iii) The share of housing stock in the geographically defined area that is rent-protected, publicly assisted, or targeted for redevelopment with local, State, or Federal funds; and
(iv) The # and % of children who are homeless or in foster care and who have an assigned adult advocate.
While the Department believes there are many programmatic benefits of collecting data on every child in the proposed neighborhood, the Department will consider requests to collect data on only a sample of the children in the neighborhood for some indicators so long as the applicant describes in its application how it would ensure the sample would be representative of the children in the neighborhood.
(4) Describe the experience and lessons learned, and describe how the applicant will build the capacity of its management team and project director in all of the following areas:
(a) Working with the neighborhood and its residents, including parents and families that have children or other family members with disabilities or ELs, as well as with the school(s) described in paragraph (2) of this priority; the LEA in which the school or schools are located; Federal, State, and local government leaders; and other service providers.
(b) Collecting, analyzing, and using data for decision-making, learning, continuous improvement, and accountability. The applicant must describe—
(i) Its proposal to plan to build, adapt, or expand a longitudinal data system that integrates student-level data from multiple sources in order to measure progress on educational and family and community support indicators for all children in the neighborhood, disaggregated by the subgroups listed in section 1111(b)(3)(C)(xiii) of the ESEA;
(ii) How the applicant will link the longitudinal data system to school-based, LEA, and State data systems; make the data accessible to parents, families, community residents, program partners, researchers, and evaluators while abiding by Federal, State, and other privacy laws and requirements; and manage and maintain the system;
(iii) How the applicant will use rapid-time (as defined in this notice) data both in the planning year and, once the Promise Neighborhood strategy is implemented, for continuous program improvement; and
(iv) How the applicant will document the planning process, including by describing lessons learned and best practices;
(c) Creating formal and informal partnerships, for such purposes as providing solutions along the continuum of solutions and attaining resources to sustain and scale up what works. An applicant, as part of its application, must submit a preliminary memorandum of understanding, signed by each organization or agency with which it would partner in planning the proposed Promise Neighborhood. The preliminary memorandum of understanding must describe—
(i) Each partner's financial and programmatic commitment; and
(ii) How each partner's existing vision, theory of change (as defined in this notice), theory of action (as defined in this notice), and existing activities align with those of the proposed Promise Neighborhood strategy;
(d) The governance structure proposed for the Promise Neighborhood, including a system for holding partners accountable, how the eligible entity's governing board or advisory board is representative of the geographic area proposed to be served (as defined in this notice), and how residents of the geographic area would have an active role in the organization's decision-making; and
(e) Securing and integrating funding streams from multiple public and private sources from the Federal, State, and local level. Examples of public funds include Federal resources from the U.S. Department of Education, such as the 21st Century Community Learning Centers program and title I of the ESEA, and from other Federal agencies, such as the U.S. Departments of Health and Human Services, Housing and Urban Development, Justice, Labor, and Treasury.
(5) Describe the applicant's commitment to work with the Department, and with a national evaluator for Promise Neighborhoods or another entity designated by the Department, to ensure that data collection and program design are consistent with plans to conduct a rigorous national evaluation of the Promise Neighborhoods program and of specific solutions and strategies pursued by individual grantees. This commitment must include, but need not be limited to—
(a) Ensuring that, through memoranda of understanding with appropriate entities, the national evaluator and the Department have access to relevant program and project data (
(b) Developing, in consultation with the national evaluator, an evaluation strategy, including identifying a credible comparison group; and
(c) Developing, in consultation with the national evaluator, a plan for identifying and collecting reliable and valid baseline data for both program participants and a designated comparison group of non-participants.
To meet this priority, an applicant must propose to develop a plan for implementing a Promise Neighborhood strategy that (1) Meets all of the
To meet this priority, an applicant must propose to develop a plan for implementing a Promise Neighborhood strategy that (1) Meets all of the requirements in
The Department will not review or award points under any competitive preference priority for an application that (1) fails to clearly identify the competitive preference priority or two priorities it wishes the Department to consider for purposes of earning the competitive preference priority points, or (2) identifies more than two competitive preference priorities.
These priorities are:
To meet this priority, an applicant must propose to develop a plan to expand, enhance, or modify an existing network of early learning programs and services to ensure that they are high-quality and comprehensive for children from birth through the third grade. The plan must also ensure that the network establishes a high standard of quality across early learning settings and is designed to improve outcomes across multiple domains of early learning. Distinct from the early learning solutions described in paragraph (2) of
The local early learning network must address or incorporate ongoing State-level efforts regarding the major components of high-quality early learning programs and services, such as State early learning and development standards, program quality standards, comprehensive assessment systems, workforce and professional development systems, health promotion, family and community engagement, a coordinated data infrastructure, and a method of measuring, monitoring, evaluating, and improving program quality. For example, an applicant might address how the Promise Neighborhoods project will use the State's early learning standards, as applicable, and the Head Start Child Development and Early Learning Framework (Framework), as applicable, to define the expectations of what children should know and be able to do before entering kindergarten. The Framework is available on the Office of Head Start's Web site at:
These early learning opportunities must be fully accessible to individuals with disabilities, including individuals who are blind or have low vision; otherwise, the plans must describe how accommodations or modifications will be provided to ensure that the benefits of the early learning opportunities are provided to children and youth with disabilities in an equally effective and equally integrated manner.
The proposal to develop a plan for a high-quality and comprehensive local early learning network must describe the governance structure and how the applicant will use the planning year to plan solutions that address the major components of high-quality early learning programs and services as well as establish goals, strategies, and benchmarks to provide early learning programs and services that result in improved outcomes across multiple domains of early learning (as defined in this notice). An applicant addressing this priority must designate an individual responsible for overseeing and integrating the early learning initiatives and must include a resume or position description and other supporting documentation to demonstrate that the individual designated, or individual hired to carry out those responsibilities, possesses the appropriate State certification, and has experience and expertise in managing and administering high-quality early learning programs, including in coordinating across various high-quality early learning programs and services.
To meet this priority, an applicant must propose to develop a plan to ensure that almost all students in the geographic area proposed to be served have broadband internet access (as defined in this notice) at home and at school, the knowledge and skills to use broadband internet access effectively, and a connected computing device to support schoolwork.
To meet this priority, an applicant must propose to develop a plan to include opportunities for children and youth to experience and participate actively in the arts and humanities in their community so as to broaden, enrich, and enliven the educational, cultural, and civic experiences available in the neighborhood. Applicants may propose to develop plans for offering these activities in school and in out-of-school settings and at any time during the calendar year.
To meet this priority, an applicant must propose to serve geographic areas that were the subject of an affordable housing transformation pursuant to a Choice Neighborhoods or HOPE VI grant
This priority is:
To meet this priority, an applicant must propose to develop a plan that is coordinated with adult education providers serving neighborhood residents, such as those funded through the Adult Education and Family Literacy Act, as amended. Coordinated services may include adult basic and secondary education and programs that provide training and opportunities for family members and other members of the community to support student learning and establish high expectations for student educational achievement. Examples of services and programs include preparation for the General Education Development (GED) test; English literacy, family literacy, and work-based literacy training; or other training that prepares adults for postsecondary education and careers or supports adult engagement in the educational success of children and youth in the neighborhood.
The following definitions apply to this program:
(1) Include programs, policies, practices, services, systems, and supports that result in improving educational and developmental outcomes for children from cradle through college to career;
(2) Are based on the best available evidence, including, where available, strong or moderate evidence (as defined in this notice);
(3) Are linked and integrated seamlessly (as defined in this notice); and
(4) Include both education programs and family and community supports.
(1) High-quality early learning programs or services designed to improve outcomes across multiple domains of early learning for young children. Such programs must be specifically intended to align with appropriate State early learning and development standards, practices, strategies, or activities across as broad an age range as birth through third grade so as to ensure that young children enter kindergarten and progress through the early elementary school grades demonstrating age-appropriate functioning across the multiple domains;
(2) For children in preschool through the 12th grade, programs, inclusive of related policies and personnel, that are linked to improved educational outcomes. The programs—
(a) Must include effective teachers and effective principals;
(b) Must include strategies, practices, or programs that encourage and facilitate the evaluation, analysis, and use of student achievement, student growth (as defined in this notice), and other data by educators, families, and other stakeholders to inform decision-making;
(c) Must include college- and career-ready standards, assessments, and practices, including a well-rounded curriculum, instructional practices, strategies, or programs in, at a minimum, core academic subjects as defined in section 9101(11) of the ESEA, that are aligned with high academic content and achievement standards and with high-quality assessments based on those standards; and
(d) May include creating multiple pathways for students to earn regular high school diplomas (
(3) Programs that prepare students for college and career success, which may include programs that—
(a) Create and support partnerships with community colleges, four-year colleges, or universities and that help
(b) Provide dual-enrollment opportunities for secondary students to gain college credit while in high school;
(c) Provide, through relationships with businesses and other organizations, apprenticeship opportunities to students;
(d) Align curricula in the core academic subjects with requirements for industry-recognized certifications or credentials, particularly in high-growth sectors;
(e) Provide access to career and technical education programs so that individuals can attain the skills and industry-recognized certifications or credentials for success in their careers;
(f) Help college students, including CWD and ELs from the neighborhood to transition to college, persist in their academic studies in college, graduate from college, and transition into the workforce; and
(g) Provide opportunities for all youth (both in and out of school) to achieve academic and employment success by improving educational and skill competencies and providing connections to employers. Such activities may include opportunities for on-going mentoring, supportive services, incentives for recognition and achievement, and opportunities related to leadership, development, decision-making, citizenship, and community service.
(1) Significantly closed the achievement gaps between subgroups of students (as identified in section 1111(b)(3)(C)(xiii) of the ESEA) within the school or district; or
(2)(a) Demonstrated success in significantly increasing student academic achievement in the school for all subgroups of students (as identified in section 1111(b)(3)(C)(xiii) of the ESEA) in the school; and (b) made significant improvements in other areas, such as graduation rates (as defined in this notice) or recruitment and placement of effective teachers and effective principals.
(1) Is representative of the geographic area proposed to be served (as defined in this notice);
(2) Is one of the following:
(a) A nonprofit organization that meets the definition of a nonprofit under 34 CFR 77.1(c), which may include a faith-based nonprofit organization.
(b) An institution of higher education as defined by section 101(a) of the Higher Education Act of 1965, as amended.
(c) An Indian tribe (as defined in this notice);
(3) Currently provides at least one of the solutions from the applicant's proposed continuum of solutions in the geographic area proposed to be served; and
(4) Operates or proposes to work with and involve in carrying out its proposed project, in coordination with the school's LEA, at least one public elementary or secondary school that is located within the identified geographic area that the grant will serve.
(1) Child and youth health programs, such as physical, mental, behavioral, and emotional health programs (
(2) Safety programs, such as programs in school and out of school to prevent, control, and reduce crime, violence, drug and alcohol use, and gang activity; programs that address classroom and school-wide behavior and conduct; programs to prevent child abuse and neglect; programs to prevent truancy and reduce and prevent bullying and harassment; and programs to improve the physical and emotional security of the school setting as perceived, experienced, and created by students, staff, and families;
(3) Community stability programs, such as programs that—
(a) Increase the stability of families in communities by expanding access to quality, affordable housing, providing legal support to help families secure clear legal title to their homes, and providing housing counseling or housing placement services;
(b) Provide adult education and employment opportunities and training to improve educational levels, job skills and readiness in order to decrease unemployment, with a goal of increasing family stability;
(c) Improve families' awareness of, access to, and use of a range of social services, if possible at a single location;
(d) Provide unbiased, outcome-focused, and comprehensive financial education, inside and outside the classroom and at every life stage;
(e) Increase access to traditional financial institutions (
(f) Help families increase their financial literacy, financial assets, and savings; and
(g) Help families access transportation to education and employment opportunities;
(4) Family and community engagement programs that are systemic, integrated, sustainable, and continue through a student's transition from K–12 school to college and career. These programs may include family literacy programs and programs that provide adult education and training and opportunities for family members and other members of the community to support student learning and establish high expectations for student educational achievement; mentorship programs that create positive relationships between children and adults; programs that provide for the use of such community resources as libraries, museums, television and radio stations, and local businesses to support improved student educational outcomes; programs that support the engagement of families in early learning programs and services; programs that provide guidance on how to navigate through a complex school system and how to advocate for more and improved learning opportunities; and programs that promote collaboration with educators and community organizations to improve opportunities for healthy development and learning; and
(5) 21st century learning tools, such as technology (
This definition is not meant to prevent a grantee from also collecting information about the reasons why students do not graduate from the target high school,
(1) Education need, which means—
(a) All or a portion of the neighborhood includes or is within the attendance zone of a low-performing school that is a high school, especially one in which the graduation rate (as defined in this notice) is less than 60 percent or a school that can be characterized as low-performing based on another proxy indicator, such as students' on-time progression from grade to grade; and
(b) Other indicators, such as significant achievement gaps between subgroups of students (as identified in section 1111(b)(3)(C)(xiii) of the ESEA) within a school or LEA, high teacher and principal turnover, or high student absenteeism; and
(2) Family and community support need, which means—
(a) Percentages of children with preventable chronic health conditions (
(b) Immunization rates;
(c) Rates of crime, including violent crime;
(d) Student mobility rates;
(e) Teenage birth rates;
(f) Percentage of children in single-parent or no-parent families;
(g) Rates of vacant or substandard homes, including distressed public and assisted housing; or
(h) Percentage of the residents living at or below the Federal poverty threshold.
(1) Developmental assets that allow residents to attain the skills needed to be successful in all aspects of daily life (
(2) Commercial assets that are associated with production, employment, transactions, and sales (
(3) Recreational assets that create value in a neighborhood beyond work and education (
(4) Physical assets that are associated with the built environment and physical infrastructure (
(5) Social assets that establish well-functioning social interactions (
(1) Any school receiving assistance through Title I that is in improvement, corrective action, or restructuring and that—
(a) Is among the lowest-achieving five percent of Title I schools in improvement, corrective action, or restructuring or the lowest-achieving five Title I schools in improvement, corrective action, or restructuring in the State, whichever number of schools is greater; or
(b) Is a high school that has had a graduation rate that is less than 60 percent over a number of years; and
(2) Any secondary school that is eligible for, but does not receive, Title I funds that—
(a) Is among the lowest-achieving five percent of secondary schools or the lowest-achieving five secondary schools in the State that are eligible for, but do not receive, Title I funds, whichever number of schools is greater; or
(b) Is a high school that has had a graduation rate that is less than 60 percent over a number of years.
(1) Residents who live in the geographic area proposed to be served, which may include residents who are representative of the ethnic and racial composition of the neighborhood's residents and the languages they speak;
(2) Residents of the city or county in which the neighborhood is located but who live outside the geographic area proposed to be served, and who are low-income (which means earning less than 80 percent of the area's median income as published by the Department of Housing and Urban Development);
(3) Public officials (as defined in this notice) who serve the geographic area proposed to be served (although not more than one-half of the governing board or advisory board may be made up of public officials); or
(4) Some combination of individuals from the three groups listed in paragraphs (1), (2), and (3) of this definition.
(1) Is served by an LEA that is currently eligible under the Small Rural School Achievement (SRSA) program or the Rural and Low-Income School (RLIS) program authorized under Title VI, Part B of the ESEA. Applicants may determine whether a particular LEA is eligible for these programs by referring to information on the following Department Web sites. For the SRSA program:
(2) Includes only schools designated with a school locale code of 42 or 43. Applicants may determine school locale codes by referring to the following Department Web site:
The analysis is intended to allow grantees to differentiate and more effectively target interventions based on what they learn about the needs of different populations in the geographic area.
(1) For tested grades and subjects:
(a) A student's score on the State's assessments under the ESEA; and, as appropriate,
(b) Other measures of student learning, such as those described in paragraph (2) of this definition, provided they are rigorous and comparable across classrooms and programs.
(2) For non-tested grades and subjects: alternative measures of student learning and performance, such as student scores on pre-tests and end-of-course tests; student performance on English language proficiency assessments; and other measures of student achievement that are rigorous and comparable across classrooms.
This definition is not meant to limit a grantee from also collecting information about why students enter or withdraw from the school,
20 U.S.C. 7243–7243b.
The regulations in 34 CFR Part 79 apply to all applicants except Federally recognized Indian tribes.
The regulations in 34 CFR Part 86 apply to institutions of higher education only.
These estimated available funds are only for Planning grants under the Promise Neighborhoods program.
Contingent upon the availability of funds and the quality of the applications received, we may make additional awards in FY 2012 or later years from the list of unfunded applicants from this competition.
The maximum award amount is $500,000 per 12-month budget period. We may choose not to further consider or review applications with budget requests for any 12-month budget period that exceed this amount, if we conclude, during our initial review of the application, that the proposed goals and objectives cannot be obtained with the specified maximum amount.
The Department is not bound by any estimates in this notice.
1.
2.
To be eligible for a planning grant under this competition, an applicant must demonstrate that it has established a commitment from one or more entities in the public or private sector, which may include Federal, State, and local
Both planning and implementation applicants must demonstrate a commitment of matching funds in the applications. The applicants must specify the source of the funds or contributions and in the case of a third-party in-kind contribution, a description of how the value was determined for the donated or contributed goods or service. Applicants must demonstrate the match commitment by including letters in their applications explaining the type and quantity of the match commitment with original signatures from the executives of organizations or agencies providing the match. The Secretary may consider decreasing the matching requirement in the most exceptional circumstances, on a case-by-case basis.
An applicant that is unable to meet the matching requirement must include in its application a request to the Secretary to reduce the matching requirement, including the amount of the requested reduction, the total remaining match contribution, and a statement of the basis for the request. An applicant should review the Department's cost-sharing and cost-matching regulations, which include specific limitations in 34 CFR 74.23 applicable to non-profit organizations and institutions of higher education and 34 CFR 80.24 applicable to State, local, and Indian tribal governments, and the Office of Management and Budget (OMB) cost principles regarding donations, capital assets, depreciations and allowable costs. These circulars are available on OMB's Web site at
3.
1.
If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2.
We will be able to develop a more efficient process for reviewing grant applications if we know the approximate number of applicants that intend to apply for funding under this competition. Therefore, the Secretary strongly encourages each potential applicant to notify us of the applicant's intent to submit an application for funding by completing a web-based form. When completing this form, applicants will provide (1) The applicant organization's name and address, and (2) the type of grant for which the applicant intends to apply. Applicants may access this form online at
Page Limit: The application narrative (Part III of the application) is where you, the applicant, address the selection criteria that reviewers use to evaluate your application. You are strongly encouraged to limit the application narrative [Part III] for a planning application to no more than 40 pages, using the following standards:
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative. Text in charts, tables, figures, and graphs may be single-spaced.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts is strongly encouraged: Times New Roman, Courier, Courier New, or Arial.
The suggested page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the page limit does apply to all of the application narrative section [Part III].
3.
Applications for grants under this competition must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 7.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the Central Contractor Registry (CCR), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active CCR registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one business day.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow 2–5 weeks for your TIN to become active.
The CCR registration process may take five or more business days to complete. If you are currently registered with the CCR, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your CCR registration on an annual basis. This may take three or more business days to complete.
In addition, if you are submitting your application via Grants.gov, you must (1) Be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined in the Grants.gov 3–Step Registration Guide (
7.
Applications for grants under this competition must be submitted electronically unless you qualify for an exception to this requirement in accordance with the instructions in this section.
a.
Applications for grants under the Promise Neighborhoods Program—CFDA Number 84.215P (Planning grants) must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement and submit, no later than two weeks before the application deadline date, a written statement to the Department that you qualify for one of these exceptions. Further information regarding calculation of the date that is two weeks before the application deadline date is provided later in this section under
You may access the electronic grant application for Promise Neighborhoods Planning Grant Competition at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: The Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a .PDF (Portable Document) format only. If you upload a file type other than a .PDF or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system; and
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevents you from using the Internet to submit your application. If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Jane Hodgdon, U.S. Department of Education, 400 Maryland Avenue, SW., Room 4W220, Washington, DC. FAX: (202) 401–4123.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.215P), LBJ Basement Level 1, 400 Maryland Avenue, SW., Washington, DC 20202–4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application, by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA 84.215P), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202–4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245–6288.
1.
A.
The Secretary considers the need for the proposed project.
In determining the need for the proposed project, the Secretary considers—
(1) The magnitude or severity of the problems to be addressed by the proposed project as described by indicators of need and other relevant indicators (10 points); and
(2) The extent to which the geographically defined area has been described (5 points).
B.
The Secretary considers the quality of the design of the proposed project.
In determining the quality of the design of the proposed project, the Secretary considers—
(1) The extent to which the continuum of solutions will be aligned with an ambitious, rigorous, and comprehensive strategy for improvement of schools in the neighborhood (10 points);
(2) The extent to which the applicant describes a proposal to plan to create a complete continuum of solutions, including early learning through grade 12, college- and career-readiness, and
(3) The extent to which solutions leverage existing neighborhood assets and coordinate with other efforts, including programs supported by Federal, State, local, and private funds (5 points).
C.
The Secretary considers the quality of the services to be provided by the proposed project.
In determining the quality of the project services, the Secretary considers—
(1) The extent to which the applicant describes how the needs assessment and segmentation analysis, including identifying and describing indicators, will be used during the planning phase to determine each solution within the continuum (10 points); and
(2) The extent to which the applicant describes how it will determine that solutions are based on the best available evidence including, where available, strong or moderate evidence, and ensure that solutions drive results and lead to changes on indicators (10 points).
D.
The Secretary considers the quality of the management plan for the proposed project.
In determining the quality of the management plan for the proposed project, the Secretary considers the experience, lessons learned, and proposal to build capacity of the applicant's management team and project director in all of the following areas—
(1) Working with the neighborhood and its residents; the schools described in paragraph (2)(b) of Absolute Priority 1; the LEA in which those schools are located; Federal, State, and local government leaders; and other service providers (10 points);
(2) Collecting, analyzing, and using data for decision-making, learning, continuous improvement, and accountability (15 points);
(3) Creating formal and informal partnerships, including the alignment of the visions, theories of action, and theories of change described in its memorandum of understanding, and creating a system for holding partners accountable for performance in accordance with the memorandum of understanding (10 points); and
(4) Integrating funding streams from multiple public and private sources, including its proposal to leverage and integrate high-quality programs in the neighborhood into the continuum of solutions (10 points).
2.
The Department will use independent reviewers from various backgrounds and professions including: Pre-kindergarten-12 teachers and principals, college and university educators, researchers and evaluators, social entrepreneurs, strategy consultants, grant makers and managers, and others with education expertise. The Department will thoroughly screen all reviewers for conflicts of interest to ensure a fair and competitive review process.
Reviewers will read, prepare a written evaluation, and score the applications assigned to their panel, using the selection criteria provided in this notice.
For applications addressing Absolute Priority 1, Absolute priority 2, and Absolute Priority 3, the Secretary prepares a rank order of applications for each absolute priority based solely on the evaluation of their quality according to the selection criteria. The Department may use more than one tier of reviews in determining grantees. Additional information about the review process will be published on the Department's Web site.
We remind potential applicants that in reviewing applications in any discretionary grant competition, the Secretary may consider, under 34 CFR 75.217(d)(3), the past performance of the applicant in carrying out a previous award, such as the applicant's use of funds, achievement of project objectives, and compliance with grant conditions. The Secretary may also consider whether the applicant failed to submit a timely performance report or submitted a report of unacceptable quality.
In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
4.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
4.
Jane Hodgdon, U.S. Department of Education, 400 Maryland Avenue, SW., room 4W220, Washington, DC 20202–5900. Telephone: (202) 453–6615 or by e-mail:
If you use a TDD, call the FRS, toll free, at 1–800–877–8339.
You may also access documents of the Department published in the
Securities and Exchange Commission.
Final rule.
The Securities and Exchange Commission (the “Commission”) is adopting rules to implement new exemptions from the registration requirements of the Investment Advisers Act of 1940 for advisers to certain privately offered investment funds; these exemptions were enacted as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”). As required by Title IV of the Dodd-Frank Act—the Private Fund Investment Advisers Registration Act of 2010—the new rules define “venture capital fund” and provide an exemption from registration for advisers with less than $150 million in private fund assets under management in the United States. The new rules also clarify the meaning of certain terms included in a new exemption from registration for “foreign private advisers.”
Brian McLaughlin Johnson, Tram N. Nguyen or David A. Vaughan, at (202) 551–6787 or
The Commission is adopting rules 203(l)–1, 203(m)–1 and 202(a)(30)–1 (17 CFR 275.203(l)–1, 275.203(m)–1 and 275.202(a)(30)–1) under the Investment Advisers Act of 1940 (15 U.S.C. 80b) (the “Advisers Act”).
On July 21, 2010, President Obama signed into law the Dodd-Frank Act,
The primary purpose of Congress in repealing section 203(b)(3) was to require advisers to “private funds” to register under the Advisers Act.
Each private fund advised by an adviser has typically qualified as a single client for purposes of the private adviser exemption.
In Title IV of the Dodd-Frank Act (“Title IV”), Congress generally extended Advisers Act registration to advisers to hedge funds and many other private funds by eliminating the private adviser exemption.
Section 203(b)(3) of the Advisers Act, as amended by the Dodd-Frank Act, provides an exemption for certain foreign private advisers (the “foreign private adviser exemption”).
These new exemptions are not mandatory.
On November 19, 2010, the Commission proposed three rules that would implement these exemptions.
We received over 115 comment letters in response to our proposals to implement the new exemptions.
Today, the Commission is adopting rules to implement the three new exemptions from registration under the Advisers Act. In response to comments, we have made several modifications to the proposals. In a separate companion release (the “Implementing Adopting Release”) we are adopting rules to implement other amendments made to the Advisers Act by the Dodd-Frank Act, some of which also concern certain advisers that qualify for the exemptions discussed in this Release.
We are adopting new rule 203(l)–1 to define “venture capital fund” for purposes of the new exemption for investment advisers that advise solely venture capital funds.
The proposed rule defined the term venture capital fund in accordance with what we believed Congress understood venture capital funds to be, as reflected in the legislative materials, including the testimony Congress received.
We received over 70 comment letters on the proposed venture capital fund definition, most of which were from venture capital advisers or related industry groups.
Generally, however, our proposal prompted vigorous debate among commenters on the scope of the definition. For example, a number of commenters wanted us to take a different approach from the proposal and supported two alternatives. Two commenters urged us to rely on the California definition of “venture capital
Several other commenters favored defining a venture capital fund by reference to investments in “small” businesses or companies, although they disagreed on the factors that would deem a business or company to be “small.”
Unlike the commenters who suggested these alternative approaches, most commenters representing venture capital advisers and related groups accepted the approach of the proposed rule, and many of them acknowledged that the proposed definition would generally encompass most venture capital investing activity that typically occurs.
Commenters wanted advisers seeking to be eligible for the venture capital exemption to have greater flexibility to operate and invest in portfolio companies and to accommodate existing (and potentially evolving) business practices that may vary from what commenters characterized as typical venture capital fund practice.
We are sensitive to commenters' concerns that the definition not operate to foreclose investment funds from investment opportunities that would benefit investors but would not change the character of a venture capital fund.
To balance these competing considerations, we are adopting an approach suggested by several commenters that defines a venture capital fund to include a fund that invests a portion of its capital in investments that would not otherwise satisfy all of the elements of the rule (“non-qualifying basket”).
Commenters suggested non-qualifying baskets ranging from 15 to 30 percent of a fund's capital commitments, although many of these same commenters wanted us to expand the other criteria of the proposed rule.
On balance, and after giving due consideration to the approaches suggested by commenters, we are adopting a limit of 20 percent of a qualifying fund's capital commitments for non-qualifying investments. We believe that a 20 percent limit will provide the flexibility sought by many venture capital fund commenters while appropriately limiting the scope of the exemption. We note that several commenters recommended a non-qualifying basket limit of 20 percent.
We considered adopting a 40 percent basket for non-qualifying investments by analogy to the Advisers Act definition of BDC.
Under the rule, to meet the definition of venture capital fund, the fund must hold, immediately after the acquisition of any asset (other than qualifying investments or short-term holdings), no more than 20 percent of the fund's capital commitments in non-qualifying investments (other than short-term holdings).
For purposes of the rule, a “qualifying investment,” which we discuss in greater detail below, generally consists of any equity security issued by a qualifying portfolio company that is directly acquired by a qualifying fund and certain equity securities exchanged for the directly acquired securities.
Rule 203(l)–1 defines a venture capital fund as a private fund that, excluding investments in short-term holdings and non-qualifying investments, generally holds equity securities of qualifying portfolio companies.
We proposed to define “equity security” by reference to the Exchange Act.
We recognize that a venture capital fund may, on occasion, make investments other than in equity securities.
The final rule incorporates the definition of equity security in section 3(a)(11) of the Exchange Act and rule 3a11–1 thereunder.
Rule 203(l)–1 defines a venture capital fund as a private fund that holds no more than 20 percent of the fund's capital commitments in non-qualifying investments (other than short-term holdings). Under the final rule, qualifying investments are generally equity securities that were acquired by the fund in one of three ways that suggest that the fund's capital is being used to finance the operations of businesses rather than for trading in secondary markets. As discussed in greater detail below, rule 203(l)–1 defines a “qualifying investment” as: (i) Any equity security issued by a qualifying portfolio company that is directly acquired by the private fund from the company (“directly acquired equity”); (ii) any equity security issued by a qualifying portfolio company in exchange for directly acquired equity issued by the same qualifying portfolio company; and (iii) any equity security issued by a company of which a qualifying portfolio company is a majority-owned subsidiary, or a predecessor, and that is acquired by the fund in exchange for directly acquired equity.
In the Proposing Release we explained that one of the features of venture capital funds that distinguish them from hedge funds and private equity funds is that they invest capital directly in portfolio companies for the purpose of funding the expansion and development of the companies' business rather than buying out existing security holders.
A few commenters objected to any limitation on secondary market purchases of a qualifying portfolio company's shares,
We are, however, making two changes in this provision in response to commenters. First, we have eliminated the 20 percent limit for secondary market transactions that we included in this provision in our proposal in favor of the broader 20 percent limit for assets that are not qualifying investments.
We believe that the limit on secondary purchases remains an important element for distinguishing advisers to venture capital funds from advisers to the types of private equity funds for which Congress did not provide an exemption.
Second, the final rule defines qualifying investments as including equity securities issued by the qualifying portfolio company that are received in exchange for directly acquired equities issued by the same qualifying portfolio company.
The rule similarly treats as a qualifying investment any equity security issued by another company in exchange for directly acquired equities of a qualifying portfolio company, provided that the qualifying portfolio company becomes a majority-owned subsidiary of the other company or is a predecessor company.
A “majority-owned subsidiary” is defined by reference to section 2(a)(24) of the Investment Company Act, (15 U.S.C. 80a2(a)(24), which defines a “majority-owned subsidiary” of any person as “a company 50 per centum or more of the outstanding voting securities of which are owned by such person, or by a company which, within the meaning of this paragraph, is a majority-owned subsidiary of such person.”
Under the rule, to meet the definition of venture capital fund, a qualifying fund must hold, immediately after the acquisition of any asset (other than qualifying investments or short-term holdings), no more than 20 percent of the fund's capital commitments in non-qualifying investments (other than short-term holdings).
As discussed above, most commenters supporting a basket for non-qualifying investments recommended a limit expressed as a percentage of fund capital commitments.
We are persuaded that the non-qualifying basket should be based on a qualifying fund's total capital commitments, and the fund's compliance with the 20 percent limit should be calculated at the time any non-qualifying investment is made, based on the non-qualifying investments then held in the fund's portfolio.
We acknowledge that limiting non-qualifying investments to a percentage of fund capital commitments could result in a qualifying fund that invests its initial capital call in non-qualifying investments;
Moreover, we believe that by applying the 20 percent limit as of the time of acquisition of each non-qualifying investment, a fund is able to determine prospectively how much it can invest in the non-qualifying basket. We believe that this simpler approach to determining the non-qualifying basket would better limit a qualifying fund's non-qualifying investments and ease the burden of determining compliance with the criterion under the rule.
To determine compliance with the 20 percent limit, a venture capital fund would, immediately after the acquisition of any non-qualifying investment, excluding any short-term holdings,
To determine if a fund satisfies the 20 percent limit for non-qualifying investments, the fund may use either historical cost or fair value, as long as the same method is applied to all investments of a qualifying fund in a consistent manner during the term of the fund.
Our rule's approach to the valuation method, which allows the use of historical cost in determining compliance with the non-qualifying basket limit, is similar in this respect to rules under the Employee Retirement Income Security Act of 1974 (“ERISA”) for funds qualifying as “venture capital operating companies,” which generally specify that the value of a fund's investments is determined on a cost basis.
A qualifying fund may also invest in cash and cash equivalents, U.S. Treasuries with a remaining maturity of 60 days or less and shares of registered money market funds.
Most commenters that addressed the cash element of the proposal did not disagree with our approach to the cash element but urged us to expand it to include money market funds,
The Commission recognizes that a broader definition of short-term holdings could yield venture capital funds greater returns.
The rule defines short-term holdings to include “cash and cash equivalents” by reference to rule 2a51–1(b)(7)(i) under the Investment Company Act.
Under the rule, qualifying investments generally consist of equity securities issued by a qualifying portfolio company. A “qualifying portfolio company” is defined as any company that: (i) Is not a reporting or foreign traded company and does not have a control relationship with a reporting or foreign traded company; (ii) does not incur leverage in connection with the investment by the private fund and distribute the proceeds of any such borrowing to the private fund in exchange for the private fund investment; and (iii) is not itself a fund (
Under the rule, a qualifying portfolio company is defined as a company that, at the time of any investment by a qualifying fund, is not a “reporting or foreign traded” company (a “reporting company”) and does not control, is not controlled by or under common control with, a reporting company.
As we discussed in the Proposing Release, venture capital funds provide operating capital to companies in the early stages of their development with the goal of eventually either selling the company or taking it public.
Several commenters asserted that the definition should not exclude securities of reporting companies.
We understand that venture capital funds seek flexibility to invest in promising portfolio companies, including companies deemed sufficiently profitable to become reporting companies or companies that may be owned directly or indirectly by a public company. Rather than modify the rule to impose additional criteria for investing in reporting companies, however, we have adopted a limit of 20 percent for non-qualifying investments, which may be used to hold securities of reporting companies. We believe that the 20 percent limit appropriately balances commenters' expressed desire for greater flexibility to accommodate existing business practices while providing sufficient limits on the extent of investments that would implicate Congressional statements regarding the interconnectedness of venture capital funds with the public markets.
Under our rule, a qualifying portfolio company is defined to include a company that is not a reporting company (and does not have a control relationship with a reporting company) at the time of each fund investment.
