Agricultural Marketing Service
Animal and Plant Health Inspection Service
Grain Inspection, Packers and Stockyards Administration
Rural Business-Cooperative Service
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Defense Acquisition Regulations System
Wage and Hour Division
Federal Energy Regulatory Commission
Trade Representative, Office of United States
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
Coast Guard
Federal Emergency Management Agency
Fish and Wildlife Service
Land Management Bureau
National Park Service
Reclamation Bureau
Labor Statistics Bureau
Wage and Hour Division
Trade Representative, Office of United States
Federal Aviation Administration
Federal Highway Administration
Federal Railroad Administration
National Highway Traffic Safety Administration
Public Debt Bureau
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.
Agricultural Marketing Service, USDA.
Final rule.
This rule increases the assessment rate established for the Texas Valley Citrus Committee (Committee) for the 2011-12 and subsequent fiscal periods from $0.12 to $0.14 per 7/10-bushel carton or equivalent of oranges and grapefruit handled. The Committee locally administers the marketing order which regulates the handling of oranges and grapefruit grown in the Lower Rio Grande Valley in Texas. Assessments upon orange and grapefruit handlers are used by the Committee to fund reasonable and necessary expenses of the program. The fiscal period began on August 1 and ends July 31. The assessment rate will remain in effect indefinitely unless modified, suspended, or terminated.
Belinda G. Garza, Regional Manager, Texas Marketing Field Office, Marketing Order and Agreement Division, Fruit and Vegetable Programs, AMS, USDA;
Small businesses may request information on complying with this regulation by contacting Laurel May, Marketing Order Administration Division, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237;
This rule is issued under Marketing Agreement and Order No. 906, as amended (7 CFR part 906), regulating the handling of oranges and grapefruit grown in the Lower Rio Grande Valley in Texas, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, orange and grapefruit handlers in the Lower Rio Grande Valley are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable oranges and grapefruit beginning on August 1, 2011, and continue until amended, suspended, or terminated.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This rule increases the assessment rate established for the Committee for the 2011-12 and subsequent fiscal periods from $0.12 to $0.14 per 7/10-bushel carton or equivalent of oranges and grapefruit handled.
The Texas orange and grapefruit marketing order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers of Texas oranges and grapefruit. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.
For the 2004-05 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.
The Committee met on June 9, 2011, and unanimously recommended 2011-12 expenditures of $1,224,037 and an assessment rate of $0.14 per 7/10-bushel carton or equivalent of oranges and grapefruit handled. In comparison, last year's budgeted expenditures were $1,109,037. The assessment rate of $0.14 is $0.02 higher than the rate currently in effect. The Committee recommended a higher assessment rate due to an expected smaller crop and an increase in budgeted expenses. Budgeted expenses were increased to provide additional funding for the Committee's Mexican fruit fly program, and also to fund a Federal Agriculture Improvement Reform (FAIR) review analysis to be conducted next fiscal period. In 1996, Congress mandated that every five years commodity boards established under the oversight of the Secretary of Agriculture pursuant to a commodity promotion law should fund an independent evaluation of the effectiveness of their generic promotion program, which is now commonly known as a FAIR review.
The Committee projected a reduced crop of 8,750,000 7/10-bushel carton equivalents, which would be 289,137 7/10-bushel carton equivalents less than the 9,039,137 7/10-bushel carton equivalents handled during the 2010-11
The major expenditures recommended by the Committee for the 2011-12 fiscal period include $479,000 for the Mexican fruit fly support, trapping, and bait spray programs; $425,000 for promotion; and $250,737 for management, administration, and compliance oversight. In comparison, major expenditures for these items in 2010-11 (last fiscal period) were $229,000, $600,000, and $246,737, respectively.
The assessment rate recommended by the Committee was derived by dividing anticipated expenditures by estimated shipments of Texas oranges and grapefruit. As mentioned earlier, orange and grapefruit shipments for the 2011-12 fiscal period are estimated at 8.75 million 7/10-bushel carton equivalents, which should provide $1,225,000 in assessment income. Income generated through the $0.14 assessment rate and interest would be more than sufficient to meet anticipated expenses ($1,224,037). Reserve funds at the end of 2011-12 are projected at $283,774, well below one fiscal period's expenses, which would be within the maximum reserve amount permitted under the order (§ 906.35).
The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.
Although this assessment rate will be in effect for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2011-12 budget and those for subsequent fiscal periods will be reviewed and, as appropriate, approved by USDA.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 177 producers of oranges and grapefruit in the production area and approximately 12 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,000,000.
An updated Texas citrus industry profile shows that 6 of the 12 handlers (50 percent) would be considered large businesses under SBA's definition, and the remaining 6 handlers (50 percent) would be considered small businesses. Of the approximately 177 producers within the production area, few have sufficient acreage to generate sales in excess of $750,000. Thus, half of the handlers and the majority of producers of Texas oranges and grapefruit may be classified as small entities.
This rule increases the assessment rate established for the Committee and collected from handlers for the 2011-12 and subsequent fiscal periods from $0.12 to $0.14 per 7/10-bushel carton or equivalent of oranges and grapefruit. The Committee unanimously recommended 2011-12 expenditures of $1,224,037 and an assessment rate of $0.14 per 7/10-bushel carton or equivalent handled. The quantity of assessable oranges and grapefruit for the 2011-12 fiscal period is estimated at 8.75 million 7/10-bushel carton equivalents. Thus, the $0.14 assessment rate should provide $1,225,000 in assessment income which should be sufficient to meet anticipated expenses.
The major expenditures recommended by the Committee for the 2011-12 fiscal period include $479,000 for the Mexican Fruit Fly support, trapping, and bait spray programs; $425,000 for promotion; and $250,737 for management, administration, and compliance oversight. Major expenditures for these items in 2010-11 were $229,000, $600,000, and $246,737, respectively.
The increased assessment rate recommended by the Committee was due to a reduced crop estimate (8.75 million 7/10-bushel carton equivalents of oranges and grapefruit), and an increase in budgeted expenditures to provide additional funding for the Mexican fruit fly program and a FAIR analysis. With anticipated assessment income of $1,225,000, and anticipated expenditures of $1,224,037, funds in the reserve would be kept within the maximum of one fiscal period's expenses permitted by the order (§ 906.35).
In arriving at its recommended budget, the Committee considered alternative expenditure levels based upon the relative need of the Mexican fruit fly trapping and promotion programs to the Texas citrus industry. The assessment rate of $0.14 per 7/10-bushel carton equivalent was then determined by dividing the total recommended budget by the quantity of assessable oranges and grapefruit, estimated at 8.75 million 7/10 bushel carton equivalents for the 2011-12 fiscal period. Considering assessment revenue and interest, total revenue would be approximately $2,463 above the anticipated expenses, which the Committee determined to be acceptable.
A review of historical information from recent seasons (2008-2010) and preliminary information pertaining to the current fiscal period indicates that the season average packinghouse door price for the 2011-12 fiscal period could likely range from $6.24 to $8.23 per 7/10-bushel carton equivalent of Texas oranges, and from $10.90 to $15.55 for Texas grapefruit. Therefore, the estimated assessment revenue for the 2011-12 fiscal period as a percentage of total grower (packinghouse door) revenue could range between 1.7 and 2.2 percent for oranges and between 0.9 and 1.3 percent for grapefruit.
This action increases the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs are
In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189 (Generic Fruit Crops—Mandatory). No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.
This rule imposes no additional reporting or recordkeeping requirements on either small or large Texas orange and grapefruit handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule.
AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
A proposed rule concerning this action was published in the
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the
Grapefruit, Marketing agreements, Oranges, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 906 is amended as follows:
7 U.S.C. 601-674.
On and after August 1, 2011, an assessment rate of $0.14 per 7/10-bushel carton or equivalent is established for oranges and grapefruit grown in the Lower Rio Grande Valley in Texas.
Animal and Plant Health Inspection Service, USDA.
Interim rule and request for comments.
We are amending the bovine tuberculosis regulations regarding State and zone classifications by reclassifying a zone in New Mexico consisting of Curry and Roosevelt Counties. We have determined that the zone meets the criteria for accredited-free status. Since the remainder of the State is already classified as accredited free, the entire State of New Mexico is now classified as accredited free. This action relieves certain restrictions on the interstate movement of cattle and bison from Curry and Roosevelt Counties in New Mexico.
This interim rule is effective October 4, 2011. We will consider all comments that we receive on or before December 5, 2011.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
Dr. Kathleen Orloski, Senior Staff Veterinarian, Ruminant Health Programs, Veterinary Services, APHIS, 2150 Centre Avenue, Building B3E20, Fort Collins, CO 80526; (970) 494-7221.
Bovine tuberculosis is a contagious and infectious granulomatous disease caused by the bacterium
At the beginning of the past century, tuberculosis caused more losses of livestock than all other livestock diseases combined. This prompted the establishment in the United States of the National Cooperative State/Federal Bovine Tuberculosis Eradication Program for tuberculosis in livestock.
In carrying out the national eradication program, the Animal and Plant Health Inspection Service (APHIS) issues and enforces regulations. The regulations require the testing of cattle and bison for tuberculosis, define the Federal tuberculosis status levels for States or zones (accredited-free, modified accredited advanced, modified accredited, accreditation preparatory, and nonaccredited), provide the criteria for attaining and maintaining those status levels, and contain testing and movement requirements for cattle and bison leaving States or zones of a particular status level. These regulations are contained in 9 CFR part 77 and in the Bovine Tuberculosis Eradication Uniform Methods and Rules, 1999 (UMR), which is incorporated by reference into the regulations.
The status of a State or zone is based on its prevalence of tuberculosis in cattle and bison, the effectiveness of the State's tuberculosis eradication program, and the degree of the State's compliance with standards for cattle and bison contained in the UMR. The regulations provide that a State may request partitioning into specific geographic regions or zones with different status designations (commonly referred to as split-State status) if bovine tuberculosis is detected in a portion of a State and the State demonstrates that it meets certain criteria with regard to zone classification.
In an interim rule effective and published in the
We have received from the State of New Mexico a request to reclassify the modified accredited advanced zone. Based on the findings of a review of the tuberculosis eradication program in New Mexico conducted during May through July of 2011, APHIS has determined that the zone meets the criteria for advancement of status contained in the regulations.
State animal health officials in New Mexico have demonstrated that the State enforces and complies with the provisions of the UMR. The State of New Mexico has demonstrated that the modified accredited advanced zone has zero percent prevalence of cattle and bison herds affected with tuberculosis and has had no findings of tuberculosis in any cattle or bison in the zone since the last affected herd completed a test-and-remove herd plan and was released from quarantine in July 2009. Therefore, New Mexico has demonstrated that the zone within the State previously classified as modified accredited advanced meets the criteria for accredited-free status as set forth in the definition of
Based on our evaluation of New Mexico's request, we are classifying the zone composed of Curry and Roosevelt Counties as accredited free, which results in the entire State of New Mexico having an accredited-free classification.
Immediate action is warranted to relieve restrictions on the interstate movement of cattle and bison from Curry and Roosevelt Counties in New Mexico. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this action effective less than 30 days after publication in the
We will consider comments we receive during the comment period for this interim rule (see
This interim rule is subject to Executive Order 12866. However, for this action, the Office of Management and Budget has waived its review under Executive Order 12866.
In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below. The full analysis may be viewed on the Regulations.gov Web site (see
Advancing the status of the former modified accredited advanced zone in New Mexico will reduce the interstate movement restrictions for cattle and bison originating from Curry and Roosevelt Counties. Herd owners in the area will no longer have to test their cattle and bison for bovine tuberculosis in order to move them interstate. Tuberculosis testing, including veterinary fees, costs about $10 to $15 per head. The annual cost savings associated with the removal of those tests for the 1,621 herds in the affected area are expected to be between $662,000 and $993,000, or from $408 to $613 per herd on average. In addition, tuberculosis testing costs represent no more than about 1.7 percent of the average value of the cattle tested ($870 per head on January 1, 2010).
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.
This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule has no retroactive effect and does not require administrative proceedings before
This rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Animal diseases, Bison, Cattle, Reporting and recordkeeping requirements, Transportation, Tuberculosis.
Accordingly, we are amending 9 CFR part 77 as follows:
7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.
Animal and Plant Health Inspection Service, USDA.
Interim rule and request for comments.
We are amending the bovine tuberculosis regulations regarding State and zone classifications by reclassifying a zone in Minnesota consisting of portions of Lake of the Woods, Roseau, Marshall, and Beltrami Counties. We have determined that the zone meets the criteria for accredited-free status. Since the remainder of the State is already classified as accredited free, the entire State of Minnesota is now classified as accredited free. This action relieves certain restrictions on the interstate movement of cattle and bison from the area of Minnesota that was previously classified as modified accredited advanced for tuberculosis.
This interim rule is effective October 4, 2011. We will consider all comments that we receive on or before December 5, 2011.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
Dr. C. William Hench, Senior Staff Veterinarian, Ruminant Health Programs, Veterinary Services, APHIS, 2150 Centre Avenue, Building B-3E20, Fort Collins, CO 80526; (970) 494-7378.
Bovine tuberculosis is a contagious and infectious granulomatous disease caused by the bacterium
At the beginning of the past century, tuberculosis caused more losses of livestock than all other livestock diseases combined. This prompted the establishment in the United States of the National Cooperative State/Federal Bovine Tuberculosis Eradication Program for tuberculosis in livestock.
In carrying out the national eradication program, the Animal and Plant Health Inspection Service (APHIS) issues and enforces regulations. The regulations require the testing of cattle and bison for tuberculosis, define the Federal tuberculosis status levels for States or zones (accredited-free, modified accredited advanced, modified accredited, accreditation preparatory, and nonaccredited), provide the criteria for attaining and maintaining those status levels, and contain testing and movement requirements for cattle and bison leaving States or zones of a particular status level. These regulations are contained in 9 CFR part 77 and in the Bovine Tuberculosis Eradication Uniform Methods and Rules, 1999 (UMR), which is incorporated by reference into the regulations.
The status of a State or zone is based on its prevalence of tuberculosis in cattle and bison, the effectiveness of the State's tuberculosis eradication program, and the degree of the State's compliance with standards for cattle and bison contained in the UMR. The regulations provide that a State may request partitioning into specific geographic regions or zones with different status designations (commonly referred to as split-State status) if bovine tuberculosis is detected in a portion of a State and the State demonstrates that it meets certain criteria with regard to zone classification.
In an interim rule effective and published in the
Subsequently, in an interim rule effective and published in the
We have received from the State of Minnesota a request to reclassify the modified accredited advanced zone as
State animal health officials in Minnesota have demonstrated that the State enforces and complies with the provisions of the UMR. The State of Minnesota has demonstrated that the modified accredited advanced zone has zero percent prevalence of cattle and bison herds affected with tuberculosis and has had no findings of tuberculosis in any cattle or bison in the zone since the last affected herd in the zone was depopulated in January 2009. Therefore, Minnesota has demonstrated that the zone within the State previously classified as modified accredited advanced meets the criteria for accredited-free status as set forth in the definition of
Based on our evaluation of Minnesota's request, we are classifying the zone consisting of portions of Lake of the Woods, Roseau, Marshall, and Beltrami Counties as accredited free, which results in the entire State of Minnesota having an accredited-free classification.
Immediate action is warranted to relieve restrictions on the interstate movement of cattle and bison from portions of Lake of the Woods, Roseau, Marshall, and Beltrami Counties in Minnesota. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this action effective less than 30 days after publication in the
We will consider comments we receive during the comment period for this interim rule (see
This interim rule is subject to Executive Order 12866. However, for this action, the Office of Management and Budget has waived its review under Executive Order 12866.
In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below. The full analysis may be viewed on the Regulations.gov Web site (see
Advancing the status of the former modified accredited advanced zone in Minnesota will reduce the interstate movement restrictions for cattle and bison originating from portions of Lake of the Woods, Roseau, Marshall, and Beltrami Counties. Herd owners in the area will no longer have to test their cattle and bison for bovine tuberculosis in order to move them interstate. Tuberculosis testing, including veterinary fees, costs about $10 to $15 per head. The annual cost savings associated with the removal of those tests for the 254 herds in the affected area is expected to be between $110,280 and $165,420, or from $434 to $651 per herd on average. In addition, tuberculosis testing costs represent no more than about 1.7 percent of the average value of the cattle tested, which was $870 per head on January 1, 2010.
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.
This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule has no retroactive effect and does not require administrative proceedings before parties may file suit in court challenging this rule.
This rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Animal diseases, Bison, Cattle, Reporting and recordkeeping requirements, Transportation, Tuberculosis.
Accordingly, we are amending 9 CFR part 77 as follows:
7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.
Federal Election Commission.
Notice of interpretive rule.
The Federal Election Commission is issuing guidance on when independent expenditure communications that take the form of yard signs, mini-billboards, handbills, t-shirts, hats, buttons, and similar items are “publicly disseminated” for purposes of certain reporting requirements in Commission regulations.
Effective October 4, 2011.
Ms. Amy Rothstein, Assistant General Counsel, Ms. Cheryl A.F. Hemsley or Mr. Theodore M. Lutz, Attorneys, 999 E Street, NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.
An independent expenditure is “an expenditure by a person for a communication expressly advocating the election or defeat of a clearly identified candidate that is not made in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate, a candidate's authorized committee, or their agents, or a political party committee or its agents.” 11 CFR
The actual public dissemination date of independent expenditure communications that take the form of items such as yard signs, mini-billboards, handbills, t-shirts, hats, and buttons may be difficult to ascertain, however, particularly where the items are disseminated in stages or where the Filer is an organization that purchases the items from a vendor, and then retains the items for a period of time before distributing them to affiliate or member organizations or to individuals, such as the organization's employees, members or customers, to wear or display in public. For this reason, the Commission is issuing this notice to clarify that a range of acceptable dates may be used as the public dissemination date
For purposes of the reporting requirements in 11 CFR 104.4(b)(2), (c), and (f), and 109.10(c) and (d), the Commission hereby clarifies that the Filer may report independent expenditure communications that take the form of items such as yard signs, mini-billboards, handbills, t-shirts, hats, buttons, as “publicly disseminated” on any reasonable date starting with the date the Filer receives or exercises control over the items in the usual and normal course of dissemination, up to and including the date that the communications are actually disseminated to the public.