Rule 203(l)–1 defines a qualifying portfolio company for purposes of the exemption as one that does not borrow or issue debt obligations in connection with the venture capital fund's investment in the company and distribute to the fund the proceeds of such borrowing or issuance in exchange for the fund's investment.
We proposed to define a qualifying portfolio company as a company that does not borrow “in connection” with a venture capital fund investment. We also proposed to define a qualifying portfolio company as a company that does not participate in an indirect buyout involving a qualifying fund (as a corollary to our proposed limitation on venture capital fund acquisitions of portfolio company securities through secondary transactions,
Some commenters argued that defining a venture capital fund as a fund that does not participate in buyouts was too restrictive or too difficult to apply.
We have eliminated the proposed indirect buyout criterion in the final rule. Because the non-qualifying basket does not exclude secondary market transactions (or other buyouts of existing security holders), it would be inconsistent to define a venture capital fund as a fund that does not participate in a buyout.
We are retaining and clarifying, however, the leveraged buyout criterion as it relates to qualifying portfolio companies. We had proposed to define a qualifying portfolio company as a company that, among other things, does not borrow “in connection” with a venture capital fund investment. As noted above, we proposed this element to distinguish venture capital funds from leveraged buyout funds, and we continue to believe that this remains an important distinction. We believe that these differences (
One of the distinguishing features of venture capital funds is that, unlike many hedge funds and private equity funds, they invest capital directly in portfolio companies for the purpose of funding the expansion and development of the company's business rather than buying out existing security holders, otherwise purchasing securities from other shareholders, or leveraging the capital investment with debt financing.
In contrast, private equity funds that are identified as buyout funds typically provide capital to an operating company in exchange for majority or complete ownership of the company,
Some commenters agreed that distinguishing between venture capital and other private funds with reference to a portfolio company's leverage and indirect buyouts is important.
Some commenters argued that the proposed “in connection with” element would be difficult to apply, arguing that the standard was too vague or raised too many interpretative issues.
After careful consideration of the intended purpose of the leverage limitation of the proposed rule and the concerns raised by commenters, we are modifying the qualifying portfolio company leverage criterion to define a qualifying portfolio company as any company that does not both borrow (or issue debt) in connection with a venture capital fund investment
This definition of qualifying portfolio company would only exclude companies that borrow in connection with a venture capital fund's investment and distribute such borrowing proceeds to the venture capital fund in exchange for the investment, but would not exclude companies that borrow in the ordinary course of their business (
Rule 203(l)–1 defines the term qualifying portfolio company for the purposes of the exemption to exclude any private fund or other pooled investment vehicle.
Moreover, without this definitional criterion, a qualifying fund could circumvent the intended scope of the rule by investing in other pooled investment vehicles that are not themselves subject to the definitional criteria under our rule.
Many commenters opposed the operating company criterion and recommended that the rule include fund of venture capital fund structures.
For purposes of the definition of a qualifying portfolio company, we agree that a fund may disregard a wholly owned intermediate holding company formed solely for tax, legal or regulatory reasons to hold the fund's investment in a qualifying portfolio company. Such structures are used to address the particular needs of venture capital funds or their investors and are not intended to circumvent the rule's general limitation on investing in other investment vehicles.
We do not agree, however, that Congress viewed funds of venture capital funds as being consistent with the exemption, and continue to believe that this criterion remains an important tool to prevent circumvention of the intended scope of the venture capital exemption. A fund strategy of selecting a venture capital or other private fund in which to invest is different from a strategy of selecting qualifying portfolio companies. Nevertheless, we are persuaded that a venture capital fund's limited ability to invest a limited portion of its assets in other pooled investment vehicles would not be inconsistent with the intent of the rule if the fund primarily invests directly in qualifying portfolio companies. As a result, for purposes of the exemption, investments in other private funds or venture capital funds could be made using the non-qualifying basket.
We are not adopting a managerial assistance element of the rule, as originally proposed. We proposed that advisers seeking to rely on the rule have a significant level of involvement in developing a fund's portfolio companies.
Commenters presented several problems with the application of the managerial assistance criterion and its intended scope under the proposed rule. Some objected to the managerial assistance criterion as proposed, arguing that such assistance to (or control of) a portfolio company is not a key or distinguishing characteristic of venture capital investing;
Most commenters sought guidance on determining what activities would constitute managerial assistance or “control.”
We appreciate the difficulties of applying the managerial assistance criterion under the proposed definition and in particular the issues associated with a qualifying fund proving compliance when it participates in a syndicated transaction involving multiple funds. We are persuaded that to modify the rule to specify which activities constitute “managerial assistance” would introduce additional complexity and require us to insert our judgment for that of a venture capital fund's adviser regarding the minimum level of portfolio company involvement that would be appropriate for the fund, rather than enabling investors to select venture capital funds based in part on their level of involvement.
While many venture capital fund advisers do provide managerial assistance, we believe that the managerial assistance criterion, as proposed, does not distinguish these advisers from other advisers, would be difficult to apply and could be unnecessarily prescriptive without creating benefits for investors. As a consequence of our modification to the proposed rule, a qualifying fund is not required to offer (or provide) managerial assistance to, or control any, qualifying portfolio company in order to satisfy the definition.
Under rule 203(l)–1, a venture capital fund is a private fund that does not borrow, issue debt obligations, provide guarantees or otherwise incur leverage, in excess of 15 percent of the fund's capital contributions and uncalled committed capital, and any such borrowing, indebtedness, guarantee or leverage is for a non-renewable term of no longer than 120 calendar days.
The 15 percent threshold is determined based on the venture capital fund's aggregate capital commitments. In practice, this means that a qualifying fund could leverage an investment transaction up to 100 percent when acquiring equity securities of a particular portfolio company as long as the leverage amount does not exceed 15 percent of the fund's total capital commitments.
Although a minority of commenters generally supported the leverage criterion as proposed,
Other commenters proposed to exclude from the 15 percent leverage limitation capital call lines of credit (
We decline to increase the leverage threshold for a qualifying fund under the rule or exclude other certain types of borrowings as requested by some commenters. Our rule defines a venture capital fund by reference to a maximum of 15 percent of borrowings based on our understanding that venture capital funds typically would not incur borrowings in excess of 10 to 15 percent of the fund's total capital contributions and uncalled capital commitments,
Our rule specifies that the 15 percent calculation must be determined based on the fund's aggregate capital contributions and uncalled capital commitments.
Thus, we are retaining the 15 percent leverage threshold, as proposed, so that a qualifying fund could only incur debt (or provide guarantees of portfolio company obligations) subject to this threshold. However, we are modifying the leverage criterion to exclude from the 120-calendar day limit any guarantee of qualifying portfolio company obligations by the qualifying fund, up to the value of the fund's investment in the qualifying portfolio company.
We understand that guarantees of portfolio company leverage by a venture capital fund are typically limited to the value of the fund's investment in the company (often through a pledge of the fund's interest in the company).
We are adopting as proposed the definitional element under which a venture capital fund is a private fund that issues securities that do not provide investors redemption rights except in “extraordinary circumstances” but that entitle investors generally to receive
Although venture capital funds typically return capital and profits to investors only through
Most commenters addressing the redeemability criterion did not oppose it, but rather sought clarification or guidance on the scope of its application.
We believe that the term “extraordinary circumstances” is sufficiently clear. Whether or not specific redemption or “opt out” rights for certain categories of investors under certain circumstances should be treated as “extraordinary” will depend on the particular facts and circumstances.
For these purposes, for example, a fund that permits quarterly or other periodic withdrawals would be considered to have granted investors redemption rights in the ordinary course even if those rights may be subject to an initial lock-up or suspension or restrictions on redemption. We believe, and several commenters confirmed, that the phrase “extraordinary circumstances” is sufficiently clear to distinguish the terms for investor liquidity of venture capital funds, as they operate today, from hedge funds.
In the Proposing Release, we expressed the general concern that a venture capital fund might seek to circumvent the intended scope of this criterion by providing investors with nominally “extraordinary” rights to redeem that effectively result in
We are not modifying the rule to include additional conditions for fund redemptions, such as specifying a minimum holding or investment period by investors or a maximum amount that may be redeemed at any time. Commenters generally did not support
Under the rule, a qualifying fund must represent itself as pursuing a venture capital strategy to its investors and potential investors.
As proposed, rule 203(l)–1 defined a venture capital fund as a private fund that “represents itself as being a venture capital fund to its investors and potential investors.”
We believe that the “holding out” criterion remains an important distinction between funds that are eligible to rely on the definition and funds that are not, because an investor's understanding of the fund and its investment strategy must be consistent with an adviser's reliance on the exemption. However, we also recognize that it is not necessary (nor indeed sufficient) for a qualifying fund to name itself as a “venture capital fund” in order for its adviser to rely on the venture capital exemption. Hence, we are modifying the proposed definition to refer to the way a qualifying fund describes its investment strategy to investors and prospective investors.
A qualifying fund name that does not use the words “venture capital” and is not inconsistent with pursuing a venture capital strategy would not preclude a qualifying fund from satisfying the definition.
This approach is similar to our general approach to antifraud provisions under the Federal securities laws, including Advisers Act rule 206(4)–8 regarding pooled investment vehicles.
We define a venture capital fund for purposes of the exemption as a private fund, which is defined in the Advisers Act, and exclude from the definition funds that are registered investment companies (
There is no indication that Congress intended the venture capital exemption to apply to advisers to these publicly available funds,
The final rule does not define a venture capital fund as a fund advised by a U.S. adviser (
Neither the statutory text of section 203(l) nor the legislative reports provide an indication of whether Congress intended the exemption to be available to advisers that operate principally outside of the United States but that invest in U.S. companies or solicit U.S. investors.
Commenters generally did not support defining venture capital fund or qualifying portfolio company by reference to the jurisdiction of formation of the fund or portfolio company.
We do not agree that the private fund adviser exemption is the appropriate framework for the venture capital exemption in the case of non-U.S. advisers. Section 203(l) provides an exemption for an investment adviser based on the strategy of the funds that the adviser manages (
Under our rule, only a private fund may qualify as a venture capital fund. As we noted in the Proposing Release, a non-U.S. fund that uses U.S. jurisdictional means in the offering of the securities it issues and that relies on section 3(c)(1) or 3(c)(7) of the Investment Company Act would be a private fund.
In light of this result, we asked in the Proposing Release whether we should adopt a broader interpretation of the term “private fund.”
Under the rule, the definition of “venture capital fund” includes any private fund that: (i) Represented to investors and potential investors at the time the fund offered its securities that it pursues a venture capital strategy; (ii) has sold securities to one or more investors prior to December 31, 2010; and (iii) does not sell any securities to, including accepting any capital commitments from, any person after July 21, 2011 (the “grandfathering provision”).
Although several commenters expressed support for the proposed rule,
As in the case of the holding out criterion discussed above, this element of the grandfathering provision elicited the most comments. Generally, commenters either (i) did not support a grandfathering provision that defined a venture capital fund as a fund that identified itself (or called itself) “venture capital,”
As discussed above, we believe that the “holding out” requirement is an important prophylactic tool to prevent circumvention of the intended scope of the venture capital exemption. Thus, we are adopting the grandfathering provision as proposed, with the modifications to the holding out criterion discussed above.
Thus, under the rule, an investment adviser may treat any existing private fund as a venture capital fund for purposes of section 203(l) of the Advisers Act if the fund meets the elements of the grandfathering provision. The current private adviser exemption does not require an adviser to identify or characterize itself as any type of adviser (or impose limits on advising any type of fund). Accordingly, we believe that advisers have not had an incentive to mis-characterize the investment strategies pursued by existing venture capital funds that have already been marketed to investors. As we note above, a fund that “represents” itself to investors as pursuing a venture capital strategy is typically one that discloses it pursues a venture capital strategy and identifies itself as such.
We believe that most funds previously sold as venture capital funds likely would satisfy all or most of the conditions in the grandfathering provision. Nevertheless, we recognize that investment advisers that sponsored new funds before the adoption of rule 203(l)–1 faced uncertainty regarding the precise terms of the definition and hence uncertainty regarding their eligibility for the new exemption. Thus, as proposed, the grandfathering provision specifies that a qualifying fund must have commenced its offering (
Section 203(m) of the Advisers Act directs the Commission to exempt from registration under the Advisers Act any investment adviser solely to private funds that has less than $150 million in assets under management in the United States.
Rule 203(m)–1, like section 203(m), limits an adviser relying on the exemption to those advising “private funds” as that term is defined in the Advisers Act.
In the case of an adviser with a principal office and place of business outside of the United States (a “non-U.S. adviser”), the exemption is available as long as all of the adviser's clients that are United States persons are qualifying private funds.
Some commenters urged that the rule should also permit U.S. advisers relying on the exemption to advise other types of clients.
Some commenters suggested that the rule permit advisers to combine other exemptions with rule 203(m)–1 so that, for example, an adviser could advise venture capital funds with assets under management in excess of $150 million in addition to other types of private funds with less than $150 million in assets under management.
A few commenters also asked us to address whether a fund with a single investor could be a “private fund” for purposes of the exemption.
One commenter argued that advisers should be permitted to treat as a private fund for purposes of rule 203(m)–1 a fund that also qualifies for another exclusion from the definition of “investment company” in the Investment Company Act in addition to section 3(c)(1) or 3(c)(7), such as section 3(c)(5)(C), which excludes certain real estate funds.
The commenter argued, and we agree, that an adviser should nonetheless be permitted to advise such a fund and still rely on the exemption. Otherwise, for example, an adviser to a section 3(c)(1) or 3(c)(7) fund would lose the exemption if the fund also qualified for another exclusion, even though the adviser may be unaware of the fund so qualifying and the fund does not purport to rely on the other exclusion. We do not believe that Congress intended that an adviser would lose the exemption in these circumstances. Accordingly, the definition of a “qualifying private fund” in rule 203(m)–1 permits an adviser to treat as a private fund for purposes of the exemption a fund that qualifies for an exclusion from the definition of investment company as defined in section 3 of the Investment Company Act in addition to the exclusions provided by section 3(c)(1) or 3(c)(7).
An adviser relying on this provision must treat the fund as a private fund under the Advisers Act and the rules thereunder for all purposes.
Under rule 203(m)–1, an adviser must aggregate the value of all assets of private funds it manages to determine if the adviser is below the $150 million threshold.
In the Implementing Adopting Release, we are revising the instructions to Form ADV to provide a uniform method to calculate assets under management for regulatory purposes, including determining eligibility for Commission, rather than state, registration; reporting assets under management for regulatory purposes on Form ADV; and determining eligibility for two of the new exemptions from registration under the Advisers Act discussed in this Release.
Use of this uniform method will, we believe, result in more consistent asset calculations and reporting across the industry and, therefore, in a more coherent application of the Advisers Act's regulatory requirements and assessment of risk.
Many commenters expressed general support for a uniform method of calculating assets under management in order to maintain consistency for registration and risk assessment purposes.
For example, some commenters sought to exclude from the calculation proprietary assets and assets managed without compensation because such a requirement would be inconsistent with the statutory definition of “investment adviser.”
We also do not expect that advisers' principals (or other employees) generally will cease to invest alongside the advisers' clients as a result of the inclusion of proprietary assets, as some commenters suggested.
Other commenters objected to calculating regulatory assets under management on the basis of gross, rather than net, assets.
Moreover, we are concerned that the use of net assets could permit advisers to highly leveraged funds to avoid registration under the Advisers Act even though the activities of such advisers may be significant and the funds they advise may be appropriate for systemic risk reporting.
The use of gross assets also need not cause any investor confusion, as some commenters suggested.
One commenter opposed the requirement that advisers include in the calculation of private fund assets uncalled capital commitments, asserting that the uncalled capital remains under the management of the fund investor.
A number of commenters objected to the requirement to determine private fund assets based on fair value, generally arguing that the requirement would cause those advisers that did not use fair value methods to incur additional costs, especially if the private funds' assets that they manage are illiquid and therefore difficult to fair value.
While many advisers will calculate fair value in accordance with GAAP or another international accounting standard,
Commenters also suggested alternative approaches to valuation, including the use of local accounting principles;
For these reasons and as we proposed, rule 203(m)–1 requires advisers to calculate the value of private fund assets pursuant to the instructions in Form ADV.
An adviser relying on the exemption provided by rule 203(m)–1 must annually calculate the amount of the private fund assets it manages and report the amount in its annual updating amendments to its Form ADV.
We proposed to require advisers relying on the exemption to calculate their private fund assets each quarter to determine if they remain eligible for the exemption. Commenters persuaded us, however, that requiring advisers to calculate their private fund assets annually in connection with their annual updating amendments to Form ADV would be more appropriate because it would likely result in the same advisers becoming registered each year while reducing the costs and burdens associated with quarterly calculations.
As noted above, if an adviser reports in its annual updating amendment that it has $150 million or more of private fund assets under management, the adviser is no longer eligible for the exemption and must register under the Advisers Act unless it qualifies for another exemption. An adviser that has complied with all Commission reporting requirements applicable to an exempt reporting adviser as such, however, may apply for registration with the Commission up to 90 days after filing the annual updating amendment, and may continue to act as a private fund adviser, consistent with the requirements of rule 203(m)–1, during this transition period.
Commenters who addressed the issue generally supported the proposed transition period, but requested that we extend the transition period beyond one calendar quarter as proposed or otherwise make it more broadly available.
One commenter argued that the transition period should be available to all advisers relying on rule 203(m)–1, including those that had not complied with their reporting requirements.
Under rule 203(m)–1, all of the private fund assets of an adviser with a principal office and place of business in the United States are considered to be “assets under management in the United States,” even if the adviser has offices outside of the United States.
As discussed in the Proposing Release, the rule deems all of the assets managed by an adviser to be managed “in the United States” if the adviser's “principal office and place of business” is in the United States. This is the location where the adviser controls, or has ultimate responsibility for, the management of private fund assets, and therefore is the place where all the adviser's assets are managed, although day-to-day management of certain assets may also take place at another location.
Most commenters who addressed the issue supported our proposal to treat “assets under management in the United States” for non-U.S. advisers as those assets managed at a U.S. place of business.
In addition, some commenters supported an alternative approach under which we would interpret “assets under management in the United States” by reference to the source of the assets (
As we explained in the Proposing Release, we believe that our interpretation recognizes that non-U.S. activities of non-U.S. advisers are less likely to implicate U.S. regulatory interests and is in keeping with general principles of international comity.
One commenter proposed an additional interpretation under which we would determine the “assets under management in the United States” for U.S. advisers only by reference to the amount of assets invested, or “in play,” in the United States.
Another commenter urged us to exclude assets managed by a U.S. adviser at its non-U.S. offices.
In addition, we sought comment as to whether, under the approach we are adopting today, some or most U.S. advisers with non-U.S. branch offices would re-organize those offices as subsidiaries in order to avoid attributing assets managed to the non-U.S. office.
Several commenters asked that we clarify whether certain U.S. activities or arrangements would result in an adviser having a “place of business” in the United States.
Under rule 203(m)–1, if a non-U.S. adviser relying on the exemption has a place of business in the United States, all of the clients whose assets the adviser manages at that place of business must be private funds and the assets managed at that place of business must have a total value of less than $150 million. Rule 203(m)–1 defines a “place of business” by reference to rule 222–1(a) as any office where the adviser “regularly provides advisory services, solicits, meets with, or otherwise communicates with clients,” and “any other location that is held out to the general public as a location at which the investment adviser provides investment advisory services, solicits, meets with, or otherwise communicates with clients.”
Whether a non-U.S. adviser has a place of business in the United States depends on the facts and circumstances, as discussed below in connection with the foreign private adviser exemption.
Under rule 203(m)–1(b), a non-U.S. adviser may not rely on the exemption if it has any client that is a United States person other than a private fund.
Rule 203(m)–1 also contains a special rule that requires an adviser relying on the exemption to treat a discretionary or other fiduciary account as a United States person if the account is held for the benefit of a United States person by a non-U.S. fiduciary who is a related person of the adviser.
Another commenter suggested the rule apply a different approach with respect to business entities than that under Regulation S, which as noted above generally treats legal partnerships and corporations as U.S. persons if they are organized or incorporated in the United States.
We decline to adopt this suggestion because we believe it is most appropriate to incorporate the definition of “U.S. person” in Regulation S with as few modifications as possible. As noted above, Regulation S provides a well-developed body of law with which advisers to private funds and their counsel must today be familiar in order to comply with other provisions of the Federal securities laws. Incorporating this definition in rule 203(m)–1, therefore, makes rule 203(m)–1 easier to apply and fosters consistency across the Federal securities laws. Deviations from the definition used in Regulation S, including an entirely different approach to defining a “United States person,” would detract from these benefits. Moreover, a test that looks to a business entity's principal office and place of business, as suggested by the commenter, would be difficult for advisers to apply. It frequently is unclear where an investment fund maintains its “principal office and place of business” because investment funds typically have no physical presence or employees other than those of their advisers.
Section 403 of the Dodd-Frank Act replaces the current private adviser exemption from registration under the Advisers Act with a new exemption for a “foreign private adviser,” as defined in new section 202(a)(30).
Under section 202(a)(30), a foreign private adviser is any investment adviser that: (i) Has no place of business in the United States; (ii) has, in total, fewer than 15 clients in the United States and investors in the United States in private funds advised by the investment adviser;
Today we are adopting, substantially as proposed, new rule 202(a)(30)–1, which defines certain terms in section 202(a)(30) for use by advisers seeking to avail themselves of the foreign private adviser exemption, including: (i) “investor;” (ii) “in the United States;” (iii) “place of business;” and (iv) “assets under management.”
Rule 202(a)(30)–1 includes a safe harbor for advisers to count clients for purposes of the definition of “foreign private adviser” that is similar to the safe harbor that has been included in rule 203(b)(3)–1.
New rule 202(a)(30)–1 allows an adviser to treat as a single client a natural person and: (i) That person's minor children (whether or not they share the natural person's principal residence); (ii) any relative, spouse, spousal equivalent, or relative of the spouse or of the spousal equivalent of the natural person who has the same principal residence;
As proposed, we are omitting the “special rule” providing advisers with the option of not counting as a client any person for whom the adviser provides investment advisory services without compensation.
The new rule includes two provisions that clarify that advisers need not double-count private funds and their investors under certain circumstances.
Section 202(a)(30) provides that a “foreign private adviser” eligible for the new registration exemption cannot have more than 14 clients “or investors in the United States in private funds” advised by the adviser. Rule 202(a)(30)–1 defines an “investor” in a private fund as any person who would be included in determining the number of beneficial owners of the outstanding securities of a private fund under section 3(c)(1) of the Investment Company Act, or whether the outstanding securities of a private fund are owned exclusively by qualified purchasers under section 3(c)(7) of that Act.
The term “investor” is not currently defined under the Advisers Act or the rules under the Advisers Act. We are adopting the new definition to provide for consistent application of the statutory provision and to prevent non-U.S. advisers from circumventing the limitations in section 203(b)(3). As discussed in the Proposing Release, we believe that defining the term “investor” by reference to sections 3(c)(1) and 3(c)(7) of the Investment Company Act will best achieve these purposes.
Commenters who addressed the issue agreed with our decision to define investor for purposes of this rule by reference to the well-developed understanding of ownership under
Under the new rule, an adviser will determine the number of investors in a private fund based on the facts and circumstances and in light of the applicable prohibition not to do indirectly, or through or by any other person, what is unlawful to do directly.
For example, the adviser to a master fund in a master-feeder arrangement would have to treat as investors the holders of the securities of any feeder fund formed or operated for the purpose of investing in the master fund rather than the feeder funds, which act as conduits.
Several commenters generally disagreed that advisers should be required to “look through” total return swaps or similar instruments or master-feeder arrangements in at least certain circumstances, arguing among other things that these instruments or arrangements serve legitimate business purposes.
Some commenters also argued that “looking through” a total return swap or similar instrument would be impractical or unduly burdensome in certain circumstances, including situations in which the adviser did not participate in the swap's creation or know of its existence.
The final rule, unlike the proposal, does not treat as investors beneficial owners who are “knowledgeable employees” with respect to the private fund, and certain other persons related to such employees (we refer to them, collectively, as “knowledgeable employees”).
Upon further consideration, we have determined that the same policy considerations that justify disregarding knowledgeable employees for purposes of other provisions provide a valid basis for excluding them from the definition of “investor” under the foreign private adviser exemption.
The new rule requires advisers to treat as investors beneficial owners of “short-term paper”
One commenter asserted that treating holders of short-term paper as investors could result in a U.S. commercial lender to a fund being treated as an investor, leading non-U.S. advisers to avoid U.S. lenders.
As we stated in the Proposing Release, there appears to be no valid reason to treat as investors all debt holders except holders of short-term paper.
Some commenters expressed concern that the look-through requirement contained in the statutory definition of a “foreign private adviser” could impose significant burdens on advisers to non-U.S. funds, including non-U.S. retail funds publicly offered outside of the United States.
As we explain above, if an adviser reasonably believes that an investor is not “in the United States,” the adviser may treat the investor as not being “in the United States.” Moreover, we understand that non-U.S. private funds currently count or qualify their U.S. investors in order to avoid regulation under the Investment Company Act.
Section 202(a)(30)'s definition of “foreign private adviser” employs the term “in the United States” in several contexts, including: (i) Limiting the number of—and assets under management attributable to—an adviser's “clients” “in the United States” and “investors in the United States” in private funds advised by the adviser; (ii) exempting only those advisers without a place of business “in the United States;” and (iii) exempting only those advisers that do not hold themselves out to the public “in the United States” as an investment adviser.
New rule 202(a)(30)–1 defines “in the United States,” as proposed, generally by incorporating the definition of a “U.S. person” and “United States” under Regulation S.
We believe that the use of Regulation S is appropriate for purposes of the foreign private adviser exemption because Regulation S provides more specific rules when applied to various types of legal structures.
Similar to our approach in new rule 203(m)–1(d)(8) and as we proposed,
We also are including the note to paragraph (c)(3)(i) specifying that for purposes of that definition, a person who is “in the United States” may be treated as not being “in the United States” if the person was not “in the United States” at the time of becoming a client or, in the case of an investor in a private fund, each time the investor acquires securities issued by the fund.
Several commenters supported the inclusion of the note.
As we explain above, if an adviser reasonably believes that an investor is not “in the United States,” the adviser may treat the investor as not being “in the United States.” In addition, we understand that, based on no-action positions taken by our staff, non-U.S. funds do not consider for purposes of section 3(c)(1) beneficial owners who were not U.S. persons at the time they invested in the fund, but do consider those beneficial owners if they make additional purchases in the same fund after relocating to the United States.
The Investment Funds Institute of Canada (IFIC) and the Investment Industry Association of Canada (IIAC) urged that, for purposes of the look-through provision, the Commission allow non-U.S. advisers not to count persons (and their assets) who invest in a foreign private fund through certain Canadian retirement accounts (“Participants”) after having moved to the United States.
New rule 202(a)(30)–1, by reference to rule 222–1,
Some commenters asked us to clarify that a “place of business” would not include an office in the United States where a non-U.S. adviser solely conducts research, communicates with non-U.S. clients, or performs administrative services and back-office books and recordkeeping activities.
A number of commenters sought guidance as to whether the activities of U.S. affiliates of non-U.S. advisers would be deemed to constitute places of business in the United States of the non-U.S. advisers.
For purposes of rule 202(a)(30)–1 we are defining “assets under management,” as proposed, by reference to the calculation of “regulatory assets under management” for Item 5 of Form ADV.
We believe that uniformity in the method for calculating assets under management will result in more consistent asset calculations and reporting across the industry and, therefore, in a more coherent application of the Advisers Act's regulatory requirements and assessment of risk.
We generally interpret advisers as including subadvisers,
We are aware that in many subadvisory relationships a subadviser has contractual privity with a private fund's primary adviser rather than the private fund itself. Although both the private fund and the fund's primary adviser may be viewed as clients of the subadviser, we would consider a subadviser eligible to rely on rule 203(m)–1 if the subadviser's services to the primary adviser relate solely to private funds and the other conditions of the rule are met. Similarly, a subadviser may be eligible to rely on section 203(l) if the subadviser's services to the primary adviser relate solely to venture capital funds and the other conditions of the rule are met.
We anticipated that an adviser with advisory affiliates could encounter interpretative issues as to whether it may rely on any of the exemptions discussed in this Release without taking into account the activities of its affiliates. The adviser, for example, might have advisory affiliates that are registered or that provide advisory services that the adviser itself could not provide while relying on an exemption. In the Proposing Release, we requested comment on whether any proposed rule should provide that an adviser must take into account the activities of its advisory affiliates when determining eligibility for an exemption, by having the rule, for example, specify that the exemption is not available to an affiliate of a registered investment adviser.
Commenters that responded to our request for comment generally supported treating each advisory entity separately without regard to the activities of, or relationships with, its affiliates.
The
A number of commenters asserted that the staff positions in the
The effective date for rules 203(l)–1, 203(m)–1 and 202(a)(30)–1 is July 21, 2011. The Administrative Procedure Act generally requires that an agency publish a final rule in the Federal Register not less than 30 days before its effective date.
As discussed above, effective July 21, 2011, the Dodd-Frank Act amends the Advisers Act to eliminate the private adviser exemption in pre-existing section 203(b)(3), which will require advisers relying on that exemption to register with the Commission as of July 21, 2011 unless another exemption is available.
Sections 203(l) and 203(b)(3) of the Advisers Act provide exemptions from
Section 203(m) of the Advisers Act, as amended by the Dodd-Frank Act, directs the Commission to provide an exemption for advisers solely to private funds with assets under management in the United States of less than $150 million. Rule 203(m)–1, which implements section 203(m), grants an exemption and relieves a restriction and in part has interpretive aspects. Accordingly, we are making the rules effective on July 21, 2011.
The rules do not contain a “collection of information” requirement within the meaning of the Paperwork Reduction Act of 1995.
As discussed above, we are adopting rules 203(l)–1, 203(m)–1 and 202(a)(30)–1 to implement certain provisions of the Dodd-Frank Act. As a result of the Dodd-Frank Act's repeal of the private adviser exemption, some advisers that previously were eligible to rely on that exemption will be required to register under the Advisers Act unless they are eligible for a new exemption. Thus, the benefits and costs associated with registration for advisers that are not eligible for an exemption are attributable to the Dodd-Frank Act.
We are sensitive to the costs and benefits imposed by our rules, and understand that there will be costs and benefits associated with complying with the rules we are adopting today. We recognize that certain aspects of these rules may place burdens on advisers that seek to qualify for the various exemptions discussed in this Release. We believe that these rules, as modified from the proposals, offer flexibility and clarity for advisers seeking to qualify for the exemptions. We have designed the rules to balance these concerns with respect to potential costs and burdens with what we understand was intended by Congress.
In the Proposing Release, we identified possible costs and benefits of the proposed rules and requested comment on the analysis, including identification and assessment of any costs and benefits not discussed in the analysis. We requested that commenters provide analysis and empirical data to support their views on the costs and benefits associated with the proposals. In addition, we requested confirmation of our understanding of how advisers that may seek to rely on the exemptions operate and manage private funds and how the proposals may affect them and their businesses.
We define a venture capital fund as a private fund that: (i) Holds no more than 20 percent of the fund's capital commitments in non-qualifying investments (other than short-term holdings) (“qualifying investments” generally consist of equity securities of “qualifying portfolio companies” and are discussed below); (ii) does not borrow or otherwise incur leverage, other than limited short-term borrowing (excluding certain guarantees of qualifying portfolio company obligations by the fund); (iii) does not offer its investors redemption or other similar liquidity rights except in extraordinary circumstances; (iv) represents itself as pursuing a venture capital strategy to investors; and (v) is not registered under the Investment Company Act and has not elected to be treated as a BDC.
We define “qualifying investments” as: (i) Directly acquired equities; (ii) equity securities issued by a qualifying portfolio company in exchange for directly acquired equities issued by the same qualifying portfolio company; and (iii) equity securities issued by a company of which a qualifying portfolio company is a majority-owned subsidiary, or a predecessor, and is received in exchange for directly acquired equities of the qualifying portfolio company (or securities exchanged for such directly acquired equities).
The final rule also grandfathers existing funds by including in the definition of “venture capital fund” any private fund that: (i) Represented to investors and potential investors at the time the fund offered its securities that it pursues a venture capital strategy; (ii) prior to December 31, 2010, has sold securities to one or more investors that are not related persons of any investment adviser of the venture capital fund; and (iii) does not sell any securities to, including accepting any additional capital commitments from, any person after July 21, 2011 (the “grandfathering provision”).
We have identified certain costs and benefits, discussed below, that may result from our definition of venture capital fund, including modifications to the proposal. As we discussed in the Proposing Release, the proposed rule was designed to: (i) Implement the directive from Congress to define the term venture capital fund in a manner that reflects Congress' understanding of what venture capital funds are, and as distinguished from other private funds such as private equity funds and hedge funds; and (ii) facilitate the transition to the new exemption.
Approximately 26 comment letters addressed the costs and benefits of the proposed rule defining venture capital fund.
In the Proposing Release, we stated that based on the testimony presented to Congress and our research, we believed that venture capital funds currently in existence would meet most, if not all, of the elements of our proposed definition of venture capital fund.
For the reasons discussed above, we have modified the definition of venture capital fund. Our modifications include specifying a non-qualifying basket
We believe that the final rule (including the modifications from the proposal) better describes the existing venture capital industry and provides venture capital advisers with greater flexibility to accommodate existing (and potentially evolving or future) business practices and take advantage of investment opportunities that may arise. We also believe that the criteria under the final rule will facilitate transition to the new exemption, because it minimizes the extent to which an adviser seeking to rely on the venture capital exemption would need to alter its existing business practices, thus, among other things, reducing the likelihood of inadvertent non-compliance.
As we discuss in greater detail above, many commenters arguing in favor of the modifications that we are adopting generally cited these benefits to support their views.
We anticipate that a number of benefits, described by commenters, may result from allowing qualifying funds limited investments in non-qualifying investments, including publicly traded securities, securities that are not equity securities (
Under the final rule, the non-qualifying basket is determined as a percentage of a qualifying fund's capital commitments, and compliance with the 20 percent limit is determined each time a qualifying fund makes any non-qualifying investment (excluding short-term holdings). We expect that calculating the size of the non-qualifying basket as a percentage of a qualifying fund's capital commitments, which will remain relatively constant during the fund's term, will provide advisers with a degree of predictability when managing the fund's portfolio and determining how much of the basket remains available for new investments. Moreover, we believe that by applying the 20 percent limit as of the time of acquisition of each non-qualifying investment, a fund is able to determine prospectively how much it can invest in the non-qualifying basket. We believe that this approach to determining the non-qualifying basket will appropriately limit a qualifying fund's non-qualifying investments and ease the burden of determining compliance with the criterion under the rule.
As discussed above, a qualifying fund can only invest up to 20 percent of its capital commitments in non-qualifying investments, as measured immediately after it acquires any non-qualifying investment.