The Commission believes that this interpretation of its regulations provides Filers with an administratively workable method for determining the date of dissemination for these types of independent expenditure communications, consistent with the “[c]ongressional intent to emphasize and ensure timely disclosure” of independent expenditures. Explanation and Justification for Final Rules on Independent Expenditure Reporting, 67 FR 12834, 12837 (Mar. 20, 2002).
This document is an interpretive rule announcing the general course of action that the Commission intends to follow. This interpretive rule does not constitute an agency action requiring notice of proposed rulemaking, opportunities for public participation, prior publication, or delay in effective date under 5 U.S.C. 553 of the Administrative Procedures Act. It does not bind the Commission or any members of the general public, nor does it create or remove any rights, duties, or obligations. The provisions of the Regulatory Flexibility Act, which apply when notice and comment are required by the Administrative Procedures Act or another statute, do not apply.
On behalf of the Commission.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are revising an existing emergency airworthiness directive (AD) for all Honeywell International Inc. TPE331 model turboprop engines with a part manufacturer approval (PMA) replacement Dixie Aerospace, LLC main shaft bearing part number (P/N) 3108098-1WD, installed. That emergency AD was not published in the
This AD is effective October 19, 2011.
We must receive comments on this AD by November 18, 2011.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Juanita Craft, Aerospace Engineer, FAA, Atlanta Aircraft Certification Office, 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5584; fax: 404-474-5606; e-mail:
On August 17, 2011, we issued Emergency AD 2011-18-51, for all Honeywell International Inc. TPE331 model turboprop engines with a PMA replacement Dixie Aerospace, LLC main shaft bearing, P/N 3108098-1WD, installed. That AD requires inspection of the airplane records to determine if a Dixie Aerospace, LLC main shaft bearing, part number (P/N) 3108098-1WD, is installed in the engine, and if installed, removal of that bearing from service, before further flight. That emergency AD resulted from an excessive failure rate of PMA main shaft bearings, P/N 3108098-1WD, manufactured by Dixie Aerospace, LLC. That emergency AD was not published in the Federal Register, but was sent to all known U.S. owners and operators of these engines. This AD requires the same actions. We are issuing this AD to prevent engine main rotor seizure resulting in engine damage, shutdown, and damage to the airplane.
Under 14 CFR 39.1, the Engine & Propeller Directorate is only authorized to issue airworthiness directives that apply to aircraft engines, propellers, or appliances (hereinafter referred to in this AD as “products”) when an unsafe condition exists in a product; and that unsafe condition is likely to exist or develop in other products of the same type design. Therefore, although the unsafe condition is caused by the failure of certain PMA parts manufactured by Dixie Aerospace, LLC, for the product affected, we must include the type certificate (TC) holder's legal name in the subject line of the AD. For this AD, the TC holder is Honeywell International Inc.
We are revising Emergency AD 2011-18-51 with this final rule because we determined the need to list the affected bearings by serial number (S/N) in the AD for clarification.
We are issuing this AD because we evaluated all relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This AD requires an inspection of records to determine if certain S/N Dixie Aerospace, LLC main shaft bearings, P/N 3108098-1WD, are installed in Honeywell International Inc. TPE331 model turboprop engines. Within 10 operating hours, affected bearings must be removed from service.
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 the bearing failure mechanism is severe and sudden. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety and we did not provide you with notice and an opportunity to provide your comments 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 will require 1,000 engines installed on airplanes of U.S. registry to have their records inspected, and the inspection will take about 0.5 hour per engine. We also estimate that one engine will require the affected main shaft bearing to be removed from service. We also estimate that it will take about 24 work-hours per engine to remove the bearing from service and that the average labor rate is $85 per work-hour. A replacement bearing will cost about $5,750. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $50,290.
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 October 19, 2011.
(b) This AD revises emergency AD 2011-18-51.
(c) This AD applies to all Honeywell International Inc. TPE331 model turboprop engines with the serial numbers (S/Ns) of part manufacturer approval (PMA) replacement Dixie Aerospace, LLC main shaft bearings, part number (P/N) 3108098-1WD, listed by S/N in Table 1 of this AD, installed. Bearings having the P/N 3108098-1, but not the WD at the end of the P/N, are not affected by this AD.
(d) This AD revision was prompted by the need to list the affected bearings by S/N in the AD for clarification. We are issuing this AD to prevent engine main rotor seizure resulting in engine damage, shutdown, and damage to the airplane.
(e) Comply with this AD within the compliance times specified, unless already done.
(f) For all airplanes with a Honeywell International Inc. TPE331 model turboprop engine installed, where the engine was overhauled or replaced since February 1, 2010:
(1) Within 10 operating hours, inspect the airplane records to determine if any of the S/Ns of Dixie Aerospace, LLC main shaft bearing, P/N 3108098-1WD, listed in Table 1 of this AD, are installed in the engine.
(2) Remove all S/Ns of Dixie Aerospace, LLC main shaft bearings listed in Table 1 of this AD, from service, before further flight.
(g) After the effective date of this AD, do not install any of the bearings listed in Table 1 of this AD into any engine.
(h) The Manager, Atlanta Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(i) For further information about this AD, contact: Juanita Craft, Aerospace Engineer, Atlanta Aircraft Certification Office, FAA, Atlanta Aircraft Certification Office, 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5584; fax: 404-474-5606; e-mail:
Federal Aviation Administration (FAA), DOT.
Final rule; technical amendment.
This action amends the description of VOR Federal airway V-299 by reinserting wording that excludes the airspace in restricted area R-2519 from the airway.
Effective date 0901 UTC October 4, 2011.
Paul Gallant, Airspace, Regulations and ATC Procedures Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-8783.
A review of the description of VOR Federal airway V-299 found that wording excluding the airspace within restricted area R-2519 from the airway was incorrectly deleted in a previous rule amending V-299 that removed reference to another restricted area, R-2520. See (52 FR 5947; February 27, 1987). The exclusionary wording had previously been included in the description of V-299 (45 FR 335; January 2, 1980).
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 to amend the regulatory text of VOR Federal airway V-299 by inserting the words “is excluded” following the words “* * * the airspace within R-2519 below 5,000 feet MSL. * * *”
This is an administrative change to insert wording inadvertently omitted from the airway description; therefore, notice and public procedures under 5 U.S.C. 533(b) are unnecessary.
VOR Federal airways are published in paragraph 6010 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airway listed in
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. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends an airway description in California to keep it current to ensure the safety of aircraft operations within the National Airspace System.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, Environmental Impacts: Polices and Procedures, paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
From Los Angeles, CA, INT Los Angeles 291° and Fillmore, CA, 163° radials; Ventura, CA; Fillmore; to Gorman, CA. The airspace within R-2519 more than 3 statute miles W of Ventura 155° and 331° radials, and the airspace within R-2519 below 5,000 feet MSL is excluded. The portion outside the United States has no upper limit.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action revises Class E airspace at Allakaket, AK, to accommodate the amendment of one Standard Instrument Approach Procedure at the Allakaket Airport. The FAA is taking this action to enhance safety and management of Instrument Flight Rules (IFR) operations at the Allakaket Airport.
Effective 0901 UTC, December 15, 2011. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
Martha Dunn, AAL-538G, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587; telephone number (907) 271-5898; fax: (907) 271-2850; e-mail:
On Friday, July 29, 2011, the FAA published a notice of proposed rulemaking (NPRM) in the
Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. A comment was received that reference to Class E2 airspace should be removed as it is not applicable to Allakaket. The FAA agrees and has removed those references.
Class E airspace areas are published in paragraph 6005 of FAA Order 7400.9V,
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by revising Class E airspace at the Allakaket Airport, Allakaket, AK, to accommodate the amendment of a standard instrument approach procedure. The additional Class E airspace provides adequate controlled airspace extending upward from 700 and 1,200 feet above the surface is necessary for the safety and management of IFR operations at the airport.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, 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 1, section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Allakaket Airport, AK and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within an 8.6-mile radius of the Allakaket Airport, AK and that airspace extending upward from 1,200 feet above the surface within a 71-mile radius of the Allakaket Airport, AK.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone in the specified navigable waters near Seacliff State Beach Pier in Aptos, California in support of the Monte Foundation Fireworks Extravaganza. This safety zone is established to ensure the safety of participants and spectators from the dangers associated with the pyrotechnics. Unauthorized persons or vessels are prohibited from entering into, transiting through, or remaining in the safety zone without permission of the Captain of the Port or their designated representative.
This rule is effective from 9 p.m. through 10 p.m. on October 7, 2011.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2011-0805 and are available online by going to
If you have questions on this temporary rule, call or e-mail Ensign William Hawn, U.S. Coast Guard Sector San Francisco; telephone (415) 399-7442 or e-mail at
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the event would occur before the rulemaking process would be completed. Because of the dangers posed by the pyrotechnics used in this fireworks display, the safety zone is necessary to provide for the safety of event participants, spectators, spectator craft, and other vessels transiting the event area. For the safety concerns noted, it is impracticable to publish an NPRM prior to the event.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
Rudolph F. Monte Foundation will sponsor the Monte Foundation Fireworks Extravaganza on October 7, 2011, in the navigable waters around Seacliff State Beach Pier near Aptos, CA. During the fireworks display the safety zone will extend to 1,000 feet around the pier located at position 36°58′11.2″ N, 121°54′36.79″ W (NAD 83). The fireworks display is meant for entertainment purposes. This safety zone is issued to establish a temporary
The fireworks display will occur from 9 p.m. until 9:25 p.m. on October 7, 2011, during which the safety zone will extend 1,000 feet from the nearest point of the pier at position 36°58′11.2″ N, 121°54′36.79″ W (NAD 83). At 10 p.m. on October 7, 2011 the safety zone shall terminate.
The effect of the temporary safety zone will be to restrict navigation in the vicinity of the fireworks site until the conclusion of the scheduled display. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the restricted area. These regulations are needed to keep spectators and vessels a safe distance from the fireworks display to ensure the safety of participants, spectators, and transiting vessels.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes and executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under that those Orders.
Although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant because the local waterway users will be notified via public Broadcast Notice to Mariners to ensure the safety zone will result in minimum impact. The entities most likely to be affected are pleasure craft engaged in recreational activities.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule may affect owners and operators of pleasure craft engaged in recreational activities and sightseeing. This rule will not have a significant economic impact on a substantial number of small entities for several reasons: (i) Vessel traffic can pass safely around the area, (ii) vessels engaged in recreational activities and sightseeing have ample space outside of the effected portion of the areas off San Francisco, CA to engage in these activities, (iii) this rule will encompass only a small portion of the waterway for a limited period of time, and (iv) the maritime public will be advised in advance of this safety zone via Broadcast Notice to Mariners.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves establishing, disestablishing, or changing Regulated Navigation Areas and security or safety zones. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) The safety zone is closed to all vessel traffic, except as may be permitted by the COTP or a designated representative.
(3) Vessel operators desiring to enter or operate within the safety zone must contact the COTP or a designated representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP or a designated representative. Persons and vessels may request permission to enter the safety zone on VHF-16 or through the 24-hour Command Center at (415) 399-3547.
(d)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the navigable waters of Lake Havasu on the lower Colorado River in support of the International Jet Sports Boating Association (IJSBA) World Finals. This temporary safety zone is necessary to provide for the safety of the participants, crew, spectators, participating vessels, and other vessels and users of the waterway. Persons and vessels are prohibited from entering into, transiting through, or anchoring within this temporary safety zone unless authorized by the Captain of the Port or his designated representative.
This rule is effective from 6 a.m. on October 1, 2011 through 7 p.m. on October 9, 2011.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2011-0838 and are available online by going to
If you have questions on this temporary rule, call or e-mail Petty Officer Shane Jackson, Waterways Management, U.S. Coast Guard Sector San Diego, Coast Guard; telephone 619-278-7267, e-mail
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because prior notice was impracticable. The logistical details of the marine event were not finalized or presented to the Coast Guard in enough time to draft and publish an NPRM. As such, the event will occur before the rulemaking process could be completed.
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 International Jet Sports Boating Association is sponsoring the IJSBA World Finals. The event will consist of 300 to 750 personal watercrafts racing in a circular course. The race will be broken down into heats of one to twenty. The sponsor will provide five course marshal and rescue vessels, as well as four perimeter safety boats for the duration of this event. This temporary safety zone is necessary to provide for the safety of the participants, crew, spectators, participating vessels, and other vessels and users of the waterway.
The Coast Guard is establishing a temporary safety zone that will be enforced from 6 a.m. through 7 p.m. on October 1, 2011 through October 9, 2011.
The limits of the safety zone will be as follows:
This safety zone is necessary to provide for the safety of the participants, crew, spectators, participating vessels, and other vessels and users of the waterway. Persons and vessels will be prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port or his designated representative.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
This determination is based on the size and location of the safety zone. Commercial vessels will not be hindered by the safety zone. Recreational vessels will not be allowed to transit through the designated safety zone during the specified times.
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 might be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the lower Colorado River at Lake Havasu from October 1, 2011 through October 9, 2011.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. Vessel traffic can pass safely around the safety zone. Before the activation of the zone, the Coast Guard would publish a local notice to mariners (LNM).
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves the establishment of a safety zone. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(d)
(2) Mariners requesting permission to transit through the safety zone may request authorization to do so from the Patrol Commander (PATCOM). The PATCOM may be contacted on VHF-FM Channel 16.
(3) All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or his designated representative.
(4) Upon being hailed by U.S. Coast Guard patrol personnel by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed.
(5) The Coast Guard may be assisted by other federal, state, or local agencies.
Coast Guard, DHS.
Final rule.
The Coast Guard is amending our regulations to correct the coordinates for four firework displays. This action is necessary to prevent injury and to protect life and property
This rule is effective November 3, 2011.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2010-0842 and are available online by going to
If you have questions on this rule, call or e-mail Ensign Anthony P. LaBoy, USCG Sector Puget Sound Waterways Management Division, Coast Guard; telephone 206-217-6323, e-mail
The Coast Guard is issuing this final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is unnecessary and contrary to the public interest. This action is a technical amendment to the rule to reflect the appropriate coordinates of these locations. The new coordinates listed below are the actual location that these displays have occurred without comment or objections from the maritime public in past years. This action is also necessary to prevent injury and to protect life and property of the maritime public from the hazards associated with the firework displays.
The coordinates currently codified under this section do not correctly reflect the location of where the displays actually occur. The Coast Guard is amending the coordinates to list the correct coordinates for the locations.
On February 25, 2010 we published a notice of proposed rulemaking (NPRM) entitled Safety Zones; Annual Firework Displays Within the Captain of the Port, Puget Sound Area of Responsibility in the
The Coast Guard is amending 33 CFR 165.1332 to correct coordinates listed for four firework displays that occur annually within the Captain of the Port, Puget Sound Area of Responsibility.
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, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under that those Orders.
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.
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. This rule would not affect any small entities since this rule does not involve creating any new safety zones but instead amends the current coordinates to reflect the appropriate coordinates of the locations.
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.
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, as supplemented by Executive Order 13563, and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves amending the coordinates of four firework displays codified under 33 CFR 165.1332. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165, as follows:
33 U.S.C 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1
(a) * * *
(1) * * *
National Park Service, Interior.
Final rule.
This rule designates certain multi-use pathways in Grand Teton National Park (Park) as routes for bicycle use. National Park Service (NPS) regulations require issuance of a special regulation to designate bicycle routes that are located off park roads and outside developed areas. The first two segments of a planned multi-use pathway system have been constructed and are generally located within 50 feet of existing park roads. Separating bicycle traffic from lanes used for motor vehicle travel will reduce real and perceived safety hazards, which will enhance opportunities for non-motorized enjoyment of the park and encourage the use of alternate transportation. This rule also revises NPS special regulations regarding fishing and vessels in certain Park waters to reflect current operating practices and management objectives.
This regulation is effective November 3, 2011.
Gary M. Pollock, Management Assistant, Grand Teton National Park, 307-739-3428.
Grand Teton National Park is located in northwest Wyoming and encompasses approximately 310,000 acres. Located just south of Yellowstone National Park, Grand Teton is at the heart of the Greater Yellowstone Ecosystem, and includes the iconic mountains of the Teton Range, the broad valley of Jackson Hole, numerous lakes, and a 40-mile segment of the Snake River. The park was originally established in 1929, but at that time included only the mountains and several of the lakes at their base. In 1943, Jackson Hole National Monument was established by presidential proclamation, including much of the valley to the east of the mountains. In 1950, Congress combined the 1929 park and the national monument into the present-day national park.
The Park supports diverse and abundant populations of wildlife, and is world renowned for its opportunities to view elk, moose, bison, pronghorn, grizzly and black bears, grey wolves, and coyotes. Other species such as trumpeter swans, bald eagles, and many species of waterfowl and small mammals are also abundant.
Visitors to the Park typically participate in several types of activities, including: scenic touring, viewing wildlife, hiking, mountain climbing, fly fishing, float trips, bicycling, and other forms of recreation consistent with enjoyment of the Park's resources. The Park includes several major developed areas, five campgrounds, almost 200 miles of hiking trails, 140 miles of paved roads, and 70 miles of unpaved roads. Visitation to the Park has remained relatively constant over the last decade averaging approximately 2.5 million recreational visitors, mostly between the months of May and September.