The final rule excludes from the 120-day limit with respect to leverage any venture capital fund guarantees of portfolio company indebtedness, up to the value of the fund's investment in the company.
The final rule excludes from the definition of qualifying portfolio company any company that borrows or issues debt if the proceeds of such borrowing or debt are distributed to the venture capital fund in exchange for the fund's investment in the company. This will allow qualifying funds to provide financing on a short-term basis to portfolio companies as a “bridge” between funding rounds.
Our final rule clarifies that an adviser seeking to rely on the venture capital exemption may treat as a private fund any non-U.S. fund managed by the adviser that does not offer its securities in the United States or to U.S. persons.
The final rule includes several other characteristics that provide additional flexibility to venture capital advisers and their funds. For example, a qualifying fund cannot provide its investors with redemption or other liquidity rights except in extraordinary circumstances. Although venture capital funds typically do not permit investors to redeem their interests during the life of the fund,
Because it takes into account existing business practices of venture capital funds and permits some flexibility for venture capital funds (and their managers) to adopt, or adapt to, new or evolving business practices, we believe that the final rule will facilitate advisers' transition to the new exemption. The rule generally limits investments of a qualifying fund, but creates a basket that will allow these funds flexibility to make limited investments that may vary from typical venture capital fund investing practices. The final rule also provides an adviser flexibility and discretion to structure transactions in underlying portfolio companies to meet the business objectives of the fund without creating significant risks of the kind that Congress suggested should require registration of the fund's adviser. We expect that this flexibility will benefit investment advisers that seek to rely on the venture capital exemption because they will be able more easily to structure and operate funds that meet the definition now and in the future, but will not permit reliance on the exemption by private fund advisers that Congress did not intend to exclude from registration.
Our final rule also should benefit advisers of existing venture capital funds that fail to meet the definition of venture capital fund. Our grandfathering provision permits an adviser to rely on the exemption provided that each fund that does not satisfy the definition (i) has represented to investors that it pursues a venture capital strategy, (ii) has initially sold interests by December 31, 2010, and (iii) does not sell any additional interests after July 21, 2011.
Finally, we believe that our definition would include an additional benefit for investors and regulators. Section 203(l) of the Advisers Act provides an exemption specifically for advisers that “solely” advise venture capital funds. Currently none of our rules requires that an adviser exempt from registration specify the basis for the exemption. We are adopting, however, rules that would require exempt reporting advisers to identify the exemption(s) on which they are relying.
We believe that existing venture capital funds would meet most, if not all, of the elements of the final definition of venture capital fund. Nevertheless, we recognize that some advisers to existing venture capital funds that seek to rely on the exemption in section 203(l) of the Advisers Act might have to structure new funds differently to satisfy the definitional criteria under the final rule. To the extent that advisers choose not to
As noted above, we proposed, and are retaining in the final rule, certain elements in the portfolio company definition because of the focus on leverage in the Dodd-Frank Act as a potential contributor to systemic risk as discussed by the Senate Committee report,
We recognize, however, that advisers to funds that were launched by December 31, 2010 but have not concluded offerings to investors may incur costs to determine whether they qualify for the grandfathering provision. For example, these advisers may need to assess the impact on the fund of selling interests to initial third-party investors by December 31, 2010 and selling interests to all investors no later than July 21, 2011.
To the extent that an existing adviser could not rely on the grandfathering provision with respect to funds in formation, we also expect that the adviser would not be required to modify its business practices significantly in order to rely on the exemption. Our final rule includes many modifications requested by commenters, such as the non-qualifying basket, and as a result, we expect that these modifications would reduce some of the costs associated with modifying current business practices to satisfy the proposed definitional criteria that commenters addressed.
Our rule does not provide separate definitional criteria for non-U.S. advisers seeking to rely on the exemption. These advisers might incur costs to the extent that cash management instruments they typically acquire may not be “short-term holdings” for purposes of the definition.
In the Proposing Release, we stated that we believed that existing advisers to venture capital funds would meet most, if not all, of the elements of the proposed definition.
We also recognize that some existing venture capital funds may have characteristics that differ from the criteria in our definition. To the extent that investment advisers seek to form new venture capital funds with these characteristics, those advisers would have to choose whether to structure new venture capital funds to conform to the definition, forgo forming new funds, or register with the Commission. In any case, each investment adviser would assess the costs associated with registering with the Commission relative to the costs of remaining unregistered (and hence structuring funds to meet our definition in order to be eligible for the exemption). We expect that this assessment would take into account many factors, including the size, scope and nature of an adviser's business and investor base. Such factors will vary from adviser to adviser, but each adviser would determine for itself whether registration, relative to other choices, is the most cost-effective or strategic business option.
The final rule may have effects on competition and capital formation. To the extent that advisers choose to structure new venture capital funds to conform to the definition, or choose not to form new funds in order to avoid registration, these choices could result in fewer investment choices for investors, less competition and less capital formation.
Investment advisers to new venture capital funds that would not meet the definition would have to register and
We estimate that the internal cost to register with the Commission would be $15,077 on average for a private fund adviser,
New registrants would also face costs to bring their business operations into compliance with the Advisers Act and the rules thereunder. These costs, however, will vary significantly among advisers depending on the adviser's size, the scope and nature of its business, and the sophistication of its compliance infrastructure, but in any case would be an ordinary business and operating expense of entering into any business that is regulated.
We estimated in the Proposing Release that the one-time costs to new registrants to establish a compliance infrastructure would range from $10,000 to $45,000, while ongoing annual costs of compliance and examination would range from $10,000 to $50,000.
Although some advisers may incur these costs, the costs of compliance for a new registrant can vary widely among advisers depending on their size, activities, and the sophistication of their existing compliance infrastructure. Advisers, whether registered with us or not, may have established compliance infrastructures to fulfill their fiduciary duties towards their clients under the Advisers Act. Generally, costs will likely be less for new registrants that have already established sound compliance practices and more for new registrants that have not yet established sound practices.
For example, some commenters specifically included in their cost estimates compensation costs for hiring a dedicated chief compliance officer (“CCO”).
Although we recognize that some newly registering advisers will need to designate someone to serve as CCO on a full-time basis, we expect these will be larger advisers—those with many employees and a sizeable amount of investor assets under management. Because there is no currently-available comprehensive database of unregistered advisers, we cannot determine the number of these larger advisers in operation. These larger advisers that are not yet registered likely already have personnel who perform similar functions to a CCO, in order to address the adviser's liability exposure and protect its reputation.
In smaller advisers, the designated CCO will likely also fill another function in the adviser, and perform additional duties alongside compliance matters. Advisers designating a CCO from existing staff may experience costs that result from shifting responsibilities among staff or additional compensation, to the extent the individual is taking on additional compliance responsibilities or giving up other non-compliance responsibilities. Costs will vary from adviser to adviser, depending on the extent to which an adviser's staff is already performing some or all of the requisite compliance functions, the extent to which the CCO's non-compliance responsibilities need to be lessened to permit allocation of more time to compliance responsibilities, and the value to the adviser of the CCO's non-compliance responsibilities.
Some commenters asserted that the costs of ongoing compliance would be substantial.
We do not have access to information that would enable us to determine these additional ongoing costs, which are predominantly internal to the advisers themselves. Incremental ongoing compliance costs will vary from adviser to adviser depending on factors such as the complexity of each adviser's activities, the business decisions it makes in structuring its response to its compliance obligations, and the extent to which it is already conducting its operations in compliance with the Advisers Act. Indeed, the broad range of estimated costs we received reflects the individualized nature of these costs and the extent to which they may vary even among the relatively small number of commenters who provided cost estimates.
Some commenters expressed concern that compliance costs would be prohibitive in comparison to their revenues or in relation to their size or activities.
We also note that approximately 570 smaller advisers currently are registered with us.
We do not believe that the definition of venture capital fund is likely to affect whether advisers to venture capital funds would choose to launch new funds or whether persons would choose to enter into the business of advising venture capital funds because, as noted above, we believe the definition, as revised, reflects the way most venture capital funds currently operate. Thus, for example, we eliminated the managerial assistance criterion in the proposed definition, expanded the short-term instruments in which venture capital funds can invest and provided for a non-qualifying basket. These elements in the proposal could have resulted in costs to advisers that manage venture capital funds with business or cash management practices inconsistent with those proposed criteria and that sought to rely on the exemption.
Moreover, to the extent that our final rule includes broader criteria and results in fewer registrants, this also could reduce the amount of information available to regulators with respect to venture capital advisers relying on the exemption. Under the final rule, immediately after it acquires any non-qualifying investment (excluding short-term holdings), no more than 20 percent of a qualifying fund's capital commitments may be held in non-qualifying investments (excluding short-term holdings). As a result, initially, and possibly for a period of time during the fund's term (subject to compliance with the other elements of the rule), it may be possible for non-qualifying investments to comprise most of a qualifying fund's investment portfolio. The proposal would have required a qualifying fund to be comprised entirely of qualifying investments, which would have enabled regulators and investors to confirm with relative ease at any point in time whether a fund satisfied the definition. Modifying the definition to include a non-qualifying basket determined as a percentage of a qualifying fund's capital commitments may increase the monitoring costs that regulators and investors may incur in order to verify that a fund satisfies the definition, depending on the length of the fund's investment period and the frequency with which the fund invests in non-qualifying investments.
A number of commenters expressed concerns with certain elements of the proposed rule, which we are not modifying. Several commenters suggested that the rule specify that the leverage limit of 15 percent be calculated without regard to uncalled capital commitments because they were concerned about the potential for excessive leverage.
Several commenters also argued that the definition of qualifying portfolio company should include certain subsidiaries that may be owned by a publicly traded company, such as research and development subsidiaries, that may seek venture capital funding.
Other commenters argued that the definition of venture capital fund should include funds of venture capital funds.
As discussed in Section II.B, rule 203(m)–1 exempts from registration under the Advisers Act any investment adviser solely to private funds that has less than $150 million in assets under management in the United States. The rule implements the private fund adviser exemption, as directed by Congress, in section 203(m) of the Advisers Act and includes provisions for determining the amount of an adviser's private fund assets for purposes of the exemption and when those assets are deemed managed in the United States.
The instructions to Form ADV previously permitted, but did not require, advisers to exclude certain types of managed assets.
Many commenters generally expressed support for the implementation of a uniform method of calculating assets under management in order to maintain consistency for registration and risk assessment purposes.
We believe that the valuation of private fund assets under rule 203(m)–1 will benefit advisers that seek to rely on the private fund adviser exemption. Under rule 203(m)–1, each adviser annually must determine the amount of its private fund assets, based on the market value of those assets, or the fair value of those assets where market value is unavailable.
The annual calculation also will allow advisers that rely on the exemption to maintain the exemption despite short-term market value fluctuations that might result in the loss of the exemption if, for example, the rule required daily valuations or, to a less significant extent, quarterly valuations as proposed.
An adviser relying on the exemption that reports private fund assets of $150 million or more in its annual updating amendment to its Form ADV will not be eligible for the exemption and must register under the Advisers Act unless it qualifies for another exemption. If the adviser has complied with all Commission reporting requirements applicable to an exempt reporting adviser as such, however, it may apply for registration under the Advisers Act up to 90 days after filing the annual updating amendment, and may continue to act as a private fund adviser, consistent with the requirements of rule 203(m)–1, during this transition period.
The transition period should benefit certain advisers. As discussed above, an adviser that has “complied with all [Commission] reporting requirements applicable to an exempt reporting adviser as such” may apply for registration with the Commission up to 90 days after filing an annual updating amendment reflecting that the adviser has private fund assets of $150 million or more, and may continue to act as a private fund adviser, consistent with the requirements of rule 203(m)–1, during this transition period.
As discussed below, we believe that this interpretation of “assets under management in the United States” offers greater flexibility to advisers and reduces many costs associated with compliance.
To the extent that this interpretation may increase the number of advisers subject to registration under the Advisers Act, we anticipate that our rule also will benefit investors by providing more information about those advisers (
We believe that our interpretation of the availability of the private fund adviser exemption for non-U.S. advisers, as reflected in the rule, will benefit those advisers by facilitating their continued participation in the U.S. market with limited disruption to their non-U.S. advisory or other business practices.
Most of the commenters who considered this aspect of the rule supported it, citing, among other benefits, that this interpretation would effectively protect U.S. markets and investors and is consistent with the Commission's overall territorial
Rule 203(m)–1(b) uses the term “United States person,” which generally incorporates the definition of a “U.S. person” in Regulation S.
We also are adding a note to rule 203(m)–1 that clarifies that a client will not be considered a United States person if the client was not a United States person at the time of becoming a client of the adviser.
Expanding the range of potential “qualifying private funds,” therefore, should benefit advisers to funds that also qualify for other exclusions by permitting these advisers to rely on the exemption.
We believe that our approach will promote efficiency because advisers are familiar with it, and we do not anticipate that U.S. advisers to private funds would likely change their business models, the location of their private funds or the location where they manage assets as a result of the rule. As noted in the Proposing Release, we expect that non-U.S. advisers may, however, incur minimal costs to determine whether they have assets under management in the United States. We estimate that these costs would be no greater than $6,730 per adviser to hire U.S. counsel and perform an internal review to assist in this determination, in particular to assess whether a non-U.S. affiliate manages a discretionary account for the benefit of a United States person under the rule.
As noted above, because the rule is designed to encourage the participation of non-U.S. advisers in the U.S. market, we believe that it will have minimal regulatory and operational burdens on non-U.S. advisers and their U.S. clients. Non-U.S. advisers may rely on the rule if they manage U.S. private funds with more than $150 million in assets at a non-U.S. location as long as the private fund assets managed at a U.S. place of business are less than $150 million. This could affect competition with U.S. advisers, which must register when they have $150 million in private fund assets under management regardless of where the assets are managed.
In contrast to the many commenters who supported our approach, one commenter argued that treating U.S. and non-U.S. advisers differently would disadvantage U.S.-based advisers by permitting non-U.S. advisers to accept substantial amounts of money from U.S. investors without having to comply with certain U.S. regulatory requirements, and would cause advisers to move offshore or close U.S. offices to avoid regulation.
As we explained in the Proposing Release, we believe that our interpretation recognizes that non-U.S. activities of non-U.S. advisers are less likely to implicate U.S. regulatory interests and is in keeping with general principles of international comity.
As we acknowledged in the Proposing Release, to avail themselves of rule 203(m)–1, some advisers might choose to move their principal offices and places of business outside of the United States and manage private funds at those locations.
We also note that if an adviser did relocate, it would incur the costs of regulation under the laws of most of the foreign jurisdictions in which it may be likely to relocate, as well as the costs of complying with the reporting requirements applicable to exempt reporting advisers, unless it also qualified for the foreign private adviser exemption. We do not believe, in any case, that the adviser would relocate if relocation would result in a material decrease in the amount of assets managed because that loss would likely not justify the benefits of avoiding registration, and thus we do not believe our rule is likely to have an adverse effect on capital formation.
One commenter also proposed that we adopt an alternative approach that would look to the source of the assets.
This alternative approach also could adversely affect U.S. investors to the extent that it discouraged U.S. advisers from managing U.S. investor assets. A U.S. adviser might avoid managing assets from U.S. investors because, under this alternative interpretation, the assets would be included in determining whether the adviser was eligible to rely on rule 203(m)–1. This could reduce competition for the management of assets from U.S. investors. The likelihood of U.S. advisers seeking to avoid registration in this way might be mitigated, however, to the extent that the loss of managed assets of U.S. investors would exceed the savings from avoiding registration.
We acknowledged in the Proposing Release that some private fund advisers may not use fair value methodologies.
A number of commenters objected to the requirement to determine private fund assets based on fair value, generally arguing that the requirement would cause those advisers that did not use fair value methods to incur additional costs, especially if the private funds' assets that they manage are illiquid and therefore difficult to fair value.
In addition, as discussed above, we have taken several steps to mitigate these costs.
Use of the alternative approaches recommended by commenters (
We also do not expect that advisers' principals (or other employees) generally will cease to invest alongside the advisers' clients as a result of the inclusion of proprietary assets, as some commenters suggested.
One commenter also argued that including proprietary assets would deter non-U.S. advisers that manage large sums of proprietary assets from establishing U.S. operations and employing U.S. residents.
Some commenters objected to calculating regulatory assets under management on the basis of gross, rather than net, assets. They argued, among other things, that gross asset measurements would be confusing,
Moreover, we are concerned that the use of net assets could permit advisers to highly leveraged funds to avoid registration under the Advisers Act even though the activities of such advisers may be significant and the funds they advise may be appropriate for systemic risk reporting.
The use of gross assets also need not cause any investor confusion, as some commenters suggested.
Section 403 of the Dodd-Frank Act replaces the current private adviser exemption from registration under the Advisers Act with a new exemption for any “foreign private adviser,” as defined in new section 202(a)(30) of the Advisers Act.
Rule 202(a)(30)–1 clarifies several provisions used in the statutory definition of “foreign private adviser.” First, the rule includes a safe harbor for counting clients, which previously appeared in rule 203(b)(3)–1, and which we have modified to account for its use in the foreign private adviser context. Under the safe harbor, an adviser would count certain natural persons as a single client under certain circumstances.
Second, section 202(a)(30) provides that a “foreign private adviser” eligible for the new registration exemption cannot have more than 14 clients “or investors in the United States.” We are defining “investor” in a private fund in rule 202(a)(30)–1 as any person who would be included in determining the number of beneficial owners of the outstanding securities of a private fund under section 3(c)(1) of the Investment Company Act, or whether the outstanding securities of a private fund are owned exclusively by qualified purchasers under section 3(c)(7) of that Act.
Third, rule 202(a)(30)–1 defines “in the United States” generally by incorporating the definition of a “U.S. person” and “United States” under Regulation S.
Fourth, rule 202(a)(30)–1 defines “place of business” to have the same meaning as in Advisers Act rule 222–1(a).
We are defining certain terms included in the statutory definition of “foreign private adviser” in order to clarify the meaning of these terms and reduce the potential administrative and regulatory burdens for advisers that seek to rely on the foreign private adviser exemption. As noted above, our rule references definitions set forth in other Commission rules under the Advisers Act, the Investment Company Act and the Securities Act, all of which are likely to be familiar to non-U.S. advisers active in the U.S. capital markets.
As we discussed in the Proposing Release, we anticipate that by defining these terms we will benefit non-U.S. advisers by providing clarity with respect to the terms that advisers would otherwise be required to interpret (and which they would likely interpret with reference to the rules we reference).
For example, for purposes of determining eligibility for the foreign private adviser exemption, advisers must count clients substantially in the same manner as they counted clients under the private adviser exemption.
As noted above, the definitions of “investor” and “United States” under our rule rely on existing definitions, with slight modifications.
The final rule does not include one of the modifications we proposed. The final rule does not treat knowledgeable employees as investors, consistent with sections 3(c)(1) and 3(c)(7).
We believe that any increase in registration as compared to the number of non-U.S. advisers that might have registered if we had not adopted rule 202(a)(30)–1 will benefit investors. Investors whose assets are, directly or indirectly, managed by the non-U.S. advisers that will be required to register will benefit from the increased protection afforded by Federal registration of the adviser and application to the adviser of all of the requirements of the Advisers Act. As
As discussed in the Proposing Release, we do not believe our definitions will result in significant costs for non-U.S. advisers.
Without the rule, we believe that most advisers would have interpreted the new statutory provision by reference to the same rules that rule 202(a)(30)–1 references. Without our rule, some advisers would have likely incurred additional costs because they would have sought guidance in interpreting the terms used in the statutory exemption. By defining the statutory terms in a rule, we believe that we are providing certainty for non-U.S. advisers and limiting the time, compliance costs and legal expenses non-U.S. advisers would have incurred in seeking an interpretation, all of which could have inhibited capital formation and reduced efficiency. Advisers will also be less likely to seek additional assistance from us because they can rely on relevant guidance that we have previously provided with respect to the definitions that rule 202(a)(30)–1 references. We also believe that non-U.S. advisers' ability to rely on the definitions that the rule references and the guidance provided with respect to the referenced rules will reduce Commission resources that would have otherwise been applied to administering the foreign private adviser exemption, which resources can be allocated to other matters.
Our instruction allowing non-U.S. advisers to determine whether a client or investor is “in the United States” by reference to the time the person became a client or an investor acquires securities issued by the private fund should also reduce advisers' costs.
Some commenters disagreed with the Proposing Release's explanation of how the exemption's requirement that an adviser look through to private fund investors would apply with respect to certain structures, such as master-feeder funds and total return swaps.
Some commenters expressed concern that the look-through requirement contained in the statutory definition of a “foreign private adviser” could impose significant burdens on advisers to non-U.S. funds, including non-U.S. retail funds publicly offered outside of the United States.
As we explain above, if an adviser reasonably believes that an investor is not “in the United States,” the adviser may treat the investor as not being “in the United States.” Moreover, we understand that non-U.S. private funds currently count or qualify their U.S. investors in order to avoid regulation under the Investment Company Act.
As discussed in the Proposing Release, the modifications will result in some costs for non-U.S. advisers who might change their business practices in order to rely on the exemption.
In any case, non-U.S. advisers will assess the costs of registering with the Commission relative to relying on the foreign private adviser or the private fund adviser exemption. This assessment will take into account many factors, which will vary from one adviser to another, to determine whether registration, relative to other options, is the most cost-effective business option for the adviser to pursue. If a non-U.S. adviser limited its activities within the United States in order to rely on the exemption, the modifications might have the effect of reducing competition in the market for advisory services or decreasing the availability of certain investment opportunities for U.S. investors. If the non-U.S. adviser chose to register, competition among registered advisers would increase. One commenter asserted that treating holders of short-term paper as investors could result in a U.S. commercial lender to a fund being treated as an investor, leading non-U.S. advisers to avoid U.S. lenders.
As a result of the rule's reference to the method of calculating assets under management under Form ADV, non-U.S. advisers will use the valuation method provided in the instructions to Form ADV to verify compliance with the $25 million asset threshold included in the foreign private adviser exemption.
As discussed in the Proposing Release, some non-U.S. advisers to private funds may value assets based on their fair value in accordance with GAAP or other international accounting standards that require the use of fair value, while other advisers to private funds currently may not use fair value methodologies.
The Commission certified in the Proposing Release, pursuant to section 605(b) of the Regulatory Flexibility Act,
Investment advisers solely to venture capital funds and advisers solely to private funds in each case with assets under management of less than $25 million would remain generally ineligible for registration with the Commission under section 203A of the Advisers Act.
Thus, we believe that small advisers solely to venture capital funds and small advisers to other private funds will generally be ineligible to register with the Commission. Those small advisers that may not be ineligible to register with the Commission, we believe, would be able to rely on the venture capital fund adviser exemption under section 203(l) of the Advisers Act or the private fund adviser exemption under section 203(m) of that Act as implemented by our rules. For these reasons, we certified in the Proposing Release that rules 203(l)–1 and 203(m)–1 under the Advisers Act would not, if adopted, have a significant economic impact on a substantial number of small entities. Although we requested written comments regarding this certification, no commenters responded to this request.
The Commission is adopting rule 202(a)(30)–1 under the authority set forth in sections 403 and 406 of the Dodd-Frank Act, to be codified at sections 203(b) and 211(a) of the Advisers Act, respectively (15 U.S.C. 80b–3(b), 80b–11(a)). The Commission is adopting rule 203(l)–1 under the authority set forth in sections 406 and 407 of the Dodd-Frank Act, to be codified at sections 211(a) and 203(l) of the Advisers Act, respectively (15 U.S.C. 80b–11(a), 80b–3(l)). The Commission is adopting rule 203(m)–1 under the authority set forth in sections 406 and 408 of the Dodd-Frank Act, to be codified at sections 211(a) and 203(m) of the Advisers Act, respectively (15 U.S.C. 80b–11(a), 80b–3(m)).
Reporting and recordkeeping requirements; Securities.
For reasons set out in the preamble, the Commission amends Title 17, Chapter II of the Code of Federal Regulations as follows:
15 U.S.C. 80b–2(a)(11)(G), 80b–2(a)(11)(H), 80b–2(a)(17), 80b–3, 80b–4, 80b–4a, 80b–6(4), 80b–6(a), and 80b–11, unless otherwise noted.
(a)
(1) A natural person, and:
(i) Any minor child of the natural person;
(ii) Any relative, spouse, spousal equivalent, or relative of the spouse or of the spousal equivalent of the natural person who has the same principal residence;
(iii) All accounts of which the natural person and/or the persons referred to in this paragraph (a)(1) are the only primary beneficiaries; and
(iv) All trusts of which the natural person and/or the persons referred to in this paragraph (a)(1) are the only primary beneficiaries;
(2)(i) A corporation, general partnership, limited partnership, limited liability company, trust (other than a trust referred to in paragraph (a)(1)(iv) of this section), or other legal organization (any of which are referred to hereinafter as a “legal organization”) to which you provide investment advice based on its investment objectives rather than the individual investment objectives of its shareholders, partners, limited partners, members, or beneficiaries (any of which are referred to hereinafter as an “owner”); and
(ii) Two or more legal organizations referred to in paragraph (a)(2)(i) of this section that have identical owners.
(b)
(1) You must count an owner as a client if you provide investment advisory services to the owner separate and apart from the investment advisory services you provide to the legal organization, provided, however, that the determination that an owner is a client will not affect the applicability of this section with regard to any other owner;
(2) You are not required to count an owner as a client solely because you, on behalf of the legal organization, offer, promote, or sell interests in the legal organization to the owner, or report periodically to the owners as a group solely with respect to the performance of or plans for the legal organization's assets or similar matters;
(3) A limited partnership or limited liability company is a client of any general partner, managing member or other person acting as investment adviser to the partnership or limited liability company;
(4) You are not required to count a private fund as a client if you count any investor, as that term is defined in paragraph (c)(2) of this section, in that private fund as an investor in the United States in that private fund; and
(5) You are not required to count a person as an investor, as that term is defined in paragraph (c)(2) of this section, in a private fund you advise if you count such person as a client in the United States.
These paragraphs are a safe harbor and are not intended to specify the exclusive method for determining who may be deemed a single client for purposes of section 202(a)(30) of the Act (15 U.S.C. 80b–2(a)(30)).
(c)
(1)
(2)
(i) Any person who would be included in determining the number of beneficial owners of the outstanding securities of a private fund under section 3(c)(1) of the Investment Company Act of 1940 (15 U.S.C. 80a–3(c)(1)), or whether the outstanding securities of a private fund are owned exclusively by qualified purchasers under section 3(c)(7) of that Act (15 U.S.C. 80a–3(c)(7)); and
(ii) Any beneficial owner of any outstanding short-term paper, as defined in section 2(a)(38) of the Investment Company Act of 1940 (15 U.S.C. 80a–2(a)(38)), issued by the private fund.
You may treat as a single investor any person who is an investor in two or more private funds you advise.
(3)
(i) Any client or investor, any person who is a U.S. person as defined in § 230.902(k) of this chapter, except that any discretionary account or similar account that is held for the benefit of a person in the United States by a dealer or other professional fiduciary is in the United States if the dealer or professional fiduciary is a related person, as defined in § 275.206(4)–2(d)(7), of the investment adviser relying on this section and is not organized, incorporated, or (if an individual) resident in the United States.
A person who is in the United States may be treated as not being in the United States if such person was not in the United States at the time of becoming a client or, in the case of an investor in a private fund, each time the investor acquires securities issued by the fund.
(ii) Any place of business,
(iii) The public,
(4)
(5)
(d)
(a)
(1) Represents to investors and potential investors that it pursues a venture capital strategy;
(2) Immediately after the acquisition of any asset, other than qualifying investments or short-term holdings, holds no more than 20 percent of the amount of the fund's aggregate capital contributions and uncalled committed capital in assets (other than short-term holdings) that are not qualifying investments, valued at cost or fair value, consistently applied by the fund;
(3) Does not borrow, issue debt obligations, provide guarantees or otherwise incur leverage, in excess of 15 percent of the private fund's aggregate capital contributions and uncalled committed capital, and any such borrowing, indebtedness, guarantee or leverage is for a non-renewable term of no longer than 120 calendar days, except that any guarantee by the private fund of a qualifying portfolio company's obligations up to the amount of the value of the private fund's investment in the qualifying portfolio company is not subject to the 120 calendar day limit;
(4) Only issues securities the terms of which do not provide a holder with any right, except in extraordinary circumstances, to withdraw, redeem or require the repurchase of such securities but may entitle holders to receive distributions made to all holders pro rata; and
(5) Is not registered under section 8 of the Investment Company Act of 1940 (15 U.S.C. 80a–8), and has not elected to be treated as a business development company pursuant to section 54 of that Act (15 U.S.C. 80a–53).
(b)
(1) Has represented to investors and potential investors at the time of the offering of the private fund's securities that it pursues a venture capital strategy;
(2) Prior to December 31, 2010, has sold securities to one or more investors that are not related persons, as defined in § 275.206(4)–2(d)(7), of any investment adviser of the private fund; and
(3) Does not sell any securities to (including accepting any committed capital from) any person after July 21, 2011.
(c)
(1)
(i) Acquire an interest in the private fund; or
(ii) Make capital contributions to the private fund.
(2)
(3)
(i) An equity security issued by a qualifying portfolio company that has been acquired directly by the private fund from the qualifying portfolio company;
(ii) Any equity security issued by a qualifying portfolio company in exchange for an equity security issued by the qualifying portfolio company described in paragraph (c)(3)(i) of this section; or
(iii) Any equity security issued by a company of which a qualifying portfolio company is a majority-owned subsidiary, as defined in section 2(a)(24) of the Investment Company Act of 1940 (15 U.S.C. 80a–2(a)(24)), or a predecessor, and is acquired by the private fund in exchange for an
(4)
(i) At the time of any investment by the private fund, is not reporting or foreign traded and does not control, is not controlled by or under common control with another company, directly or indirectly, that is reporting or foreign traded;
(ii) Does not borrow or issue debt obligations in connection with the private fund's investment in such company and distribute to the private fund the proceeds of such borrowing or issuance in exchange for the private fund's investment; and
(iii) Is not an investment company, a private fund, an issuer that would be an investment company but for the exemption provided by § 270.3a–7 of this chapter, or a commodity pool.
(5)
(6)
For purposes of this section, an investment adviser may treat as a private fund any issuer formed under the laws of a jurisdiction other than the United States that has not offered or sold its securities in the United States or to U.S. persons in a manner inconsistent with being a private fund, provided that the adviser treats the issuer as a private fund under the Act (15 U.S.C. 80b) and the rules thereunder for all purposes.
(a)
(1) Acts solely as an investment adviser to one or more qualifying private funds; and
(2) Manages private fund assets of less than $150 million.
(b)
(1) The investment adviser has no client that is a United States person except for one or more qualifying private funds; and
(2) All assets managed by the investment adviser at a place of business in the United States are solely attributable to private fund assets, the total value of which is less than $150 million.
(c)
(d)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
A client will not be considered a United States person if the client was not a United States person at the time of becoming a client.
By the Commission.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS has received a request from BP Exploration (Alaska) Inc. (BP) for authorization for the take of marine mammals incidental to operation of offshore oil and gas facilities in the U.S. Beaufort Sea, Alaska, for the period 2011–2016. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is proposing to issue regulations to govern that take and requesting information, suggestions, and comments on these proposed regulations. These regulations, if issued, would include required mitigation measures to ensure the least practicable adverse impact on the affected marine mammal species and stocks.
Comments and information must be received no later than August 5, 2011.
You may submit comments, identified by 0648–AY63, by any one of the following methods:
• Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal
• Hand delivery or mailing of paper, disk, or CD–ROM comments should be addressed to Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910.
Comments regarding any aspect of the collection of information requirement contained in this proposed rule should be sent to NMFS via one of the means stated here and to the Office of Information and Regulatory Affairs, NEOB–10202, Office of Management and Budget (OMB), Attn: Desk Office, Washington, DC 20503,
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.
Candace Nachman, Office of Protected Resources, NMFS, (301) 713–2289, ext. 156, or Brad Smith, Alaska Region, NMFS, (907) 271–3023.
A copy of BP's application may be obtained by writing to the address specified above (see
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses, and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such taking are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as:
an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
On November 6, 2009, NMFS received an application from BP requesting authorization for the take of six marine mammal species incidental to operation of the Northstar development in the Beaufort Sea, Alaska, over the course of 5 years, which would necessitate the promulgation of new five-year regulations. Construction of Northstar was completed in 2001. The proposed activities for 2011–2016 include a continuation of drilling, production, and emergency training operations but no construction or activities of similar intensity to those conducted between 1999 and 2001. The likely or possible impacts of the planned continuing operations at Northstar on marine mammals involve both non-acoustic and acoustic effects. Potential non-acoustic effects could result from the physical presence of personnel, structures and equipment, construction or maintenance activities, and the occurrence of oil spills. Petroleum development and associated activities in marine waters introduce sound into the environment, produced by island construction, maintenance, and drilling, as well as vehicles operating on the ice, vessels, aircraft, generators, production machinery, gas flaring, and camp operations. BP requests authorization to take individuals of three cetacean and three pinniped species by Level B Harassment. They are: Bowhead, gray, and beluga whales and ringed, bearded, and spotted seals. Further, BP requests authorization to take five individual ringed seals by injury or mortality annually over the course of the 5-year rule.
BP is currently producing oil from an offshore development in the Northstar Unit (see Figure 1 in BP's application). This development is the first in the Beaufort Sea that makes use of a subsea pipeline to transport oil to shore and
The main facilities associated with Northstar include a gravel island work surface for drilling and oil production facilities and two pipelines connecting the island to the existing infrastructure at Prudhoe Bay. One pipeline transports crude oil to shore, and the second imports gas from Prudhoe Bay for gas injection at Northstar. Permanent living quarters and supporting oil production facilities are also located on the island.
The construction of Northstar began in early 2000 and continued through 2001. BP states that activities with similar intensity to those that occurred during the construction phase between 2000 and 2001 are not planned or expected for any date within the 5-year period that would be governed by the proposed regulations (
The planned well-drilling program for Northstar was completed in May 2004. Drilling activities to drill new wells, conduct well maintenance, and drill well side-tracks continued in 2006 (six wells), 2007 (two wells), and 2008 (two wells). The drill rig was demobilized and removed from the island by barge during the 2010 open water period. Although future drilling is not specifically planned, drilling of additional wells or well work-over may be required at some time in the future. A more detailed description of past construction, drilling, and production activities at Northstar can be found in BP's application (see
During the 5-year period from 2011–2016, BP intends to continue production and emergency training operations. As mentioned previously, drilling is not specifically planned for the 2011–2016 time period but may be required at some point in the future. The activities described next could occur at any time during the 5-year period. Table 2 in BP's application (see
Transportation needs for the Northstar project include the ability to safely transport personnel, supplies, and equipment to and from the site during repairs or maintenance, drilling, and operations in an offshore environment. During proposed island renewal construction that may take place during the requested time period, quantities of pipes, vertical support members (
During the operations phase from 2002–2009, fewer ice roads were required compared to the construction phase (2000–2001). The future scope of ice road construction activities during ongoing production is expected to be similar to the post-construction period of 2002–2009. The locations, dimensions, and construction techniques of these ice roads are described in the multi-year final comprehensive report (Richardson [ed.], 2008). The presence of ice roads allows the use of standard vehicles such as pick-ups, SUVs, buses and trucks for transport of personnel and equipment to and from Northstar during the ice-covered period. Ice roads are planned to be constructed and used as a means of winter transportation for the duration of Northstar operations. The orientation of future ice roads is undetermined, but will not exceed the number of ice roads created during the winter of 2000/2001.