In April 2000, the Park undertook a transportation study to collect basic information regarding transportation issues in the Park. The study subsequently served as a foundation for a transportation planning process that was initiated in September 2001. The Transportation Plan/Final Environmental Impact Statement (FEIS) was released in September 2006. A Record of Decision (ROD) selecting Alternative 3a was signed on March 12, 2007, and a notice of the decision was published in the
Although the planning effort and ROD addressed a variety of transportation-related issues, a major focus was on the development of a system of multi-use pathways to improve opportunities for non-motorized activities within the Park. Bicycling has become increasingly popular in the Park, and many visitors and others who commented during the planning process expressed concerns over the risks that are present when bicycles and motor vehicles share the road. Commenters often noted that this was particularly true for families with young children and visitors who are not experienced bicyclists.
Among the issues that were raised during the planning process were the potential effects of the pathway system on the park's wildlife. Although wildlife is abundant and often visible from park roads, it is well documented that animals respond differently to the presence of pedestrians and bicyclists than they do to motor vehicle traffic. The potential for reducing the effectiveness of habitat and displacing wildlife from areas located near the pathways was a significant concern for many individuals and organizations that commented during the planning process. Furthermore, in light of the Park's abundant wildlife, concerns were raised regarding the potential for surprise and potentially dangerous encounters between bicyclists and large animals, including grizzly bears.
The ROD sets forth the Park's decision for the development of an extended system of multi-use pathways within the park. The system will include 39 miles of pathways between the south park boundary and Colter Bay via the Teton Park Road, as well as a 3-mile segment along the Moose-Wilson Road between the Granite Canyon Entrance and the Laurance S. Rockefeller Preserve. In general, pathways will be constructed within 50 feet of the road, except that the segments between North Jenny Lake Junction and Colter Bay, and along the Moose-Wilson Road will be constructed in very close proximity to the roads, generally within the existing engineered and previously disturbed road corridors.
The preferred alternative in the FEIS, subsequently adopted in the ROD, addressed the concerns regarding wildlife through a combination of research and monitoring, construction phasing, and the requirement that certain portions of the pathway system would be constructed within the existing road corridors. Specifically, the ROD includes a significant emphasis on wildlife research and monitoring to provide a detailed understanding of the effects of pathway development. Monitoring and research activities began in 2007 to provide a pre-construction baseline, and continued through 2010. The phased approach to construction of the pathway system will allow information obtained from the research and monitoring program to be integrated into the design and operation of future pathway segments.
The first phase of pathways was constructed during the summer and fall of 2008. These segments extend from
This rule complies with 36 CFR 4.30, which requires the NPS to designate bicycle routes outside of developed areas through the promulgation of a special regulation. Section 4.30 further specifies that such routes may be designated only upon “* * * a written determination that such use is consistent with the protection of a park area's natural, scenic and aesthetic values, safety considerations and management objectives and will not disturb wildlife or park resources.” The Superintendent has made such a determination and found that the designation of the pathway segments between Moose and South Jenny Lake as a route for bicycle use is consistent with the requirements of 36 CFR 4.30.
This rule also makes several changes to the special regulations for the Park, as set forth in 36 CFR 7.22, to reflect current operating practices and changes to the Park's land status. The rule closes Phelps Lake to the operation of motor boats, consistent with all other backcountry lakes in the Park. This change is prompted by the change in land status for the area surrounding the southern half of the lake.
Prior to November 2007, these lands were a private inholding within the park known as the JY Ranch, owned by Laurance S. Rockefeller and, subsequent to his death, by his estate. The property functioned as a family guest ranch and retreat for the Rockefeller family since the 1930s, where guests typically engaged in activities such as hiking, horseback riding, and boating on Phelps Lake. The ranch included a boathouse on the lakeshore where motorboats were kept during the summer. The Park's special regulations authorized the use of motorboats on Phelps Lake, thereby allowing the JY Ranch to continue a use that had existed prior to the Park's establishment. No other motorboat use occurred on the lake since it was inaccessible to park visitors except on foot or horseback.
Before his death, Mr. Rockefeller made a decision to donate the property to the United States for inclusion within the Park. In accordance with Mr. Rockefeller's wishes, all buildings, roads, and other development were removed by his estate, and a system of trails to allow visitors to enjoy the area was constructed. The property was conveyed to the United States in November 2007. This rule removes the now-unnecessary provision that allowed motorboat use on Phelps Lake.
This rule also removes the provision in 36 CFR 7.22(b) that allows authorized marine bait dealers, all of which are Park concessioners, to keep certain species of fish taken from Jackson Lake and sell them as bait. The NPS determined this provision to be unnecessary and inconsistent with NPS Management Policies, and the practice was discontinued several years ago.
The NPS published a proposed rule on October 5, 2009 (74 FR 51099) and accepted public comments through December 4, 2009. Comments were accepted through the mail, hand delivery, and through the Federal eRulemaking Portal:
One of the comments supported the proposed rule but opposed NPS regulation of bicycle use and other uses. The NPS recognizes that individuals have a variety of opinions regarding the regulation of activities within units of the National Park System, but notes that such regulations are necessary for the proper administration of such areas.
A second comment supported the proposed rule and noted that the pathway system will benefit persons with disabilities. The NPS agrees with the comment.
A third comment supported the proposed rule and suggested the adoption of safety and etiquette rules for pathway users, such as travelling at a safe speed, keeping right except to pass, giving a clear warning when passing, and moving off the trail when stopped. The NPS will provide information to pathway users on proper etiquette and establish additional rules regulating the use of the pathway consistent with the requirements of 36 CFR 1.5 and 1.7.
The term motorboat in the proposed rule is changed to power-driven vessel in the final rule, as the term power-driven vessel is defined by the NPS in 36 CFR 1.4 and use here is consistent with language in 36 CFR part 3 pertaining to Boating and Water Use activities within NPS areas system-wide. Further, the rule language in the final rule is changed slightly and formatted differently than in the proposed rule to improve clarity and consistency with contemporary rulemaking without affecting the intent of the rule.
The NPS published a report in March 2009 entitled “Cost-Benefit and Regulatory Flexibility Analyses: Proposed Regulations Designating Pathways for Multi-Use in Grand Teton National Park.” The report presents the cost-benefit and regulatory flexibility analyses of the regulatory action associated with designating certain pathways for multi-use, including bicycle use, pursuant to the Grand Teton National Park Transportation Plan (NPS 2006). Quantitative analyses were not conducted due to a lack of available data, and because the additional cost of conducting quantitative analyses was not considered to be reasonably related to the expected increase in the quantity and/or quality of relevant information. Nevertheless, the NPS believes that the cost-benefit and regulatory flexibility analyses provide an adequate assessment of all relevant costs and benefits associated with the regulatory action.
The results of the cost-benefit analysis indicate that the costs of the regulatory action are justified by the associated benefits. Additionally, this regulatory action will not have an annual economic effect of $100 million or more, and will not adversely affect an economic sector, productivity, jobs, the environment, or other units of government. This regulatory action will improve economic efficiency.
The full report is available for review on the Park Web site,
This document is not a significant rule and is not subject to review by the Office of Management and Budget under Executive Order 12866.
(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. Since this is an agency-specific change, implementing actions
(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. This rule exclusively affects the use of bicycles and motorboats within the Park. No grants or other forms of monetary supplement are involved.
(4) This rule does not raise novel legal or policy issues. This rule simply implements the NPS general bicycle regulation at 36 CFR 4.30 requiring rulemaking for the designation of bicycle routes in Grand Teton National Park.
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 et seq.). This certification is based on information contained in the report titled “Cost-Benefit and Regulatory Flexibility Analyses: Proposed Regulations Designating Pathways for Multi-Use in Grand Teton National Park,” which is available for review on the Park Web site at:
This rule is not a major rule under 5 U.S.C. 804(2), the SBREFA. 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 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. A statement containing the information required by the UMRA (2 U.S.C. 1531
Under the criteria in Executive Order 12630, the rule does not have significant takings implications. A taking implication assessment is not required. No taking of personal property will occur as a result of this rule.
Under the criteria in Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. A Federalism summary impact statement is not required. This rule only affects use of NPS administered lands and waters. It has no outside effects on other areas.
This rule complies with the requirements of Executive Order 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 Executive Order 13175, we have evaluated this rule and determined that it has no potential effects on federally recognized Indian tribes. Representatives of the eleven tribes affiliated with the Park were consulted during the preparation of the FEIS for the project.
This rule does not contain information collection requirements, and a submission under the PRA is not required.
In April 2000, the Park undertook a transportation study to collect basic information regarding transportation issues in the Park. The study subsequently served as a foundation for a transportation planning process that was initiated in September 2001. The Transportation Plan/Final Environmental Impact Statement (FEIS) was released in September 2006. A Record of Decision (ROD) selecting Alternative 3a was signed on March 12, 2007, and a notice of the decision was published in the
In developing this rule we did not conduct or use a study, experiment, or survey requiring peer review under the IQA (Pub. L. 106-554).
This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.
National parks, Reporting and recordkeeping requirements.
For the reasons given in the preamble, 36 CFR part 7 is amended as set forth below:
16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also issued under 36 U.S.C. 501-511, D.C. Code 10-137 (2001) and D.C. Code 50-2201 (2001).
(b) * * *
(3)
(ii) It is permissible to possess or use the following dead, non-game fish as bait on or along the shores of Jackson Lake:
(e)
(2) On Jenny Lake:
(i) Operating a power-driven vessel using a motor exceeding 7
(ii) An NPS authorized boating concessioner may operate power-driven vessels under conditions specified by the Superintendent.
(h)
(i) The paved multi-use pathway alongside Dornan Road between Dornan's and the Teton Park Road.
(ii) The paved multi-use pathway alongside the Teton Park Road between Dornan Road (Dornan's Junction) and the South Jenny Lake developed area.
(2) The Superintendent may open or close designated routes, or portions thereof, or impose conditions or restrictions for bicycle use after taking into consideration the location of or impacts on wildlife, the amount of snow cover or other environmental conditions, public safety, and other factors, under the criteria and procedures of §§ 1.5 and 1.7 of this chapter.
Environmental Protection Agency (EPA).
Determination of acceptability.
This Determination of Acceptability expands the list of acceptable substitutes for ozone-depleting substances under the U.S. Environmental Protection Agency's (EPA) Significant New Alternatives Policy (SNAP) program. The determinations concern new substitutes for use in the refrigeration and air conditioning, solvent cleaning and fire suppression sectors.
This determination is effective on October 4, 2011.
EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2003-0118 (continuation of Air Docket A-91-42). All electronic documents in the docket are listed in the index at
Margaret Sheppard by telephone at (202) 343-9163, by facsimile at (202) 343-2338, by e-mail at
For more information on the Agency's process for administering the SNAP program or criteria for evaluation of substitutes, refer to the original SNAP rulemaking published in the
This section presents EPA's most recent acceptable listing decisions for substitutes in the refrigeration and air conditioning, solvent cleaning, and fire suppression sectors. For copies of the full list of ozone-depleting substance (ODS) substitutes in all industrial sectors, visit EPA's Ozone Layer Protection Web site at
The sections below discuss each substitute listing in detail. Appendix A contains a table summarizing today's listing decisions for new substitutes. The statements in the “Further Information” column in the table provide additional information, but are not legally binding under section 612 of the Clean Air Act (CAA). In addition, the “further information” may not be a comprehensive list of other legal obligations you may need to meet when using the substitute. Although you are not required to follow recommendations in the “further information” column of the table to use a substitute consistent with section 612 of the CAA, EPA strongly encourages you to apply the information when using these substitutes. In many instances, the information simply refers to standard operating practices in existing industry and/or building-code standards. However, some of these statements may refer to obligations that are enforceable or binding under federal or state programs other than the SNAP program. Many of these statements, if adopted, would not require significant changes to existing operating practices.
You can find submissions to EPA for the use of the substitutes listed in this document and other materials supporting the decisions in this action in docket EPA-HQ-OAR-2003-0118 at
• Centrifugal chillers
• Reciprocating and screw chillers
• Industrial process refrigeration
• Ice skating rinks
• Cold storage warehouses
• Refrigerated transport
• Retail food refrigeration
• Vending machines
• Commercial ice machines
• Residential dehumidifiers
• Household and light commercial air conditioning and heat pumps
Hot Shot 2 is a blend by weight of 79.3 percent HFC-134a, which is also known as 1,1,1,2-tetrafluoroethane (CAS Reg. No. 811-97-2), 19.5 percent HFC-125, which is also known as 1,1,1,2,2-pentafluoroethane (CAS Reg. No. 354-33-6), and 1.7 percent R-600, which is also known as n-butane (CAS Reg. No. 106-97-8). You may find the submission under Docket item EPA-HQ-OAR-2003-0118-0271 at
EPA anticipates that Hot Shot 2 will be used consistent with the recommendations specified in the Material Safety Data Sheets (MSDSs) for the blend and for the individual components. For the blend, the manufacturer recommends an acceptable exposure limit (AEL) of 1000 ppm on an 8-hour time-weighted average. For both HFC-134a and HFC-125, the American Industrial Hygiene Association (AIHA) recommends workplace environmental exposure limits (WEELs) of 1000 ppm on an 8-hour time-weighted average. Similarly, for R-600 the American Conference of Governmental Industrial Hygienists (ACGIH) has established a threshold limit value (TLV) of 1,000 ppm on an 8-hour time-weighted average. The National Institute for Occupational Safety and Health (NIOSH) has a recommended exposure limit (REL) of 800 ppm for R-600 on a 10-hour time-weighted average. EPA anticipates that users will be able to meet workplace exposure limits (WEELs, TLVs, RELs and manufacturer AELs) and address potential health risks by following requirements and recommendations in the MSDS and other safety precautions common to the refrigeration and air conditioning industry.
• Industrial process refrigeration
• Ice skating rinks
• Industrial process air conditioning
• Cold storage warehouses
• Refrigerated transport
• Retail food refrigeration
• Commercial ice machines
• Household refrigerators and freezers
• Motor vehicle air conditioning (buses and passenger trains only)
• Household and light commercial air conditioning and heat pumps
R-407F, marketed under the trade name Genetron® LT or Genetron® Performax
R-407F does not contain any VOCs as defined under CAA regulations (see 40 CFR 51.100(s)) addressing the development of SIPs to attain and maintain the national ambient air quality standards.
The AIHA has established WEELs of 1000 ppm on an 8-hour time-weighted average for each of the components of R-407F. The manufacturer also recommends an AEL of 1000 ppm on an 8-hour time-weighted average for each of the R-407F components. EPA anticipates that users will be able to meet AIHA's WEELs and the manufacturer's recommended AELs and address potential health risks by following requirements and recommendations in the MSDS and other safety precautions common to the refrigeration and air conditioning industry.
R-507A, also known as R-507, is a blend of 50% by weight HFC-125 (1,1,1,2,2-pentafluoroethane) and 50% by weight HFC-143a (1,1,1-trifluoroethane). EPA previously listed R-507A as an acceptable alternative for various CFCs (
R-507A does not contain any VOCs as defined under CAA regulations (see 40 CFR 51.100(s)) addressing the development of SIPs to attain and maintain the national ambient air quality standards.
EPA anticipates that R-507A will be used consistent with the recommendations specified in the MSDSs for the blend and the individual components. All components of the blend have WEELs of 1,000 ppm, as established by AIHA. EPA anticipates that users will be able to meet AIHA's WEELs and address potential health risks by following requirements and recommendations in the MSDS and other safety precautions common to the refrigeration and air conditioning industry.
• Metal cleaning.
• Electronics cleaning.
• Precision cleaning.
PFBI is also known as 1,1,1,2,2,3,3,4,4-nonafluoro-4-iodo-butane (CAS Reg. No. 423-39-2). This substitute was submitted to EPA under the trade name Capstone® 4-I as a fluorinated iodide mixture containing greater than 99 percent PFBI. You may find the submission under Docket item EPA-HQ-OAR-2003-0118-0269 at
Some evidence shows that the substitute can cause aquatic toxicity, with an LC
• Collect the spent solvent for reclamation or incineration;
• Incinerate materials that contain or are contaminated with the solvent;
• Send solvent-contaminated wastewater to a wastewater treatment facility to prevent the solvent from entering waterways; and
• Do not dispose of the solvent by releasing it into waterways.
EPA anticipates that PFBI will be used consistent with the recommendations specified in the manufacturer's MSDS. EPA and the manufacturer both recommend an acceptable exposure limit of 375 ppm over an 8-hour time-weighted average for PFBI. Users should be aware of additional exposure limits that may be associated with byproducts in PFBI solutions, such as iodine. EPA anticipates that users will be able to meet the workplace exposure limits (manufacturer AEL and EPA recommendation) and address potential health risks by following requirements and recommendations in the MSDSs and other safety precautions common in the solvent cleaning industry.
Because the formulations of Firebane® All-Weather 1115 and Firebane® 1115 are very similar and share the same human health and environmental risks, we are listing them together and, hereinafter, collectively referring to them as “both Firebane® 1115 formulations.” The manufacturer of both Firebane® 1115 formulations has claimed their composition as CBI. You may find the submissions under Docket items EPA-HQ-OAR-2003-0118-0255 and EPA-HQ-OAR-2003-0118-0256 at
In the case of both Firebane® 1115 formulations, it is expected that all of the constituents would rapidly aerosolize during expulsion from the container and then settle as a liquid on surfaces. After settling, cleanup would involve washing or rinsing of surfaces. The substitutes are readily biodegradable and have an exceptionally low biological oxygen demand
Of the constituents of both Firebane 1115® formulations, only one has not been exempted as a VOC under the CAA (40 CFR 51.100(s)). Potential emissions of VOCs from the use of substitutes for halons in the fire extinguishing and explosion prevention sector are likely to be insignificant relative to VOCs from all other sources (
Given the low toxicity of its constituents, both formulations of Firebane® 1115 are not expected to pose a significant risk to personnel during manufacture, installation and maintenance. To minimize worker exposure to any chemicals during manufacture, installation, and maintenance through an accidental release or spill, EPA recommends the following:
• Proper personal protective equipment (PPE) be used during handling of the substitute (
• Adequate ventilation should be in place;
• All spills should be cleaned up immediately in accordance with good industrial hygiene practices;
• Training for safe handling procedures should be provided to all employees that would be likely to handle containers of or extinguishing units filled with Firebane® 1115 or Firebane® All-Weather 1115; and
• In case of an inadvertent discharge, workers should immediately follow the instructions listed in the manufacturer's MSDS.
Firebane® 1115 and Firebane® All-Weather 1115 are not expected to cause significant harm to human health when used as streaming agents in portable fire extinguishers. As described above, the constituents of both Firebane® 1115 formulations are composed of compounds with low toxicity. Their use as streaming agents is not expected to pose any significant adverse health effects when the recommended safety precautions are followed.
Because the formulations of Firebane® 1170 and Firebane® 1179 are very similar and share the same human health and environmental risks, they are being listed together and, hereinafter, collectively referred to in this section as “both Firebane® formulations.” The manufacturer of both Firebane® formulations has claimed their composition as CBI. You may find the submissions under Docket items EPA-HQ-OAR-2003-0118-0260 and EPA-HQ-OAR-2003-0118-0270 at
At manufacture, EPA believes that regulatory requirements on industrial wastewater discharges are sufficient to prevent the unlikely release of the substitute to surface water during the manufacturing operations of both Firebane® formulations. Because of the BOD level of these formulations, discharges of either Firebane® formulation that result in release to waterways could result in relatively high BOD in the waterways. However, neither Firebane® formulation is expected to pose significant harm to the environment, provided that proper disposal procedures are followed. As with the majority of halon substitutes, their physicochemical properties make it unlikely that the substitutes would be released to surface water.
During discharge, the constituents of both Firebane® formulations would rapidly aerosolize during expulsion from the container and then settle as a liquid on surfaces. After settling, cleanup would involve washing or rinsing of surfaces. It is recommended that discharges of either Firebane® formulation not be released to waterways. Further, during cleanup, it is recommended that discharges of either Firebane® formulation be collected (
Of the constituents of both Firebane® formulations, only one has not been exempted as a VOC under the CAA (40 CFR 51.000). Potential emissions of VOCs from the use of substitutes for halons in the fire extinguishing and explosion prevention sector are likely to be insignificant relative to VOCs from all other sources (
• Proper Level C or higher PPE be used during handling of the substitute (
• Adequate ventilation should be in place;
• All spills should be cleaned up immediately in accordance with good industrial hygiene practices;
• Training for safe handling procedures should be provided to all employees that would be likely to
• In case of an inadvertent discharge, workers should immediately follow the instructions listed in the MSDS for Firebane® 1170 or for Firebane® 1179.
Firebane® 1170 and Firebane® 1179 are not expected to cause harm to human health when used as streaming agents in portable fire extinguishers. EPA expects no significant adverse health effects when the recommended safety precautions and normal industry practices are applied and use of the substitutes is in accordance with the manufacturer's MSDSs.
The manufacturer of Firebane® 1179 has claimed its composition as CBI. You may find the submission under Docket item EPA-HQ-OAR-2003-0118-0270 at
The N2 Towers® System is a fire suppression system that pyrotechnically generates nitrogen (N
The N2 Towers® System does not contain any VOCs as defined under CAA regulations (see 40 CFR 51.100(s)) addressing the development of SIPs to attain and maintain the national ambient air quality standards. Accordingly, use of the N2 Towers® System is not expected to pose any significant adverse impacts on local air quality.
Section 612 of the Clean Air Act (CAA) requires EPA to develop a program for evaluating alternatives to ozone-depleting substances. EPA refers to this program as the Significant New Alternatives Policy (SNAP) program. The major provisions of section 612 are:
Section 612(c) requires EPA to promulgate rules making it unlawful to replace any class I substance (
Section 612(c) requires EPA to publish a list of the substitutes unacceptable for specific uses and to publish a corresponding list of acceptable alternatives for specific uses. The list of acceptable substitutes may be found at
Section 612(d) grants the right to any person to petition EPA to add a substance to, or delete a substance from, the lists published in accordance with section 612(c). The Agency has 90 days to grant or deny a petition. Where the Agency grants the petition, EPA must publish the revised lists within an additional six months.
Section 612(e) directs EPA to require any person who produces a chemical substitute for a class I substance to notify the Agency not less than 90 days before new or existing chemicals are introduced into interstate commerce for significant new uses as substitutes for a class I substance. The producer must also provide the Agency with the producer's unpublished health and safety studies on such substitutes.
Section 612(b)(1) states that the Administrator shall seek to maximize the use of federal research facilities and resources to assist users of class I and II substances in identifying and developing alternatives to the use of such substances in key commercial applications.
Section 612(b)(4) requires the Agency to set up a public clearinghouse of alternative chemicals, product substitutes, and alternative manufacturing processes that are available for products and manufacturing processes which use class I and II substances.
On March 18, 1994, EPA published the original rulemaking (59 FR 13044) which established the process for administering the SNAP program and issued EPA's first lists identifying acceptable and unacceptable substitutes in the major industrial use sectors (subpart G of 40 CFR part 82). These sectors—refrigeration and air conditioning; foam blowing; cleaning solvents; fire suppression and explosion protection; sterilants; aerosols; adhesives, coatings and inks; and tobacco expansion—are the principal industrial sectors that historically consumed the largest volumes of ODS.
Section 612 of the CAA requires EPA to ensure that substitutes found acceptable do not present a significantly greater risk to human health and the environment than other substitutes that are currently or potentially available.
Under the SNAP regulations, anyone who plans to market or produce a substitute to replace a class I substance or class II substance in one of the eight major industrial use sectors must provide notice to the Agency, including health and safety information on the substitute, at least 90 days before introducing it into interstate commerce for significant new use as an alternative. This requirement applies to the persons planning to introduce the substitute into interstate commerce,
The Agency has identified four possible decision categories for substitutes that are submitted for evaluation: Acceptable; acceptable subject to use conditions; acceptable subject to narrowed use limits; and unacceptable (40 CFR 82.180(b)). Use conditions and narrowed use limits are both considered “use restrictions” and are explained in the paragraphs below. Substitutes that are deemed acceptable with no use restrictions (no use conditions or narrowed use limits) can be used for all applications within the relevant end uses within the sector.
After reviewing a substitute, the Agency may determine that a substitute is acceptable only if certain conditions in the way that the substitute is used are met to minimize risks to human health and the environment. EPA describes such substitutes as “acceptable subject to use conditions.” Entities that use these substitutes without meeting the associated use conditions are in violation of EPA's SNAP regulations.
For some substitutes, the Agency may permit a narrowed range of use within an end-use or sector. For example, the Agency may limit the use of a substitute to certain end-uses or specific applications within an industry sector. EPA describes these substitutes as “acceptable subject to narrowed use limits.” The Agency requires the user of a narrowed-use substitute to
The Agency publishes its SNAP program decisions in the
In contrast, EPA publishes decisions concerning substitutes that are deemed acceptable with no restrictions in “notices of acceptability” or “determinations of acceptability,” rather than as proposed and final rules. As described in the March 18, 1994, rule initially implementing the SNAP program, EPA does not believe that rulemaking procedures are necessary to list alternatives that are acceptable without restrictions because such listings neither impose any sanction nor prevent anyone from using a substitute.
Many SNAP listings include “Comments” or “Further Information” to provide additional information on substitutes. Since this additional information is not part of the regulatory decision, these statements are not binding for use of the substitute under the SNAP program. However, regulatory requirements so listed are binding under other regulatory programs (
For copies of the comprehensive SNAP lists of substitutes or additional information on SNAP, refer to EPA's Ozone Depletion Web site at:
Environmental protection, Administrative practice and procedure, Air pollution control, Reporting and recordkeeping requirements.
In rule document 2011-15507, beginning on page 36373, in the issue of Wednesday June 22, 2011, make the following corrections:
1. On page 36379, in the first column of the table for Clinton County, Iowa, “Unincorporated Areas of Clinton County” should not have appeared.
2. On the same page, in the first column of the table for Muscatine County, Iowa, “Unincorporated Areas of Muscatine County, Iowa” should not have appeared.
Federal Communications Commission.
Final rule; announcement of effective date.
This document announces the approval of the Office of Management and Budget (OMB) for information collection requirements in the sections outlined in the
Effective October 4, 2011, the following regulations have been approved by OMB:
32.2000—64 FR 50007, September 15, 1999.
52.33—63 FR 35161, June 29, 1998.
52.33(a)(3)—67 FR 40620, June 13, 2002.
61.38(b)(4)—69 FR 25336, May 6, 2004.
61.41(c), (d) and (e)—69 FR 25336, May 6, 2004.
64.5001—71 FR 43673, August 2, 2006.
69.123—69 FR 25336, May 6, 2004.
Lynne Hewitt Engledow, Pricing Policy Division, Wireline Competition Bureau, at
On June 23 2000, OMB approved the information collection requirements contained in § 32.2000 of title 47 of the United States Code as a revision to OMB Control Number 3060-0370.
On September 12, 2000, OMB approved the information collection requirements contained in § 52.33 of title 47 of the United States Code as a revision to OMB Control Number 3060-0370.
On October 22, 2002 OMB approved the information collection requirements contained in § 52.33(a)(3) of title 47 of the United States Code as a revision to OMB Control Number 3060-0742.
On May 25, 2005, OMB approved the information collection requirements contained in §§ 61.38(b)(4), 61.41(c), (d) and (e) and 69.123 of title 47 of the United States Code as a revision to OMB Control Number 3060-0298.
On February 5, 2007, OMB approved the information collection requirements contained in § 64.5001 of title 47 of the United States Code as a new collection, OMB Control Number 3060-1096. These information collection requirements required OMB approval to become effective. The Commission publishes this document as an announcement of those approvals. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Thomas Butler, Federal Communications Commission, Room 5-C458, 445 12th Street, SW., Washington, DC 20554. Please include the OMB Control Numbers, 3060-0370, 3060-0742, 3060-0298, and 3060-1096 in your correspondence. The Commission will also accept your comments via the Internet if you send them to
To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to
An agency may not conduct or sponsor a collection of information unless it displays a current valid OMB Control Number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act, which does not display a current, valid OMB Control Number. The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.
Communications common carriers, reporting and Recordkeeping requirements, Telephone, Telecommunications, Uniform system of accounts.
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is adopting as final, with changes, an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement section 3504 of the National Defense
Meredith Murphy, telephone 703-602-1302.
DoD published an interim rule at 75 FR 65437 on October 25, 2010, to implement section 3504 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2009 (Pub. L. 110-417). Section 3504 amended section 1018 of the NDAA for FY 2007 (Pub. L. 109-364).
Section 3504 addresses requirements that apply to riding gang members and DoD-exempted individuals who perform work on U.S.-flag vessels under DoD contracts for transportation services documented under chapter 121, title 46 U.S.C. Section 3504 also applies to commercial contracts for carriage of cargo by a U.S.-flag vessel documented under chapter 121 of title 46 U.S.C. Such riding gang members must hold a U.S. Merchant Mariner's Document issued under 46 U.S.C., chapter 73, or a transportation security card issued under section 70105 of such title. Section 3504 also permits exemptions for certain individuals, provided a background check of the individual is conducted.
U.S. law requires crews of predominantly U.S. citizens aboard U.S.-flag vessels. For many years, foreign nationals have been utilized on U.S.-flag vessels as members of “riding gangs” who perform work beyond standard vessel maintenance and repair while ships are underway. In 2006, Congress prohibited the use of such foreign riding personnel on board vessels that are under contract with DoD unless DoD complied with certain limitations (The Coast Guard and Maritime Transportation Act of 2006, Pub. L. 109-241). The exceptions provided to DoD in 2006 did not match those applicable to other U.S.-flag vessels. The NDAA for FY 2009 made it clear that the exceptions available to DoD are complete exemptions both from the DoD-specific riding gang limitations and those generally applicable to U.S.-flag vessels.
Contracting officers are encouraged to apply this rule to the maximum extent practicable to existing contracts, consistent with FAR 1.108(d).
Two respondents submitted a total of three comments on the interim rule. A discussion of the comments received and the resulting changes made to the rule follows.
These comments relate to the clause at 252.247-7027(c)(2) as promulgated, which requires that any individual who is exempted by paragraph (c)(1) of the clause from the requirements imposed on riding gang members by 46 U.S.C. 8106 must pass a DoD background check before going aboard a vessel. With regard to these exempt individuals, the contractor shall submit the name and “other necessary information” for a background check to the Government official specified in the contract.
“The Contractor shall submit the name and other necessary information for a background check to the DoD Contracting Officer or his designee for approval.”
The initial legislative proposal that resulted in section 3504 contained a
The final rule adds clause 252.247-7027, Riding Gang Member Requirements, to the list of clauses at 252.212-7001 that are required to implement statutes or executive orders applicable to defense acquisitions of commercial items because section 3504 also applies to commercial contracts for carriage of cargo by a U.S.-flag vessel documented under chapter 121 of title 46 U.S.C. and, in a related change, removes it from the list at 212.301(f).
Additionally, the final rule revises the cross-reference to 252.211-7006 at 212.301(f)(iv)(D) to reflect the correct title of the clause.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
DoD does not expect this final rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The objective of the rule is to provide authorization, restrictions, and exemptions for the use of riding gang members on U.S.-flag vessels under charter or contract to DoD for the carriage of DoD cargo. The requirements of the rule will apply to entities interested in receiving DoD contracts for carriage of DoD cargo.
The rule requires the contractor to ensure that each riding gang member holds a valid U.S. Merchant Mariner's Document issued under 46 U.S.C. chapter 73, or a transportation security card issued under section 70105 of such title. Any individual who is exempt from these requirements must pass a DoD background check before going aboard the vessel. With regard to these exempt individuals, the contractor shall submit the name and other necessary identifying information for a background check to the approving official specified in the contract.
There is no reporting or recordkeeping requirement established by this rule. This rule does not duplicate, overlap, or conflict with any other Federal rules. DoD anticipates that there will be limited, if any, additional costs imposed on small businesses. No comments were received in response to the initial regulatory flexibility analysis as published in the interim rule.
Interested parties may obtain a copy of the FRFA from the point of contact named herein. A copy of the FRFA has been submitted to the Chief Counsel for Advocacy of the Small Business Administration.
The rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Accordingly, the interim rule amending 48 CFR parts 212, 247, and 252, which was published at 75 FR 65437 on October 25, 2010, is adopted as a final rule with the following changes:
41 U.S.C. 1303 and 48 CFR chapter 1.
(f) Use the clause at 252.247-7027, Riding Gang Member Requirements, in solicitations and contracts for the charter of, or contract for carriage of cargo by, a U.S.-flag vessel documented under chapter 121 of title 46 U.S.C. Follow the procedures at PGI 247.574.
(b) * * *
(30) __ 252.247-7027, Riding Gang Member Requirements (OCT 2011) (Section 3504 of Pub. L. 110-417).
(c) * * *
(2) Any individual who is exempt under paragraph (c)(1) of this clause must pass a DoD background check before going aboard the vessel.
(i) The Contractor shall—
(A) Render all necessary assistance to U.S. Armed Forces personnel with respect to the identification and screening of exempted individuals. This will require, at a minimum, the Contractor to submit the name and other biographical information necessary to
(B) Deny access or immediately remove any individual(s) from the vessel deemed unsuitable for any reason by Military Sealift Command Force Protection personnel. The Contractor agrees to replace any such individual promptly and require such replacements to fully comply with all screening requirements.
(ii) The head of the contracting activity may waive this requirement if the individual possesses a valid U.S. Merchant Mariner's Document issued under 46 U.S.C. chapter 73, or a transportation security card issued under section 70105 of such title.
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to revise the definition of “qualifying country end product.” This final rule eliminates the component test for qualifying country end products that are commercially available off-the-shelf items.
Amy G. Williams, telephone 703-602-0328.
DoD published a proposed rule in the
As a technical update, the more recent definition of “qualifying country” in 225.003 is incorporated in two of the clauses changed by the final rule, rather than citing to the list of qualifying countries at 225.872-1. This has no practical impact, because the two lists contain the same countries. The definition was added to DFARS 225.003 to reduce confusion, because the list at DFARS 225.872-1 is split into two paragraphs, (a) and (b), which sometimes leads to misinterpretation of the status of countries that are listed in paragraph (b).
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
DoD certifies that this rule will not have a significant impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The comparable change has already been enacted for the benefit of U.S. manufacturers of COTS items.
The rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. (chapter 35).
Government procurement.
Therefore, 48 CFR part 252 is amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
(a) * * *
(i) An unmanufactured end product mined or produced in a qualifying country; or
(ii) An end product manufactured in a qualifying country if—
(A) The cost of the following types of components exceeds 50 percent of the cost of all its components:
(
(
(
(B) The end product is a COTS item.
d. In Alternate II, remove the clause date “(DEC 2010)” and add in its place “(OCT 2011)” and, in paragraph (a), remove the numbers preceding the definitions.
(a) * * *
(A) A commercial item (as defined in paragraph (1) of the definition of “commercial item” in section 2.101 of the Federal Acquisition Regulation);
(B) Sold in substantial quantities in the commercial marketplace; and
(C) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and
(ii) Does not include bulk cargo, as defined in section 4 of the Shipping Act of 1984 (46 U.S.C. 40102), such as agricultural products and petroleum products.