Barges and Alaska Clean Seas (ACS) vessels are used to transport personnel and equipment from the Prudhoe Bay area to Northstar during the open-water season, which extends from approximately mid- to late-July through early to mid-October. Seagoing barges are used to transport large modules and other supplies and equipment during the construction period.
Helicopter access to Northstar Island continues to be an important transportation option during break-up and freeze-up of the sea ice when wind, ice conditions, or other operational considerations prevent or limit hovercraft travel. Helicopters will be used for movement of personnel and supplies in the fall after freeze-up begins and vessel traffic is not possible but before ice roads have been constructed. Helicopters will also be used in the spring after ice roads are no longer safe for all-terrain vehicles (ATVs) but before enough open water is available for vessel traffic. Helicopters are also available for use at other times of year in emergency situations. Helicopters fly at an altitude of at least 1,000 ft (305 m), except for take-off, landing, and as dictated for safe aircraft operations. Designated flight paths are assigned to minimize potential disturbance to wildlife and subsistence users.
The hovercraft is used to transport personnel and supplies during break-up and freeze-up periods to reduce helicopter use. BP intends to continue the use of the hovercraft in future years. Specifications of the hovercraft and sound characteristics are described in Richardson ([ed.] 2008) and Blackwell and Greene (2005).
The process facilities for the Northstar project are primarily prefabricated sealift modules that were shipped to the island and installed in 2001. The operational aspects of the Northstar production facility include the following: Two diesel generators (designated emergency generators); three turbine generators for the power plant, operating at 50 percent duty cycle (
The drilling rig and associated equipment was moved by barge to Northstar Island from Prudhoe Bay during the open-water season in 2000. Drilling began in December 2000 using power supplied by the installed gas line. The first well drilled was the Underground Injection Control well, which was commissioned for disposal of permitted muds and cuttings on January 26, 2001. After Northstar facilities were commissioned, drilling above reservoir depth resumed, while drilling below that depth is allowed only during the ice covered period. Although future drilling is not specifically planned during the requested time period for this proposed rule, drilling of additional wells or well work-over may be required at some time during 2011–2016.
The Northstar pipelines have been designed, installed, and monitored to assure safety and leak prevention. Pipeline monitoring and surveillance activities have been conducted since oil production began, and BP will conduct long-term monitoring of the pipeline system to assure design integrity and to detect any potential problems through the life of the Northstar development. The program will include visual inspections/aerial surveillance and pig (a gauging/cleaning device) inspections.
The Northstar pipelines include the following measures to assure safety and leak prevention:
• Under the pipeline design specifications, the tops of the pipes are 6–8 ft (1.8–2.4 m) below the original seabed (this is 2 times the deepest measured ice gouge);
• The oil pipeline uses higher yield steel than required by design codes as applied to internal pressure (by a factor of over 2.5 times). This adds weight and makes the pipe stronger. The 10-in (25.4-cm) diameter Northstar oil pipeline has thicker walls than the 48-in (122-cm) diameter Trans-Alaska Pipeline;
• The pipelines are designed to bend without leaking in the event of ice keel impingement or the maximum predicted subsidence from permafrost thaw;
• The pipelines are coated on the outside and protected with anodes to prevent corrosion; and
• The shore transition is buried to protect against storms, ice pile-up, and coastal erosion. The shore transition valve pad is elevated and set back from the shoreline.
A best-available-technology leak detection system is being used during operations to monitor for any potential leaks. The Northstar pipeline incorporates two independent, computational leak detection systems: (1) The Pressure Point Analysis (PPA) system, which detects a sudden loss of pressure in the pipeline; and (2) the mass balance leak detection system, which supplements the PPA. Furthermore, an independent hydrocarbon sensor, the LEOS leak detection system, located between the two pipelines, can detect hydrocarbon vapors and further supplements the other systems.
• Intelligent inspection pigs are used during operations to monitor pipe conditions and measure any changes.
• The line is constructed with no flanges, valves, or fittings in the subsea section to reduce the likelihood of equipment failure.
During operations, BP conducts aerial forward looking infrared (FLIR) surveillance of the offshore and onshore pipeline corridors at least once per week (when conditions allow), to detect pipeline leaks. Pipeline isolation valves are inspected on a regular basis. In addition to FLIR observations/inspections, BP conducts a regular oil pipeline pig inspection program to assess continuing pipeline integrity. The LEOS Leak Detection System is used continuously to detect under-ice releases during the ice covered period.
The pipelines are also monitored annually to determine any potential sources of damage along the pipeline route. The monitoring work has been conducted in two phases: (1) A helicopter-based reconnaissance of strudel drainage features in early June; and (2) a vessel-based survey program in late July and early August. During the vessel-based surveys, multi-beam, single-beam, and side scan sonar are used. These determine the locations and characteristics of ice gouges and strudel scour depressions in the sea bottom along the pipeline route and at additional selected sites where strudel drainage features have been observed. If strudel scour depressions are identified, additional gravel fill is placed in the open water season to maintain the sea bottom to original pipeline construction depth.
Various routine repair and maintenance activities have occurred since the construction of Northstar. Examples of some of these activities include completion and repair of the island slope protection berm and well cellar retrofit repairs. Activities associated with these repairs or modifications are reported in the 1999–2004 final comprehensive report (Rodrigues and Williams, 2006) and since 2005 in the various Annual Reports (Rodrigues
Emergency and oil spill response training activities are conducted at various times throughout the year at Northstar. Oil spill drill exercises are conducted by ACS during both the ice-covered and open-water periods. During the ice-covered periods, exercises are conducted for containment of oil in water and for detection of oil under ice. These spill drills have been conducted on mostly bottom-fast ice in an area 200 ft × 200 ft (61 m × 61 m) located just west of the island, using snow machines and ATVs. The spill drill includes the use of various types of equipment to cut ice slots or drill holes through the floating sea ice. Typically, the snow is cleared from the ice surface with a Bobcat loader and snow blower to allow access to the ice. Two portable generators are used to power light plants at the drill site. The locations and frequency of future spill drills or exercises will vary depending on the condition of the sea ice and training needs.
ACS conducts spill response training activities during the open-water season
ARKTOS amphibious emergency escape vehicles are stationed on Northstar Island. Each ARKTOS is capable of carrying 52 people. Training exercises with the ARKTOS are conducted monthly during the ice-covered period. ARKTOS training exercises are not conducted during the summer. Equipment and techniques used during oil spill response exercises are continually updated, and some variations relative to the activities described here are to be expected.
Detailed plans for the decommissioning of Northstar will be prepared near the end of field life, which will not occur during the period requested for these proposed regulations. For additional information on abandonment and decommissioning of the Northstar facility, refer to BP's application (see
During continuing production activities at Northstar, sounds and non-acoustic stimuli will be generated by vehicle traffic, vessel operations, helicopter operations, drilling, and general operations of oil and gas facilities (
Sounds associated with construction of Seal Island in 1982 were studied and described by Greene (1983a) and summarized in the previous petition for regulations submitted by BP (BPXA, 1999). Underwater and in-air sounds and iceborne vibrations of various activities associated with the final construction phases of Northstar were recorded in the winter of 2000–2002 (Greene
Ice road construction is difficult to separate into its individual components, as one or more bulldozers and several rolligons normally work concurrently. Of the construction activities reported, those related to ice road construction (bulldozers, augering and pumping) produced the least amount of sound, in all three media. The distance to median background for the strongest one-third octave bands for bulldozers, augering, and pumping was less than 1.24 mi (2 km) for underwater sounds, less than 0.62 mi (1 km) for in-air sounds, and less than 2.5 mi (4 km) for iceborne vibrations (see Table 5 in BP's application). Vibratory sheet pile driving produced the strongest sounds, with broadband underwater levels of 143 dB re 1 µPa at 328 ft (100 m). Most of the sound energy was in a tone close to 25 Hz. Distances to background levels of underwater sounds (approximately 1.86 mi [3 km]) were somewhat smaller than expected. Shepard
Drilling operations started in December 2000 and were the first sound-producing activities associated with the operational phase at Northstar. The four principal operations that occur during drilling are drilling itself, tripping (extracting and lowering the drillstring), cleaning, and well-logging (lowering instruments on a cable down the hole). Drilling activities can be categorized as non-continuous sounds,
Sounds from generators, process operations (
In air, drilling sounds were not distinguishable from overall island sounds based on spectral characteristics or on broadband levels (Blackwell
Richardson
During both the construction phase in 2000 and the drilling and production phase, island sounds underwater reached background values at distances of 1.2–2.5 mi (2–4 km; Blackwell and Greene, 2006). For each year, percentile levels of broadband sound (maximum, 95th, 50th, and 5th percentile, and minimum) were computed over the entire field season. The range of broadband levels recorded over 2001–2008 for all percentiles is 80.8–141 dB re 1 µPa. The maximum levels are mainly determined by the presence of vessels and can be governed by one specific event. The 95th percentile represents the sound level generated at Northstar during 95% of the time. From 2004 to 2008 these levels ranged from 110 to 119.5 dB re 1 µPa at approximately 0.3 mi (450 m) from Northstar. Much of the variation in received levels was dependent on sea state, which is correlated with wind speed. The lowest sound levels in the time series are indicative of the quietest times in the water near the island and generally correspond to times with low wind speeds. Conversely, times of high wind speed usually correspond to increased broadband levels in the directional seafloor acoustic recorder (DASAR) record (Blackwell
Airborne sounds were recorded concurrently with the boat-based recordings in 2000–2003 (Blackwell and Greene, 2006). The strongest broadband airborne sounds were recorded approximately 985 ft (300 m) from Northstar Island in the presence of vessels, and reached 61–62 dBA re 20 μPa. These values are expressed as A-weighted levels on the scale normally used for in-air sounds. In-air sounds generally reached a minimum 0.6–2.5 mi (1–4 km) from the island, with or without the presence of boats.
Sounds related to winter construction activities of Seal Island in 1982 were reported by Greene (1983a) and information on this topic can be found in BP's 1999 application (BPXA, 1999). During the construction and operation of Northstar Island from 2000 to 2002, underwater sound from vehicles constructing and traveling along the ice road diminished to background levels at distances ranging from 2.9 to 5.9 mi (4.6 to 9.5 km). In-air sound levels of these activities reached background levels at distances ranging from 328–1,969 ft (100–600 m; see Table 5 in BP's application).
Sounds and vibrations from vehicles traveling along an ice road constructed across the grounded sea ice and along Flaxman Island (a barrier Island east of Prudhoe Bay) were recorded in air and within artificially constructed polar bear dens in March 2002 (MacGillivray
Helicopters were used for personnel and equipment transport to and from Northstar during the unstable ice periods in spring and fall. Helicopters flying to and from Northstar generally maintain straight-line routes at altitudes of 1,000 ft (300 m) ASL, thereby limiting the received levels at and below the surface. Helicopter sounds contain numerous prominent tones at frequencies up to about 350 Hz, with the strongest measured tone at 20–22 Hz. Received peak sound levels of a Bell 212 passing over a hydrophone at an altitude of approximately 1,000 ft (300 m), which is the minimum allowed altitude for the Northstar helicopter under normal operating conditions, varied between 106 and 111 dB re 1 μPa at 30 and 59 ft (9 and 18 m) water depth (Greene, 1982, 1985). Harmonics of the main rotor and tail rotor usually dominate the sound from helicopters; however, many additional tones associated with the engines and other rotating parts are sometimes present (Patenaude
Under calm conditions, rotor and engine sounds are coupled into the water within a 26° cone beneath the aircraft. Some of the sound transmits beyond the immediate area, and some sound enters the water outside the 26° cone when the sea surface is rough. However, scattering and absorption limit lateral propagation in shallow water. For these reasons, helicopter and fixed-wing aircraft flyovers are not heard underwater for very long, especially when compared to how long they are heard in air as the aircraft approaches, passes and moves away
Principally the crew boat, tugs, and self-propelled barges were the main contributors to the underwater sound field at Northstar during the construction and production periods (Blackwell and Greene, 2006). Vessel sounds are a concern due to the potential disturbance to marine mammals (Richardson
The presence of boats considerably expanded the distances to which Northstar-related sound was detectable. On days with average levels of background sounds, sounds from tug boats were detectable on offshore DASAR recordings to at least 13.4 mi (21.5 km) from Northstar (Blackwell
The Beaufort Sea supports a diverse assemblage of marine mammals, including: Bowhead, gray, beluga, killer, minke, and humpback whales; harbor porpoises; ringed, ribbon, spotted, and bearded seals; narwhals; polar bears; and walruses. The bowhead and humpback whales and polar bear are listed as “endangered” under the Endangered Species Act (ESA) and as depleted under the MMPA. Certain stocks or populations of gray, beluga, and killer whales and spotted seals are listed as endangered or are proposed for listing under the ESA; however, none of those stocks or populations occur in the proposed activity area. On December 10, 2010, NMFS published a notice of proposed threatened status for subspecies of the ringed seal (75 FR 77476) and a notice of proposed threatened and not warranted status for subspecies and distinct population segments of the bearded seal (75 FR 77496) in the
Of the species mentioned here, the ones that are most likely to occur near the Northstar facility include: bowhead, gray, and beluga whales and ringed, bearded, and spotted seals. Ringed seals are year-round residents in the Beaufort Sea and are anticipated to be the most frequently encountered species in the proposed project area. Bowhead whales are anticipated to be the most frequently encountered cetacean species in the proposed project area; however, their occurrence is not anticipated to be year-round. The most common time for bowheads to occur near Northstar is during the fall migration westward through the Beaufort Sea, which typically occurs from late August through October each year.
Other marine mammal species that have been observed in the Beaufort Sea but are uncommon or rarely identified in the project area include harbor porpoise, narwhal, killer, minke, and humpback whales, and ribbon seals. These species could occur in the project area, but each of these species is uncommon or rare in the area and relatively few encounters with these species are expected during BP's activities. The narwhal occurs in Canadian waters and occasionally in the Beaufort Sea, but it is rare there and is not expected to be encountered. There are scattered records of narwhal in Alaskan waters, including reports by subsistence hunters, where the species is considered extralimital (Reeves
BP's application contains information on the status, distribution, seasonal distribution, and abundance of each of the six species under NMFS jurisdiction likely to be impacted by the proposed activities. When reviewing the application, NMFS determined that the species descriptions provided by BP correctly characterized the status,
When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Based on available behavioral data, audiograms have been derived using auditory evoked potentials, anatomical modeling, and other data, Southall
• Low frequency cetaceans (13 species of mysticetes): functional hearing is estimated to occur between approximately 7 Hz and 22 kHz (however, a study by Au
• Mid-frequency cetaceans (32 species of dolphins, six species of larger toothed whales, and 19 species of beaked and bottlenose whales): functional hearing is estimated to occur between approximately 150 Hz and 160 kHz;
• High frequency cetaceans (eight species of true porpoises, six species of river dolphins, Kogia, the franciscana, and four species of cephalorhynchids): functional hearing is estimated to occur between approximately 200 Hz and 180 kHz;
• Pinnipeds in Water: functional hearing is estimated to occur between approximately 75 Hz and 75 kHz, with the greatest sensitivity between approximately 700 Hz and 20 kHz; and
• Pinnipeds in Air: functional hearing is estimated to occur between approximately 75 Hz and 30 kHz.
As mentioned previously in this document, six marine mammal species (three cetacean and three pinniped species) are likely to occur in the Northstar facility area. Of the three cetacean species likely to occur in BP's project area, two are classified as low frequency cetaceans (
Underwater audiograms have been obtained using behavioral methods for four species of phocinid seals: the ringed, harbor, harp, and northern elephant seals (reviewed in Richardson
Pinniped call characteristics are relevant when assessing potential masking effects of man-made sounds. In addition, for those species whose hearing has not been tested, call characteristics are useful in assessing the frequency range within which hearing is likely to be most sensitive. The three species of seals present in the study area, all of which are in the phocid seal group, are all most vocal during the spring mating season and much less so during late summer. In each species, the calls are at frequencies from several hundred to several thousand hertz—above the frequency range of the dominant noise components from most of the proposed oil production and operational activities.
Cetacean hearing has been studied in relatively few species and individuals. The auditory sensitivity of bowhead, gray, and other baleen whales has not been measured, but relevant anatomical and behavioral evidence is available. These whales appear to be specialized for low frequency hearing, with some directional hearing ability (reviewed in Richardson
The beluga whale is one of the better-studied species in terms of its hearing ability. As mentioned earlier, the auditory bandwidth in mid-frequency odontocetes is believed to range from 150 Hz to 160 kHz (Southall
Call characteristics of cetaceans provide some limited information on their hearing abilities, although the auditory range often extends beyond the range of frequencies contained in the calls. Also, understanding the frequencies at which different marine mammal species communicate is relevant for the assessment of potential impacts from manmade sounds. A summary of the call characteristics for bowhead, gray, and beluga whales is provided next. More information is available in BP's application (see
Most bowhead calls are tonal, frequency-modulated sounds at frequencies of 50–400 Hz. These calls overlap broadly in frequency with the underwater sounds emitted by many construction and operational activities (Richardson
Beluga calls include trills, whistles, clicks, bangs, chirps and other sounds (Schevill and Lawrence, 1949; Ouellet, 1979; Sjare and Smith, 1986a). Beluga whistles have dominant frequencies in the 2–6 kHz range (Sjare and Smith, 1986a). This is above the frequency range of most of the sound energy produced by the planned Northstar production activities and associated vessels. Other beluga call types reported by Sjare and Smith (1986a,b) included
The beluga also has a very well developed high frequency echolocation system, as reviewed by Au (1993). Echolocation signals have peak frequencies from 40–120 kHz and broadband source levels of up to 219 dB re 1 μPa-m (zero-peak). Echolocation calls are far above the frequency range of the sounds from the planned Northstar activities. Therefore, those industrial sounds are not expected to interfere with echolocation.
The likely or possible impacts of the planned offshore oil developments at Northstar on marine mammals involve both non-acoustic and acoustic effects. Potential non-acoustic effects could result from the physical presence of personnel, structures and equipment, construction or maintenance activities, and the occurrence of oil spills. In winter, during ice road construction, and in spring, flooding on the sea ice may displace some ringed seals along the ice road corridor. There is a small chance that a seal pup might be injured or killed by on-ice construction or transportation activities. A major oil spill is unlikely and, if it occurred, its effects are difficult to predict. Potential impacts from an oil spill are discussed in more detail later in this section.
Petroleum development and associated activities in marine waters introduce sound into the environment, produced by island construction, maintenance, and drilling, as well as vehicles operating on the ice, vessels, aircraft, generators, production machinery, gas flaring, and camp operations. The potential effects of sound from the proposed activities might include one or more of the following: masking of natural sounds; behavioral disturbance and associated habituation effects; and, at least in theory, temporary or permanent hearing impairment. As outlined in previous NMFS documents, the effects of noise on marine mammals are highly variable, and can be categorized as follows (based on Richardson
(1) The noise may be too weak to be heard at the location of the animal (
(2) The noise may be audible but not strong enough to elicit any overt behavioral response;
(3) The noise may elicit reactions of variable conspicuousness and variable relevance to the well being of the marine mammal; these can range from temporary alert responses to active avoidance reactions such as vacating an area at least until the noise event ceases but potentially for longer periods of time;
(4) Upon repeated exposure, a marine mammal may exhibit diminishing responsiveness (habituation), or disturbance effects may persist; the latter is most likely with sounds that are highly variable in characteristics, infrequent, and unpredictable in occurrence, and associated with situations that a marine mammal perceives as a threat;
(5) Any anthropogenic noise that is strong enough to be heard has the potential to reduce (mask) the ability of a marine mammal to hear natural sounds at similar frequencies, including calls from conspecifics, and underwater environmental sounds such as surf noise;
(6) If mammals remain in an area because it is important for feeding, breeding, or some other biologically important purpose even though there is chronic exposure to noise, it is possible that there could be noise-induced physiological stress; this might in turn have negative effects on the well-being or reproduction of the animals involved; and
(7) Very strong sounds have the potential to cause a temporary or permanent reduction in hearing sensitivity. In terrestrial mammals, and presumably marine mammals, received sound levels must far exceed the animal's hearing threshold for there to be any temporary threshold shift (TTS) in its hearing ability. For transient sounds, the sound level necessary to cause TTS is inversely related to the duration of the sound. Received sound levels must be even higher for there to be risk of permanent hearing impairment. In addition, intense acoustic or explosive events may cause trauma to tissues associated with organs vital for hearing, sound production, respiration and other functions. This trauma may include minor to severe hemorrhage.
The characteristics of the various sound sources at Northstar were summarized earlier in this document (see the “Description of the Specified Activity” section). Additionally, BP's application contains more details on the Northstar sound characteristics, underwater and in-air sound propagation in and around Northstar, and ambient noise levels in the waters near Prudhoe Bay, Alaska. Please refer to that document for more information (see
Masking is the obscuring of sounds of interest by other sounds, often at similar frequencies. Marine mammals are highly dependent on sound, and their ability to recognize sound signals amid other noise is important in communication, predator and prey detection, and, in the case of toothed whales, echolocation. Even in the absence of manmade sounds, the sea is usually noisy. Background ambient noise often interferes with or masks the ability of an animal to detect a sound signal even when that signal is above its absolute hearing threshold. Natural ambient noise includes contributions from wind, waves, precipitation, other animals, and (at frequencies above 30 kHz) thermal noise resulting from molecular agitation (Richardson
Although some degree of masking is inevitable when high levels of manmade broadband sounds are introduced into the sea, marine mammals have evolved systems and behavior that function to reduce the impacts of masking. Structured signals, such as the echolocation click sequences of small toothed whales, may be readily detected even in the presence of strong background noise because their frequency content and temporal features usually differ strongly from those of the background noise (Au and Moore, 1988, 1990). The components of background noise that are similar in frequency to the sound signal in question primarily determine the degree of masking of that signal.
Redundancy and context can also facilitate detection of weak signals. These phenomena may help marine mammals detect weak sounds in the presence of natural or manmade noise. Most masking studies in marine mammals present the test signal and the masking noise from the same direction. The sound localization abilities of marine mammals suggest that, if signal and noise come from different directions, masking would not be as severe as the usual types of masking studies might suggest (Richardson
These data demonstrating adaptations for reduced masking pertain mainly to the very high frequency echolocation signals of toothed whales. There is less information about the existence of corresponding mechanisms at moderate or low frequencies or in other types of marine mammals. For example, Zaitseva
There would be no masking effects on cetaceans from BP's proposed activities during the ice-covered season because cetaceans will not occur near Northstar at that time. The sounds from oil production and any drilling activities are not expected to be detectable beyond several kilometers from the source (Greene, 1983; Blackwell
Small numbers of bowheads, belugas and (rarely) gray whales could be present near Northstar during the open-water season. Almost all energy in the sounds emitted by drilling and other operational activities is at low frequencies, predominantly below 250 Hz with another peak centered around 1,000 Hz. Most energy in the sounds from the vessels and aircraft to be used during this project is below 1 kHz (Moore
Because of the relatively low effective source levels and rapid attenuation of drilling and production sounds from artificial islands in shallow water, masking effects are unlikely even for mysticetes that are within several kilometers of Northstar Island. Vessels that are docking or under power to maintain position could cause some degree of masking. However, the adaptation of some cetaceans to alter the source level or frequency of their calls, along with directional hearing, pre-adaptation to tolerate some masking by natural sounds, and the brief periods when most individual whales occur near Northstar, would all reduce the potential impacts of masking from BP's proposed activities. Therefore, impacts from masking on cetaceans are anticipated to be minor.
Disturbance can induce a variety of effects, such as subtle changes in behavior, more conspicuous dramatic changes in activities, and displacement. A main concern about the impacts of manmade noise on marine mammals is the potential for disturbance. Behavioral reactions of marine mammals to sound are difficult to predict because they are dependent on numerous factors, including species, state of maturity, experience, current activity, reproductive state, time of day, and weather.
When the received level of noise exceeds some behavioral reaction threshold, it is possible that some cetaceans could exhibit disturbance reactions. The levels, frequencies and types of noise that elicit a response vary among and within species, individuals, locations, and seasons. Behavioral changes may be subtle alterations in surface-respiration-dive cycles, changes in activity or aerial displays, movement away from the sound source, or complete avoidance of the area. The reaction threshold and degree of response are related to the activity of the animal at the time of the disturbance. Whales engaged in active behaviors such as feeding, socializing, or mating are less likely than resting animals to show overt behavioral reactions. However, they may do so if the received noise level is high or the source of disturbance is directly threatening.
Some researchers have noted that behavioral reactions do not occur throughout the entire zone ensonified by industrial activity. In most cases that have been studied, including work on bowhead, gray, and beluga whales, the actual radius of effect is smaller than the radius of detectability (reviewed in Richardson and Malme, 1993; Richardson
During the open-water season, sound propagation from sources on the island
Information about the reactions of cetaceans to construction or heavy equipment activity on artificial (or natural) islands is limited (Richardson
There are no specific data on reactions of bowhead or gray whales to noise from drilling on an artificial island. However, playback studies have shown that both species begin to display overt behavioral responses to various low-frequency industrial sounds when received levels exceed 110–120 dB re 1 μPa (Malme
Prior to construction of Northstar, it was expected (based on early data mentioned earlier) that some bowheads would avoid areas where noise levels exceeded 115 dB re 1 μPa (Richardson
In 2000–2004, bowhead whales were monitored acoustically to determine the number of whales that might have been exposed to Northstar-related sounds. Data from 2001–2004 were useable for this purpose. The results showed that, during late summer and early autumn of 2001, a small number of bowhead whales in the southern part of the migration corridor (closest to Northstar) were apparently affected by vessel or Northstar operations. At these times, most “Northstar sound” was from maneuvering vessels, not the island itself. The distribution of calling whales was analyzed, and the results indicated that the apparent southern (proximal) edge of the call distribution was significantly associated with the level of industrial sound output each year, with the southern edge of the call distribution varying by 0.47 mi to 1.46 mi (0.76 km to 2.35 km; depending on year) farther offshore when underwater sound levels from Northstar and associated vessels were above average (Richardson
Nowacek
There are no data on the reactions of gray whales to production activities similar to those in operation at Northstar. Oil production platforms of a very different type have been in place off California for many years. Gray whales regularly migrate through that area (Brownell, 1971), but no detailed data on distances of closest approach or possible noise disturbance have been published. Oil industry personnel have reported seeing whales near platforms, and that the animals approach more closely during low-noise periods (Gales, 1982; McCarty, 1982). Playbacks of recorded production platform noise indicate that gray whales react if received levels exceed approximately 123 dB re 1 μPa—similar to the levels of drilling noise that elicit avoidance (Malme
A typical migrating gray whale tolerates steady, low-frequency industrial sounds at received levels up to about 120 dB re 1 μPa (Malme
In the Canadian Beaufort Sea, beluga whales were seen within several feet of an artificial island. During the island's construction, belugas were displaced from the immediate vicinity of the island but not from the general area (Fraker, 1977a). Belugas in the Mackenzie River estuary showed less response to a stationary dredge than to moving tug/barge traffic. They approached as close as 1,312 ft (400 m) from stationary dredges. Underwater sounds from Northstar Island are weaker than those from the dredge. In addition, belugas occur only infrequently in nearshore waters in the Prudhoe Bay region. They also have relatively poor hearing sensitivity at the low frequencies of most construction noises. Therefore, effects of construction and related sounds on belugas would be expected to be minimal.
Responses of beluga whales to drilling operations are described in Richardson
There are no specific data on the reactions of beluga whales to production operations similar to those at Northstar. Personnel from production platforms in Cook Inlet, Alaska, report that belugas are seen within 30 ft (9 m) of some rigs, and that steady noise is non-disturbing to belugas (Gales, 1982; McCarty, 1982). Beluga whales are regularly observed near the Port of Anchorage and the extensive dredging/maintenance activities that operate there (NMFS, 2003). Pilot whales, killer whales, and unidentified dolphins were also reported near Cook Inlet platforms. In that area, flare booms might attract belugas, possibly because the flares attract salmon in that area. Attraction of belugas to prey concentrations is not likely to occur at Northstar because belugas are predominantly migrating rather than feeding when in that area and because only a very small proportion of the beluga population occurs in nearshore waters. Overall, effects of routine production activities on belugas are expected to be minimal.
Potential effects to cetaceans from aircraft activity could involve both acoustic and non-acoustic effects. It is uncertain if the animals react to the sound of the aircraft or to its physical presence flying overhead. Low passes by aircraft over a cetacean, including a bowhead, gray, or beluga whale, can result in short-term responses or no discernible reaction. Responses can include sudden dives, breaching, churning the water with the flippers and/or flukes, or rapidly swimming away from the aircraft track (reviewed in Richardson
Patenaude
During their study, Patenaude
Richardson
There is little likelihood of project-related helicopter and aircraft traffic over bowheads during their westward fall migration through the Beaufort Sea. Helicopter and aircraft traffic is between the shore and Northstar Island. Most bowhead whales migrate west in waters farther north than the island. Helicopters maintain an altitude of 1,000 ft (305 m) above sea level while traveling over water to and from Northstar whenever weather conditions allow. It is unlikely that there will be any need for helicopters or aircraft to circle or hover over the open water other than when landing or taking off. Gray whales are uncommon in the area, and there is little likelihood that any will be overflown by a helicopter or aircraft. The planned flight altitude will minimize any disturbance that might occur if a gray whale is encountered. Likewise, there is little likelihood of helicopter disturbance to belugas.
Whales react most noticeably to erratically moving vessels with varying engine speeds and gear changes and to vessels in active pursuit. Avoidance reactions by bowheads sometimes begin as subtle alterations in whale activity, speed and heading as far as 2.5 mi (4 km) from the vessel. Consequently, the closest point of approach is farther from the vessel than if the cetacean had not altered course. Bowheads sometimes begin to swim actively away from approaching vessels when they come within 1.2–2.5 mi (2–4 km). If the vessel approaches to within several hundred meters, the response becomes more noticeable, and whales sometimes change direction to swim perpendicularly away from the vessel path (Richardson
North Atlantic right whales (a species closely related to the bowhead whale) also display variable responses to boats. There may be an initial orientation away from a boat, followed by a lack of observable reaction (Atkins and Swartz, 1989). A slowly moving boat can approach a right whale, but an abrupt change in course or engine speed usually elicits a reaction (Goodyear, 1989; Mayo and Marx, 1990; Gaskin, 1991). When approached by a boat, right whale mothers will interpose themselves between the vessel and calf and will maintain a low profile (Richardson
Beluga whales are generally quite responsive to vessels. Belugas in Lancaster Sound in the Canadian Arctic showed dramatic reactions in response to icebreaking ships, with received levels of sound ranging from 101 dB to 136 dB re 1 μPa in the 20 to 1,000-Hz band at a depth of 66 ft (20 m; Finley
During the drilling and oil production phase of the Northstar development, most vessel traffic involves slow-moving tugs and barges and smaller faster-moving vessels providing local transport of equipment, supplies, and personnel. Much of this traffic will occur during August and early September before many whales are in the area. Some vessel traffic during the broken ice periods in the spring and fall may also occur. Alternatively, small hovercraft may be used during the spring and fall when the ice is too thin to allow safe passage by large vehicles over the ice road.
Whale reactions to slow-moving vessels are less dramatic than their reactions to faster and/or erratic vessel movements. Bowhead, gray, and beluga whales often tolerate the approach of slow-moving vessels within several hundred meters. This is especially so when the vessel is not directed toward the whale and when there are no sudden changes in direction or engine speed (Wartzok
Most vessel traffic associated with Northstar will be inshore of the bowhead and beluga migration corridor and/or prior to the migration season of bowhead and beluga whales. Underwater sounds from hovercraft are generally lower than for standard vessels since the sound is generated in air, rather than underwater. If vessels or hovercraft do approach whales, a small number of individuals may show short-term avoidance reactions.
The highest levels of underwater sound produced by routine Northstar operations are generally associated with Northstar-related vessel operations. These vessel operations around Northstar sometimes result in sound levels high enough that a small number of the bowheads in the southern part of the migration corridor appear to be deflected slightly offshore. To the extent that offshore deflection occurs as a result of Northstar, it is mainly attributable to Northstar-related vessel operations. As previously described, this deflection is expected to involve few whales and generally small deflections.
Temporary or permanent hearing impairment is a possibility when marine mammals are exposed to very strong sounds. Non-auditory physiological effects might also occur in marine mammals exposed to strong underwater sound. Possible types of non-auditory physiological effects or injuries that theoretically might occur in mammals close to a strong sound source include stress, neurological effects, bubble formation, and other types of organ or tissue damage. It is possible that some marine mammal species (
Human non-impulsive noise exposure guidelines are based on exposures of equal energy (the same sound exposure
TTS was measured in a single, captive bottlenose dolphin after exposure to a continuous tone with maximum SPLs at frequencies ranging from 4 to 11 kHz that were gradually increased in intensity to 179 dB re 1 μPa and in duration to 55 minutes (Nachtigall
Schlundt
For baleen whales, there are no data, direct or indirect, on levels or properties of sound that are required to induce TTS. The frequencies to which baleen whales are most sensitive are lower than those to which odontocetes are most sensitive, and natural background noise levels at those low frequencies tend to be higher. Marine mammals can hear sounds at varying frequency levels. However, sounds that are produced in the frequency range at which an animal hears the best do not need to be as loud as sounds in less functional frequencies to be detected by the animal. As a result, auditory thresholds of baleen whales within their frequency band of best hearing are believed to be higher (less sensitive) than are those of odontocetes at their best frequencies (Clark and Ellison, 2004). Therefore, for a sound to be audible, baleen whales require sounds to be louder (
NMFS (1995, 2000) concluded that cetaceans should not be exposed to pulsed underwater noise at received levels exceeding 180 dB re 1 μPa (rms). The established 180-dB re 1 μPa (rms) criterion is not considered to be the level above which TTS might occur in cetaceans. Rather, it is the received level above which, in the view of a panel of bioacoustics specialists convened by NMFS before TTS measurements for marine mammals started to become available, one could not be certain that there would be no injurious effects, auditory or otherwise, to cetaceans. Levels of underwater sound from production and drilling activities that occur continuously over extended periods at Northstar are not very high (Blackwell and Greene, 2006). For example, received levels of prolonged drilling sounds are expected to diminish below 140 dB re 1 μPa at a distance of about 131 ft (40 m) from the center of activity. Sound levels during production activities other than drilling usually would diminish below 140 dB re 1 μPa at a closer distance. The 140 dB re 1 μPa radius for drilling noise is within the island and drilling sounds are attenuated to levels below 140 dB re 1 μPa in the water near Northstar. Additionally, cetaceans are not commonly found in the area during the ice-covered season. Based on this information and the available data, TTS of cetaceans is not expected from the operations at Northstar.