(i) An unmanufactured end product mined or produced in a qualifying country; or
(ii) An end product manufactured in a qualifying country if—
(A) The cost of the following types of components exceeds 50 percent of the cost of all its components:
(
(
(
(B) The end product is a COTS item.
As prescribed in 225.1101(6)(ii), add the following definition to paragraph (a) of the basic clause and substitute the following paragraph (c) for paragraph (c) of the basic clause:
(a) * * *
(i) An unmanufactured end product mined or produced in a qualifying country; or
(ii) An end product manufactured in a qualifying country if—
(A) The cost of the following types of components exceeds 50 percent of the cost of all its components:
(
(
(
(B) The end product is a COTS item.
As prescribed in 225.1101(11)(i)(B), add the following definition to paragraph (a) and substitute the following paragraph (c) for paragraph (c) of the basic clause:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule.
NMFS implements accountability measures (AMs) for the recreational sector of golden tilefish in the South Atlantic for the 2011 fishing year through this temporary final rule. This rule reduces the length of the 2011 recreational fishing season for golden tilefish based on the 2010 recreational annual catch limit (ACL) overage, and as a result closes the recreational sector. This action is necessary to reduce overfishing of the South Atlantic golden tilefish resource.
This rule is effective October 6, 2011 until 12:01 a.m., local time on January 1, 2012.
Copies of the final rule for Amendment 17B, the Environmental Assessment for Amendment 17B, and other supporting documentation may be obtained from Catherine Bruger, NMFS, Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701; telephone: 727-824-5305.
Catherine Bruger, telephone: 727-824-5305, fax: 727-824-5308, e-mail:
The snapper-grouper fishery of the South Atlantic is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). Golden tilefish are managed under this FMP. The FMP was prepared by the South Atlantic Fishery Management Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
The 2006 reauthorization of the Magnuson-Stevens Act implemented new requirements that ACLs and AMs be established to end overfishing and prevent overfishing from occurring. AMs are management controls to prevent ACLs from being exceeded, and to correct or mitigate overages of the ACL if they occur.
On December 30, 2010, NMFS issued a final rule (75 FR 82280) to implement Amendment 17B to the FMP (Amendment 17B). Amendment 17B established ACLs for eight snapper-grouper species in the FMP that are undergoing overfishing, including golden tilefish, and AMs to be implemented if these ACLs are reached or exceeded.
The recreational ACL for golden tilefish, implemented through Amendment 17B, is 1,578 fish. In accordance with regulations at 50 CFR 622.49(b)(1)(ii), if the ACL is exceeded, the Regional Administrator (RA) will publish a notice to reduce the length of the following fishing season by the amount necessary to ensure landings do not exceed the recreational sector ACL in the following fishing year. Additionally, in accordance with these regulations, the recreational landings are evaluated relative to the ACL as follows: For 2010, only 2010 recreational landings will be compared to the ACL; in 2011, the average of 2010 and 2011 recreational landings will be compared to the ACL; and in 2012 and subsequent fishing years, the most recent 3-year running average recreational landings will be compared to the ACL. Therefore this temporary final rule is being implemented based on an evaluation of golden tilefish recreational landings for the 2010 fishing year.
Finalized landings data from the NMFS Southeast Fisheries Science Center indicate that the recreational golden tilefish ACL was exceeded by 2,805 fish in 2010. Therefore, this temporary rule implements an AM to reduce the fishing season for the recreational golden tilefish component of the snapper-grouper fishery from October 6, 2011 until January 1, 2012. As a result of this reduced season, the recreational sector for golden tilefish will be closed effective 12:01 a.m., local time October 6, 2011.
The 2012 recreational fishing season for golden tilefish will begin on January 1, 2012, through December 31, 2012, unless AMs are implemented due to an ACL overage and a reduced fishing season is specified through notification in the
Commencing 12:01 a.m., local time on October 6, 2011, the bag limit and possession limits specified in 50 CFR 622.39(d)(1)(ii) and (d)(2), respectively, are zero and apply to all recreational harvest or possession of golden tilefish in or from the South Atlantic exclusive economic zone.
The Administrator, Southeast Region, NMFS, (RA) has determined this temporary rule is necessary for the conservation and management of the South Atlantic golden tilefish component of the South Atlantic snapper-grouper fishery and is consistent with the Magnuson-Stevens Act and other applicable laws.
This action is taken under 50 CFR 622.43(a) and is exempt from review under Executive Order 12866.
These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive the requirements to provide prior notice and opportunity for public comment on this temporary rule. Such procedures are unnecessary because the AMs established by Amendment 17B and located at 50 CFR 622.49(b)(1)(ii) have already been subject to notice and comment and authorize the AA to file a notification with the Office of the Federal Register to reduce the duration of the recreational fishing season the following fishing year if an overage occurs in the prior fishing year. All that remains is to notify the public of the reduced recreational fishing season for golden tilefish for the 2011 fishing year.
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule.
NMFS implements accountability measures (AMs) for recreational black sea bass in the South Atlantic for the 2011-2012 fishing year through this temporary final rule. This rule reduces the 2011-2012 recreational annual catch limit (ACL) for black sea bass based on the 2010-2011 recreational ACL overage. This action is necessary to reduce overfishing of the South Atlantic black sea bass resource.
This rule is effective October 4, 2011, through May 31, 2012.
Copies of the final rule for Amendment 17B, the Environmental Assessment for Amendment 17B, and other supporting documentation may be obtained from Catherine Bruger, NMFS, Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701;
Catherine Bruger,
The snapper-grouper fishery of the South Atlantic is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council (Council) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
The 2006 reauthorization of the Magnuson-Stevens Act established new requirements that ACLs and accountability measures (AMs) be implemented to end overfishing and prevent overfishing from occurring. AMs are management controls to prevent ACLs from being exceeded, and correct or mitigate the ACL if an overage occurs.
On December 30, 2010, NMFS issued a final rule (75 FR 82280) to implement Amendment 17B to the FMP (Amendment 17B). Amendment 17B established ACLs for eight snapper-grouper species in the FMP that are undergoing overfishing, including black sea bass, and AMs if these ACLs are reached or exceeded.
The recreational ACL for black sea bass, implemented through Amendment 17B, is 409,000 lb (185,519 kg), gutted weight. In accordance with regulations at 50 CFR 622.49 (b)(5)(ii)(A), when the recreational ACL is reached or projected to be reached, and black sea bass are classified as overfished, the Assistant Administrator for Fisheries, NOAA (AA) will file a notification with the Office of the Federal Register to close the recreational sector for black sea bass for the remainder of the fishing year. In accordance with the regulations at 50 CFR 622.49 (b)(5)(ii)(B), if black sea bass recreational landings exceed the ACL, without regard to overfished status, the AA will file a notification with the Office of the Federal Register, at or near the beginning of the following fishing year, to reduce the ACL for that fishing year by the amount of the previous year's overage. Recreational landings will be evaluated relative to the ACL, in accordance with the regulations at 50 CFR 622.49 (b)(5)(ii)(C), as follows. For 2010, only 2010 recreational landings will be compared to the ACL; in 2011, the average of 2010 and 2011 recreational landings will be compared to the ACL; and in 2012 and subsequent fishing years, the most recent 3-year running average recreational landings will be compared to the ACL.
For the 2010-2011 fishing year (June 1, 2010-May 31, 2011), the recreational ACL for black sea bass was projected to be reached by February 12, 2011. In accordance with the regulations at 50 CFR 622.49 (b)(5)(ii)(A), NMFS published a temporary rule to close the black sea bass recreational sector on February 12, 2011 (76 FR 5717, February 2, 2011) for the remainder of the 2010-2011 fishing year. Additionally, recent finalized landings data from the NMFS Southeast Fisheries Science Center (SEFSC) estimate that the 2010-2011 recreational ACL was exceeded by 67,253 lb (30,505 kg), gutted weight. Therefore, NMFS reduces the black sea bass recreational sector ACL for the 2011-2012 fishing year by 67,253 lb (30,505 kg) to 341,747 lb (155,014 kg) effective October 4, 2011, through May 31, 2012.
If recreational landings during the 2011-2012 fishing year, as estimated by the SEFSC Science and Research Director (SRD), reach the revised 2011-2012 recreational ACL of 341,747 lb (155,014 kg), gutted weight, and black sea bass are overfished, the AA will file a notification with the Office of the Federal Register to close the recreational sector for black sea bass for the remainder of the fishing year. The 2012-2013 recreational ACL for black sea bass will return to the 2010-2011 recreational ACL amount, unless AMs are implemented due to an overage.
The Administrator, Southeast Region, NMFS, (RA) has determined this temporary rule is necessary for the conservation and management of the South Atlantic black sea bass component of the South Atlantic snapper-grouper fishery and is consistent with the Magnuson-Stevens Act and other applicable laws.
The temporary rule has been determined to be not significant for purposes of Executive Order 12866.
These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive the requirements to provide prior notice and opportunity
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).
16 U.S.C. 1801
Dated: September 29, 2011.
Grain Inspection, Packers and Stockyards Administration, USDA.
Advance notice of proposed rulemaking.
The Department of Agriculture's (USDA) Grain Inspection, Packers and Stockyards Administration (GIPSA) is reviewing the United States (U.S.) Standards for Barley under the United States Grain Standards Act (USGSA). To ensure that standards and official grading practices remain relevant, GIPSA invites interested parties to comment on whether the current barley standards and grading practices need to be changed.
Comments must be received on or before January 3, 2012.
You may submit your written or electronic comments on this notice to:
•
•
•
All comments will become a matter of public record and should be identified as “U.S. barley standards ANPR comments,” making reference to the date and page number of this issue of the
Electronic submissions should avoid the use of special characters, avoid any form of encryption, and be free of any defects or viruses, since these may prevent GIPSA from being able to read and understand, and thus consider your comment.
All comments will also be available for public inspection at the above address during regular business hours (7 CFR 1.27(b)). Please call the GIPSA Management and Budget Services staff (202) 720-7486 for an appointment to view the comments.
Patrick McCluskey at GIPSA, USDA, 10383 N. Ambassador Dr., Kansas City, MO 64153; Telephone (816) 659-8403; Fax Number (816) 872-1258; e-mail
This rule has been determined to be exempt for the purposes of Executive Order 12866, and therefore has not been reviewed by the Office of Management and Budget (OMB).
Under the authority of the USGSA (7 U.S.C. 76), GIPSA establishes standards for barley and other grains regarding kind, class, quality and condition. The barley standards, established by USDA on August 24, 1926, were last revised in 1997 and appear in the USGSA regulations at 7 CFR 810.201-810.207. The standards facilitate barley marketing and define U.S. barley quality in the domestic and global marketplace. The standards define commonly used industry terms; contain basic principles governing the application of standards, such as the type of sample used for a particular quality analysis; specify grades, grade requirements, special grades and special grade requirements, such as garlicky barley and blighted barley. Official procedures for determining grading factors are provided in GIPSA's Grain Inspection Handbook, Book II, Chapter 2, “Barley,” which also includes standardized procedures for additional quality attributes not used to determine grade, such as dockage and moisture content. Together, the grading standards and testing procedures allow buyers and sellers to communicate quality requirements, compare barley quality using equivalent forms of measurement and assist in price discovery.
GIPSA's grading and inspection services are provided through a network of Federal, State, and private laboratories that conduct tests to determine the quality and condition of barley. These tests are conducted in accordance with applicable standards using approved methodologies and can be applied at any point in the marketing chain. Furthermore, the tests yield rapid, reliable and consistent results. In addition, GIPSA-issued certificates describing the quality and condition of graded barley are accepted as
In order for U.S. standards and grading procedures for barley to remain relevant, GIPSA is issuing this advance notice of proposed rulemaking to invite interested parties to submit comments, ideas, and suggestions on all aspects of the U.S. barley standards and inspection procedures.
7 U.S.C. 71-87k.
U.S. Citizenship and Immigration Services, DHS.
Proposed rule; correction.
The Department of Homeland Security corrects an inadvertent error contained in the proposed rule titled Treatment of Aliens Whose Employment Creation Immigrant (EB-5) Petitions Were Approved After January 1, 1995 and Before August 31, 1998 published in the
You must submit written comments on or before November 28, 2011.
Alexandra Haskell, Adjudications Officer, Business, Employment and Trade Services, Service Center Operations, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., Mailstop 2060, Washington, DC 20259-2060, telephone (202) 272-8410.
On September 28, 2011, the Department of Homeland Security published a proposed rule in the
Department of Energy, Office of Energy Efficiency and Renewable Energy.
Notice of open meeting.
This document announces an open meeting of two Negotiated Rulemaking Working Groups; one concerning Liquid Immersed and Medium-Voltage Dry-Type Distribution Transformers and the second addressing Low-Voltage Dry-Type Distribution Transformers. The Liquid Immersed and Medium-Voltage Dry-Type Group (MV Group) and the Low-Voltage Dry-Type Group (LV Group) are working groups within the Appliance Standards Subcommittee of the Efficiency and Renewables Advisory Committee (ERAC). The purpose of the MV and LV Groups is to discuss and, if possible, reach consensus on a proposed rule for regulating the energy efficiency of distribution transformers, as authorized by the Energy Policy Conservation Act (EPCA) of 1975, as amended, 42 U.S.C. 6313(a)(6)(C) and 6317(a).
National Rural Electric Cooperative Association, 4301 Wilson Blvd., Arlington, VA 22203.
John Cymbalsky, U.S. Department of Energy, Office of Building Technologies (EE-2J), 1000 Independence Avenue, SW., Washington, DC 20585-0121. Phone (202) 287-1692 or
A regulatory negotiation will enable DOE to engage in direct and sustained dialog with informed, interested, and affected parties when drafting the proposed regulation that is then presented to the public for comment. Gaining this early understanding of all parties' perspectives allows DOE to address key issues at an earlier stage of the process, thereby allowing more time for an iterative process to resolve issues. A rule drafted by negotiation with informed and affected parties is more likely to maximize benefits while minimizing unnecessary costs than one conceived or drafted without the opportunity for sustained dialog among interested and expert parties. DOE anticipates that there will be a need for fewer substantive changes to a proposed rule developed under a regulatory negotiation process prior to the publication of a final rule.
To the maximum extent possible, consistent with the legal obligations of the Department, DOE will use the consensus of the advisory committee or subcommittee as the basis for the rule the Department proposes for public notice and comment.
Participation in the meeting is not a prerequisite for submission of written comments. ERAC invites written comments from all interested parties. If you would like to file a written statement with the committee, you may do so either by submitting a hard or electronic copy before or after the meeting. Electronic copy of written statements should be e-mailed to:
Wage and Hour Division, Labor.
Notice of public hearing.
The Wage and Hour Division (WHD) will hold a public hearing on its Notice of Proposed Rulemaking (NPRM), Child Labor Regulations, Orders and Statements of Interpretation; Child Labor Violations—Civil Money Penalties to give interested persons an opportunity to present comments on the proposed rule. In the NPRM, the Department proposes to revise the child labor regulations issued pursuant to the Fair Labor Standards Act (FLSA) which set forth the criteria for the permissible employment of minors under 16 years of age in agricultural and under 18 years in nonagricultural occupations. The NPRM proposes to implement specific recommendations made by the National Institute for Occupational Safety and Health, increase parity between the agricultural and nonagricultural child labor provisions, and also address other areas that can be improved, which were identified by the Department's own enforcement actions. The NPRM was published in the
The public hearing will be held on October 14, 2011 from 10 a.m.-12 noon, EST in Tampa, Florida. All requests to speak at the hearing must be received by 5 p.m. EST, October 11, 2011.
Persons interested in presenting testimony at this public hearing must submit notice of their intent to participate in the hearing and their name, title, organization, and e-mail address using one of the following methods:
Information regarding this notice is available from the following sources:
Questions of interpretation and/or enforcement of regulations issued by this agency or referenced in this notice may be directed to the nearest WHD District Office. Locate the nearest office by calling the WHD toll-free help line at (866) 4US-WAGE ((866) 487-9243) between 8 a.m. and 5 p.m. in your local time zone, or log onto the WHD Web site for a nationwide listing of WHD District and Area Offices at:
The NPRM was published in the
The public hearing will be held on October 14, 2011, beginning at 10 a.m. at the Tampa Port Authority, 1101 Channelside Drive, #400, Tampa, FL 33602. Persons interested in speaking at this public hearing must submit by 5 p.m., EST, October 11, 2011, the following information: (1) A written request to be heard; and (2) An outline of the topics to be discussed, indicating the time allocated to each topic. To facilitate the receipt and processing of requests, WHD encourages interested persons to submit their requests and outlines electronically to
Persons submitting requests and outlines on paper should send or deliver their requests and outlines to the Wage and Hour Division, attention: Division of Regulations, Legislation, and Interpretation, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue, NW., Washington, DC 20210. All requests and outlines submitted to the Department will be available to the public online at
The Department will prepare an agenda indicating the order of the presentation of oral comments and testimony. In the absence of special circumstances, presenters will be allotted an equal amount of time for presenting oral comments and testimony. Information about the agenda will be posted on
The Department is committed to helping youth enjoy positive and challenging work experiences—both in agricultural and nonagricultural employment—that are so important to their development and transition to adulthood. The federal child labor provisions were enacted to ensure that when young people work, the work is safe, age appropriate, and does not jeopardize their schooling. The NPRM, published September 2, 2011 in the
The child labor provisions of the FLSA, 29 U.S.C. 201
The regulations concerning nonagricultural hazardous occupations are contained in subpart E of 29 CFR part 570 (29 CFR 570.50-.68). These Hazardous Occupations Orders (HOs) apply on either an industry basis, specifying the occupations in a particular industry that are prohibited, or an occupational basis, irrespective of the industry in which the work is performed. The seventeen nonagricultural HOs were adopted individually during the period of 1939 through 1963. Seven of these HOs, specifically HOs 5, 8, 10, 12, 14, 16, and 17, contain limited exemptions that permit the employment of 16- and 17-year-old apprentices and student-learners under particular conditions to perform work otherwise prohibited to that age group. The terms and conditions for employing such apprentices and student-learners are detailed in § 570.50(b) and (c). In the recently published NPRM, the Department proposes to create two new nonagricultural HOs, one concerning the employment of youth in certain facilities within farm-product raw materials wholesale trade industries, as recommended by National Institute for Occupational Safety and Health (NIOSH) in its 2002 Report, and another addressing the use of electronic devices, including communication devices, while operating or assisting to operate certain power-driven equipment, including motor vehicles.
The FLSA, since its enactment in 1938, has applied child labor standards to the employment of youth in agriculture that differ from those applied to youth employed in nonagricultural occupations. FLSA section 3(f) defines agriculture as including “farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 1141j(g) of [U.S.C.] Title 12), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.” The Department's regulations at 29 CFR part 780 explain the meaning of these terms, including a description of what constitutes primary agriculture and secondary agriculture under section 3(f). However, the FLSA, when enacted, also included a broad exemption from the child labor provisions for youth under 16 years of age employed in agriculture.
In 1966, Congress amended the FLSA and, among other things, authorized the Secretary to create Agricultural Hazardous Occupations Orders (Ag H.O.s) (Pub. L. 89-601, § 203). The newly enacted FLSA section 13(c)(2) stated that “[t]he provisions of section 12 relating to child labor shall apply to an employee below the age of sixteen employed in agriculture in any occupations that the Secretary of Labor finds and declares to be particularly
The Department proposes to not only accept all of the agricultural hazardous occupations order recommendations made by the National Institute for Occupational Safety and Health but to expand several of them. The NPRM proposes to eliminate two exemptions that currently allow 14- and 15-year-old hired farm workers to operate tractors and certain other farm equipment after receiving limited training and the successful completion of a practical examination. The proposal would also strengthen a student-learner exemption for 14- and 15-year-old hired farm workers by modeling it after the same exemption that is available to 16- and 17-year-old youths employed in nonagricultural work places.
The Department's proposals apply only to young hired farm workers and in no way change the statutory parental exemptions applicable to children of any age who are employed on a farm owned or operated by their parent.
The Department proposes to revise 29 CFR part 579 to provide additional transparency to its child labor civil money penalty assessment process by incorporating the primary provisions of Wage and Hour Division Field Assistance Bulletin 2010-1 (available at
This document was prepared under the direction of Nancy J. Leppink, Deputy Administrator for the Wage and Hour Division, U. S. Department of Labor, pursuant to sections 3 and 13 of the Fair Labor Standards Act (29 U.S.C. 203, 213).
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to determine that the two-state Steubenville-Weirton, nonattainment area for the 2006 24-hour fine particulate matter (PM
Written comments must be received on or before November 3, 2011.
Submit your comments regarding the two-state Steubenville-Weirton area, identified by Docket ID Number EPA-R03-OAR-2011-0556 by one of the following methods:
A.
B.
C.
D.
In Region III, Asrah Khadr, Office of Air Program Planning, Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, PA 19103-2023. The telephone number is (215) 814-2071. Ms. Khadr can also be reached via electronic mail at
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
The following outline is provided to aid in locating information in this preamble.
EPA is proposing to determine that the Steubenville-Weirton PM
If this determination is made final, under the provisions of EPA's PM
If EPA subsequently determines that this area is in violation of the 2006 24-hour PM
This clean data determination that EPA proposes with this
The 2006 PM
EPA has reviewed the ambient air monitoring data, consistent with the requirements contained in 40 CFR part 50 and recorded in EPA's AQS database for the Steubenville-Weirton PM
Under EPA regulations in 40 CFR part 50, section 50.13 and in accordance with Appendix N, the 24-hour primary and secondary PM
EPA is proposing to determine that the Steubenville-Weirton nonattainment area has clean data for the 2006 24-hour PM
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rulemaking that the Steubenville-Weirton PM
Environmental protection, Air pollution control, Particulate matter, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Extension of public comment period.
On September 9, 2011, EPA published a proposed action, Mandatory Reporting of Greenhouse Gases: Technical Revisions to the Electronics Manufacturing and the Petroleum and Natural Gas Systems Categories of the Greenhouse Gas Reporting Rule. In this action, EPA is extending the comment period for that action until October 24, 2011.
Comments must be received on or before October 24, 2011.
You may submit your comments, identified by Docket ID No. EPA-HQ-OAR-2011-0512 by any of the following methods:
•
•
•
•
•
Carole Cook, Climate Change Division, Office of Atmospheric Programs (MC-6207J), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 343-9263; fax number: (202) 343-2342; e-mail address:
Environmental protection, Administrative practice and procedure, Greenhouse gases, Incorporation by reference, Suppliers, Reporting and recordkeeping requirements.
Health Resources and Services Administration, HHS.
Negotiated Rulemaking Committee meeting.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), notice is hereby given of the following meeting of the Negotiated Rulemaking Committee on Designation of Medically Underserved Populations and Health Professional Shortage Areas.
Meetings will be held on October 12, 2011, 9:30 a.m. to 6 p.m. and October 13, 2011, 9 a.m. to 6 p.m. All meeting times are Eastern Daylight Time (E.D.T.).
Meetings will be held at the Sheraton Suites Old Town Alexandria, 801 North Saint Asaph Street, Alexandria, Virginia 22314; 703-836-4700.
For more information, please contact La Crystal McNair, National Center for Health Workforce Analysis, Bureau of Health Professions, Health Resources and Services Administration, Room 9-49, Parklawn Building, 5600 Fishers Lane, Rockville, Maryland 20857, Telephone (301) 443-3578,
Members of the public will have the opportunity to provide comments during the meeting on the afternoon of the last day. Requests from the public, to make oral comments or to provide written comments to the Committee, should be sent to LaCrystal McNair (at the contact address above) at least 10 days prior to the first day of the meeting, Wednesday, October 12, 2011. The meetings will be open to the public as indicated above, with attendance limited to the 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 at least 10 days prior to the meeting.
The Committee is working under tight timeframes in order to meet the reporting requirements in the Affordable
In proposed rule document 2011-21709 appearing on pages 53082-53086 in the issue of August 25, 2011, make the following correction:
1. On page 53084, in § 67.4, in the table for “Smith County, Texas and Incorporated Areas”, in the first column, in the second entry “Tributary BF-1” should read “Black Fork Creek Tributary BF-1”.
2. On the same page, in the same section, in the same table, in the same column, in the third entry “Tributary BF-M-1” should read “Black Fork Creek Tributary BF-M-1”.
3. On the same page, in the same section, in the same table, in the same column, in the fourth entry “Tributary D” should read “Black Fork Creek Tributary D”.
4. On the same page, in the same section, in the same table, in the same column, in the fifth entry “Tributary D-1” should read “Black Fork Creek Tributary D-1”.
5. On the same page, in the same section, in the same table, in the same column, in the sixth entry “Tributary D-2” should read “Black Fork Creek Tributary D-2”.
6. On the same page, in the same column, in the same table, in the same column, in the seventh entry “Tributary D-3” should read “Black Fork Creek Tributary D-3”.
7. On the same page, in the same section, in the same table, in the same column, in the eighth entry “Tributary D-4” should read “Black Fork Creek Tributary D-4”.
8. On the same page, in the same section, in the same table, in the same column, in the ninth entry “Tributary D-5” should read “Black Fork Creek Tributary D-5”.
9. On page 53085, in the same section, in the same table, in the same column, in the second entry “Tributary G-1” should read “Gilley Creek Tributary G-1”.
10. On the same page, in the same section, in the same table, in the same column, in the ninth entry “Tributary 11” should read “West Mud Creek Tributary 11”.
11. On the same page, in the same section, in the same table, in the same column, in the tenth entry “Tributary B” should read “West Mud Creek Tributary B”.
12. On the same page, in the same section, in the same table, in the same column, in the eleventh entry “Tributary M-1” should read “West Mud Creek Tributary M-1”.
13. On the same page, in the same section, in the same table, in the same column, in the twelfth entry “Tributary M-2” should read “West Mud Creek Tributary M-2”.
14. On the same page, in the same section, in the same table, in the same column, in the thirteenth entry “Tributary M-A” should read “West Mud Creek Tributary M-A”.
15. On the same page, in the same section, in the same table, in the same column, in the fourteenth entry “Tributary M-A.1” should read “West Mud Creek Tributary M-A.1”.
16. On the same page, in the same section, in the same table, in the same column, in the fifteenth entry “Tributary M-A.2” should read “West Mud Creek Tributary M-A.2”.
17. On the same page, in the same section, in the same table, in the same column, in the sixteenth entry “Tributary M-C” should read “West Mud Creek Tributary M-C”.
18. On the same page, in the same section, in the same table, in the same column, in the seventeenth entry “Tributary M-C.1” should read “West Mud Creek Tributary M-C.1”.
19. On the same page, in the same section, in the same table, in the same column, in the eighteenth entry “Tributary M-C.2” should read “West Mud Creek Tributary M-C.2”.
Federal Communications Commission.
Proposed rule; extension of comment period.
This document grants a motion requesting an extension of time to file comments in response to a draft programmatic environmental assessment (PEA) of the Antenna Structure Registration (ASR) program. The purpose of the PEA is to evaluate the potential environmental effects of the Commission's ASR program. Owners of structures that are taller than 200 feet above ground level or that may interfere with the flight path of a nearby airport must register those structures with the FCC.
Comments on the proposed rule published at 76 FR 54422, September 1, 2011, are now due on or before November 2, 2011.
You may submit comments, identified by WT Docket No. 08-61; WT Docket No. 03-187, by any of the following methods:
•
•
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
○ All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St., SW., Room TW-A325, Washington, DC 20554. All hand deliveries must be held together with
○ Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
○ U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
Aaron Goldschmidt, Wireless Telecommunications Bureau, (202) 418-7146, or e-mail
The FCC has established a Web site,
Defense Acquisition Regulations System, Department of Defense (DoD).
Proposed rule.
DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to clarify the requirements for the Canadian Commercial Corporation to submit data other than certified cost or pricing data.
Submit comments identified by DFARS Case 2011-D049, using any of the following methods:
○
○
○
○
Comments received generally will be posted without change to
Amy G. Williams, telephone 703-602-0328.
This proposed rule implements a recommendation of a bilateral integrated product team on cost or pricing data, including representatives from the U.S. Government and Canada.
With some exceptions, as provided at DFARS 225.870-1(c), the Canadian Commercial Corporation awards and administers DoD contracts with contractors located in Canada.
DoD has waived the requirement for the Canadian Commercial Corporation and its subcontractors to submit certified cost or pricing data (see DFARS 215.403-1(c)(4)(C)). However, the requirement to submit data other than certified cost or pricing data has not been waived for the Canadian Commercial Corporation and its subcontractors. The purpose of this rule is to clarify the requirement to submit data other than certified cost or pricing data.
Effective on October 1, 2010, the definitions in the Federal Acquisition Regulation (FAR) relating to cost or pricing data were revised (76 FR 53135, published August 30, 2010). The final rule under FAR Case 2005-036, FAC 2005-45, redefined “cost or pricing data” to mean all cost or pricing data and added a new term for “certified cost or pricing data.” Previously, the term “cost or pricing data” had been defined to mean only what is now defined as “certified cost or pricing data.” Throughout the FAR, the term “cost or pricing data” was generally replaced with the new term “certified cost or pricing data.” The same final rule also replaced the term “information other than cost or pricing data” with the new term “data other than certified cost or pricing data.” The new definition of these terms in the FAR is significant because the conforming changes to the DFARS, currently being processed under DFARS Case 2011-D040, Definition of Cost or Pricing Data, are not yet implemented. Therefore, this rule includes conforming changes to DFARS 215.4, in order to ensure that it is clear that only submission of certified cost or pricing data has been waived for the Canadian Commercial Corporation and its subcontractors.
FAR 15.402 and FAR 15.403-3 address requiring data other than certified cost or pricing data. FAR 15.402 emphasizes obtaining no more data than is necessary to establish a fair and reasonable price. Generally, no additional data is required from the offeror if the price is based on adequate price competition. FAR 15.402(a)(2)(ii)(A) and FAR 15.403-3(a)(1)(iv) both address the exceptions to obtaining data related to prices, i.e., FAR 15.403-1(b)(1) (prices based on adequate price competition) or FAR 15.403-1(b)(2) (prices set by law or regulation). None of these exceptions provides a general exception to the requirement to obtain data other than certified cost or pricing data based on a waiver of the requirement to provide certified cost or pricing data. In fact, FAR 15.403-3(a)(1)(ii) clearly states that in those acquisition that do not require certified cost or pricing data (e.g., when a waiver has been granted), the contracting officer shall obtain data other than certified cost or pricing data from the offeror to the extent necessary to determine a fair and reasonable price if the contracting officer determines that adequate data from sources other than the offeror are not available. FAR 15.403-3(a)(1)(v) recommends consideration of the guidance in section 3.3, chapter 3, volume I, of the Contract Pricing Reference Guide, available at
In order to facilitate requests for data other than certified cost or pricing data when contracting with the Canadian Commercial Corporation, this rule proposes a new provision, Requirement for Submission of Data Other Than Certified Cost or Pricing Data—Canadian Commercial Corporation, for use in appropriate solicitations with the Canadian Commercial Corporation, and a comparable clause, Requirement for Submission of Data Other Than Certified Cost or Pricing Data—Modifications—Canadian Commercial Corporation, to be included in contracts to cover modifications that may require submission of data other than certified cost or pricing data. This provision and clause are a tailored version of Alternate IV of—
• FAR 52.215-20, Requirements for Certified Cost or Pricing Data and Data Other than Certified Cost or Pricing Data; and
• FAR 52.215-21, Requirements for Certified Cost or Pricing Data and Data Other than Certified Cost or Pricing Data—Modification.
The provision and clause both require the following information:
• Profit rate or fee (as applicable).
• Analysis provided by Public Works and Government Services Canada to Canadian Commercial Corporation to determine a fair and reasonable price (comparable to the analysis required by FAR 15.404-1).
• Data other than certified cost or pricing data necessary to permit an adequate determination by the U.S. contracting officer that the proposed price is fair and reasonable. (The U.S. contracting officer must insert a description of the data required, in accordance with the guidance at 15.403-3(a)(1).)
The rule prescribes use of this provision and clause in solicitations and contracts for sole source acquisitions from the Canadian Commercial Corporation that are expected to result in cost-reimbursement contracts expected to exceed the simplified acquisition threshold or fixed-price contracts expected to exceed $500 million. The provision and clause may also be used in other solicitations and contracts if the head of the contracting activity, or designee no lower than one level above the contracting officer, determines that such data is needed in order to determine that the price is fair and reasonable (see FAR 15.403-3(a)(2)).
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
DoD does not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C 610 (DFARS Case 2011-D049), in correspondence.
The rule contains information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35); however, these changes to the DFARS do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 9000-0013, Cost or Pricing Data Requirements and Information Other Than Cost or Pricing Data.
Government procurement.
Therefore, 48 CFR parts 215, 225, and 252 are amended as follows:
1. The authority citation for 48 CFR parts 215, 225, and 252 continues to read as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
2. Amend section 215.403-1 by revising the heading and revising paragraph (c)(4)(C) to read as follows:
(c) ***
(4) ***
(C) DoD has waived the requirement for submission of certified cost or pricing data for the Canadian Commercial Corporation and its subcontractors (but see 215.408(3) and 225.870-4(d)).
3. Amend section 215.408 by adding paragraph (3) to read as follows:
(3) When contracting with the Canadian Commercial Corporation—
(i) Use the provision at 252.215-70XX, Requirement for Data Other Than Certified Cost or Pricing Data—
(A) In solicitations for sole source acquisitions that are—
(
(
(B) In other solicitations, if the head of the contracting activity, or designee
(ii) Use the clause at 252.215-70YY, Requirement for Data Other Than Certified Cost or Pricing Data—Modifications—Canadian Commercial Corporation—
(A) In solicitations and contracts for sole source acquisitions that are—
(
(
(B) In other solicitations and contracts, if the head of the contracting activity, or designee no lower than one level above the contracting officer, determines that it is reasonably certain that data other than certified cost or pricing data will be needed in order to determine that the price of modifications is fair and reasonable (see FAR 15.403-3(a)(2)).
4. Amend section 225.870-4 by redesignating paragraph (c) as paragraph (d) and adding new paragraph (c) to read as follows:
(c)
(2) The Canadian Commercial Corporation is not exempt from the requirement to submit data other than certified cost or pricing data, as defined in FAR 2.101. In accordance with FAR 15.403-3(a)(1)(ii), the contracting officer shall require submission of data other than certified cost or pricing data from the offeror, to the extent necessary to determine a fair and reasonable price.
(3) The contracting officer shall use the provision at 252.215-70XX, Requirement for Data Other Than Certified Cost or Pricing Data—Canadian Commercial Corporation, and the clause at 252.215-70YY, Requirement for Data Other Than Certified Cost or Pricing Data—Modifications—Canadian Commercial Corporation, as prescribed at 215.408(3)(i) and (ii), respectively.
(4) Except for contracts described in 225.870-1(c)(1) through (4), Canadian suppliers will provide required data other than certified cost or pricing data exclusively through the Canadian Commercial Corporation.
5. Add section 252.215-70XX to read as follows:
As prescribed at 215.408(3), use the following provision:
(a) Submission of certified cost or pricing data is not required.