There is no specific evidence that exposure to underwater industrial sounds can cause PTS in any marine mammal (see Southall
It is highly unlikely that cetaceans could receive sounds strong enough (and over a sufficient duration) to cause PTS (or even TTS) during the proposed operation of the Northstar facility. Source levels for much of the equipment
As stated previously in this document, masking is the obscuring of sounds of interest by other sounds, often at similar frequencies. There are fewer data available regarding the potential impacts of masking on pinnipeds than on cetaceans. Cummings
During the ice-covered season, only ringed seals and small numbers of bearded seals are found near Northstar. Therefore, there would be no masking effects on spotted seals, as they do not occur in the area during that time. All three pinniped species can be found in and around Northstar during the summer open-water season. As stated previously in this document, sounds from oil production and any drilling activities are not expected to be detectable beyond several kilometers from the source; however, sounds from vessels were detectable to distances as far as approximately 18.6 mi (30 km) from Northstar. There is the potential for vessels to cause some degree of masking.
It is expected that masking of calls or other natural sounds would not extend beyond the maximum distance where the construction or operational sounds are detectable, and, at that distance, only the weakest sounds would be masked. The maximum distances for masking will vary greatly depending on ambient noise and sound propagation conditions but will typically be about 1.2–3.1 mi (2–5 km) in air and 1.9–6.2 mi (3–10 km) underwater. Also, some types of Northstar sounds (especially the stronger ones) vary over time, and, at quieter times, masking would be absent or limited to closer distances. While some masking is possible, it is usually more prominent for lower frequencies. Although the functional hearing range for pinnipeds is estimated to occur between approximately 75 Hz and 75 kHz, the range with the greatest sensitivity is estimated to occur between approximately 700 Hz and 20 kHz. Therefore, BP's proposed activities are expected to have minor masking effects on pinnipeds.
As stated earlier in this document, disturbance can induce a variety of effects, such as subtle changes in behavior, more conspicuous dramatic changes in activities, and displacement. When the received level of noise exceeds some behavioral reaction threshold, it is possible that some pinnipeds could exhibit disturbance reactions. The levels, frequencies and types of noise that elicit a response vary among and within species, individuals, locations, and seasons. Behavioral changes may be an upright posture for hauled out seals, movement away from the sound source, or complete avoidance of the area. The reaction threshold and degree of response are related to the activity of the animal at the time of the disturbance. Some researchers have noted that behavioral reactions do not occur throughout the entire zone ensonified by industrial activity. In most cases that have been studied, including recent work on ringed seals, the actual radius of effect is smaller than the radius of detectability (reviewed in Richardson
Kelly
Utilizing radio telemetry to examine the short-term behavioral responses of ringed seals to human activities, Kelly
Moulton
To complement the aerial survey program on a finer scale, specially-trained dogs were used to find seal structures and to monitor the fate of structures in relation to distance from industrial activities (Williams
Blackwell
Consistent with Blackwell
Potential effects to pinnipeds from aircraft activity could involve both acoustic and non-acoustic effects. It is uncertain if the seals react to the sound of the helicopter or to its physical presence flying overhead. Typical reactions of hauled out pinnipeds to aircraft that have been observed include looking up at the aircraft, moving on the ice or land, entering a breathing hole or crack in the ice, or entering the water. Ice seals hauled out on the ice have been observed diving into the water when approached by a low-flying aircraft or helicopter (Burns and Harbo, 1972, cited in Richardson
Blackwell
Born
Spotted seals hauled out on land in summer are unusually sensitive to aircraft overflights compared to other species. They often rush into the water when an aircraft flies by at altitudes up to 984–2,461 ft (300–750 m). They occasionally react to aircraft flying as high as 4,495 ft (1,370 m) and at lateral distances as far as 1.2 mi (2 km) or more (Frost and Lowry, 1990; Rugh
In places where boat traffic is heavy, there have been cases where seals have habituated to vessel disturbance. In England, harbor and gray seals at specific haul-outs appear to have habituated to close approaches by tour boats (Bonner, 1982). Jansen
Pinnipeds are able to hear both in-water and in-air sounds. However, they have significantly different hearing capabilities in the two media. Temporary or permanent hearing impairment is a possibility when marine mammals are exposed to very strong sounds. Non-auditory physiological effects might also occur in marine mammals exposed to strong underwater sound. Possible types of non-auditory physiological effects or injuries that theoretically might occur in mammals close to a strong sound source include stress, neurological effects, bubble formation, and other types of organ or tissue damage. Pinnipeds are not anticipated to experience non-auditory physiological effects as a result of operation of the Northstar facility, as none of the activities associated with the facility will generate sounds loud enough to cause such effects.
As stated earlier in this document, the functional hearing range for pinnipeds in-air is 75 Hz to 30 kHz (Southall
In free-ranging pinnipeds, TTS thresholds associated with exposure to brief pulses (single or multiple) of underwater sound have not been measured. However, systematic TTS studies on captive pinnipeds have been conducted (Bowles
NMFS (1995, 2000) concluded that pinnipeds should not be exposed to pulsed underwater noise at received levels exceeding 190 dB re 1 μPa (rms). The established 190-dB re 1 μPa (rms) criterion is not considered to be the level above which TTS might occur in pinnipeds. Rather, it is the received level above which, in the view of a panel of bioacoustics specialists convened by NMFS before TTS measurements for marine mammals started to become available, one could not be certain that there would be no injurious effects, auditory or otherwise, to pinnipeds. Levels of underwater sound from production and drilling activities that occur continuously over extended periods at Northstar are not very high (Blackwell and Greene, 2006). For example, received levels of prolonged drilling sounds are expected to diminish below 140 dB re 1 μPa at a distance of about 131 ft (40 m) from the center of activity. Sound levels during other production activities aside from drilling usually would diminish below 140 dB re 1 μPa at a closer distance. The 140 dB re 1 μPa radius for drilling noise is within the island and drilling sounds are attenuated to levels below 140 dB re 1 μPa in the water near Northstar. Therefore, TTS is not expected from the operations at Northstar.
It is highly unlikely that pinnipeds could receive sounds strong enough (and over a sufficient duration) to cause PTS (or even TTS) during the proposed operation of the Northstar facility. Source levels for much of the equipment used at Northstar do not reach the threshold of 190 dB currently used for pinnipeds. Based on this conclusion, it is highly unlikely that any type of hearing impairment, temporary or permanent, would occur as a result of BP's proposed activities. Additionally, Southall
The specific effects an oil spill would have on bowhead, gray, or beluga whales are not well known. While direct mortality is unlikely, exposure to spilled oil could lead to skin irritation, baleen fouling (which might reduce feeding efficiency), respiratory distress from inhalation of hydrocarbon vapors, consumption of some contaminated prey items, and temporary displacement from contaminated feeding areas. Geraci and St. Aubin (1990) summarize effects of oil on marine mammals, and Bratton
In the case of an oil spill occurring during migration periods, disturbance of the migrating cetaceans from cleanup activities may have more of an impact than the oil itself. Human activity associated with cleanup efforts could deflect whales away from the path of the oil. However, noise created from cleanup activities likely will be short term and localized. In fact, whale avoidance of clean-up activities may benefit whales by displacing them from the oil spill area.
There is no concrete evidence that oil spills, including the much studied Santa Barbara Channel and Exxon Valdez spills, have caused any deaths of cetaceans (Geraci, 1990; Brownell, 1971;
Migrating gray whales were apparently not greatly affected by the Santa Barbara spill of 1969. There appeared to be no relationship between the spill and mortality of marine mammals. The higher than usual counts of dead marine mammals recorded after the spill represented increased survey effort and therefore cannot be conclusively linked to the spill itself (Brownell, 1971; Geraci, 1990). The conclusion was that whales were either able to detect the oil and avoid it or were unaffected by it (Geraci, 1990).
Whales rely on a layer of blubber for insulation, so oil would have little if any effect on thermoregulation by whales. Effects of oiling on cetacean skin appear to be minor and of little significance to the animal's health (Geraci, 1990). Histological data and ultrastructural studies by Geraci and St. Aubin (1990) showed that exposures of skin to crude oil for up to 45 minutes in four species of toothed whales had no effect. They switched to gasoline and applied the sponge up to 75 minutes. This produced transient damage to epidermal cells in whales. Subtle changes were evident only at the cell level. In each case, the skin damage healed within a week. They concluded that a cetacean's skin is an effective barrier to the noxious substances in petroleum. These substances normally damage skin by getting between cells and dissolving protective lipids. In cetacean skin, however, tight intercellular bridges, vital surface cells, and the extraordinary thickness of the epidermis impeded the damage. The authors could not detect a change in lipid concentration between and within cells after exposing skin from a white-sided dolphin to gasoline for 16 hours in vitro.
Bratton
Whales could ingest oil if their food is contaminated, or oil could also be absorbed through the respiratory tract. Some of the ingested oil is voided in vomit or feces but some is absorbed and could cause toxic effects (Geraci, 1990). When returned to clean water, contaminated animals can depurate this internal oil (Engelhardt, 1978, 1982). Oil ingestion can decrease food assimilation of prey eaten (St. Aubin, 1988). Cetaceans may swallow some oil-contaminated prey, but it likely would be only a small part of their food. It is not known if whales would leave a feeding area where prey was abundant following a spill. Some zooplankton eaten by bowheads and gray whales consume oil particles and bioaccumulation can result. Tissue studies by Geraci and St. Aubin (1990) revealed low levels of naphthalene in the livers and blubber of baleen whales. This result suggests that prey have low concentrations in their tissues, or that baleen whales may be able to metabolize and excrete certain petroleum hydrocarbons. Whales exposed to an oil spill are unlikely to ingest enough oil to cause serious internal damage (Geraci and St. Aubin, 1980, 1982) and this kind of damage has not been reported (Geraci, 1990).
Baleen itself is not damaged by exposure to oil and is resistant to effects of oil (St. Aubin
Some cetaceans can detect oil and sometimes avoid it, but others enter and swim through slicks without apparent effects (Geraci, 1990; Harvey and Dahlheim, 1994). Bottlenose dolphins apparently could detect and avoid slicks and mousse but did not avoid light sheens on the surface (Smultea and Wursig, 1995). After the Regal Sword spill in 1979, various species of baleen and toothed whales were observed swimming and feeding in areas containing spilled oil southeast of Cape Cod, MA (Goodale
Effects of oil on whales in open water are likely to be minimal, but there could be effects on whales where both the oil and the whales are at least partly confined in leads or at ice edges (Geraci, 1990). In spring, bowhead and beluga whales migrate through leads in the ice. At this time, the migration can be concentrated in narrow corridors defined by the leads, thereby creating a greater risk to animals caught in the spring lead system should oil enter the leads. However, given the probable alongshore trajectory of oil spilled from Northstar in relation to the whale migration route through offshore waters, interactions between oil slicks and whales are unlikely in spring, as any spilled oil would likely remain closer to shore.
In fall, the migration route of bowheads can be close to shore (Blackwell
Bowhead and beluga whales overwinter in the Bering Sea (mainly from November to March). In the summer, the majority of the bowhead whales are found in the Canadian Beaufort Sea, although some have recently been observed in the U.S. Beaufort and Chukchi Seas during the summer months (June to August). Data from the Barrow-based boat surveys in 2009 (George and Sheffield, 2009) showed that bowheads were observed almost continuously in the waters near Barrow, including feeding groups in the Chukchi Sea at the beginning of July. The majority of belugas in the Beaufort stock migrate into the Beaufort Sea in April or May, although some whales may pass Point Barrow as early as late March and as late as July (Braham
Oil spill cleanup activities could increase disturbance effects on either whales or seals, causing temporary disruption and possible displacement (MMS, 1996). The Northstar Oil Discharge Prevention and Contingency Plan (ODPCP; BPXA, 1998a, b) includes a scenario of a production well blowout to the open-water in August. In this scenario, approximately 177,900 barrels of North Slope crude oil will reach the open-water. It is estimated that response activities would require 186 staff (93 per shift) using 33 vessels (see Table 1.6.1–3 in BPXA, 1998b) for about 15 days to recover oil in open-water. Shoreline cleanup would occur for approximately 45 days employing low pressure, cold water deluge on the soiled shorelines. In a similar scenario during solid ice conditions, it is estimated that 97 pieces of equipment along with 246 staff (123 per shift) would be required for response activities (BPXA, 1998a).
The potential effects on cetaceans are expected to be less than those on seals (described later in this section of the document). Cetaceans tend to occur well offshore where cleanup activities (in the open-water season) are unlikely to be as concentrated. Also, cetaceans are transient and, during the majority of the year, absent from the area. However, if intensive cleanup activities were necessary during the autumn whale hunt, this could affect subsistence hunting. Impacts to subsistence uses of marine mammals are discussed later in this document (see the “Impact on Availability of Affected Species or Stock for Taking for Subsistence Uses” section).
Ringed, bearded, and spotted seals are present in open-water areas during summer and early autumn, and ringed seals remain in the area through the ice-covered season. During the spring periods in 1997–2002, the observed densities of ringed seals on the fast-ice in areas greater than 9.8 ft (3 m) deep ranged from 0.35 to 0.72 seals/km
Externally oiled phocid seals often survive and become clean, but heavily oiled seal pups and adults may die, depending on the extent of oiling and characteristics of the oil. Prolonged exposure could occur if fuel or crude oil was spilled in or reached nearshore waters, was spilled in a lead used by seals, or was spilled under the ice when seals have limited mobility (NMFS, 2000). Adult seals may suffer some temporary adverse effects, such as eye and skin irritation, with possible infection (MMS, 1996). Such effects may increase stress, which could contribute to the death of some individuals. Ringed seals may ingest oil-contaminated foods, but there is little evidence that oiled seals will ingest enough oil to cause lethal internal effects. There is a likelihood that newborn seal pups, if contacted by oil, would die from oiling through loss of insulation and resulting hypothermia. These potential effects are addressed in more detail in subsequent paragraphs.
Reports of the effects of oil spills have shown that some mortality of seals may have occurred as a result of oil fouling; however, large scale mortality had not been observed prior to the EVOS (St. Aubin, 1990). Effects of oil on marine mammals were not well studied at most spills because of lack of baseline data and/or the brevity of the post-spill surveys. The largest documented impact of a spill, prior to EVOS, was on young seals in January in the Gulf of St. Lawrence (St. Aubin, 1990). Brownell and Le Boeuf (1971) found no marked effects of oil from the Santa Barbara oil spill on California sea lions or on the mortality rates of newborn pups.
Intensive and long-term studies were conducted after the EVOS in Alaska. There may have been a long-term decline of 36% in numbers of molting harbor seals at oiled haul-out sites in Prince William Sound following EVOS (Frost
Adult seals rely on a layer of blubber for insulation, and oiling of the external surface does not appear to have adverse thermoregulatory effects (Kooyman
Newborn seal pups rely on their fur for insulation. Newborn ringed seal pups in lairs on the ice could be contaminated through contact with oiled mothers. There is the potential that newborn ringed seal pups that were contaminated with oil could die from hypothermia.
Marine mammals can ingest oil if their food is contaminated. Oil can also be absorbed through the respiratory tract (Geraci and Smith, 1976; Engelhardt
Although seals may have the capability to detect and avoid oil, they apparently do so only to a limited extent (St. Aubin, 1990). Seals may abandon the area of an oil spill because of human disturbance associated with cleanup efforts, but they are most likely to remain in the area of the spill. One notable behavioral reaction to oiling is that oiled seals are reluctant to enter the water, even when intense cleanup activities are conducted nearby (St. Aubin, 1990; Frost
Seals that are under natural stress, such as lack of food or a heavy infestation by parasites, could potentially die because of the additional stress of oiling (Geraci and Smith, 1976; St. Aubin, 1990; Spraker
Seals exposed to heavy doses of oil for prolonged periods could die. This type of prolonged exposure could occur if fuel or crude oil was spilled in or reached nearshore waters, was spilled in a lead used by seals, or was spilled under the ice in winter when seals have limited mobility. Seals residing in these habitats may not be able to avoid prolonged contamination and some could die. Impacts on regional populations of seals would be expected to be minor.
Since ringed seals are found year-round in the U.S. Beaufort Sea and more specifically in the project area, an oil spill at any time of year could potentially have effects on ringed seals. However, they are more widely dispersed during the open-water season. Spotted seals are unlikely to be found in the project area during late winter and spring. Therefore, they are more likely to be affected by a spill in the summer or fall seasons. Bearded seals typically overwinter south of the Beaufort Sea. However, some have been reported around Northstar during early spring (Moulton
Oil spill cleanup activities could increase disturbance effects on either whales or seals, causing temporary disruption and possible displacement (MMS, 1996). General issues related to oil spill cleanup activities are discussed earlier in this section for cetaceans. In the event of a large spill contacting and extensively oiling coastal habitats, the presence of response staff, equipment, and the many aircraft involved in the cleanup could (depending on the time of the spill and the cleanup) potentially displace seals. If extensive cleanup operations occur in the spring, they could cause increased stress and reduced pup survival of ringed seals. Oil spill cleanup activity could exacerbate and increase disturbance effects on subsistence species, cause localized displacement of subsistence species, and alter or reduce access to those species by hunters. On the other hand, the displacement of marine mammals away from oil-contaminated areas by cleanup activities would reduce the likelihood of direct contact with oil. Impacts to subsistence uses of marine mammals are discussed later in this document (see the “Impact on Availability of Affected Species or Stock for Taking for Subsistence Uses” section).
The likely or possible impacts of the planned offshore oil developments at Northstar on marine mammals involve both non-acoustic and acoustic effects. Potential non-acoustic effects are most likely to impact pinnipeds in the area through temporary displacement from haul-out areas near the Northstar facility. There is a small chance that a seal pup might be injured or killed by on-ice construction or transportation activities. A major oil spill is unlikely and, if it occurred, its effects are difficult to predict. A major oil spill might cause serious injury or mortality to small numbers of marine mammals by impacting the animals' ability to eat or find uncontaminated prey or by causing respiratory distress from
BP's activities at Northstar will also introduce sound into the environment. The potential effects of sound from the proposed activities might include one or more of the following: Masking of natural sounds; behavioral disturbance and associated habituation effects; and, at least in theory, temporary or permanent hearing impairment. Because of the low source levels for the majority of equipment used at Northstar, no hearing impairment is expected in any pinnipeds or cetaceans. Other types of effects are expected to be less for cetaceans, as the higher sound levels are found close to shore, usually further inshore than the migration paths of cetaceans. Additionally, cetaceans are not found in the Northstar area during the ice-covered season; therefore, they would only be potentially impacted during certain times of the year. As discussed earlier in the document, cetaceans often avoid sound sources, which would further reduce impacts from sound. Pinnipeds may exhibit some behavioral disturbance reactions, but they are anticipated to be minor. In summary, impacts to marine mammals that may occur in the Northstar area are expected to be minor, as source levels are low and many of the species are found farther out to sea.
Moreover, the potential effects to marine mammals described in this section of the document do not take into consideration the proposed monitoring and mitigation measures described later in this document (see the “Proposed Mitigation” and “Proposed Monitoring and Reporting” sections).
Potential impacts to marine mammals and their habitat as a result of operation of the Northstar facility are mainly associated with elevated sound levels. However, potential impacts are also possible from ice road construction and an oil spill (should one occur).
All six of the marine mammal species that may occur in the proposed project area prey on either marine fish or invertebrates. The ringed seal feeds on fish and a variety of benthic species, including crabs and shrimp. Bearded seals feed mainly on benthic organisms, primarily crabs, shrimp, and clams. Spotted seals feed on pelagic and demersal fish, as well as shrimp and cephalopods. They are known to feed on a variety of fish including herring, capelin, sand lance, Arctic cod, saffron cod, and sculpins.
Bowhead whales feed in the eastern Beaufort Sea during summer and early autumn, but continue feeding to varying degrees while on their migration through the central and western Beaufort Sea in the late summer and fall (Richardson and Thomson [eds.], 2002). Aerial surveys in recent years have sighted bowhead whales feeding in Camden Bay on their westward migration through the Beaufort Sea. [Camden Bay is more than 62 mi (100 km) east of Northstar.] When feeding in relatively shallow areas, bowheads feed throughout the water column. However, feeding is concentrated at depths where zooplankton is concentrated (Wursig
Beluga whales feed on a variety of fish, shrimp, squid and octopus (Burns and Seaman, 1985). Very few beluga whales occur near Northstar; their main migration route is much further offshore.
Gray whales are primarily bottom feeders, and benthic amphipods and isopods form the majority of their summer diet, at least in the main summering areas west of Alaska (Oliver
Two kinds of fish inhabit marine waters in the study area: (1) True marine fish that spend all of their lives in salt water, and (2) anadromous species that reproduce in fresh water and spend parts of their life cycles in salt water.
Most arctic marine fish species are small, benthic forms that do not feed high in the water column. The majority of these species are circumpolar and are found in habitats ranging from deep offshore water to water as shallow as 16.4–33 ft (5–10 m; Fechhelm
Anadromous Dolly Varden char and some species of whitefish winter in rivers and lakes, migrate to the sea in spring and summer, and return to fresh water in autumn. Anadromous fish form the basis of subsistence, commercial, and small regional sport fisheries. Dolly Varden char migrate to the sea from May through mid-June (Johnson, 1980) and spend about 1.5 to 2.5 months there (Craig, 1989). They return to rivers beginning in late July or early August with the peak return migration occurring between mid-August and early September (Johnson, 1980). At sea, most anadromous corregonids (whitefish) remain in nearshore waters within several kilometers of shore (Craig, 1984, 1989). They are often termed “amphidromous” fish in that they make repeated annual migrations into marine waters to feed, returning each fall to overwinter in fresh water.
Benthic organisms are defined as bottom dwelling creatures. Infaunal organisms are benthic organisms that live within the substrate and are often sedentary or sessile (bivalves, polychaetes). Epibenthic organisms live on or near the bottom surface sediments and are mobile (amphipods, isopods, mysids, and some polychaetes). Epifauna, which live attached to hard substrates, are rare in the Beaufort Sea because hard substrates are scarce there. A small community of epifauna, the
The benthic environment near Northstar appears similar to that reported in various other parts of the Arctic (Ellis, 1960, 1962, 1966; Dunbar, 1968; Wacasey, 1975). Many of the nearshore benthic marine invertebrates of the Arctic are circumpolar and are found over a wide range of water depths (Carey
Nearshore benthic fauna have been studied in lagoons west of Northstar and near the mouth of the Colville River (Kinney
Fish are known to hear and react to sounds and to use sound to communicate (Tavolga
Fishes produce sounds that are associated with behaviors that include territoriality, mate search, courtship, and aggression. It has also been speculated that sound production may provide the means for long distance communication and communication under poor underwater visibility conditions (Zelick
Since objects in the water scatter sound, fish are able to detect these objects through monitoring the ambient noise. Therefore, fish are probably able to detect prey, predators, conspecifics, and physical features by listening to environmental sounds (Hawkins, 1981). There are two sensory systems that enable fish to monitor the vibration-based information of their surroundings. The two sensory systems, the inner ear and the lateral line, constitute the acoustico-lateralis system.
Although the hearing sensitivities of very few fish species have been studied to date, it is becoming obvious that the intra- and inter-specific variability is considerable (Coombs, 1981). Nedwell
Literature relating to the impacts of sound on marine fish species can be divided into the following categories: (1) Pathological effects; (2) physiological effects; and (3) behavioral effects. Pathological effects include lethal and sub-lethal physical damage to fish; physiological effects include primary and secondary stress responses; and behavioral effects include changes in exhibited behaviors of fish. Behavioral changes might be a direct reaction to a detected sound or a result of the anthropogenic sound masking natural sounds that the fish normally detect and to which they respond. The three types of effects are often interrelated in complex ways. For example, some physiological and behavioral effects could potentially lead to the ultimate pathological effect of mortality. Hastings and Popper (2005) reviewed what is known about the effects of sound on fishes and identified studies needed to address areas of uncertainty relative to measurement of sound and the responses of fishes. Popper
The following discussions of the three primary types of potential effects on fish from exposure to sound mostly consider continuous sound sources since the majority of sounds that will be generated by the proposed activities associated with Northstar are of a continuous nature; however, most research reported in the literature focuses on the effects of airguns, which produce pulsed sounds.
Potential effects of exposure to continuous sound on marine fish include TTS, physical damage to the ear region, physiological stress responses, and behavioral responses such as startle response, alarm response, avoidance, and perhaps lack of response due to masking of acoustic cues. Most of these effects appear to be either temporary or intermittent and therefore probably do not significantly impact the fish at a population level. The studies that resulted in physical damage to the fish ears used noise exposure levels and durations that were far more extreme than would be encountered under conditions similar to those expected at Northstar.
The situation for disturbance responses is less clear. Fish do react to underwater noise from vessels and move out of the way, move to deeper depths, or change their schooling behavior. The received levels at which fish react are not known and in fact are somewhat variable depending upon circumstances and species. In order to assess the possible effects of underwater project noise, it is best to examine project noise in relation to continuous noises routinely produced by other projects and activities such as shipping, fishing,
Construction activities at Northstar produced both impulsive sounds (
Pearson
• Startle responses at received levels of 200–205 dB re 1 µPa and above for two sensitive species, but not for two other species exposed to levels up to 207 dB;
• Alarm responses at 177–180 dB for the two sensitive species, and at 186 to 199 dB for other species;
• An overall threshold for the above behavioral response at about 180 dB;
• An extrapolated threshold of about 161 dB for subtle changes in the behavior of rockfish; and
• A return to pre-exposure behaviors within the 20–60 minute exposure period.
In summary, fish often react to sounds, especially strong and/or intermittent sounds of low frequency. Sound pulses at received levels of 160 dB re 1 µPa may cause subtle changes in behavior. Pulses at levels of 180 dB may cause noticeable changes in behavior (Chapman and Hawkins, 1969; Pearson
The reactions of fish to research vessel sounds have been measured in the field with forward-looking echosounders. Sound produced by a ship varies with aspect and is lowest directly ahead of the ship and highest within butterfly-shaped lobes to the side of the ship (Misund
Some of the fish species found in the Arctic are prey sources for odontocetes and pinnipeds. A reaction by fish to sounds produced by the operations at Northstar would only be relevant to marine mammals if it caused concentrations of fish to vacate the area. Pressure changes of sufficient magnitude to cause that type of reaction would probably occur only very close to the sound source, if any would occur at all due to the low energy sounds produced by the majority of equipment at Northstar. Impacts on fish behavior are predicted to be inconsequential. Thus, feeding odontocetes and pinnipeds would not be adversely affected by this minimal loss or scattering, if any, of reduced prey abundance.
Reactions of zooplankton to sound are, for the most part, not known. Their ability to move significant distances is limited or nil, depending on the type of zooplankton. Behavior of zooplankters is not expected to be affected by drilling and production operations at Northstar. These animals have exoskeletons and no air bladders. Many crustaceans can make sounds, and some crustacea and other invertebrates have some type of sound receptor. Some mysticetes, including bowhead whales, feed on concentrations of zooplankton. Some feeding bowhead whales may occur in the Alaskan Beaufort Sea in July and August, and others feed intermittently during their westward migration in September and October (Richardson and Thomson [eds.], 2002; Lowry
Ringed seals dig lairs in the sea ice near and around Northstar during the pupping season. There is the potential for ice road construction to impact areas of the ice used by ringed seals to create these lairs and breathing holes. Ice habitat for ringed seal breathing holes and lairs (especially for mothers and pups) is normally associated with pressure ridges or cracks (Smith and Stirling, 1975). The amount of habitat altered by Northstar ice road construction is minimal compared to the overall habitat available in the region. Densities of ringed seals on the ice near Northstar during late spring are similar to densities seen elsewhere in the region (Miller
Oil spill probabilities for the Northstar project have been calculated based on historic oil spill data. Probabilities vary depending on assumptions and method of calculation. A reanalysis of worldwide oil spill data indicates the probability of a large oil spill (>1,000 barrels) during the lifetime of Northstar is low (S.L. Ross Environmental Research Ltd., 1998). That report uses standardized units such as well-years and pipeline mile-years to develop oil spill probabilities for the Northstar project. Well-years represent the summed number of years that the various wells will be producing, and mile-years represent the length of pipeline times the amount of time the
Based on the MMS exposure variable and an estimated production of 158 million barrels of oil, the probability of one or more well blowouts or tank spills >1,000 barrels on Seal Island is 7% throughout the life of the project (approximately 15–20 years; USACE, 1998a). The chance of the maximum estimated well blowout volume (225,000 barrels) being released is very low. Tank spills would likely be contained to the island itself. Based on the MMS exposure variable, there is an estimated 19% probability of one or more offshore pipeline ruptures or leaks releasing 1,000 barrels or more. However, of the 12 pipeline spills in OCS areas of >1,000 barrels from 1964–1992, anchor damage to the pipeline caused 7 spills, hurricane damage caused 2, trawl damage caused 2, and pipeline corrosion caused 1. The Northstar pipeline is buried, and there is minimal boat traffic in the area, therefore eliminating damage from anchors or trawls. With these two events eliminated, the risk of an offshore pipeline spill is reduced to 5%. A second exposure variable, based on the CONCAWE exposure variable (which is a European organization that maintains a database relevant to environment, health, and safety activities associated with the oil industry), indicates there is a 1.6 to 2.4% probability for one or more offshore pipeline ruptures or leaks releasing >1,000 barrels (USACE, 1998a). It should also be noted that production at BP's Northstar facility has declined significantly since it originally began operating nearly 10 years ago. The oil spill assessment conducted in the late 1990s was based on original peak production levels (which was approximately 80,000 barrels/day), not current production levels (which is approximately 18,000 barrels/day; B. Streever, BP Senior Environmental Studies Advisor, 2011, pers. comm.).
In the unlikely event of an oil spill from the Northstar pipeline, flow through the line can be stopped. There are automated isolation valves at each terminus of pipeline and at the mainland landfall, including along the sales line at Northstar Island, where the pipeline comes onshore, and at Pump Station 1. These would allow isolation of the marine portion of the line at the island and at the shore landing south of the island.
The Northstar pipe wall thickness is approximately 2.8 × greater than that required to contain the maximum operating gas pressure. Therefore, the probability of a gas pipeline leak is considered to be low. Also, a gas pipeline leak is not considered to be a potential source of an oil spill.
Arctic cod and other fishes are a principal food item for beluga whales and seals in the Beaufort Sea. Anadromous fish are more sensitive to oil when in the marine environment than when in the fresh water environment (Moles
Effects of oil on zooplankton as food for bowhead whales were discussed by Richardson ([ed.] 1987). Zooplankton populations in the open sea are unlikely to be depleted by the effects of an oil spill. Oil concentrations in water under a slick are low and unlikely to have anything but very minor effects on zooplankton. Zooplankton populations in near surface waters could be depleted; however, concentrations of zooplankton in near-surface waters generally are low compared to those in deeper water (Bradstreet
Some bowheads feed in shallow nearshore waters (Bradstreet
Effects of oil spills on zooplankton as food for seals would be similar to those described above for bowhead whales. Effects would be restricted to nearshore waters. During the ice-free period, effects on seal feeding would be minor.
Bearded seals consume benthic animals. Wave action in nearshore waters could cause oil to reach the bottom through adherence to suspended sediments (Sanders
Effects on availability of feeding habitat would be restricted to shallow nearshore waters. During the ice-free period, seals and whales could find alternate feeding habitats.
The ringed seal is the only marine mammal present near Northstar in significant numbers during the winter. An oil spill in shallow waters could affect habitat availability for ringed seals during winter. The oil could kill ringed seal food and/or drive away mobile species such as the arctic cod. Effects of an oil spill on food supply and habitat would be locally significant for ringed seals in shallow nearshore waters in the immediate vicinity of the spill and oil slick in winter. Effects of an oil spill on marine mammal foods and habitat under other circumstances are expected to be minor.
The subtidal marine plants and animals associated with the Boulder Patch community of Stefansson Sound are not likely to be affected directly by an oil spill from Northstar Island, seaward of the barrier islands and farther west. The only type of oil that could reach the subtidal organisms (located in 16 to 33 ft [5 to 10 m] of water) would be highly dispersed oil created by heavy wave action and vertical mixing. Such oil has no measurable toxicity (MMS, 1996). The amount and toxicity of oil reaching the subtidal marine community is expected to be so low as to have no measurable effect. However, oil spilled under the ice during winter, if it reached the relevant habitat, could act to reduce the amount of light available to the kelp species and other organisms directly beneath the spill. This could be an indirect effect of a spill. Due to the highly variable winter lighting conditions, any reduction in light penetration resulting from an oil spill would not be expected to have a
Depending on the timing of a spill, planktonic larval forms of organisms in arctic kelp communities such as annelids, mollusks, and crustaceans may be affected by floating oil. The contact may occur anywhere near the surface of the water column (MMS, 1996). Due to their wide distribution, large numbers, and rapid rate of regeneration, the recovery of marine invertebrate populations is expected to occur soon after the surface oil passes. Spill response activities are not likely to disturb the prey items of whales or seals sufficiently to cause more than minor effects. Additionally, the likelihood of an oil spill is expected to be very low.
In conclusion, NMFS has preliminarily determined that BP's proposed operation of the Northstar Development area is not expected to have any habitat-related effects that could cause significant or long-term consequences for individual marine mammals or on the food sources that they utilize.
In order to issue an incidental take authorization (ITA) under section 101(a)(5)(A) of the MMPA, NMFS must, where applicable, set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for subsistence uses (where relevant).
As part of its application, BP proposed several mitigation measures in order to ensure the least practicable adverse impact on marine mammal species that may occur in the proposed project area. BP proposed different mitigation measures for the ice-covered season and for the open-water season. The proposed mitigation measures are described fully in BP's application (see
In order to reduce impacts to ringed seal construction of birth lairs, BP must begin winter construction activities (
All non-essential boat, hovercraft, barge, and air traffic shall be scheduled to avoid periods when whales (especially bowhead whales) are migrating through the area. Helicopter flights to support Northstar activities shall be limited to a corridor from Seal Island to the mainland, and, except when limited by weather or personnel safety, shall maintain a minimum altitude of 1,000 ft (305 m), except during takeoff and landing.
Impact hammering activities may occur at any time of year to repair sheet pile or dock damage due to ice impingement. Impact hammering is most likely to occur during the ice-covered season or break-up period and would not be scheduled during the fall bowhead migration. However, if such activities were to occur during the open-water or broken ice season, certain mitigation measures that are described here are proposed to be required of BP. Based on studies by Blackwell
NMFS has established acoustic thresholds that identify the received sound levels above which hearing impairment or other injury could potentially occur, which are 180 and 190 dB re 1 μPa (rms) for cetaceans and pinnipeds, respectively (NMFS, 1995, 2000). The established 180- and 190-dB re 1 μPa (rms) criteria are the received levels above which, in the view of a panel of bioacoustics specialists convened by NMFS before additional TTS measurements for marine mammals became available, one could not be certain that there would be no injurious effects, auditory or otherwise, to marine mammals. To prevent or at least minimize exposure to sound levels that might cause hearing impairment, a safety zone shall be established and monitored for the presence of seals and whales. Establishment of the safety zone of any source predicted to result in received levels underwater above 180 dB (rms) will be analyzed using existing data collected in the waters of the Northstar facility (see the “Proposed Monitoring and Reporting” section later in this document or BP's application).
If observations and mitigation are required, a protected species observer stationed at an appropriate viewing location on the island will conduct watches commencing 30 minutes prior to the onset of impact hammering or other identified activity. The “Proposed Monitoring and Reporting” section later in this document contains a description of the observer program. If pinnipeds are seen within the 190 dB re 1 μPa radius (the “safety zone”), then operations shall shut down or reduce SPLs sufficiently to ensure that received SPLs do not exceed those prescribed here. If whales are observed within the 180 dB re 1 μPa (rms) radius, operations shall shut down or reduce SPLs sufficiently to ensure that received SPLs do not exceed those prescribed here. The shutdown or reduced SPL shall be maintained until such time as the observed marine mammal(s) has been seen to have left the applicable safety zone or until 15 minutes have elapsed in the case of a pinniped or odontocete or 30 minutes in the case of a mysticete without resighting, whichever occurs sooner.
Should any new drilling into oil-bearing strata be required during the effective period of these regulations, the drilling shall not take place during either open-water or spring-time broken ice conditions.
The taking by harassment, injury, or mortality of any marine mammal species incidental to an oil spill is
The plan consists of five parts. A short summary of the information contained in each part of the plan follows next. For more details, please refer to the plan itself.
The command system, which is described in Part 3, is compatible with the Alaska Regional Response Team Unified Plan and is based on the National Incident Management System. According to the plan, oil spill removal during the freeze-up or break-up seasons can be greatly enhanced by in situ burning. The ice provides containment, increasing the encounter rate and concentrating the oil for burning and recovery. The consensus of research on
The pipeline source control procedures, required by the AAC, involve the placement of automatic shutdown valves at each terminus and at the shore crossing to stop the flow of oil or product/gas into the Northstar pipelines. Additionally, the oil pipeline across the Putuligayuk River includes a manual valve on both sides of the river. There are two technology options for the valves: Automatic ball valves and automatic gate valves. Both valve options, when installed in new condition, are similar in terms of availability, transferability, cost, compatibility, and feasibility. In terms of effectiveness, ball valves typically have slightly faster closure times than gate valves. For Northstar, automatic ball valves (block and bleed type) are used. As required by 18 AAC 75.055(b), the flow of oil or product/gas can be completely stopped by these valves within one hour after a discharge has been detected. The valve closure time for these types of valves is usually on the order of 2 to 3 minutes.
NMFS has carefully evaluated the applicant's proposed mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
• The practicability of the measure for applicant implementation.
Based on our evaluation of the applicant's proposed measures, NMFS has preliminarily determined that the mitigation measures proposed above provide the means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. Proposed measures to ensure availability of such species or stock for taking for certain subsistence uses is discussed later in this document (see “Impact on Availability of Affected Species or Stock for Taking for Subsistence Uses” section).
The proposed rule comment period will afford the public an opportunity to submit recommendations, views, and/or concerns regarding this action and the proposed mitigation measures. While NMFS has determined preliminarily that the proposed mitigation measures presented in this document will effect the least practicable adverse impact on the affected species or stocks and their habitat, NMFS will consider all public comments to help inform our final decision. Consequently, the proposed mitigation measures may be refined, modified, removed, or added to prior to the issuance of the final rule based on public comments received, and where appropriate, further analysis of any additional mitigation measures.
In order to issue an ITA for an activity, section 101(a)(5)(A) of the MMPA states that NMFS must, where applicable, set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area.
The monitoring program proposed by BP in its application and described here is based on the continuation of previous monitoring conducted at Northstar. Information on previous monitoring can be found in the “Previous Activities and Monitoring” section found later in this document. The proposed monitoring program may be modified or supplemented based on comments or new information received from the public during the public comment period or from the peer review panel (see the “Monitoring Plan Peer Review” section later in this document).
The monitoring proposed by BP focuses on ringed seals and bowhead whales, as they are the most prevalent species found in the Northstar Development area. No monitoring is proposed specifically for bearded or spotted seals or for gray or beluga whales, as their occurrence near Northstar is limited. Few, if any, observations of these species were made during the intensive monitoring from 1999 to 2004. However, if sightings of these (or other) species are made, those observations will be included in the monitoring reports (described later in this document) that will be prepared.
BP proposes to continue the long-term observer program, conducted by island personnel, of ringed seals during the spring and summer. This program is intended to assess the continued long-term stability of ringed seal abundance and habitat use near Northstar as indexed by counts obtained on a regular and long-term basis. The proposed approach is to continue the Northstar seal count that is conducted during the period May 15–July 15 each year from the 108 ft (33 m) high process module by Northstar staff following a standardized protocol since 2005. Counts are made on a daily basis (weather permitting), between 11:00–19:00, in an area of approximately 3,117 ft (950 m) around the island, for a duration of approximately 15 minutes. Counts will only be made during periods with visibility of 0.62 mi (1 km) or more and with a cloud ceiling of more than 295 ft (90 m).
BP proposes to continue monitoring the bowhead migration in 2011 and subsequent years for approximately 30 days each September through the recording of bowhead calls. BP proposes to deploy a Directional Autonomous Seafloor Acoustic Recorder (DASAR; Greene
In addition to the DASAR already mentioned, BP proposes to install an acoustic recorder about 1,476 ft (450 m) north of Northstar, in the same area where sounds have been recorded since 2001. This recorder will be installed for approximately 30 days each September, corresponding with the deployment of the offshore DASAR (or similar recorder). The near-island recorder will be used to record and quantify sound levels emanating from Northstar. If island sounds are found to be significantly stronger or more variable than in the past, and if it is expected that the stronger sounds will continue in subsequent years, then further consultation with NMFS and NSB representatives will occur to determine if more analyses or changes in monitoring strategy are appropriate. A second acoustic recorder will be deployed to provide a reasonable level of redundancy.
If BP needs to conduct an activity (
If BP initiates significant on-ice activities (
BP will conduct acoustic measurements to document sound levels, characteristics, and transmissions of airborne sounds with expected source levels of 90 dBA or greater created by on-ice activity at Northstar that have not been measured in previous years. In addition, BP will conduct acoustic measurements to document sound levels, characteristics, and transmissions of airborne sounds for sources on Northstar Island with expected received levels at the water's edge that exceed 90 dBA that have not been measured in previous years. These data will be collected in order to assist in the development of future monitoring and mitigation measures.
The MMPA requires that monitoring plans be independently peer reviewed “where the proposed activity may affect the availability of a species or stock for taking for subsistence uses” (16 U.S.C. 1371(a)(5)(D)(ii)(III)). Regarding this requirement, NMFS' implementing regulations state, “Upon receipt of a complete monitoring plan, and at its discretion, [NMFS] will either submit the plan to members of a peer review panel for review or within 60 days of receipt of the proposed monitoring plan, schedule a workshop to review the plan” (50 CFR 216.108(d)).
NMFS established an independent peer review panel to review BP's proposed monitoring plan associated with the MMPA application for these proposed regulations. The panel met in early March 2011. After completion of the peer review, NMFS will consider all recommendations made by the panel, incorporate appropriate changes into the monitoring requirements of the final rule and subsequent LOAs, and publish the panel's findings and recommendations in the final rule.
An annual report on marine mammal monitoring and mitigation will be submitted to NMFS, Office of Protected Resources, and NMFS, Alaska Regional Office, on June 1 of each year. The first report will cover the period from the effective date of the LOA through October 31, 2011. Subsequent reports will cover activities from November 1 of one year through October 31 of the following year. Ending each annual report with October 31 coincides with the end of the fall bowhead whale migration westward through the Beaufort Sea.
The annual reports will provide summaries of BP's Northstar activities. These summaries will include the following: (1) Dates and locations of ice-road construction; (2) on-ice activities; (3) vessel/hovercraft operations; (4) oil spills; (5) emergency training; and (6) major repair or maintenance activities that might alter the ambient sounds in a way that might have detectable effects on marine mammals, principally ringed seals and bowhead whales. The annual reports will also provide details of ringed seal and bowhead whale monitoring, the monitoring of Northstar sound via the nearshore DASAR, descriptions of any observed reactions, and documentation concerning any apparent effects on accessibility of marine mammals to subsistence hunters.
If specific mitigation and monitoring are required for activities on the sea ice initiated after March 1 (requiring searches with dogs for lairs), during the operation of strong sound sources (requiring visual observations and shutdown procedures), or for the use of new sound sources that have not previously been measured, then a preliminary summary of the activity, method of monitoring, and preliminary results will be submitted within 90 days after the cessation of that activity. The complete description of methods, results, and discussion will be submitted as part of the annual report.
In addition to annual reports, BP proposes to submit a draft comprehensive report to NMFS, Office of Protected Resources, and NMFS, Alaska Regional Office, no later than 240 days prior to the expiration of these regulations. This comprehensive technical report will provide full documentation of methods, results, and interpretation of all monitoring during the first four and a quarter years of the LOA. Before acceptance by NMFS as a final comprehensive report, the draft comprehensive report will be subject to review and modification by NMFS scientists.
Any observations concerning possible injuries, mortality, or an unusual marine mammal mortality event will be transmitted to NMFS, Office of Protected Resources, and the Alaska Stranding and Disentanglement Program, within 48 hours of the discovery. At a minimum, reported information should include: (1) The time, date, and location (latitude/longitude) of the animal(s); (2) the species identification or description of the animal(s); (3) the fate of the animal(s), if known; and (4) photographs or video footage of the animal (if equipment is available).
The final regulations governing the take of marine mammals incidental to operation of the Northstar facility in the U.S. Beaufort Sea will contain an adaptive management component. In accordance with 50 CFR 216.105(c), regulations for the proposed activity must be based on the best available information. As new information is developed, through monitoring, reporting, or research, the regulations may be modified, in whole or in part, after notice and opportunity for public review. The use of adaptive management will allow NMFS to consider new information from different sources to determine if mitigation or monitoring measures should be modified (including additions or deletions) if new data suggest that such modifications are appropriate for subsequent LOAs.
The following are some of the possible sources of applicable data:
• Results from BP's monitoring from the previous year;
• Results from general marine mammal and sound research; or
• Any information which reveals that marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs.
If, during the effective dates of the regulations, new information is presented from monitoring, reporting, or research, these regulations may be modified, in whole, or in part after notice and opportunity of public review, as allowed for in 50 CFR 216.105(c). In addition, LOAs shall be withdrawn or suspended if, after notice and opportunity for public comment, the Assistant Administrator finds, among other things, the regulations are not being substantially complied with or the taking allowed is having more than a negligible impact on the species or stock or an unmitigable adverse impact on the availability of marine mammal species or stocks for taking for subsistence uses, as allowed for in 50 CFR 216.106(e). That is, should substantial changes in marine mammal populations in the project area occur or monitoring and reporting show that operation of the Northstar facility is having more than a negligible impact on marine mammals or an unmitigable adverse impact on the availability of marine mammal species or stocks for taking for subsistence uses, then NMFS reserves the right to modify the regulations and/or withdraw or suspend a LOA after public review.
The “Background on the Northstar Development Facility” section earlier in this document discussed activities that have occurred at Northstar since construction began in the winter of 1999/2000. Activities that occurred at Northstar under the current regulations (valid April 6, 2006, through April 6, 2011) include transportation (
Under those regulations and annual LOAs, BP has been conducting marine mammal monitoring within the action area to satisfy monitoring requirements set forth in MMPA authorizations. The monitoring programs have focused mainly on bowhead whales and ringed seals, as they are the two most common
As required by the regulations and annual LOAs, BP has submitted annual reports, which describe the activities and monitoring that occurred at Northstar. BP also submitted a draft comprehensive report, covering the period 2005–2009. The comprehensive report concentrates on BP's Northstar activities and associated marine mammal and acoustic monitoring projects from 2005–2009. However, monitoring work prior to 2004 is summarized in that report, and activities in 2010 at Northstar were described as well. The annual reports and draft comprehensive report (Richardson [ed.], 2010) are available on the Internet at:
Prior to the start of construction (1997–1999) and during the first few years of Northstar construction and operation (2000–2002), BP conducted aerial surveys to study the distribution and abundance of seals around Northstar. In addition to aerial surveys, specially-trained dogs were also used to locate seal lairs during the ice-covered seasons of 1999–2000 and 2000–2001. It was determined that such intensive monitoring was not required after 2002; however, BP continued to observe and count seals near Northstar in order to determine if seals continued to use the area, and, if so, if that usage was similar to that found in previous years. The current monitoring consists of someone making counts from a platform between May 15 and July 15 each year, although there is some variation in the number of days observations are made during that period from year-to-year. Counts ranged from a low of three seals counted during 57 observation days in 2007 to a high of 811 seals counted during 61 observation days in 2009 (Richardson [ed.], 2010). Based on the counts that have been conducted, ringed seals continue to haul out around Northstar.
The LOAs also contained requirements to conduct underwater measurements of sounds produced by Northstar-related industrial activities. To obtain these measurements, BP deployed DASARs both near and offshore of Northstar. The exact distances and configurations are contained in Richardson [ed.] (2010). Median levels of sound were found to be low offshore of Northstar (95.4–103.1 dB re 1 µPa when measured 9.2 mi [14.9 km] away). Also, industrial sounds were found to contribute less of the sound in the 10–450 Hz band during 2005–2009 than it did during the period of 2001–2004.
Since 2001, BP has also been conducting acoustic monitoring to study the fall westward migration of bowhead whales through the Beaufort Sea and to determine whether or not sounds from Northstar are affecting that migration. The DASARs are also used for this monitoring effort. BP has studied the rate of calls per year and has also worked to localize the calls. Some of the key findings from this work showed that in 8 out of 9 seasons during the 2001–2009 period, bearings to whale calls detected at the same DASAR site 9.2 mi (14.9 km) offshore of Northstar were predominantly to the northeast or east-northeast of that location. Additionally, analysis of the 2008 data demonstrated that bowhead whale calls are directional, which may help to explain why fewer calls are detected west of Northstar than to the east (Richardson [ed.], 2010). In the comprehensive report (Richardson [ed.], 2010), BP compared calls from 2009 with those from 2001–2004 to try and draw conclusions about effects on the distribution of calling bowheads. BP found that from 2001–2004, the southern edge of the distribution of bowhead calls tended to be slightly but statistically significantly farther offshore when the underwater sound level near Northstar increased above baseline values. For the 2009 data, BP was unable to conclusively identify one specific relationship between offshore distances of bowhead calls and industrial sound.
The annual reports and comprehensive report (Richardson [ed.], 2010) also contain information on the fall Nuiqsut bowhead whale hunts. The information contained in these reports show that during 2005–2009, the whalers struck 3 or 4 whales (of a quota of 4) in all years except 2005 (only one whale struck and landed). The whalers did not attribute the poor harvest in 2005 to activities at Northstar. That year, there was severe local ice and very poor weather. There was some vessel interference; however, none of that was with vessels at or conducting activities for Northstar. Sealing activities were not common near the Northstar site prior to its construction, and they are not common there now. Most sealing occurs more than 20 mi (32 km) from Northstar.
During the period of validity of the current regulations, no activities have occurred after March 1 in previously undisturbed areas during late winter. Therefore, no monitoring with specially-trained dogs has been required. Also during this period, there were 82 reportable small spills (such as 0.25 gallons of hydraulic fluid, 3 gallons of power steering fluid, or other relatively small amounts of sewage, motor oil, hydraulic oil, sulfuric acid, etc.), three of which reached Beaufort water or ice. All material (for example, 0.03 gallons of hydraulic fluid) from these three spills was completely recovered.
NMFS has determined that BP complied with the mitigation and monitoring requirements set forth in regulations and annual LOAs. In addition, NMFS has determined that the impacts on marine mammals and on the availability of marine mammals for subsistence uses from the activity fell within the nature and scope of those anticipated and authorized in the previous authorization (supporting the analysis in the current authorization).
One of the main purposes of NMFS' effects assessments is to identify the permissible methods of taking, which involves an assessment of the following criteria: the nature of the take (
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: “any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral
Because BP operates the Northstar facility year-round, take of marine mammals could occur at any time of year. However, take of all marine mammal species that could potentially occur in the area is not anticipated during all seasons. This is because of the distribution and habitat preferences of certain species during certain times of the year. This is explained further in this section and BP's application (see
Potential sources of disturbance to marine mammals from the Northstar project during the ice-covered period consist primarily of vehicle traffic along the ice-road, helicopter traffic, and the ongoing production and drilling operations on the island. During the ice-covered season, the ringed seal is the only marine mammal that occurs regularly in the area of landfast ice surrounding Northstar. Spotted seals do not occur in the Beaufort Sea in the ice-covered season. Small numbers of bearded seals occur occasionally in the landfast ice in some years. Bowhead and beluga whales are absent from the Beaufort Sea in winter (or at least from the landfast ice portions of the Beaufort Sea), and in spring their eastward migrations are through offshore areas north of the landfast ice, which excludes whales from areas close to Northstar. Gray whales are also absent from this part of the Beaufort Sea during the ice-covered season. Therefore, takes of marine mammals during the ice-covered season were only estimated for ringed and bearded seals.
Potential displacement of ringed seals was more closely related to physical alteration of sea ice by industry than to exposure to detectable levels of low-frequency industrial sound during winter and spring (Williams
The few bearded seals that remain in the area during winter and spring are generally found north of Northstar in association with the pack ice or the edge of the landfast ice. Bearded seals were not observed on the fast ice during the 1997 or 1998 BP/LGL surveys (G. Miller, LGL Ltd., pers. comm.), but small numbers were noted there in 1999–2002 (Moulton
Individual ringed seals in the Northstar area during the ice-covered season may be displaced a short distance away from the ice road corridors connecting the production islands to the mainland. However, traffic along the ice roads was at a maximum during the initial construction period in 2000, and there was no more than localized displacement of ringed seals (Williams
Detailed monitoring of ringed seals near Northstar was done during spring and (in some years) winter of 1997 to 2002, including three years of Northstar construction and initial oil production (2000–2002). During the 2003–2004 and 2004–2005 ice-covered and break-up periods, no intensive ringed seal monitoring was required and seal sightings were recorded opportunistically from Northstar Island. Since 2005, these observations from Northstar have occurred in a more systematic fashion from mid-May through mid-July each year, with the main objective to document seasonal and annual variations in seals present in an area of 0.62 mi (1 km) around Northstar (Rodrigues and Williams, 2006; Rodrigues and Richardson, 2007; Aerts and Rodrigues, 2008; Aerts, 2009). BP estimated annual takes of ringed seal based on data collected from the intensive aerial monitoring program conducted in 1997–2002.
The numbers of seals present and potentially affected by Northstar activities were estimated using the 1997–2002 seal data according to the following steps (see Richardson
(1) Defining a potential impact zone,
(2) Defining a reference zone,
(3) Calculating the expected number of seals present in the potential impact zone in the absence of industrial activities (based on data from the reference zone) for each year separately. The seal density of the reference zone was multiplied by the total area of the potential impact zone (1.5 mi
(4) Multiplying the number of seals calculated under step 3 with a correction factor of 2.84 (to correct for the “detection bias” and “availability bias”). “Detection bias” refers to the fact that aerial surveyors do not see every seal that is on the ice and potentially sightable. “Availability bias” refers to the fact that seals are not always hauled out above the ice and snow, and thus available to be seen by aerial surveyors. Those two correction factors are based, respectively, on Frost
Results of these calculations show that 3–8 seals could be present in the potential impact zone (Table 3 in BP's application and Table 3 in this document). The period 1997–1999 can be considered as a pre-construction period and 2000–2002 as a construction period, with the most intensive construction activities occurring in 2000 and 2001. This means that, if there was some displacement of ringed seals away from Northstar in the ice-covered season due to construction activities, BP would have expected fewer seals within the potential impact zone during 2000–2002 than in 1997–1999. That was not observed, although inter-year comparisons should be treated cautiously given the possibility of year-to-year differences in environmental conditions and sightability of seals during aerial surveys. The presence of numerous seals near the Northstar facilities during late spring of 2000, 2001 and 2002 indicates that any displacement effect was localized and, if it occurred at all, involved only a small fraction of the seals that would otherwise have been present. To allow for unexpected circumstances that might lead to take of ringed seals, BP requests take of eight ringed seals per year during the ice-covered period by Level B harassment. In the unlikely event that a ringed seal lair is crushed or flooded, BP also requests take of up to five ringed seals (including pups) by injury or mortality per year.
Potential sources of disturbance to marine mammals from the Northstar project during the break-up period consist primarily of hovercraft and helicopter traffic, as well as the ongoing production and drilling operations on the island. Spotted seals and bowhead, gray, and beluga whales are expected to be absent from the Northstar project area during the break-up period. Therefore, take of those species during the break-up period was not estimated.
Similar to the ice-covered season, BP predicts that only very few bearded seals (and most likely none) could be present within the potential impact zone around the ice road and Northstar facilities during the break-up period. The most probable number of bearded seals predicted to be potentially impacted by Northstar activities during break-up in any one year is zero. However, to account for the possible presence of low numbers of bearded seals during this time, NMFS proposes to authorize the take of two bearded seals per year during the break-up season.
Impacts to ringed seals from Northstar activities during the break-up period are anticipated to be similar to those predicted during the ice-covered period. Additionally, the number of ringed seals present within the potential impact zone during the break-up period is expected to be similar to the number present during the ice-covered season. It is possible that some of these seals are the same individuals already counted as present during the latter stages of the ice-covered season (B. Kelly, pers. comm.). Thus, if any seals were affected during break-up, it is probable that some of these would be the same individuals. BP states that the requested Level B take of eight ringed seals per year during the ice-covered periods of 2011–2016 (see preceding subsection) is expected to also cover potentially affected seals during break-up. However, in case the same seals are taken during both periods, NMFS proposes to authorize the take of eight ringed seals by Level B harassment per year during the break-up period.
Potential sources of disturbance to marine mammals from the Northstar project during the open-water period consist primarily of hovercraft and ACS vessels used for transfers of crew and supplies, barge and tugboat traffic, helicopter traffic, and the ongoing production and drilling operations on the island. During the open-water season all six species for which take authorization is sought can potentially be present in the Northstar area. Estimated annual numbers of potential open-water takes for each of these six species are summarized next.
Pupping and mating occur in the spring when spotted seals are not in the Beaufort Sea. Hence, young pups would not be encountered in the Northstar Development area. All other sex and age classes may be encountered in small numbers during late summer/autumn. Spotted seals are most often found in waters adjacent to river deltas during the open-water season in the Beaufort Sea, and major haul-out concentrations are absent close to the project area. A small number of spotted seal haul-outs are (or were) located in the central Beaufort Sea in the deltas of the Colville River (which is more than 50 mi [80 km] from Northstar) and, previously, the Sagavanirktok River. Historically, these sites supported as many as 400–600 spotted seals, but in the late 1990s, less than 20 seals have been seen at any one site (Johnson
During the open-water season, bearded seals are widely and sparsely distributed in areas of pack ice and open water, including some individuals in relatively shallow water as far south as Northstar. Studies indicate that pups and other young bearded seals up to 3 years of age comprise 40–45% of the population (Nelson
Because ringed seals are resident in the Beaufort Sea, they are the most abundant and most frequently encountered seal species in the Northstar area. During the open-water period, all sex and age classes (except neonates) could potentially be encountered. The estimated number of seals that potentially might be harassed by noise from Northstar production activities or from vessel and aircraft traffic are based on the following three assumptions:
(1) Seals present within a 0.62 mi (1 km) distance (1.2 mi
(2) The density of seals within that area would be no more than 2x the density observed during boat-based surveys for seals within the general Prudhoe Bay area in 1996–2001 (0.19 seals/km
(3) Individual seals within the affected area are replaced once for each of thirteen 7-day intervals during the open-water period (mid July to mid October).
The first of these points assumes that seals in open water are not significantly affected by passing vessels (or helicopters) that they could occasionally encounter in areas >0.62 mi (1 km) from Northstar. Passing boats and helicopters might cause startle reactions and other short-term effects.
Based on the above assumptions, BP estimated that 15 ringed seals might be present and potentially affected during the open-water season (
Bowhead whales are not resident in the region of activity. During the open-water season, relatively few westward migrating bowheads occur within 6.2 mi (10 km) of Northstar during most years. However, in some years (especially years with relatively low ice cover) a larger percentage of the bowhead population migrates within 6.2–9.3 mi (10–15 km) of Northstar (Treacy, 1998; Blackwell
About 43.7% of the bowheads in the Bering-Chukchi-Beaufort stock are sexually mature (Koski
The acoustic monitoring of the bowhead whale migration during the early years of Northstar operations is described in the final Comprehensive Report of 1999–2004 (Richardson [ed.], 2008: Chapters 7–12). The monitoring was designed to determine whether the southern edge of the distribution of calling bowhead whales tended to be farther offshore with increased levels of underwater sounds from Northstar construction and operational activities. If the southernmost calling bowheads detected by the acoustic monitoring system tended to be farther offshore when Northstar operations were noisy than when they were quieter, this was to be taken as evidence of a Northstar effect. The initial monitoring objectives did not call for estimating the numbers of bowhead whales that were affected based on the acoustic localization data, but this was added as an objective in an updated monitoring plan (LGL and Greeneridge, 2000) prepared subsequent to issuance of the initial 5-yr regulations in May 2000. It was anticipated that the geographic scale of any documented effect, as a function of Northstar sound level, would provide a basis for estimating the number of whales affected. As early as 2001, it was noted that—given the difficulty in separating displacement effects from effects on calling behavior—the estimates of numbers affected would concern numbers of whales whose movements and/or calling behavior were affected by Northstar activities (BPXA, 2001).
In fact, the monitoring results provided evidence (P < 0.01 each year) of an effect on the southern part of the migration corridor during all four of the autumn migration seasons for which detailed data were acquired,
Based on the amount of time bowhead whales are expected to be present in the general vicinity of the Northstar Development area and the fact that most of the whales migrate past the area beyond the 120-dB sound isopleths (NMFS' threshold for Level B harassment from continuous sound sources), which typically extend out less than 1.24–2.5 mi (2–4 km) from the island, it is estimated that only a small number of bowhead whales will be taken by harassment each year as a result of BP's activities. Therefore, BP requests the take of 15 bowhead whales per year during the open-water season by Level B harassment.
Gray whales are uncommon in the Prudhoe Bay area, with no more than a few sightings in summer or early autumn in any one year, and usually no sightings (Miller
If a few gray whales occur in the Prudhoe Bay area, it is unlikely that they would be affected appreciably by Northstar sounds. Gray whales typically do not show avoidance of sources of continuous industrial sound unless the received broadband level exceeds approximately 120 dB re 1 μPa (Malme
The Beaufort Sea beluga population was estimated at 39,258 individuals in 1992, with a maximum annual rate of increase of 4% (Hill and DeMaster, 1998; Angliss and Allen, 2009). Assuming a continued 4% annual growth rate, the population size could be approximately 79,650 beluga whales
The few animals involved could include all age and sex classes. Calving probably occurs in June to August in the Beaufort Sea region and calves 1–4 months of age could be encountered in summer or autumn. Most of the few belugas that could be encountered would be engaged in migration, so it is unlikely that a given beluga would be repeatedly “taken by harassment”.
Based on available information on the presence and abundance of beluga whales, the following data and assumptions were used to estimate the number of belugas that could be present and potentially disturbed by Northstar activities:
(1) Aerial survey data from 1979 to 2000, including both MMS and LGL surveys, were used to estimate the proportion of belugas migrating through waters ≤ 2.5 mi (4 km) seaward of Northstar. Of the belugas traveling through the surveyed waters (generally inshore of the 328-ft [100-m] contour), the overall percentage observed in waters offshore of Northstar during 1997–2000 was 0.62% (8 of 1,289 belugas). The maximum percentage for any one year was for 1996, when 6 of 153 (3.9%) were ≤ 2.5 mi (4 km) offshore of Northstar. These figures are based on beluga sightings within the area 147°00′ to 150°30′ W.
(2) Most beluga whales migrate far offshore; the proportion migrating through the surveyed area is unknown but was assumed by Miller
(3) The disturbance radius for belugas exposed to construction and operational activities in the Beaufort Sea is not well defined (Richardson
(4) Satellite-tagging data show that some members of the Chukchi Sea stock of belugas could also occur in the Beaufort Sea generally near Northstar during late summer and autumn (Suydam
From these values, the number of belugas that might approach within 2.5 mi (4 km) of Northstar (in the absence of industrial activities) during the open water season is approximately 20 belugas based on the average distribution: 0.0025 × 0.2 × 39,258. Therefore, NMFS proposes to authorize the take of 20 beluga whales per year during the open-water period by Level B harassment.
BP has requested the take of six marine mammal species incidental to operational activities at the Northstar facility. However, because some of these species only occur in the Beaufort Sea on a seasonal basis, take of all six species has not been requested for an entire year. BP broke out its take requests into three seasons: Ice-covered season; break-up period; and open-water season. Ringed and bearded seals are the only species for which take was requested in all three seasons. Take of all six species was only requested for the open-water season. With the exception of the request for five ringed seal (including pups) takes by injury or mortality per year, all requested takes are by Level B harassment.
Table 4 in this document summarizes the abundance, take estimates, and percent of population for the six species for which NMFS is proposing to authorize take.
Because Prudhoe Bay (and the U.S. Beaufort Sea as a whole) represents only a small fraction of the Arctic basin where these animals occur, NMFS has preliminarily determined that only small numbers of the marine mammal species or stocks in the area would be potentially affected by operation of the Northstar facility. The take estimates presented in this section of the document do not take into consideration the mitigation and monitoring measures that are proposed for inclusion in the regulations (if issued).
NMFS has defined “negligible impact” in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” In making a negligible impact determination, NMFS considers a variety of factors, including but not limited to: (1) The number of anticipated mortalities; (2) the number and nature of anticipated injuries; (3) the number, nature, intensity, and duration of Level B harassment; and (4) the context in which the takes occur.
No injuries or mortalities are anticipated for bearded and spotted seals or for bowhead, beluga, and gray whales. There is the potential for a small number of injuries or mortalities to ringed seals (no more than five per year) as a result of ice road construction activities during the ice-covered season. These injuries or mortalities could occur if a ringed seal lair is crushed or flooded. Additionally, animals in the area are not anticipated to incur any hearing impairment (
Even though activities occur throughout the year, none of the cetacean species occur near Northstar all year. Cetaceans are most likely to occur in the late summer and autumn seasons. However, even during that time, much of the populations of those species migrate past the area farther offshore than the area where Northstar sounds can be heard. Spotted seals also tend to only be present in the open-water season. Moreover, they are more common in the Colville River Delta area, which is more than 50 mi (80 km) west of the Northstar Development area, than in the waters surrounding Northstar. Ringed and bearded seals could be found in the area year-round. However, many of them remain far enough from the facility, outside of areas of harassment. Additionally, ringed seals have been observed in the area every year since the beginning of construction and into the subsequent operational years.
Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hr cycle). Behavioral reactions to noise exposure (such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall
Of the six marine mammal species for which take authorization is proposed, only one is listed as endangered under the ESA: the bowhead whale. The bowhead whale is also considered depleted under the MMPA. As stated previously in this document, the affected bowhead whale stock has been increasing at a rate of 3.4% per year since 2001. Certain stocks or populations of gray and beluga whales and spotted seals are listed as endangered or are proposed for listing under the ESA; however, none of those stocks or populations occur in the proposed activity area. On December 10, 2010, NMFS published a notification of proposed threatened status for subspecies of the ringed seal (75 FR 77476) and a notification of proposed threatened and not warranted status for subspecies and distinct population segments of the bearded seal (75 FR 77496) in the
The population estimates for the species that may potentially be taken as a result of BP's proposed activities were presented earlier in this document. For reasons described earlier in this document, the maximum calculated number of individual marine mammals for each species that could potentially be taken annually is small relative to the overall population sizes (less than 1% of each of the six populations or stocks).
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS preliminarily finds that operation of the BP Northstar facility will result in the incidental take of small numbers of marine mammals and that the total taking from BP's proposed activities will have a negligible impact on the affected species or stocks.
The disturbance and potential displacement of marine mammals by sounds from island production activities are the principal concerns related to subsistence use of the area. However, contamination of animals and traditional hunting areas by oil (in the
Residents of the village of Nuiqsut are the primary subsistence users in the project area. The communities of Barrow and Kaktovik also harvest resources that pass through the area of interest but do not hunt in or near the Northstar area. Subsistence hunters from all three communities conduct an annual hunt for autumn-migrating bowhead whales. Barrow also conducts a bowhead hunt in spring. Residents of all three communities hunt seals. Other subsistence activities include fishing, waterfowl and seaduck harvests, and hunting for walrus, beluga whales, polar bears, caribou, and moose. Relevant harvest data are summarized in Tables 8 and 9 in BP's application (see
Nuiqsut is the community closest to the Northstar development (approximately 54 mi [87 km] southwest from Northstar). Nuiqsut hunters harvest bowhead whales only during the fall whaling season (Long, 1996). In recent years, Nuiqsut whalers have typically landed three or four whales per year (see Table 9 in BP's application). Nuiqsut whalers concentrate their efforts on areas north and east of Cross Island, generally in water depths greater than 66 ft (20 m; Galginaitis, 2009). Cross Island is the principal base for Nuiqsut whalers while they are hunting bowheads (Long, 1996). Cross Island is located approximately 16.8 mi (27 km) east of Northstar.
Kaktovik whalers search for whales east, north, and occasionally west of Kaktovik. Kaktovik is located approximately 124 mi (200 km) east of Northstar Island. The westernmost reported harvest location was about 13 mi (21 km) west of Kaktovik, near 70°10′ N., 144°11′ W. (Kaleak, 1996). That site is about 112 mi (180 km) east of Northstar Island.