(b) Canadian Commercial Corporation shall obtain and provide the following:
(1) Profit rate or fee (as applicable).
(2) Analysis provided by Public Works and Government Services Canada to the Canadian Commercial Corporation to determine a fair and reasonable price (comparable to the analysis required at FAR 15.404-1).
(3) Data other than certified cost or pricing data necessary to permit a determination by the U.S. Contracting Officer that the proposed price is fair and reasonable [
(End of provision)
6. Add section 252.215-70YY to read as follows:
As prescribed at 215.408(3), use the following clause:
(a) Submission of certified cost or pricing data is not required.
(b) Canadian Commercial Corporation shall obtain and provide the following:
(1) Profit rate or fee (as applicable).
(2) Analysis provided by Public Works and Government Services Canada to the Canadian Commercial Corporation to determine a fair and reasonable price (comparable to the analysis required at FAR 15.404-1).
(3) Data other than certified cost or pricing data necessary to permit a determination by the U.S. Contracting Officer that the proposed price is fair and reasonable [
(End of clause.)
Fish and Wildlife Service, Interior.
Notice of a 12-month petition finding.
We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list the Lake Sammamish kokanee,
The finding announced in this document was made on October 4, 2011.
This finding is available on the Internet at
Ken Berg, Manager, Project Leader, Washington Fish and Wildlife Office, U.S. Fish and Wildlife Service (see
Section 4(b)(3)(B) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531
On July 9, 2007, we received a petition from Trout Unlimited; the City of Issaquah, Washington; King County, Washington; People for Puget Sound; Save Lake Sammamish; the Snoqualmie Tribe; and the Wild Fish Conservancy requesting that all wild, indigenous, naturally spawned kokanee (
We received comments and information from the following individuals and organizations in response to the 90-day finding: King County Department of Natural Resources and Parks, James Mattila, Trout Unlimited, Snoqualmie Indian Tribe, Save Lake Sammamish, Friends of Pine Lake Creek, Washington Department of Fish and Wildlife, and Sno-King Watershed Council. We have fully considered the comments and information presented by these commentors in this finding. In addition, during our status assessment, we generally found that much more information was available on the status of sockeye populations, compared to kokanee populations at the rangewide scale, which may be related to the commercial importance of sockeye salmon. To evaluate whether the population of kokanee in Lake Sammamish qualifies as a listable entity under the Act, we must first determine if it satisfies the criteria for being a distinct population segment. Under the
All kokanee populations are evolutionarily derived from sockeye salmon. Sockeye salmon (anadromous
Taylor
Sockeye salmon are primarily anadromous, migrating to the Pacific Ocean following hatching and rearing in freshwater. Most populations are associated with a natal lake. They spend 2 to 3 years in marine waters before returning to freshwater environments to spawn and die. Some progeny within each sockeye population may remain in freshwater throughout their lifecycle and are called “residual sockeye” or “residuals” (Gustafson
Both kokanee and anadromous sockeye turn from silver to bright red during maturation, while the head is olive green and the fins are blackish red (Craig and Foote 2001, p. 381). Typically, resident or “residual sockeye” (progeny of anadromous sockeye that do not migrate to sea but are not kokanee) turn from silver to green (Foote
Sockeye occur in watersheds in the north Pacific from southern Kamchatka to Japan in the western Pacific, and from Alaska to the Columbia River in North America (Page and Burr 1991, p. 52; Taylor
Native populations of kokanee, each associated with a specific nursery lake, likely occurred historically over most of the range of sockeye salmon within the Columbia River to the Yukon River systems. Native kokanee populations are not widespread in Alaska (McGurk 2000, p. 1801) or Asia (McPhail 2007, p. 288). There are said to be well over 500 kokanee populations in British Columbia (B.C.) (McPhail 2007, p. 295). No native kokanee are known from the B.C. portion of the Yukon River (B.C. Ministry of Fisheries 1998, p. 17), and although introduction activities have spread kokanee throughout the province, only two natural populations are known from the Mackenzie River system (McPhail 2007, p. 289). Kokanee have been widely introduced across North America, including areas outside their larger geographic distribution and farther inland in States and provinces where they occur naturally (Scott and Crossman 1973, p. 167).
Lake Sammamish kokanee distribution (the petitioned entity): Lake Washington is the dominant feature of the greater Lake Washington/Lake Sammamish Basin and is fed by two major drainage systems. The Cedar River watershed at the south end of the lake, and the Sammamish River/Lake Sammamish watershed at the north end of the lake. Surface water discharge from Lake Sammamish is by way of the Sammamish River at the north end of the lake, which ultimately flows into Lake Washington. The four major tributaries that discharge into the Sammamish River are Swamp Creek, North Creek, Little Bear Creek, and Bear Creek. The major tributary to Lake Sammamish is Issaquah Creek, which enters at the south end of the lake and contributes approximately 70 percent of the inflow to the lake (Kerwin 2001, p. 425). Native kokanee historically spawned in tributaries located throughout Lake Washington and Lake Sammamish. Although the Sammamish River and Cedar River (Walsh Lake) drainages have been included within the current distribution of native kokanee in prior assessments (Gustafson
Although the major tributary to Lake Sammamish is Issaquah Creek, there are also several smaller tributaries to Lake Sammamish used for spawning by kokanee, including Ebright Creek, Pine Lake Creek, Laughing Jacobs Creek, and Lewis Creek (Berge and Higgins 2003, p. 5). Kokanee in the Sammamish River/Lake Sammamish watershed (referred to by the petitioners as the Lake Sammamish population) are separated into three groups: (1) Summer/early-run; (2) fall/middle-run; and, (3) winter/late-run, based on spawn timing and location (Berge and Higgins 2003, p. 3; Young
In the fall of 2009, approximately 35,000 eggs were harvested from mature kokanee collected from Lewis, Ebright, and Laughing Jacobs Creeks by teams from the Issaquah Creek salmon hatchery. The eggs were shipped to the Cedar River and Chambers Creek hatcheries in Washington State for development into fry, for use in supplementing the native kokanee population in Lake Sammamish. In March 2010, approximately 14,000 kokanee fry were released into Lewis, Ebright, and Laughing Jacobs Creeks; another release of 20,000 fry into the same creeks was done on April 14, 2010. The eventual success of these efforts remains to be determined (
Quinn 2005 (p. 319) indicated the estimated average annual abundance of sockeye salmon per region (catch and escapement of wild and hatchery fish) from 1981 to 2000 to be 83 million fish (Japan 0.0 million, Russia 10.0 million, Western Alaska 50.4 million, Central
Sockeye populations inhabiting the southern portions of their range are in decline, whereas those in the northerly regions are generally stable. In southwestern British Columbia, one-third of the sockeye spawning runs known since the early 1950s have been lost or have decreased to such low numbers that spawners are not consistently monitored (Ridell 1993,
Although Fraser River stocks as well as other West Coast sockeye salmon stocks had record returns in 2010 (Northwest Indian Fisheries Commission (NWIFC 2010, p. 1) (
(1) Large number of offspring resulting from the 6th largest spawning escapement since 1952 as a result of reduced fisheries in 2006;
(2) Favorable changes in coastal ocean conditions toward cool temperatures in early 2008 when sockeye that returned in 2010 were entering the ocean as juveniles; and
(3) the occurrence of a major volcanic eruption in Alaska's Aleutian Islands in 2008, which resulted in ash fertilizing the ocean and triggering an algal bloom that possibly enhanced forage value and availability (Simon Fraser University
The Snake River sockeye Evolutionarily Significant Unit (ESU) has remained at very low levels of only a few hundred fish, though there have been recent increases in the number of hatchery-reared fish returning to spawn. Data quality for the Ozette Lake sockeye ESU make differentiating between the number of hatchery and natural spawners difficult, but in either case the size of the population is small, though possibly growing. Both the Snake River and Ozette Lake ESUs were listed as endangered and threatened, respectively, under the Act by the National Marine Fisheries Service (now NOAA Fisheries (NOAAF) under their ESU policy (56 FR 58612; November 20, 1991), (
We are unaware of average annual abundance records for kokanee; however, there are said to be well over 500 kokanee populations in British Columbia (McPhail 2007, p. 295). No native kokanee are known from the B.C. portion of the Yukon River (B.C. Ministry of Fisheries 1998, p. 17), and although introduction activities have spread kokanee throughout the province, only two natural populations are known from the Mackenzie River system (McPhail 2007, p. 289). There are numerous introduced kokanee populations maintained through hatchery introductions to support recreational fisheries; kokanee have been widely introduced across North America, including areas outside their larger geographic distribution and farther inland in States and provinces where they occur naturally (Scott and Crossman 1973, p. 167).
Under a 1974 Memorandum of Understanding between the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (now NOAAF), NOAAF has Act authority over species that either reside the major portion of their lifetimes in marine waters or spend part of their lifetime in estuarine waters if the major portion of the remaining time is spent in marine waters. The FWS has Act authority over species that spend the major portion of their lifetimes on land or in fresh water, or that spent part of their lifetimes in estuarine waters if a major portion of the remaining time is spent on land or in fresh water (USFWS and NOAA, 1974).
In addition to the DPS policy, NOAAF applies the ESU policy (56 FR 58612; November 20, 1991), which was adopted prior to adoption of the U. S. Fish and Wildlife Service and National Marine Fisheries Service DPS Policy. The ESU policy considers a stock of Pacific salmon to be a distinct population and hence a “species” under the Act, if it represents an ESU of the biological species. A stock must satisfy two criteria to be considered an ESU: (1) It must be substantially reproductively isolated from other conspecific population units; and (2) It must represent an important component in the evolutionary legacy of the species. Under the ESU policy, the evolutionary legacy of a species is the genetic variability that is a product of past evolutionary events and which represents the reservoir upon which future evolutionary potential depends. This criteria would be met for purposes of the ESU policy if the population contributed substantially to the ecological/genetic diversity of the species as a whole (
NOAAF states that while conclusive evidence does not yet exist regarding the relationship of resident and anadromous forms of
NOAAF acknowledges the DPS policy takes a somewhat different approach from the ESU policy to identifying conservation units, which may result, in some cases, in the identification of different conservation units. Although the DPS and ESU policies are consistent, they will not necessarily result in the same delineation of DPSs under the Act. The statutory term “distinct population segment” is not used in the scientific literature and does not have a commonly understood meaning therein. NOAAF's ESU policy and the joint DPS policy apply somewhat different criteria, with the result that their application may lead to different outcomes in some cases. The ESU policy relies on “substantial reproductive isolation” to delineate a group of organisms, and emphasizes the consideration of genetic and other relevant information in evaluating the level of reproductive exchange among potential ESU components. The DPS policy does not rely on reproductive isolation to determine “discreteness,” but rather on the marked separation of the population segment from other populations of the same taxon as a consequence of biological factors (61 FR 4725; February 7, 1996). In addition, the DPS policy also considers the significance of the discrete population segment to the taxon to which it belongs, which may produce a different result than the important evolutionary legacy component considered by NOAAF under the ESU policy.
Section 3(16) of the Act defines “species” to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” Under the DPS policy, three elements are considered in the decision regarding the establishment and classification of a population of a vertebrate species as a possible DPS. These are applied similarly for additions to and removal from the Lists of Endangered and Threatened Wildlife and Plants. These elements are: (1) The discreteness of a population segment in relation to the remainder of the species to which it belongs; (2) the significance of the population segment to the species to which it belongs; and (3) the population segment's conservation status in relation to the Act's standards for listing, delisting, or reclassification. Our regulations provide further guidance for determining whether a particular taxon or population is a species for the purposes of the Act: “The Secretary shall rely on standard taxonomic distinctions and the biological expertise of the Department and the scientific community concerning the relevant taxonomic group” (50 CFR 424.11).
Kokanee are classified as
Under the DPS policy, a population segment of a vertebrate taxon may be considered discrete if it satisfies either of the following factors:
Patterns of genetic variation demonstrate that the sockeye and kokanee within lakes are usually more closely related to each other than they are to members of their form in other lakes (Foote
This factor is not applicable to the discreteness analysis for the Lake Sammamish kokanee population, as the petitioned
The kokanee population in Lake Sammamish has been determined to be discrete as a result of its marked separation from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. There are no international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of Section 4(a)(1)(D) of the Act. Accordingly, this discreteness criterion is not applicable to our evaluation.
Under the DPS policy, a determination as to whether the Lake Sammamish kokanee population is a listable entity under the Act must first consider its discreteness and significance with regard to the remainder of the taxon, which includes all other sockeye salmon and kokanee populations throughout the range of the biological species. If a population segment is considered discrete under one or more of the conditions listed in the Service's DPS policy, its biological and ecological significance is considered in light of Congressional guidance that the authority to list a DPS be used sparingly, while encouraging the conservation of genetic diversity. In carrying out this examination, we consider available scientific evidence of the population segment's importance to the taxon to which it belongs. This consideration may include, but is not limited to: (1) Its persistence in an ecological setting unusual or unique for the taxon; (2) evidence that its loss would result in a significant gap in the range of the taxon; (3) evidence that it is the only surviving natural occurrence of the taxon that may be more abundant elsewhere as an introduced population outside of its historical range; or (4) evidence that the discrete segment differs markedly from other populations of the species in its genetic characteristics (FR 61 4721; February 7, 1996). A population segment needs to satisfy only one of these criteria to be considered significant. Furthermore, since the list of criteria is not exhaustive, other criteria may be used if appropriate.
(A) The Lake Washington/Lake Sammamish Basin is a large, interconnected lake system containing two low-elevation mesotrophic lakes (Edmondson 1979, pp. 234-235; Welch
Although we were unable to find comprehensive information on limnology as it relates to lake systems occupied by
Although the presence of the petitioned entity in a mesotrophic lake appears to be atypical, we do not have information on the percentage or extent of mesotrophic lakes occupied by
In addition, NOAAF (1997, p. 20) states that
(B) The kokanee life form has historically been more abundant than the sockeye life form in Lake Sammamish, although a larger number of the sockeye life form would be expected because of the relatively easy access to marine waters. Reports in the literature are equivocal as to whether sockeye salmon were historically present in the Lake Sammamish basin prior to the construction of the Lake Washington Ship Canal, although kokanee were described as numerous (NOAA 1997, pp. 73-75). Hendry (1995)
As ancestral sockeye populations expanded to new river systems, those that could not access the marine environment on a regular basis evolved into the non anadromous kokanee form (Taylor
Comparing Lake Sammamish to other nearby water bodies, Lake Whatcom and Lake Ozette are geographically near marine waters and support native kokanee populations; however, there are differences. Lake Whatcom is oligotrophic (Matthews
Although the dominant presence of kokanee in a system where a greater abundance of the sockeye life form would be expected is notable, this does not necessarily lead to a conclusion that Lake Sammamish represents a unique or unusual ecological setting. Quinn (2005, pp. 10-11), states that all salmon are habitat generalists, and populations tend to be very productive (
Lake Sammamish kokanee represent 1 of 11 known native kokanee populations within the southern extent of their North American range, and currently, we believe the best available information identifies 9 extant native kokanee populations that occur in the coterminous United States (Lake Ozette, WA; Lake Sammamish, WA; Lake Whatcom, WA; Chilliwack Lake, WA; Chain Lake, WA; Osoyoos Lake, WA; Stanley Lake, ID; Redfish Lake, ID; and Alturas Lake, ID). The number of kokanee populations in other areas within the range of the taxon is less well known, but there are said to be well over 500 kokanee populations in British Columbia (McPhail 2007, p. 295) alone. At one time there were kokanee in Lake Washington as well as three different runs of kokanee in Lake Sammamish. All other native kokanee that inhabited the Lake Washington Basin are thought to be extinct, and the prevailing evidence indicates that only the winter/late-run kokanee in the Lake Sammamish Basin remain (Berge and Higgins 2003, p. 33; Jackson 2006, p. 1; Warheit and Bowman 2008, p. 3).
Since the taxon is widespread, there are 11 known populations of native kokanee in the coterminous United States within the historic range, and at least 500 kokanee populations in B.C., Lake Sammamish kokanee do not represent the only surviving natural occurrence of the taxon.
Relatively large genetic differences occur among the largest sockeye salmon stocks in northwestern, coastal Canadian, and southeastern parts of the species' range (Wood 1995, p. 197). Surveys of genetic variation throughout the range of
(A)
Even assuming that Lake Sammamish kokanee may be resistant to IHN, this does not mean disease resistance is unique to kokanee in the Lake Washington/Lake Sammamish system. We were unable to find any information on IHN presence in other lakes within the range of
(B) Multiple run spawning timings: Multiple run timings allow kokanee and other salmonid populations the ability to exploit a range of available habitats and reduce risks to extirpation (
On the basis of the best available information, we conclude that the Lake Sammamish kokanee population segment is discrete due to marked separation as a consequence of physical, ecological, physiological, or behavioral factors according to the 1996 DPS policy. However, on the basis of the four significance elements in the 1996 DPS policy, we conclude this discrete population segment is not significant to the remainder of the taxon and therefore, does not qualify as a DPS under our 1996 DPS policy. As such, we find the Lake Sammamish kokanee population is not a listable entity under the Act.
In making this finding, we considered information provided by the petitioners, as well as other information available to us concerning the Lake Sammamish kokanee population. We have carefully assessed the best scientific and commercial information available regarding the status and threats to the Lake Sammamish kokanee population. We reviewed the petition and unpublished scientific and commercial information. We also consulted with Federal and State land managers, and scientists having expertise with
On the basis of that review, we have determined that the Lake Sammamish kokanee does not meet the elements of our 1996 DPS policy as being a valid DPS. Consequently, we find the Lake Sammamish kokanee population is not a listable entity under the Act, and that listing is not warranted.
A complete list of all references cited is available at
The primary authors of this document are staff of Region 1, Pacific Region, U.S. Fish and Wildlife Service.