Barrow whalers search for whales much farther from the Northstar area—about 155+ mi (250+ km) to the west. However, given the westward migration of bowheads in autumn, Barrow (unlike Kaktovik) is “downstream” from the Northstar region during that season. Barrow hunters have expressed concern about the possibility that bowheads might be deflected offshore by Northstar and then remain offshore as they pass Barrow.
Beluga whales are not a prevailing subsistence resource in the communities of Kaktovik and Nuiqsut. Kaktovik hunters may harvest one beluga whale in conjunction with the bowhead hunt; however, it appears that most households obtain beluga through exchanges with other communities. Although Nuiqsut hunters have not hunted belugas for many years while on Cross Island for the fall hunt, this does not mean that they may not return to this practice in the future. Data presented by Braund and Kruse (2009) indicate that only one percent of Barrow's total harvest between 1962 and 1982 was of beluga whales and that it did not account for any of the harvested animals between 1987 and 1989.
Ringed seals are available to subsistence users in the Beaufort Sea year-round, but they are primarily hunted in the winter or spring due to the rich availability of other mammals in the summer. Bearded seals are primarily hunted during July in the Beaufort Sea; however, in 2007, bearded seals were harvested in the months of August and September at the mouth of the Colville River Delta, which is more than 50 mi (80 km) from Northstar. However, this sealing area can reach as far east as Pingok Island, which is approximately 17 mi (27 km) west of Northstar. An annual bearded seal harvest occurs in the vicinity of Thetis Island (which is a considerable distance from Northstar) in July through August. Approximately 20 bearded seals are harvested annually through this hunt. Spotted seals are harvested by some of the villages in the summer months. Nuiqsut hunters typically hunt spotted seals in the nearshore waters off the Colville River Delta. The majority of the more established seal hunts that occur in the Beaufort Sea, such as the Colville delta area hunts, are located a significant distance (in some instances 50 mi [80 km] or more) from the proposed project area.
NMFS has defined “unmitigable adverse impact” in 50 CFR 216.103 as:
* * * an impact resulting from the specified activity: (1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (i) Causing the marine mammals to abandon or avoid hunting areas; (ii) Directly displacing subsistence users; or (iii) Placing physical barriers between the marine mammals and the subsistence hunters; and (2) That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.
Noise and general activity during BP's proposed drilling program have the potential to impact marine mammals hunted by Native Alaskans. Additionally, if an oil spill occurred (even though it is unlikely), there could be impacts to marine mammals hunted by Native Alaskans and to the hunts themselves. In the case of cetaceans, the most common reaction to anthropogenic sounds (as noted previously in this document) is avoidance of the ensonified area. In the case of bowhead whales, this often means that the animals divert from their normal migratory path by several kilometers. Helicopter activity also has the potential to disturb cetaceans and pinnipeds by causing them to vacate the area. Additionally, general vessel presence in the vicinity of traditional hunting areas could negatively impact a hunt.
In the case of subsistence hunts for bowhead whales in the Beaufort Sea, there could be an adverse impact on the hunt if the whales were deflected seaward (further from shore) in traditional hunting areas. The impact would be that whaling crews would have to travel greater distances to intercept westward migrating whales, thereby creating a safety hazard for whaling crews and/or limiting chances of successfully striking and landing bowheads.
Oil spills might affect the hunt for bowhead whales. The harvest period for bowhead whales is probably the time of greatest risk that a relatively large-scale spill would reduce the availability of bowhead whales for subsistence uses. Pipeline spills are possible for the total production period of Northstar. Spills could occur at any time of the year. However, spills at most times of year would not affect bowheads, as bowheads are present near Northstar for only several weeks during late summer and early autumn. Bowheads travel along migration corridors that are far offshore of the planned production islands and pipelines during spring and somewhat offshore of those facilities
Even in the case of a major spill, it is unlikely that more than a small minority of the bowheads encountered by hunters would be contaminated by oil. However, disturbance associated with reconnaissance and cleanup activities could affect whales and thus accessibility of whales to hunters. In the very unlikely event that a major spill incident occurred during the relatively short fall whaling season, it is possible that hunting would be affected significantly.
Ringed seals are more likely than bowheads to be affected by spill incidents because they occur in the development areas throughout the year and are more likely than whales to occur close to Northstar. Small numbers of bearded seals could also be affected, especially by a spill during the open-water season. Potential effects on subsistence use of seals will still be relatively low, as the areas most likely to be affected are not areas heavily used for seal hunting. However, wind and currents could carry spilled oil west from Northstar to areas where seal hunting occurs. It is possible that oil-contaminated seals could be harvested.
Oil spill cleanup activity could exacerbate and increase disturbance effects on subsistence species, cause localized displacement of subsistence species, and alter or reduce access to those species by hunters. On the other hand, the displacement of marine mammals away from oil-contaminated areas by cleanup activities would reduce the likelihood of direct contact with oil and thus reduce the likelihood of tainting or other impacts on the mammals.
One of the most persistent effects of EVOS was the reduced harvest and consumption of subsistence resources due to the local perception that they had been tainted by oil (Fall and Utermohle, 1995). The concentrations of petroleum-related aromatic compound (AC) metabolites in the bile of harbor seals were greatly elevated in harbor seals from oiled areas of Prince William Sound (PWS). Mean concentrations of phenanthrene equivalents for oiled seals from PWS were over 70 times greater than for control areas and over 20 times higher than for presumably unoiled areas of PWS (Frost
Regulations at 50 CFR 216.104(a)(12) require MMPA authorization applicants for activities that take place in Arctic waters to provide a POC or information that identifies what measures have been taken and/or will be taken to minimize adverse effects on the availability of marine mammals for subsistence purposes. BP and the Alaska Eskimo Whaling Commission (AEWC) established a conflict avoidance agreement to mitigate the noise and/or traffic impacts of offshore oil and gas production related activities on subsistence whaling. In addition, the NSB and residents from Barrow, Nuiqsut, and Kaktovik participated in the development of the Final Environmental Impact Statement (FEIS) for the Northstar project. Local residents provided traditional knowledge of the physical, biological, and human environment, which was incorporated into the Northstar FEIS. Also included in the Northstar FEIS is information gathered from the 1996 community data collection, along with relevant testimony during past public hearings in the communities of Barrow, Nuiqsut, and Kaktovik. This data collection has helped ensure that the concerns of NSB residents about marine mammals and subsistence are taken into account in the development of the project designs, permit stipulations, monitoring programs, and mitigation measures.
BP meets annually with communities on the North Slope to discuss the Northstar Development project. Stakeholder and peer review meetings convened by NMFS have been held at least annually from 1998 to the present to discuss proposed monitoring and mitigation plans, and results of completed monitoring and mitigation. Those meetings have included representatives of the concerned communities, the AEWC, the NSB, Federal, state, and university biologists, the Marine Mammal Commission, and other interested parties. One function of those meetings has been to coordinate planned construction and operational activities with subsistence whaling activity. The agreements have and likely will address the following: Operational agreement and communications procedures; when/where agreement becomes effective; general communications scheme, by season; Northstar Island operations, by season; conflict avoidance; seasonally sensitive areas; vessel navigation; air navigation; marine mammal and acoustic monitoring activities; measures to avoid impacts to marine mammals; measures to avoid impacts in areas of active whaling; emergency assistance; and dispute resolution process.
Most vessel and helicopter traffic will occur inshore of the bowhead migration corridor. BP does not often approach bowhead whales with these vessels or aircraft. Insofar as possible, BP will ensure that vessel traffic near areas of particular concern for whaling will be completed before the end of August, as the fall bowhead hunts in Kaktovik and Cross Island (Nuiqsut) typically begin around September 1 each year. Additionally, any approaches of bowhead whales by vessels or helicopters will not occur within the area where Nuiqsut hunters typically search for bowheads. Essential traffic to and from Northstar has been and will continue to be closely coordinated with the NSB and AEWC to avoid disruptions of subsistence activities. Unless limited by weather conditions, BP maintains a minimum flight altitude of 1,000 ft (305 m), except during takeoffs and landings, and all helicopter transits occur in a specified corridor from the mainland.
NMFS has preliminarily determined that BP's proposed operation of the Northstar facility will not have an unmitigable adverse impact on the availability of marine mammal species or stocks for taking for subsistence uses. This preliminary determination is supported by the fact that BP works closely with the NSB, AEWC, and hunters of Nuiqsut to ensure that impacts are avoided or minimized during the annual fall bowhead whale hunt at Cross Island (the closest whale hunt to Northstar). Vessel and air traffic will be kept to a minimum during the bowhead hunt in order to keep from harassing the animals, which could possibly make them more difficult to hunt. To minimize the potential for conflicts with subsistence users, marine vessels transiting between Prudhoe Bay or West Dock and Northstar Island travel shoreward of the barrier islands as much as possible and avoid the Cross Island area during the bowhead hunting season in autumn. The fall hunt at Kaktovik occurs well to the east of Northstar (approximately 124 mi [200 km] away), so there should be no impacts to hunters of that community, since the whales will reach Kaktovik well before they enter areas that may be ensonified by activities at Northstar. Barrow is more than 155 mi (250 km) west of Northstar. Even though the whales will have to pass by Northstar before reaching Barrow for the fall hunt, the community is well beyond the range of detectable noise from Northstar. In the spring, the whales will reach Barrow before Northstar. Therefore, no impacts are anticipated on the spring bowhead whale hunt for the Barrow community.
Beluga whales are not a primary target of subsistence hunts by the Beaufort Sea communities. However, Nuiqsut whalers at Cross Island have been known to take a beluga in conjunction with the fall bowhead whale hunt. Therefore, the reasons stated previously regarding no unmitigable adverse impact to bowhead hunting at Cross Island are also applicable to beluga hunts. Additionally, should Kaktovik or Barrow conduct a beluga hunt, the distance from Northstar of these two communities would ensure no unmitigable adverse impact to those hunts.
Subsistence hunts of ice seals can occur year-round in the Beaufort Sea. However, hunts do not typically occur in the direct vicinity of Northstar. Some of the more established seal hunts occur in areas more than 20–30 mi (32–48 km) from Northstar. It is not anticipated that there would be any impacts to the seals themselves that would make them unavailable to Native Alaskans. Additionally, there is not anticipated to be any adverse effects to the hunters due to conflicts with them in traditional hunting grounds.
In the unlikely event of a major oil spill that spread into Beaufort Sea ice or water, there could be major impacts on the availability of marine mammals for subsistence uses. As discussed earlier in this document, the probability of a major oil spill occurring over the life of the project is low (S.L. Ross Environmental Research Ltd., 1998). Additionally, BP developed an oil spill prevention and contingency response plan, which was approved by several Federal agencies, including the U.S. Coast Guard. BP also conducts routine inspections of and maintenance on the pipeline (as described earlier in this document; see the “Expected Activities in 2011–2016” section) to help reduce the likelihood of a major oil spill. To help with preparedness in the event of a major oil spill, BP conducts emergency and oil spill response training activities at various times throughout the year. Equipment and techniques used during oil spill response exercises are continually updated.
Based on the measures described in BP's POC, the proposed mitigation and monitoring measures (described earlier in this document), and the project design itself, NMFS has determined preliminarily that there will not be an unmitigable adverse impact on subsistence uses from BP's operation of the Northstar facility. Even though there could be unmitigable adverse impacts on subsistence uses from a major oil spill, because of the low probability of such an event occurring and the measures that BP implements to reduce the likelihood of a major oil spill, NMFS has preliminarily determined that there will not be an unmitigable adverse impact to subsistence uses from an oil spill at Northstar.
On March 4, 1999, NMFS concluded consultation with the U.S. Army Corps of Engineers on permitting the construction and operation of the Northstar site. The finding of that consultation was that construction and operation at Northstar is not likely to jeopardize the continued existence of the bowhead whale. Since no critical habitat has been established for that species, the consultation also concluded that none would be affected.
The bowhead whale is still the only species listed as endangered under the ESA found in the proposed project area. However, on December 10, 2010, NMFS published notification of proposed threatened status for subspecies of the ringed seal (75 FR 77476) and notification of proposed threatened and not warranted status for subspecies and distinct population segments of the bearded seal (75 FR 77496) in the
On February 5, 1999 (64 FR 5789), the Environmental Protection Agency noted the availability for public review and comment of a FEIS prepared by the U.S. Army Corps of Engineers under NEPA on Beaufort Sea oil and gas development at Northstar. Based upon a review of the FEIS and comments received on the Draft and Final EIS, NMFS adopted the FEIS on May 18, 2000. Because of the age of the FEIS and the availability of new scientific information, NMFS is currently conducting a new analysis, pursuant to NEPA, to determine whether or not the issuance of MMPA rulemaking and subsequent LOA(s) may have a significant effect on the human environment. This analysis will be completed prior to the issuance or denial of these proposed regulations and will be taken into account in decision-making on the final rule and LOA.
OMB has determined that this proposed rule is not significant for purposes of Executive Order 12866.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce has 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. BP Exploration (Alaska) Inc. is the only entity that would be subject to the requirements in these proposed regulations. BP Exploration (Alaska) Inc. is an upstream strategic performance
Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a currently valid OMB control number. This proposed rule contains collection-of-information requirements subject to the provisions of the PRA. These requirements have been approved by OMB under control number 0648–0151 and include applications for regulations, subsequent LOAs, and reports. Send comments regarding any aspect of this data collection, including suggestions for reducing the burden, to NMFS and the OMB Desk Officer (see
Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation.
For reasons set forth in the preamble, 50 CFR part 217 is proposed to be amended as follows:
1. The authority citation for part 217 continues to read as follows:
16 U.S.C. 1361
2. Subpart O is added to part 217 to read as follows:
(a) Regulations in this subpart apply only to BP Exploration (Alaska) Inc. (BP) and those persons it authorizes to conduct activities on its behalf for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to operation of offshore oil and gas facilities in the U.S. Beaufort Sea, Alaska, in the Northstar Development Area.
(b) The taking of marine mammals by BP may be authorized in a Letter of Authorization only if it occurs in the geographic region that encompasses the Northstar Oil and Gas Development area within state and/or Federal waters in the U.S. Beaufort Sea.
Regulations in this subpart become effective upon issuance of the final rule.
(a) Under Letters of Authorization issued pursuant to §§ 216.106 and 217.148 of this chapter, the Holder of the Letter of Authorization (hereinafter “BP”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.140(b), provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate Letter of Authorization.
(b) The activities identified in § 217.140(a) must be conducted in a manner that minimizes, to the greatest extent practicable, any adverse impacts on marine mammals and their habitat.
(c) The incidental take of marine mammals under the activities identified in § 217.140(a) is limited to the following species and by the indicated method and amount of take:
(1) Level B Harassment:
(2) Level A Harassment and Mortality: Ringed seal—25 (an average of 5 annually)
Notwithstanding takings contemplated in § 217.140 and authorized by a Letter of Authorization issued under §§ 216.106 and 217.148 of this chapter, no person in connection with the activities described in § 217.140 may:
(a) Take any marine mammal not specified in § 217.142(c);
(b) Take any marine mammal specified in § 217.142(c) other than by incidental take as specified in §§ 217.142(c)(1) and (c)(2);
(c) Take a marine mammal specified in § 217.172(c) if such taking results in more than a negligible impact on the species or stocks of such marine mammal;
(d) Take a marine mammal specified in § 217.172(c) if such taking results in an unmitigable adverse impact on the species or stock for taking for subsistence uses; or
(e) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a Letter of Authorization issued under §§ 216.106 and 217.148 of this chapter.
(a) When conducting the activities identified in § 217.140(a), the mitigation measures contained in the Letter of Authorization issued under §§ 216.106 and 217.148 must be implemented. These mitigation measures include but are not limited to:
(1) Ice-covered Season:
(i) In order to reduce the taking of ringed seals to the lowest level practicable, BP must begin winter construction activities, principally ice roads, as soon as possible once weather and ice conditions permit such activity.
(ii) Any ice roads or other construction activities that are initiated after March 1, in previously undisturbed areas in waters deeper than 10 ft (3 m), must be surveyed, using trained dogs in order to identify and avoid ringed seal
(iii) After March 1 of each year, activities should avoid, to the greatest extent practicable, disturbance of any located seal structure.
(2) Open-water Season:
(i) BP will establish and monitor, during all daylight hours, a 190 dB re 1 μPa (rms) safety zone for seals around the island for all activities with sound pressure levels (SPLs) that are expected to exceed that level in waters beyond the Northstar facility on Seal Island.
(ii) BP will establish and monitor, during all daylight hours, a 180 dB re 1 μPa (rms) safety zone for whales around the island for all activities with SPLs that are expected to exceed that level in waters beyond the Northstar facility at Seal Island.
(iii) If any marine mammals are observed within the relevant safety zone, described in § 217.144(a)(2)(i) or (ii), the activity creating the noise will shutdown or reduce its SPL sufficiently to ensure that received SPLs do not exceed those prescribed SPL intensities at the affected marine mammal. The shutdown or reduced SPL shall be maintained until such time as the observed marine mammal(s) has been seen to have left the applicable safety zone or until 15 minutes have elapsed in the case of a pinniped or odontocete or 30 minutes in the case of a mysticete without resighting, whichever occurs sooner.
(iv) The entire safety zones prescribed in § 217.144(a)(2)(i) or (ii) must be visible during the entire 30-minute pre-activity monitoring time period in order for the activity to begin.
(v) New drilling into oil-bearing strata shall not take place during either open-water or spring-time broken ice conditions.
(vi) All non-essential boats, barge, and air traffic will be scheduled to avoid periods when bowhead whales are migrating through the area where they may be affected by noise from these activities.
(3) Helicopter flights to support Northstar activities must be limited to a corridor from Seal Island to the mainland, and, except when limited by weather or personnel safety, must maintain a minimum altitude of 1,000 ft (305 m), except during takeoff and landing.
(4) Additional mitigation measures as contained in a Letter of Authorization issued under §§ 216.106 and 217.148 of this chapter.
(b) [Reserved]
When applying for a Letter of Authorization pursuant to § 217.147 or a renewal of a Letter of Authorization pursuant to § 217.149, BP must submit a Plan of Cooperation that identifies what measures have been taken and/or will be taken to minimize any adverse effects on the availability of marine mammal species or stocks for taking for subsistence uses. A plan shall include the following:
(a) A statement that the applicant has notified and met with the affected subsistence communities to discuss proposed activities and to resolve potential conflicts regarding timing and methods of operation;
(b) A description of what measures BP has taken and/or will take to ensure that the proposed activities will not interfere with subsistence whaling or sealing; and
(c) What plans BP has to continue to meet with the affected communities to notify the communities of any changes in operation.
(a) BP must notify the Alaska Regional Office, NMFS, within 48 hours of starting ice road construction, cessation of ice road usage, and the commencement of icebreaking activities for the Northstar facility.
(b) BP must designate qualified, on-site individuals, approved in advance by NMFS, to conduct the mitigation, monitoring, and reporting activities specified in the Letter of Authorization issued under §§ 216.106 and 217.148 of this chapter.
(c) Monitoring measures during the ice-covered season shall include, but are not limited to, the following:
(1) After March 1, trained dogs must be used to detect seal lairs in previously undisturbed areas that may be potentially affected by on-ice construction activity, if any. Surveys for seal structures should be conducted to a minimum distance of 492 ft (150 m) from the outer edges of any disturbance.
(2) If ice road construction occurs after March 1, conduct a follow-up assessment in May of that year of the fate of all seal structures located during monitoring conducted under § 217.146(c)(1) near the physically disturbed areas.
(3) BP shall conduct acoustic measurements to document sound levels, characteristics, and transmissions of airborne sounds with expected source levels of 90 dBA or greater created by on-ice activity at Northstar that have not been measured in previous years. In addition, BP shall conduct acoustic measurements to document sound levels, characteristics, and transmissions of airborne sounds for sources on Northstar Island with expected received levels at the water's edge that exceed 90 dBA that have not been measured in previous years.
(d) Monitoring measures during the open-water season shall include, but are not limited to, the following:
(1) Acoustic monitoring of the bowhead whale migration.
(2) BP shall monitor the safety zones of activities capable of producing pulsed underwater sound with levels ≥180 or ≥190 dB re 1 µPa (rms) at locations where whales or seals could be exposed. At least one on-island observer shall be stationed at a location providing an unobstructed view of the predicted safety zone. The observer(s) shall scan the safety zone continuously for marine mammals for 30 minutes prior to the operation of the sound source. Observations shall continue during all periods of operation. The observer shall record the: Species and numbers of marine mammals seen within the 180 or 190 dB zones; bearing and distance of the marine mammals from the observation point; and behavior of marine mammals and any indication of disturbance reactions to the monitored activity.
(e) BP shall conduct any additional monitoring measures contained in a Letter of Authorization issued under §§ 216.106 and 217.148 of this chapter.
(f) BP shall submit an annual report to NMFS within the time period specified in a Letter of Authorization issued under §§ 216.106 and 217.148 of this chapter.
(g) If specific mitigation and monitoring are required for activities on the sea ice initiated after March 1 (requiring searches with dogs for lairs), during the operation of strong sound sources (requiring visual observations and shutdown procedures), or for the use of new sound sources that have not previously been measured, then a preliminary summary of the activity, method of monitoring, and preliminary results shall be submitted to NMFS within 90 days after the cessation of that activity. The complete description of methods, results, and discussion shall be submitted as part of the annual report.
(h) BP shall submit a draft comprehensive report to NMFS, Office of Protected Resources, and NMFS, Alaska Regional Office (specific contact information to be provided in Letter of Authorization), no later than 240 days prior to the expiration of these regulations. This comprehensive technical report shall provide full
(i) Any observations concerning possible injuries, mortality, or an unusual marine mammal mortality event shall be transmitted to NMFS, Office of Protected Resources, and the Alaska Stranding and Disentanglement Program (specific contact information to be provided in Letter of Authorization), within 48 hours of the discovery. At a minimum, reported information shall include: The time, date, and location (latitude/longitude) of the animal(s); the species identification or description of the animal(s); the fate of the animal(s), if known; and photographs or video footage of the animal (if equipment is available).
(a) To incidentally take marine mammals pursuant to these regulations, the U.S. Citizen (as defined by § 216.103) conducting the activity identified in § 217.140(a) (
(b) [Reserved]
(a) A Letter of Authorization, unless suspended or revoked, shall be valid for a period of time not to exceed the period of validity of this subpart.
(b) The Letter of Authorization shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact on the species, its habitat, and on the availability of the species for subsistence uses (
(3) Requirements for mitigation, monitoring and reporting.
(c) Issuance and renewal of the Letter of Authorization shall be based on a determination that the total number of marine mammals taken by the activity as a whole will have no more than a negligible impact on the affected species or stock of marine mammal(s) and will not have an unmitigable adverse impact on the availability of species or stocks of marine mammals for taking for subsistence uses.
(a) A Letter of Authorization issued under § 216.106 and § 217.148 of this chapter for the activity identified in § 217.140(a) shall be renewed upon request by the applicant or determination by NMFS and the applicant that modifications are appropriate pursuant to the adaptive management component of these regulations, provided that:
(1) NMFS is notified that the activity described in the application submitted under § 217.147 will be undertaken and that there will not be a substantial modification to the described work, mitigation or monitoring undertaken during the upcoming 12 months;
(2) NMFS recieves the monitoring reports required under § 217.146(f) and (g); and
(3) NMFS determines that the mitigation, monitoring and reporting measures required under §§ 217.144 and 217.146 and the Letter of Authorization issued under §§ 216.106 and 217.148 of this chapter were undertaken and will be undertaken during the upcoming annual period of validity of a renewed Letter of Authorization.
(b) If either a request for a renewal of a Letter of Authorization issued under §§ 216.106 and 217.149 of this chapter or a determination by NMFS and the applicant that modifications are appropriate pursuant to the adaptive management component of these regulations indicates that a substantial modification, as determined by NMFS, to the described work, mitigation or monitoring undertaken during the upcoming season will occur, NMFS will provide the public a period of 30 days for review and comment on the request. Review and comment on renewals of Letters of Authorization are restricted to:
(1) New cited information and data indicating that the determinations made in this document are in need of reconsideration, and
(2) Proposed substantive changes to the mitigation and monitoring requirements contained in these regulations or in the current Letter of Authorization.
(c) A notice of issuance or denial of a renewal of a Letter of Authorization will be published in the
(d)
(1) Results from BP's monitoring from the previous year;
(2) Results from general marine mammal and sound research; or
(3) Any information which reveals that marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs.
(a) Except as provided in paragraph (b) of this section, no substantive modification (including withdrawal or suspension) to the Letter of Authorization issued by NMFS, pursuant to §§ 216.106 and 217.148 of this chapter and subject to the provisions of this subpart, shall be made until after notification and an opportunity for public comment has been provided. For purposes of this paragraph, a renewal of a Letter of Authorization under § 217.149, without modification (except for the period of validity), is not considered a substantive modification.
(b) If the Assistant Administrator determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 217.142(c), a Letter of Authorization issued pursuant to §§ 216.106 and 217.148 of this chapter may be substantively modified without prior notification and an opportunity for public comment. Notification will be published in the
International Trade Commission.
Notice of proposed rulemaking.
The United States International Trade Commission (“Commission”) proposes to amend its rules of practice and procedure concerning rules of general application, safeguards, antidumping and countervailing duty, and adjudication and enforcement. The amendments are necessary to implement a new Commission requirement for electronic filing of most documents with the agency. The intended effects of the proposed amendments are to increase efficiency in processing documents filed with the Commission, reduce Commission expenditures, and conform agency processes to Federal Government initiatives.
To be assured of consideration, written comments must be received by 5:15 p.m. on August 5, 2011.
You may submit comments, identified by docket number MISC–036, by any of the following methods:
James R. Holbein, Secretary, telephone (202) 205–2000 or Gracemary Roth-Roffy, telephone (202) 205–3117, Office of the General Counsel, United States International Trade Commission. Hearing-impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal at 202–205–1810. General information concerning the Commission may also be obtained by accessing its Internet server at
The preamble below is designed to assist readers in understanding these proposed amendments to the Commission's Rules. This preamble provides background information, a regulatory analysis of the proposed amendments, and a section-by-section explanation of the proposed amendments. The Commission encourages members of the public to comment on the proposed amendments as well as on whether the language of the proposed amendments is sufficiently clear for users to understand.
If the Commission decides to proceed with this rulemaking after reviewing the comments filed in response to this notice, the proposed rule revisions will be promulgated in accordance with the procedures provided for in the Administrative Procedure Act (5 U.S.C. 553), and will be codified in 19 CFR parts 201, 206, 207, and 210.
Section 335 of the Tariff Act of 1930 (19 U.S.C. 1335) authorizes the Commission to adopt such reasonable procedures, rules, and regulations as it deems necessary to carry out its functions and duties. This rulemaking seeks to improve provisions of the Commission's existing Rules of Practice and Procedure. The Commission proposes amendments to its rules covering proceedings such as investigations and reviews conducted under title VII and section 337 of the Tariff Act of 1930 (19 U.S.C. 1337, 1671
Consistent with its ordinary practice, the Commission is issuing these proposed amendments in accordance with provisions of section 553 of the APA (5 U.S.C. 553), although such provisions are not mandatory with respect to this rulemaking. The APA procedure entails the following steps: (1) Publication of a notice of proposed rulemaking; (2) solicitation of public comments on the proposed amendments; (3) Commission review of public comments on the proposed amendments; and (4) publication of final amendments at least thirty days prior to their effective date.
The Commission proposes to require that most filings with the agency be made by electronic means. When a filing is made by electronic means, the electronic version will constitute the official record document and any paper form of the document must be a true copy and identical to the electronic version. The Commission's Electronic Document Information System (EDIS) already accepts electronic filing of certain documents, and will be the mechanism by which participants in Commission proceedings electronically file their documents in the future. Whereas submitters have only been permitted to file public documents into EDIS, the proposed rule amendments would provide for the electronic filing of documents containing confidential business information and business proprietary information into EDIS. A Handbook on Filing Procedures will supersede the Commission's current Handbook on Electronic Filing Procedures, and will provide more detailed information on the filing process. The Commission plans to seek public comment concerning the new handbook in a separate notice. Persons seeking to file documents will be required to comply with the revised rules and the Handbook on Filing Procedures.
The Commission estimates that electronic filing of most documents will significantly reduce the cost to the agency of processing documents. These costs include labor costs for scanning paper documents into EDIS, storage costs for paper documents, and costs for continuity of operations. Electronic filing also is expected to improve the efficiency and effectiveness of the filing
Although the Commission intends to require electronic filing of most documents, documents generally will also be submitted in paper form. Moreover, witness testimony and hearing materials in import injury investigations and reviews would be submitted only in paper form, and public versions of testimony would be accepted at the relevant conference or hearing. The proposed rules would provide the Secretary to the Commission with the authority to establish exceptions and modifications to the requirement to electronically file documents.
The proposed changes to the filing process are not intended to affect the current practice with respect to the filing of responses to Commission questionnaires in import injury investigations and reviews.
The Commission has determined that the final rules do not meet the criteria described in section 3(f) of Executive Order 12866 (58 FR 51735, Oct. 4, 1993) and thus do not constitute a significant regulatory action for purposes of the Executive Order.
The Regulatory Flexibility Act (5 U.S.C. 601
These proposed rules do not contain federalism implications warranting the preparation of a federalism summary impact statement pursuant to Executive Order 13132 (64 FR 43255, Aug. 4, 1999).
No actions are necessary under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501
The proposed rules are not major rules as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
The amendments are not subject to section 3504(h) of the Paperwork Reduction Act (44 U.S.C. 3501
Section 201.8 generally provides the requirements for filing documents with the Commission. The Commission proposes to revise paragraphs (c) and (d) of § 201.8 to clarify document specification requirements, and to revise paragraph (f) to set out requirements for filing of documents, including the general requirement that documents be filed electronically. Paragraphs (d) and (f) would be reversed to present information in a clearer order.
Section 201.12 sets out requirements for action requests in a nonadjudicative investigation. The Commission proposes to revise the section to require that requests be filed electronically and submitted in paper form on the same business day.
Section 201.14 sets out requirements for requests for additional hearings, postponements, continuances, and extensions of time. The Commission proposes to revise paragraph (b)(3) to require that requests be filed electronically and submitted in paper form on the same business day.
Section 201.16 sets out the general requirements for service of process and other documents. The Commission proposes to revise paragraph (b) of § 201.16 to remove language concerning service on the Secretary of paper documents.
Section 206.2 identifies types of petitions or requests in certain Commission proceedings. The Commission proposes to add that petitions and requests filed under part 206 of the Commission's rules must be filed in paper form and to require the submission of all exhibits, appendices, and attachments to the petition or request on certain approved electronic media.
Section 206.8 covers service, filing, and certification of documents in certain proceedings. The Commission proposes to add a paragraph specifying that briefs filed in such proceedings are to be filed electronically and also submitted in paper form on the same business day.
Section 206.17 provides procedures for limited disclosure of certain confidential business information under administrative protective order. The Commission proposes to revise paragraph (a)(2) of the section to provide for electronic filing of administrative protective order applications.
Section 207.7 provides procedures for limited disclosure of certain business proprietary information under administrative protective order. The Commission proposes to revise paragraph (a)(2) of the section to provide for electronic filing of administrative protective order applications.
Section 207.10 addresses the filing of petitions in title VII proceedings. The Commission proposes to revise the language of § 207.10(a) to specify that petitions are to be filed in paper form and to require the submission of all exhibits, appendices, and attachments to the petition on certain approved electronic media.
Section 207.15 addresses written briefs and conferences in title VII proceedings. The Commission proposes to revise § 207.15 to require electronic filing of briefs and submission of a requisite number of paper copies on the same business day. The proposed rule also would provide for the filing of witness testimony at the conference.
Section 207.23 addresses prehearing briefs in title VII proceedings. The Commission proposes to revise § 207.23 to require electronic filing of the prehearing brief and submission of a requisite number of paper copies on the same business day.
Section 207.24 addresses hearing procedures in title VII proceedings. The Commission proposes to revise paragraph (b) of § 207.24 to permit a party to file witness testimony at the hearing.
Section 207.25 addresses posthearing briefs in title VII proceedings. The Commission proposes to revise § 207.25 to require electronic filing of briefs and submission of a requisite number of paper copies on the same business day.
Section 207.28 addresses anticircumvention under title VII. The Commission proposes to revise § 207.28 to require electronic filing of statements and submission of a requisite number of paper copies on the same business day.
Section 207.30 addresses comments on information in certain title VII proceedings. The Commission proposes to revise paragraph (b) of § 207.30 to require electronic filing of comments and submission of a requisite number of paper copies on the same business day.
Section 207.61 addresses responses to notices of institution. The Commission proposes to add paragraph (e) of § 207.61 to require electronic filing of responses and submission of a requisite number of paper copies on the same business day.
Section 207.62 concerns rulings on adequacy and nature of Commission review in certain title VII proceedings. The Commission proposes to revise paragraph (b)(2) of § 207.62 to require electronic filing of comments and submission of a requisite number of paper copies on the same business day.
Section 207.65 addresses prehearing briefs in certain title VII proceedings. The Commission proposes to revise § 207.65 to require electronic filing of briefs and submission of a requisite number of paper copies on the same business day.
Section 207.67 addresses posthearing briefs and statements in certain title VII proceedings. The Commission proposes to revise paragraph (a) of § 207.67 to require electronic filing of briefs and submission of a requisite number of paper copies on the same business day.
Section 207.68 covers final comments on information in certain title VII proceedings. The Commission proposes to revise paragraph (b) of § 207.68 to require electronic filing of comments and submission of a requisite number of paper copies on the same business day.
Section 210.4 sets out procedures for written submissions, representations, and sanctions in section 337 proceedings. The Commission proposes to revise paragraph (f) of § 210.4 to require electronic filing of certain documents. Additionally, the Commission proposes to require electronic filing of all other written submissions and the submission of paper copies of these submissions by noon on the next business day.
Section 210.8 sets out the filing procedures for complaints and motions for temporary relief in section 337 proceedings. The Commission proposes to revise paragraph (a) of § 210.8 to require paper filing of complaints and filing of exhibits, appendices, and attachments to complaints on certain approved electronic media.
Administrative practice and procedure, Business and industry, Customs duties and inspection, Imports, Investigations.
For the reasons stated in the preamble, the United States International Trade Commission proposes to amend 19 CFR parts 201, 206, 207, and 210 as follows:
1. The authority citation for part 201 continues to read as follows:
Sec. 335 of the Tariff Act of 1930 (19 U.S.C. 1335), and sec. 603 of the Trade Act of 1974 (19 U.S.C. 2482), unless otherwise noted.
2. Amend § 201.8 by revising paragraphs (c), (d), and (f) to read as follows:
(c)
(d)
(2) Briefs, statements, responses, comments, and requests filed pursuant to § 201.12, § 201.14, § 206.8, § 207.15, § 207.23, § 207.25, § 207.28, § 207.30, § 207.61, § 207.62, § 207.65, § 207.67, or § 207.68 of this chapter shall be filed electronically and the requisite number of true paper copies of these documents shall be submitted to the Commission in accordance with the provisions of the applicable section.
(3) Petitions, complaints, requests, or motions filed under § 206.2, § 207.10, § 210.4, § 210.8, § 210.75, § 210.76, or § 210.79 of this chapter shall be filed in paper form and exhibits, appendices, and attachments to the documents shall be filed in electronic form on CD–ROM, DVD or other portable electronic media approved by the Secretary in accordance with the provisions of the applicable section. Submitted media will be retained by the Commission, except that media may be returned to the submitter if a document is not accepted for filing.
(4) Certain documents filed under § 210.4 shall be filed electronically in accordance with the provisions of that section, and copies of certain of those documents shall also be submitted in paper form as provided in that section.
(5) Supplementary material and witness testimony provided for under § 201.13, § 207.15, or § 207.24 of this chapter shall be filed in paper form in accordance with the provisions of the applicable section.
(6) Certain documents filed under § 201.4 of this chapter and applications for administrative protective orders filed under §§ 206.17 and 207.7 of this chapter shall only be filed electronically; no paper copies will be required.
(7) The Secretary may provide for exceptions and modifications to the filing requirements set out in this chapter. A person seeking an exception should consult the Handbook on Filing Procedures.
(f)
3. Revise § 201.12 to read as follows:
Any party to a nonadjudicative investigation may request the Commission to take particular action with respect to that investigation. Such requests shall be made by letter addressed to the Secretary, shall be placed by him in the record, and shall be served on all other parties. Such request shall be filed electronically and
4. Amend § 201.14 by revising paragraph (b)(3) to read as follows:
(b) * * *
(3) A request that the Commission take any of the actions described in this section shall be filed with the Secretary and served on all parties to the investigation. Such request shall be filed electronically and two (2) true paper copies shall be submitted on the same business day.
5. Amend § 201.16 by revising paragraph (b) to read as follows:
(b)
(1) By mailing or delivering copies of a nonconfidential version of the document to each party, or, if the party is represented by an attorney before the Commission, by mailing or delivering a nonconfidential version thereof to such attorney; or
(2) By leaving copies thereof at the principal office of each other party, or, if a party is represented by an attorney before the Commission, by leaving copies at the office of such attorney.
(3) When service is by mail, it is complete upon mailing of the document.
(4) When service is by mail, it shall be by first class mail, postage prepaid. In the event the addressee is outside the United States, service shall be by first class airmail, postage prepaid.
6. The authority citation for part 206 continues to read as follows:
19 U.S.C. 1335, 2251–2254, 2451–2451a, 3351–3382; secs. 103, 301–302, Pub. L. 103–465, 108 Stat. 4809.
7. Revise § 206.2 to read as follows:
An investigation under this part 206 may be commenced on the basis of a petition, request, resolution, or motion as provided in section 202(a)(1), 204(c)(1), 406(a)(1), 421(b) or (o), or 422(b) of the Trade Act of 1974 or section 302(a)(1) or 312(c)(1) of the North American Free Trade Agreement Implementation Act. Each petition or request, as the case may be, filed by an entity representative of a domestic industry under this part 206 shall state clearly on the first page thereof “This is a [petition or request] under section [202, 204(c), 406, 421(b) or (o), or 422(b) of the Trade Act of 1974, or section 302 or 312(c) of the North American Free Trade Agreement Implementation Act] and Subpart [B, C, D, E, F, or G] of part 206 of the rules of practice and procedure of the United States International Trade Commission.” A paper original and eight (8) true paper copies of a petition, request, resolution, or motion shall be filed. One copy of any exhibits, appendices, and attachments to the document shall be filed in electronic form on CD–ROM, DVD, or other portable electronic format approved by the Secretary.
8. Amend § 206.8 by adding paragraph (d) to read as follows:
(d)
9. Amend § 206.17 by revising paragraph (a)(2) to read as follows:
(a) * * *
(2) Application. An application under paragraph (a)(1) of this section must be made by an authorized applicant on a form adopted by the Secretary or a photocopy thereof. A signed application shall be filed electronically. An application on behalf of an authorized applicant must be made no later than the time that entries of appearance are due pursuant to § 201.11 of this chapter. In the event that two or more authorized applicants represent one interested party who is a party to the investigation, the authorized applicants must select one of their number to be lead authorized applicant. The lead authorized applicant's application must be filed no later than the time that entries of appearance are due. Provided that the application is accepted, the lead authorized applicant shall be served with confidential business information pursuant to paragraph (f) of this section. The other authorized applicants representing the same party may file their applications after the deadline for entries of appearance but at least five days before the deadline for filing posthearing briefs in the investigation, and shall not be served with confidential business information.
10. The authority citation for part 207 continues to read as follows:
19 U.S.C. 1336, 1671–1677n, 2482, 3513.
11. Amend § 207.7 by revising paragraph (a)(2) to read as follows:
(a) * * *
(2) Application. An application under paragraph (a)(1) of this section must be made by an authorized applicant on a form adopted by the Secretary or a photocopy thereof. A signed application shall be filed electronically. An application on behalf of a petitioner, a respondent, or another party must be made no later than the time that entries of appearance are due pursuant to § 201.11 of this chapter. In the event that two or more authorized applicants represent one interested party who is a party to the investigation, the authorized applicants must select one of their number to be lead authorized applicant. The lead authorized applicant's application must be filed no later than the time that entries of appearance are due. Provided that the application is accepted, the lead authorized applicant shall be served with business proprietary information pursuant to paragraph (f) of this section. The other authorized applicants representing the same party may file their applications after the deadline for entries of appearance but at least five days before the deadline for filing posthearing briefs in the investigation, or the deadline for filing briefs in the preliminary phase of an investigation, or the deadline for filing submissions in a remanded investigation, and shall not be served with business proprietary information.
12. Amend § 207.10 by revising paragraph (a) to read as follows:
(a)
13. Revise § 207.15 to read as follows:
Each party may submit to the Commission on or before a date specified in the notice of investigation issued pursuant to 207.12 a written brief containing information and arguments pertinent to the subject matter of the investigation. Briefs shall be signed, shall include a table of contents, and shall contain no more than fifty (50) double-spaced and single-sided pages of textual material, and shall be filed electronically, and eight (8) true paper copies shall be submitted on the same business day (on paper measuring 8.5 × 11 inches, double-spaced and single-sided). Any person not a party may submit a brief written statement of information pertinent to the investigation within the time specified and the same manner specified for the filing of briefs. In addition, the presiding official may permit persons to file within a specified time answers to questions or requests made by the Commission's staff. If he deems it appropriate, the Director shall hold a conference. The conference, if any, shall be held in accordance with the procedures in § 201.13 of this chapter, except that in connection with its presentation a party may provide written witness testimony at the conference; if written testimony is provided, eight (8) true paper copies shall be submitted. The Director may request the appearance of witnesses, take testimony, and administer oaths.
14. Revise § 207.23 to read as follows:
Each party who is an interested party shall submit to the Commission, no later than five (5) business days prior to the date of the hearing specified in the notice of scheduling, a prehearing brief. Prehearing briefs shall be signed and shall include a table of contents and shall be filed electronically, and eight (8) true paper copies shall be submitted on the same business day. The prehearing brief should present a party's case concisely and shall, to the extent possible, refer to the record and include information and arguments which the party believes relevant to the subject matter of the Commission's determination under section 705(b) or section 735(b) of the Act. Any person not an interested party may submit a brief written statement of information pertinent to the investigation within the time specified and the same manner specified for filing of prehearing briefs.
15. Amend § 207.24 by revising paragraph (b) to read as follows:
(b)
16. Revise § 207.25 to read as follows:
Any party may file a posthearing brief concerning the information adduced at or after the hearing with the Secretary within a time specified in the notice of scheduling or by the presiding official at the hearing. A posthearing brief shall be filed electronically, and eight (8) true paper copies shall be submitted on the same business day. No such posthearing brief shall exceed fifteen (15) pages of textual material, double-spaced and single-sided, when printed out on paper measuring 8.5 × 11 inches. In addition, the presiding official may permit persons to file answers to questions or requests made by the Commission at the hearing within a specified time. The Secretary shall not accept for filing posthearing briefs or answers which do not comply with this section.
17. Revise § 207.28 to read as follows:
Prior to providing advice to the administering authority pursuant to section 781(e)(3) of the Act, the Commission shall publish in the
18. Amend § 207.30 by revising paragraph (b) to read as follows:
(b) The parties shall have an opportunity to file comments on any information disclosed to them after they have filed their posthearing brief pursuant to § 207.25. A comment shall be filed electronically, and eight (8) true paper copies shall be submitted on the same business day. Comments shall only concern such information, and
19. Amend § 207.61 by adding paragraph (e) to read as follows:
(e) A document filed under this section shall be filed electronically, and eight (8) true paper copies shall be submitted on the same business day.
20. Amend § 207.62 by revising paragraph (b)(2) to read as follows:
(b) * * *
(2) Comments shall be submitted within the time specified in the notice of institution. In a grouped review, only one set of comments shall be filed per party. Comments shall be filed electronically, and eight (8) true paper copies shall be submitted on the same business day. Comments shall not exceed fifteen (15) pages of textual material, double spaced and single sided, when printed out on paper measuring 8.5 × 11 inches. Comments containing new factual information shall be disregarded.
21. Revise § 207.65 to read as follows:
Each party to a five-year review may submit a prehearing brief to the Commission on the date specified in the scheduling notice. A prehearing brief shall be signed and shall include a table of contents. A prehearing brief shall be filed electronically, and eight (8) true paper copies shall be submitted (on paper measuring 8.5 × 11 inches and single-sided) on the same business day. The prehearing brief should present a party's case concisely and shall, to the extent possible, refer to the record and include information and arguments which the party believes relevant to the subject matter of the Commission's determination.
22. Amend § 207.67 by revising paragraph (a) to read as follows:
(a) Briefs from parties. Any party to a five-year review may file with the Secretary a posthearing brief concerning the information adduced at or after the hearing within a time specified in the scheduling notice or by the presiding official at the hearing. A posthearing brief shall be filed electronically, and eight (8) true paper copies shall be submitted on the same business day. No such posthearing brief shall exceed fifteen (15) pages of textual material, double spaced and single sided, when printed out on paper measuring 8.5 × 11 inches and single-sided. In addition, the presiding official may permit persons to file answers to questions or requests made by the Commission at the hearing within a specified time. The Secretary shall not accept for filing posthearing briefs or answers which do not comply with this section.
23. Amend § 207.68 by revising paragraph (b) to read as follows:
(b) The parties shall have an opportunity to file comments on any information disclosed to them after they have filed their posthearing brief pursuant to § 207.67. Comments shall be filed electronically, and eight (8) true paper copies shall be submitted on the same business day. Comments shall only concern such information, and shall not exceed 15 pages of textual material, double spaced and single-sided, when printed out on paper measuring 8.5 × 11 inches and single-sided. A comment may address the accuracy, reliability, or probative value of such information by reference to information elsewhere in the record, in which case the comment shall identify where in the record such information is found. Comments containing new factual information shall be disregarded. The date on which such comments must be filed will be specified by the Commission when it specifies the time that information will be disclosed pursuant to paragraph (a) of this section. The record shall close on the date such comments are due, except with respect to changes in bracketing of business proprietary information in the comments permitted by § 207.3(c).
24. The authority citation for part 210 continues to read as follows:
19 U.S.C. 1333, 1335, and 1337.
25. Amend § 210.4 by revising paragraphs (f)(1) and (2) and adding paragraph (f)(4) to read as follows:
(f)
(ii) The administrative law judge may impose any specifications he deems appropriate for submissions that are addressed to the administrative law judge.
(2) Unless the Commission or this part specifically states otherwise:
(i) The original and two (2) true paper copies of each submission shall be filed if the investigation or related proceeding is before an administrative law judge; and
(ii) The original and eight (8) true paper copies of each submission shall be filed if the investigation or related proceeding is before the Commission, except that a submitter shall file the original and 6 copies of any exhibits filed with a request or petition for related proceedings under § 210.75, § 210.76, or § 210.79.
(4) A complaint, petition, or request filed under § 210.75, § 210.76, or § 210.79 shall be filed in paper form. An original and eight (8) true paper copies shall filed in accordance with this paragraph (f). All exhibits, appendices, and attachments to the document shall be filed in electronic form on CD–ROM, DVD, or other portable electronic media approved by the Secretary.
26. Amend § 210.8 by revising paragraph (a) to read as follows:
(a)(1) A complaint filed under this section shall be filed in paper form. An original and eight (8) true paper copies shall filed in accordance with § 201.8(c). All exhibits, appendices, and attachments to the complaint shall be filed in electronic form on CD–ROM, DVD, or other portable electronic media approved by the Secretary.
(2) If the complainant is seeking temporary relief, the complainant must also file an original and eight paper (8) copies of the motion for temporary relief in accordance with § 201.8(c). All exhibits, appendices, and attachments to the motion shall be filed in electronic form on CD–ROM, DVD, or other portable electronic media approved by the Secretary.
By order of the Commission.
International Trade Commission.
Notice of proposed Handbook on Filing Procedures.
The United States International Trade Commission (“Commission”) proposes to issue a Handbook on Filing Procedures to replace its Handbook on Electronic Filing Procedures. The revision is necessary to implement a new Commission requirement for electronic filing of most documents with the agency. The intended effects of the proposed change are to increase efficiency in processing documents filed with the Commission, reduce Commission expenditures, and conform agency processes to federal government initiatives.
To be assured of consideration, written comments must be received by 5:15 p.m. on August 5, 2011.
You may submit comments, identified by docket number MISC–036, by any of the following methods:
James R. Holbein, Secretary, telephone (202) 205–2000 or Gracemary R. Roth-Roffy, telephone (202) 205–3117, Office of the General Counsel, United States International Trade Commission. Hearing-impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal at 202–205–1810. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission proposes to require that most filings with the agency be made by electronic means. The Commission's Electronic Document Information System (EDIS) already accepts electronic filing of certain documents, and will be the mechanism by which investigation participants electronically file their documents in the future. Persons seeking to file documents will be required to comply with the revised Handbook on Filing Procedures, which will supersede the Commission's current Handbook on Electronic Filing Procedures. The Commission plans to seek public comment concerning proposed related amendments to its Rules of Practice and Procedure in a separate notice.
Although the Commission intends to require electronic filing through EDIS of most documents, that requirement will be modified for certain documents. Notably, documents such as briefs filed in import injury proceedings will need to be filed electronically and in paper form on the same business day. Certain other documents, such as petitions for review in intellectual property-related import investigations, will need to be filed electronically, and in paper form by noon the next business day.
The agency anticipates that some documents will not be electronically filed through EDIS. Parties filing petitions in import injury proceedings, and complaints and motions for temporary relief in intellectual property-related import investigations will continue to file those documents in paper form, but will be required to file the exhibits, attachments thereto in electronic form on portable media approved by the Secretary. Materials intended to be used at certain conferences and hearings will not need to be filed electronically.
In addition, the Secretary will have the authority to allow for modifications of the requirements for the filing of documents specified in the rules and the Handbook. In particular, the Commission understands that some investigation participants may encounter difficulties in filing electronically. For example, some participants may not have full access to the internet. A person or firm that believes it will have difficulty filing electronically will have the opportunity to file a request for an exemption from the normal filing requirement. The Secretary will grant such requests if the submitter of the document provides a reasonable explanation for the request.
The Commission seeks public comment on the proposed Handbook on Filing Procedures. The agency will consider these comments in preparing to issue a final version of the Handbook.
A. This Handbook provides instructions for persons filing documents with the United States International Trade Commission (Commission).
B. In any conflict between the Commission's Rules of Practice and Procedure (rules) and this Handbook, the rules shall govern. This Handbook is designed to be read in conjunction with the rules. This Handbook does not alter or waive any provisions in the rules governing the filing of documents with entities and/or persons other than the Commission, including but not limited to the United States Secretary, NAFTA Secretariat.
C. If you plan to file a document with the Commission, you must comply with the relevant provisions of the rules governing such filing. The Commission generally provides for two types of filing, electronic filing and filing in paper form. The general rule set out in § 201.8 of the rules requires electronic filing, but special requirements apply to certain types of documents, and the Secretary is authorized to make exceptions and modifications to the general rule. Certain exceptions and modifications are set out below. The Commission generally does not permit filing by means other than paper filing or electronic filing. Thus, for example, unless provided for by the rules, filing by facsimile and by electronic mail (i.e., sending a document to a Commission electronic mail address) is not permitted.
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(1) To file electronically, you must first become a “registered user” of EDIS. To register, a user must fill out the EDIS user registration form online at the EDIS Web site. Anonymous user access is not supported by EDIS to either file or search for a document. The online registration process will require identification of the user's name, firm affiliation, address, telephone number and e-mail address of record. Users must have and maintain a working e-mail address to be a registered user.
(a) Users must select their applicable association in the Firm/Organization drop-down field. If a user's affiliation in the Firm/Organization field is not listed, select `Not Listed' if you intend on filing a document. You will be presented with an electronic pop-up form to provide the relevant information to have your firm included in the list. The new firm will be added by USITC staff after your registration has been submitted and your account will be updated to reflect your association to the new firm.
(b) All users must designate a user ID and password, and select and answer two unique security questions on the registration form as forms of authentication for accessing EDIS. Registered users may access EDIS for electronic filing without any additional approval from the Secretary.
(c) The user's registration information is used when filing a document to populate the document submission fields of `Filed By' and `Firm/Organization.'
(2) Every registered user shall be responsible for keeping his/her registration information current.
(a) Users who leave their registered firm or organization must re-register with a new user ID and password to file documents so that an accurate filing history can be maintained.
(b) Changes to user information other than the Firm/Organization should be requested by contacting the Commission's EDIS Helpdesk at 202–205–2000 or via e-mail at
(c) Password and security questions can only be changed or re-set by the registered user when logged in to EDIS.
(3) A registered user may authorize another person to file a document with the Commission using the user ID and password of the registered user; however, the registered user assumes responsibility for any authorized use of his/her user ID and password. The registered user and all persons who participate in the preparation of or are signatories to a document shall retain responsibility with respect to any duties and obligations pertaining to the document under the rules. A registered user must comply with applicable limitations on disclosure of confidential business information (“CBI”) and business proprietary information (“BPI”) pursuant to 19 CFR 201.6, 206.17, 207.7, and 210.5. As provided in paragraph II(J)(2), a document filed using a registered user's user ID and password will be deemed signed by that registered user.
(4) Upon learning of the potential compromise of the confidentiality of his/her password, a registered user shall immediately change the password via the EDIS Web site. No later than the next business day, the registered user must also notify the Secretary of the perceived compromise and the period of compromise.
(5) A registered user who has provided his/her password to an employee of the registered user's firm, such as a paralegal, legal assistant, or secretary, must change the password upon the employee's departure from the firm. Unless there is a perceived breach of confidentiality, in such instances, no notification to the Secretary is needed.
(6) You may not electronically file documents with the Commission unless you have registered with the Commission pursuant to the procedures set forth in paragraph II(B)(1) above.
(1) Unless otherwise specified in this Handbook, in the Commission's rules, or in other instructions from the Secretary, you must file all documents electronically through EDIS using EFP.
(2) Specific instructions are set out below for certain types of documents.
(a) Import Injury: Antidumping and countervailing duty investigations and reviews under Title VII of the Tariff Act of 1930; safeguard and market disruption investigations under sections 204, 406, 421, and 422 of the Trade Act of 1974; investigations under section 302 of the NAFTA implementation Act of 1994; investigations under section 22 of the Agricultural Adjustment Act.
(i) You must file a petition, request, or motion under 19 CFR 206.2 or 207.10 in paper form. An original and eight (8) true paper copies must to be filed. You must file all exhibits, appendices, and attachments in PDF format on CD–ROM, DVD, or other form of portable electronic media approved by the Secretary.
(ii) You must file briefs, statements, responses, and comments provided for under 19 CFR 201.12, 201.14, 206.8, 207.15, 207.23, 207.25, 207.28, 207.30, 207.61, 207.62, 207.65, 207.67, 207.68
(iii) If you file supplementary material or witness testimony provided for under 19 CFR 201.13, 207.15, or 207.24, you must submit eight (8) true paper copies at the hearing or the conference.
(iv) If you request confidential treatment of a document, you must file a nonconfidential version electronically and submit four (4) true paper copies on the same business day.
(v) You must file applications provided for under 19 CFR 206.17 or 207.7 electronically; no paper copies will be required.
(b) Intellectual Property-Based Import Investigations: Investigations under section 337 of the Tariff Act of 1930.
(i) You must file a complaint, petition, request, or motion for temporary relief under 19 CFR 210.8, 210.75, 210.76, or 210.79 in paper form. An original and eight (8) true paper copies must be filed. You must file all exhibits, appendices, and attachments in PDF format on CD–ROM, DVD, or other form of portable electronic media approved by the Secretary.
(ii) You must file the following documents electronically, and submit true paper copies by 12:00 noon eastern time the next business day. If the matter is before the administrative law judge, you must submit two (2) true paper copies of a written submission. If the matter is before the Commission, you must submit eight (8) true paper copies.
1. Responses to a complaint under 19 CFR 210.13;
2. Briefs under 19 CFR 210.40 or 210.45;
3. Comments and responses to comments under 19 CFR 210.50;
4. Compliance reports under 19 CFR 210.71;
5. Motions (other than those under C(2)(b)(i) above) and responses or replies thereto under 19 CFR 210.12, 210.14, 210.15, 210.16, 210.17, 210.18, 210.19, 210.20, 210.21, 210.24, 210.25, 210.26, 210.33, 210.34, 210.52, 210.53, 210.57, or 210.59;
6. Petitions and replies thereto under 19 CFR 210.43, 210.46, or 210.47;
7. Pre-hearing statements and briefs under 19 CFR 210.35 or 210.36;
8. Proposed fact findings and conclusions of law and responses thereto under 19 CFR 210.40;
9. Submissions pursuant to orders of an administrative law judge.
(iii) You must file all other written submissions (those documents that not listed in sections C(2)(b)(i) and (ii) above, including but not limited to discovery statements, notices of appearance, exhibit objections, notices of prior art, notices of withdrawal, witness lists, and expert reports) electronically.
(c) You must file documents in other proceedings, including investigations under section 332 of the Tariff Act of 1930, electronically, and submit eight (8) true paper copies by 12:00 noon eastern time on the next business day; except that, if you file supplementary material or witness testimony provided for under 19 CFR 201.13, you must file eight (8) true paper copies with the Secretary at the hearing.
(3) The Secretary may provide for exceptions and modifications to the filing requirements set out in the rules and the Handbook. Certain exceptions are described below.
(a) You may request authorization from the Secretary to file a document or documents in a particular form in a proceeding by electronic mail to
(b) The Secretary, on his or her own motion, will allow the filing of certain documents in paper form. Such documents may include, but are not limited to, letters submitted by Members of Congress, officials of other U.S. agencies, state and local government officials, and foreign government officials who do not represent an interested party in a proceeding before the Commission.
(4) If the EDIS Web site is unable to accept electronic filings continuously or intermittently over the course of any period of time greater than one hour after 12 noon Washington, DC local time, on a business day, the Secretary shall deem the EDIS Web site to be subject to a technical failure on that day. If you are unable to file a document electronically by the deadline imposed by the Commission because the EDIS Web site is experiencing a technical failure, you should immediately report the technical failure to the Secretary and request authorization to file your document after the deadline. The Secretary will promptly grant or deny the authorization. When you file your document subject to the authorization, you should also file an unsworn declaration provided for in 28 U.S.C. 1746 stating (i) the dates and times of the attempted filing (ii) the fact that the Web site's technical failure prevented you from making a timely filing, (iii) your contacts with the Secretary to report the Web site's technical failure, and (iv) the Secretary's granting of authorization for you to file after the deadline. If you are making a late filing for reasons unrelated to the operating status of the EDIS Web site, you should follow the normal procedures in the rules for requests for late filings.
(5) If you discover that the version of the document available for viewing on EDIS does not conform to the document that you transmitted, please immediately contact the Office of Docket Services, 202–205–1802 for further assistance.
(1) To file a document electronically, you should visit the EDIS Web site at
(2) To file or submit a document in paper form or on portable electronic media, you should file it with the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, room 112A.
(1) Upon completion of the electronic transmission of your document and upload at the Commission, EDIS will generate and send an e-mail notice of electronic receipt of an electronic document to the official e-mail address associated with your user ID. The notice of electronic receipt contains information from EDIS in order to facilitate tracking. A notice of electronic receipt does not constitute acknowledgment by the Commission that the document has been properly filed pursuant to the rules or this Handbook. Moreover, such notification does not constitute service of the document on the parties to an investigation.
(2) If you do not receive a notice of electronic receipt following transmission of a document for filing, please call 202–205–3347, the EDIS Helpline, to confirm that your document was in fact not properly transmitted. If your transmission failed, you must attempt to (i) re-transmit the document
(3) If the document is electronically received by EDIS during business hours, then the effective filing date and time of the document is the date and time that the document has been electronically received by EDIS. If the document is electronically received by EDIS outside of business hours and is accepted for filing, the effective filing date and time of the document will be the next business day.
(4) Subsequent to the notice of electronic receipt, the Secretary will send you a second notice (notice of validation of document) notifying you that the document has undergone initial review and, if public, is now available for viewing on the EDIS Web site.
(1) When the Commission has imposed a deadline on the filing of a document, the Secretary will consider the document timely filed electronically only if the user has “clicked” the “Confirm” button on the final confirmation page for electronic submission by 5:15:59 p.m., eastern time, on the day that the document is due to be filed, and received e-mail notification of receipt.
(2) If the filing is submitted prior to a Commission deadline or does not have a particular submission deadline date, you may electronically transmit a document to EDIS at any time of the day (i.e., twenty-four hours/day) and on any day of the week (including weekends and holidays). If the filing is submitted after the close of business, the filing will be deemed officially received on the next business day. You should preserve the notice of electronic receipt of the document, which states the time and date that EDIS received the document, for your records.
The size of an electronic transmission as a whole is not limited by the capability of EDIS. There is no limit to the number of PDF files which can be submitted as attachments so long as no one attached file exceeds 25 megabytes in size. If a filing includes an attachment that exceeds the foregoing size limitation and cannot be broken down into multiple PDF files, the Secretary may authorize filing in paper form or on CD–ROM, DVD, or other portable media approved by the Secretary, pursuant to section II(C) above. All page limits set forth in the rules and the Handbook shall remain in effect for purposes of electronic filing.
(1) Documents filed electronically pursuant to this Handbook must be submitted in PDF. Please be aware that some special characters used in certain word processing applications may not convert easily to PDF. The conversion process to PDF may affect pagination as well as the conversion of special characters. Filers are responsible for the accuracy of the documents submitted.
The Commission prefers the submission, when practicable, of documents converted to PDF from word processed text over that of documents converted to PDF from images. Documents converted to PDF from word processed text typically have far fewer megabytes than PDF documents that have been created from images. Additionally, searches of documents converted to PDF from word processed text are more accurate within EDIS than on PDF documents created from images. Additionally, although EDIS will create a searchable text version of PDF documents created from images through an optical character recognition process, such a document may contain recognition errors.
(2) Each page of an electronically filed document must be in letter sized format (i.e., 8.5 inches by 11 inches when printed out by the Secretary).
(3) Documents filed electronically must comply with both the page limits set forth in the §§ 207.15, 207.25, 207.28, 207.30, 207.62, 207.67, and 207.68 of the rules and the size limit set forth in section G of this handbook.
(4) When preparing PDF documents for filing, you must comply with the following requirements. PDF documents that do not comply with these requirements will be rejected by EDIS during the submission process.
(a) PDF version must be Version 1.3 or greater. (Note: Use of Adobe Acrobat is not required, but if it is used, it must be Acrobat 4 or greater. This is because only Adobe Acrobat 4 or later produces PDF version 1.3.)
(b) Documents must not have Type 3 fonts. Use of Type 1 fonts is recommended.
(c) You must use only the Roman and Cyrillic alphabets in PDF format. Documents in other foreign language alphabets must be scanned. Special characters must be checked on conversion to ensure that they were not changed during the distilling process.
(d) Do not attach any embedded files to your PDF document for electronic filing. This includes all comments (note tool, pencil tool, highlights tool, digital signature tool, embedded files, embedded sounds or other multimedia); forms actions; JavaScript actions; external cross references, web links and image alternates.
(e) Document security setting must have a PDF file security setting of “none.”
(5) Document attachments shall follow these guidelines:
(a) Files must be attached in the proper logical sequence (i.e., motion should be followed by the exhibits).
(b) Attachments must conform to the following naming convention:
(i) All attachments relating to a single filing must have the same root name, which would be the “document name” given by the filer.
(ii) Each attachment shall constitute a separate PDF file and must be numbered sequentially in the order that it appears within the document, followed by the total number of attachments (e.g., A Post-hearing Brief Part 1 of 13). The filer shall also add descriptive language identifying the PDF file attachments (e.g. Post-hearing Brief Part 1—Ex. 1–10).
(c) Use logical break points in creating attachments. Avoid breaking attachments in the middle of a section (e.g., main textual document, exhibit, or appendix) of the filing. An entire attachment(s) shall be contained in a single PDF file if possible.
(d) A single document of less than the file size limit should not be broken into multiple attachments.
(e) The main textual document (e.g., brief, petition, motion) should be contained in a separate attachment from material appended to the filing (e.g., exhibits), unless the entire document is less than the file size limit. Cover letters shall not be filed separately from the main textual document.
(f) Material appended to the main textual document (e.g., exhibits, appendices) shall be combined into a single attachment, as long as the entire attachment does not exceed the file size limit.
(6) When redacting BPI or CBI from a document, you should use redaction methodology that does not change the pagination of the public version, when compared with the BPI or CBI version.
(1) Documents such as exhibits to complaints or petitions must be filed on CD–ROM, DVD, or other portable
(2) At this time, CD–ROM and DVD are the only accepted media. Devices that would require drivers to attach to a USITC workstation to be read will not be permitted unless approved by the Secretary. Submitted media will be retained by the USITC and only available for return to the submitter if an error is found prohibiting acceptance into EDIS.
(1) A document filed with the Commission electronically shall be deemed to be signed by the registered user when the document identifies the user as a signatory and the filing complies with paragraphs (2) and (3) below. When the document is filed with the Commission in accordance with any of these methods, the filing shall bind the signatory as if the document were physically signed and filed, and shall function as the registered user's signature whether for the purpose of complying with the Commission's rules, to attest to the truthfulness of an affidavit or declaration, or for any other purpose.
(2) In the case of a signatory who is a registered user as described in paragraph II(B)(1), such document shall be deemed signed provided that such document is filed using the user ID and password of the signatory and contains the physical signature of the registered user using an optical scan format or a typed “electronic signature,” e.g., “/s/Jane Doe.”
(3) In the case of a document to be signed by two or more persons, the following procedure shall be used:
(a) The filing person shall initially confirm that the content of the document is acceptable to all persons required to sign the document. The filing person then shall attest that original signatures have been obtained from each of the other signatories on a paper copy of the document. If the filing person complies with the foregoing requirements, the Commission shall presume that the filing person has the authority to file the document on behalf of all other persons required to sign such document.
(b) The filing person shall then file the document electronically, indicating the original signatures that have been obtained, e.g., “/s/Jane Doe,” “/s/John Doe,” etc., or by providing a signature page of the actual physical signatures using an optical scan format.
(c) The filing person must retain the hard copy of the document containing the original signatures until the earlier of (i) the Commission deadline for the destruction of APO materials, if applicable; or (ii) one year after the conclusion of the investigation and resulting appeals.
(d) For a document that requires a signature in the presence of a notary public (e.g., affidavits), the document instead should contain an unsworn declaration clause to be signed by the signatory under penalty of perjury. The language for unsworn declarations under penalty of perjury is provided in 28 U.S.C. 1746.
Persons who have filed documents electronically with the Commission must comply with the rules in effecting service of the electronically filed document on parties in accordance with 19 CFR 201.16. All electronically filed documents must be accompanied by a certificate of service. Documents filed electronically in all pending matters before the Commission, except for proceedings under section 337 of the Tariff Act of 1930, are not to be served electronically on other parties without the prior agreement of the Secretary. In the case of proceedings before an administrative law judge under section 337 of the Tariff Act of 1930, the presiding administrative law judge shall determine whether electronic service of documents as between the parties will be permitted in that proceeding. Parties may only effectuate electronic service on recipients who have provided written consent thereto to the Secretary or the presiding administrative law judge.
(1) The EDIS Web site shall bear a prominent notice as follows: “The contents of each filing in EDIS may be subject to copyright and other proprietary rights (with the exception of the notices, orders, and opinions of the ITC). It is the user's obligation to determine and satisfy copyright or other use restrictions when publishing or otherwise distributing material found in EDIS. Transmission or reproduction of protected items beyond that allowed by fair use requires the written permission of the copyright owners. Users must make their own assessments of rights in light of their intended use.”
(2) By filing any material with the Commission electronically, a person shall be deemed to consent to all uses of such materials by all parties to the action solely in connection with and for the purposes of the action, including the electronic filing in the action (by a party who did not originally file or produce such materials) of portions, excerpts, quotations, or selected exhibits from such filed materials as part of motion papers, pleadings or other filings with the Commission.
(3) Any dispute that arises among persons regarding the use of materials subject to copyright and other proprietary rights must be resolved among the persons themselves, without the Commission's involvement.
The electronic version of any document filed by a party in a Commission proceeding will be considered the “official version” for purposes of compiling the record in a Commission proceeding. Materials referenced by hyperlink in an electronic document and relied on by the submitter will not be considered part of the document or of the record in a Commission proceeding unless the portions of the materials relied on are included as an attachment to the document. The filer, however, must take into consideration section II(L) when reproducing such materials. Please note that any hyperlinked material contained in the electronic version of a document must be printed in the corresponding paper copy, in conformance with all applicable page limits under the rules.
A. This Handbook is effective as of the date specified in a notice published in the
B. The Secretary shall amend this Handbook as necessary.
19 CFR 201.8(d).
The following matrix summarizes instructions for certain documents commonly submitted to the Commission. If there is a discrepancy with the rules, the rules control.
1. “Day 1” refers to the date on which a submission is due; in the case of a petition or complaint, it is the date on which the document is first submitted.
2. “Day 2” refers to the next business day after Day 1; a submission on Day 2 is due by noon.
3. “TBD” means “to be determined” by the Secretary, who will issue appropriate instructions.
By Order of the Commission.