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of 12-month petition finding.
We, the U.S. Fish and Wildlife Service, announce a 12-month finding on a petition to list
The finding announced in this document was made on October 4, 2011.
This finding is available on the Internet at
Ms. Louise Clemency, Field Supervisor, Chicago, Illinois Ecological Services Field Office (see
Section 4(b)(3)(B) of the Act (16 U.S.C. 1531
On May 28, 2008, we received a petition dated May 22, 2008, from Dr. Douglas Goldman of the Harvard University Herbaria requesting that
Funding became available in fiscal year 2010, wherein work began on the 90-day finding. The 90-day finding was published on August 24, 2010 (75 FR 51969). This notice constitutes the 12-month finding on the May 22, 2008, petition to list
The number of species identified as belonging to the genus
Goldman (1995, p. 41) asserts that morphological and phenological variation of the genus
In addition to timing of flower emergence and a suite of morphological features differing from
The review of
For these reasons, we accept the characterization of
Goldman (2008a, pp. 2-3) states that there are 233 historical occurrences from 17 States (Table 2). A thorough review of the available information on the distribution of
The historical range suggested by Goldman (2008a, p. 6) includes the States of Florida and Georgia. Goldman (2008a, p. 6) describes one historical herbarium specimen of
Goldman (2008a, p. 6) states that one specimen of
There are no confirmed specimens from South Carolina for this species (Holling 2011, pers. comm.; Pittman 2011, pers. comm.); however, there is one specimen (probably over 200 years old) housed at the herbarium at the Royal Botanic Gardens, Kew, which is marked simply as “S.C.,” but without information on collector, locality, or date (Goldman 2010, pers. comm.). We do not include South Carolina in the current or historical range of
We do not have comprehensive survey information for
Goldman (2008a, p. 3) estimates 25 to 35 extant
Alabama has no extant occurrences of
Arkansas has 25 documented historical occurrences of
Illinois has seven historical specimens, which perhaps were originally misidentified as
There is one record of
There are no known extant populations of
Kansas has one historical record of
Mississippi has three known extant populations of
In Mississippi, the Clear Creek population includes two colonies, one of which was last surveyed in 1999, with a population estimate of 11 to 50 individual plants, and the other colony last surveyed in 2004, with a population estimate of 1 to 10 individuals (Wiggers 2011b, pers. comm.; 2011c, pers. comm.). The minimum population size of all Clear Creek colonies is 12 individuals (Wiggers 2011c, pers. comm.).
The Pearces Creek population in Mississippi consists of two colonies of
In Missouri, prior to describing
Oklahoma has 24 historical populations of
Tennessee acknowledges a single occurrence of
Texas has historical records of 12 to 13 specimens of
In Wisconsin, records indicate that
The Minnesota Department of Natural Resource's Rare Features Database contains no records for this species (Delphey 2009, pers. comm.).
Based on the information described above regarding locations of extant populations, we believe the current range of
The State Natural Heritage programs and NatureServe (NatureServe 2010c, p. 3) rank
This species is either not State ranked or is under review in the States of Iowa, Minnesota, and Missouri (NatureServe 2010c). In Missouri, the species is not tracked by the State; however, status surveys for
Based on the available information, as summarized above, we believe the historical range of
Goldman (2008a, pp. 4-5) describes the genus
Section 4 of the Act (16 U.S.C. 1533) and implementing regulations (50 CFR part 424) set forth procedures for adding species to, removing species from, or reclassifying species on the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, a species may be determined to be endangered or threatened based on any of the following five factors:
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
In making this finding, information pertaining to
In making our 12-month finding on the petition to list
Some habitats of
There are 41 extant sites supporting populations of
Of the 9 extant
One
Because the Conservation Plan manages for American burying beetle habitat, including prairie, its implementation also will benefit
Arkansas has seven additional
Illinois has two extant
In Mississippi, all three extant
Missouri has experienced declines in prairie habitat (less than 0.5 percent of original prairie acreage remains), possibly resulting in
Goldman (2008a, p. 8) believes Oklahoma had the greatest number of records of the species from the last 30 years; however, there are currently six extant sites of
Two other
The fifth
The destruction, modification, or curtailment of
In Texas, there is one extant population of
In Wisconsin,
The destruction and modification of
Of the 15 extant populations that may be threatened by destruction or modification of habitat, 14 populations occur on private land with no land protection status, and we have no information on the land protection status for one other population that occurs on land owned by the State of Oklahoma Department of Corrections. The 14 populations that occur on private land, and that are documented as having no land protection status, may be threatened by destruction or
Fourteen populations of
In Arkansas, poaching of
We have no other information regarding overutilization of this species for commercial, recreational, scientific, or educational purposes. Because poaching of plants is known to have occurred at only 1 extant
Disease and herbivory by insects, wildlife, or livestock was documented for
There are no Federal laws that specifically protect
The Illinois Endangered Species Protection Act requires State and municipal agencies taking actions that might affect State or federally listed species (including plants) to avoid, minimize, or mitigate impacts to the listed species (
In the State of Tennessee,
Despite the lack of regulatory mechanisms to protect
Goldman (2008a, pp. 4-5) describes
Species that are known from few, widely dispersed locations are inherently more vulnerable to extinction than widespread species because of the higher risks from genetic bottlenecks, random demographic fluctuations, and localized catastrophes such as long-term drought (Lande 1988, p. 1455; Pimm
Although changes in the environment may cause populations to fluctuate naturally, small and low-density populations are more likely to fluctuate below a minimum viable population (the minimum or threshold number of individuals needed in a population to persist in a viable state for a given interval) (Shaffer 1981, p. 131; Shaffer and Samson 1985, pp. 148-150; Gilpin and Soulé 1986, pp. 25-33). The problems associated with small population size and vulnerability to random demographic fluctuations or natural catastrophes are further magnified by synergistic interactions with other potential threats, such as those discussed above under Factor A. Despite evolutionary adaptations for rarity, habitat loss and degradation increase a species' vulnerability to extinction (Noss and Cooperrider 1994, pp. 58-62). Historically,
Our assessment of this species' status is complicated by the fact that we have limited information regarding population sizes of
Unique features of the species' biology increase its vulnerability to extirpation because it now exists in small, isolated populations. However, we have population density information only for some populations, and for some years, in three (Arkansas, Mississippi, and Oklahoma) of the seven States (Arkansas, Illinois, Mississippi, Missouri, Oklahoma, Texas, and Wisconsin) where
The Intergovernmental Panel on Climate Change (IPCC) was established in 1988 by the World Meteorological Organization and the United Nations Environment Program in response to growing concerns about climate change and, in particular, the effects of global warming. The IPCC Fourth Assessment Report (IPCC 2007, entire) synthesized the projections of the Coupled Model Intercomparison Project (CMIP) Phase 3, a coordinated large set of climate model runs performed at modeling centers worldwide using 22 global climate models (Ray
In instances for which a direct cause and effect relationship between global climate change and regional effects to a specific species has not been documented, we rely primarily on synthesis documents (
Regional landscapes also can be examined by downscaling global climate models. Global climate models can play an important role in characterizing the types of changes that may occur, so that the potential impacts on natural systems can be assessed (Shafer
Climate change is likely to affect the habitat of
Based on our evaluation, we find that
As required by the Act, we considered the five factors in assessing whether
The available information indicates that
Having determined that
Two recent district court decisions have addressed whether the significant portion of its range language allows the
Consistent with that interpretation, and for the purposes of this finding, we interpret the phrase “significant portion of its range” in the Act's definitions of “endangered species” and “threatened species” to provide an independent basis for listing; thus there are two situations (or factual bases) under which a species would qualify for listing: a species may be endangered or threatened throughout all of its range; or a species may be endangered or threatened in only a significant portion of its range. If a species is in danger of extinction throughout a significant portion of its range, it, the species, is an “endangered species.” The same analysis applies to “threatened species.” Therefore, the consequence of finding that a species is endangered or threatened in only a significant portion of its range is that the entire species shall be listed as endangered or threatened, respectively, and the Act's protections shall be applied across the species' entire range.
We conclude, for the purposes of this finding, that interpreting the significant portion of its range phrase as providing an independent basis for listing is the best interpretation of the Act because it is consistent with the purposes and the plain meaning of the key definitions of the Act; it does not conflict with established past agency practice (
Although there are potentially many ways to determine whether a portion of a species' range is “significant,” we conclude, for the purposes of this finding, that the significance of the portion of the range should be determined based on its biological contribution to the conservation of the species. For this reason, we describe the threshold for “significant” in terms of an increase in the risk of extinction for the species. We conclude that a biologically based definition of “significant” best conforms to the purposes of the Act, is consistent with judicial interpretations, and best ensures species' conservation. Thus, for the purposes of this finding, a portion of the range of a species is “significant” if its contribution to the viability of the species is so important that, without that portion, the species would be in danger of extinction.
We evaluate biological significance based on the principles of conservation biology using the concepts of redundancy, resiliency, and representation.
For the purposes of this finding, we determine if a portion's biological contribution is so important that the portion qualifies as “significant” by asking whether,
We recognize that this definition of “significant” establishes a threshold that is relatively high. On the one hand, given that the consequences of finding a species to be endangered or threatened in a significant portion of its range would be listing the species throughout its entire range, it is important to use a threshold for “significant” that is robust. It would not be meaningful or appropriate to establish a very low threshold whereby a portion of the range can be considered “significant” even if only a negligible increase in extinction risk would result from its loss. Because nearly any portion of a species' range can be said to contribute some increment to a species' viability, use of such a low threshold would require us to impose restrictions and expend conservation resources disproportionately to conservation benefit: listing would be rangewide, even if only a portion of the range of minor conservation importance to the species is imperiled. On the other hand, it would be inappropriate to establish a threshold for “significant” that is too high. This would be the case if the standard were, for example, that a portion of the range can be considered “significant” only if threats in that portion result in the entire species' being currently endangered or threatened. Such a high bar would not give the significant portion of its range phrase independent meaning, as the Ninth Circuit held in
The definition of “significant” used in this finding carefully balances these concerns. By setting a relatively high threshold, we minimize the degree to which restrictions will be imposed or resources expended that do not contribute substantially to species conservation. But we have not set the threshold so high that the phrase “in a significant portion of its range” loses independent meaning. Specifically, we have not set the threshold as high as it was under the interpretation presented by the Service in the
The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose to analyzing portions of the range that have no reasonable potential to be significant
In determining whether
We request that you submit any new information concerning the status of, or threats to,
A complete list of references cited is available on the Internet at
The primary author of this notice is a staff member of the Chicago, Illinois Ecological Services Field Office.
The authority for this section is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of 12-month petition finding.
We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list the Amargosa River population of the Mojave fringe-toed lizard (
The finding announced in the document was made on October 4, 2011.
This finding is available on the Internet at
Michael McCrary, Listing and Recovery Coordinator, U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office (see
Section 4(b)(3)(B) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531
We received a petition dated April 10, 2006, from the Center for Biological Diversity (CBD) and Ms. Sylvia Papadakos-Morafka requesting that the Amargosa River population of the Mojave fringe-toed lizard (
To ensure that this finding is based on the latest information and incorporates the opinions of the scientific community, the Service considered information provided by the public and additional information and data in our files that, combined, provided the basis for the status review for the Amargosa River population of the Mojave fringe-toed lizard.
The Mojave fringe-toed lizard is in the North American spiny lizard family (Phrynosomatidae). This medium-sized lizard, which may reach a snout-to-vent length of up to 4.5 inches (112 millimeters), is highly adapted to a sand-dwelling existence (Norris 1958, p. 253). As part of its adaptation to living in sand, the Mojave fringe-toed lizard's body and tail are dorsoventrally (top to bottom) compressed, which facilitates sand self-burial (Hollingsworth and Beaman 1999, p. 1). The hind feet have a series of elongated scales fringing the lateral edges of the third and fourth digits; these fringes widen the toes, giving the lizard additional support for locomotion on sand, and serve as “sand shoes.” The fringes also assist in the lizard's movements beneath the surface of the sand (Norris 1958, p. 253). Self-burial by fringe-toed lizards is presumed to be defensive; there is no evidence to suggest that self-burial is thermoregulatory or used for subsurface hunting as exhibited by other genera of sand lizards (Pough 1970, p. 153). Nasal valves restrict the entrance of sand into the lizard's nasal passages. The nasal passages are also specialized for desert living; they are convoluted and have absorbing surfaces that reduce moisture loss through the nasal openings (Stebbins 1944, p. 316). Other adaptations to a sand environment include smooth skin surface, a wedge-shaped head, and well-developed eye and ear flaps (Pough 1970, p. 145).
The Mojave fringe-toed lizard's smooth skin is patterned with small, black circles and flecks. Both sides of the belly have a conspicuous black spot, the underside of the tail has black bars, and both sides of the throat have crescent-shaped markings. The concealing coloration of fringe-toed lizards is striking and is one of the best examples of this phenomenon among North American vertebrates. Adults of the species have a yellow-green wash on the belly and pink on the sides during breeding periods, but during other times of year, the Mojave fringe-toed lizard's color mimics the sand dunes on which they dwell (Norris 1958, p. 253). The Mojave fringe-toed lizard is distinguished from other fringe-toed lizard species by the dark black spot on each side of the belly and the crescent-shaped markings present on the sides of the throat. The small black circles over the shoulders do not unite to form lines as they do in the very closely related species,
Mojave fringe-toed lizards are omnivorous throughout their lives. They primarily feed on insects but will also eat seeds and flowers (Stebbins 1944, p. 329). Annual plants provide forage during the springtime; however, their availability diminishes during the summer as vegetation dries up (Stebbins 1944, p. 329). Mojave fringe-toed lizards derive most of their water from arthropods and plants they ingest.
The Mojave fringe-toed lizard is diurnal (active during the day) and has daily activity patterns that are temperature-dependent. The actual ambient temperature range in which the
The Mojave fringe-toed lizard generally reaches sexual maturity during the second summer following hatching. Reproductive activity in both sexes varies from year-to-year and tends to increase with higher rainfall; winter rainfall (October to March) in particular seems to be the critical reason for the increased reproductive activity. The moisture promotes germination in sand-dwelling plants and production of leaves and flowers that provide nutrients, moisture, and protective cover to the lizards, and thus enhances reproductive activity (Mayhew 1966, pp. 119-120). Breeding coloration and increase in testis size indicate the male breeding period, which typically occurs between April and late June. Female breeding colors are displayed between April and September (Mayhew 1966, pp. 115-117). Ovarian egg counts also fluctuate in response to rainfall and food availability, with reduced egg counts and fewer juveniles following dry winters. There is also evidence to suggest that female lizards may have more than one brood per year (Mayhew 1966, p. 118).
The Mojave fringe-toed lizard is endemic to the deserts of southern California and a small area across the Colorado River in western Arizona. The Mojave fringe-toed lizard occurs in the lower Sonoran life zones of the Mojave Desert and the northwestern reaches of the Sonoran Desert characterized by palo verde (
On April 10, 2006, we received a petition to list the Amargosa River population of Mojave fringe-toed lizard as an endangered or threatened DPS under the Act. The petition defined the Amargosa River population as Mojave fringe-toed lizards occurring at Ibex Dunes, Dumont Dunes, and Coyote Holes (Figure 1). Subsequent to the submittal of the petition, and as part of the status review conducted for this finding, Mojave fringe-toed lizards were found in new locations for which there are no historical records of occurrence. Based on their proximity to the three petitioned dunes, several of the new locations are part of the Amargosa River population and, as hereafter described in this finding, the Amargosa River population includes the following newly discovered occupied dunes: Little Dumont Dunes, located about 3 miles (mi) (4.8 kilometers (km)) southwest of Dumont Dunes (Glenn 2008,
Additionally, new records of Mojave fringe-toed lizards have also expanded the areas known to be occupied at Ibex Dunes, Dumont Dunes, and Coyote Holes (Glenn 2008,
Dispersal of Mojave fringe-toed lizards between populations is poorly studied. No specimen of fringe-toed lizard has been captured more than approximately 150 feet (ft) (46 meters (m)) from wind-blown sand deposits (Norris 1958, p. 257). Norris believed that fringe-toed lizards are totally restricted to areas of wind-blown sand. For this reason, Mojave fringe-toed lizards, in the absence of intervening suitable habitat, have historically been considered to be restricted to active dunes, and in a few cases, sandy habitat associated with dry lakes and washes.
Mojave fringe-toed lizard phylogenetics have been studied by Murphy
Murphy
Gottscho (2010, pp. 9-18) also studied the relationships between different populations of Mojave fringe-toed lizards but based his analysis on nuclear DNA instead of on mitochondrial DNA. Nuclear DNA is inherited from both the female and male; thus each tissue sample had genetic information inherited from both the mother and father as opposed to mitochondrial DNA, which has genetic information inherited from the mother only. Gottscho conducted his DNA analysis on tissue samples collected from lizards at 20 major dune systems throughout the range of the species. Fifteen unlinked DNA sequences (or loci) from each tissue sample were analyzed to determine genetic divergence between population locations. Unlinked DNA sequences represent random segments of DNA that are not typically inherited together and thus represent independent samples of genetic variation across the entire genome. Based on the nuclear DNA sequences from the 15 loci, Gottscho developed 15 gene trees for the Mojave fringe-toed lizard, and none of these gene trees showed evidence of genetic divergence between the Amargosa River population and other Mojave fringed-toed lizard populations (Gottscho 2010, pp. 54-68). Gottscho (2010, p. 26) found that “No geographic structuring within
Section 3(16) of the Act defines “species” to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature” (16 U.S.C. 1532 (16)). Under the joint DPS
(1) The discreteness of a population in relation to the remainder of the species to which it belongs;
(2) The significance of the population segment to the species to which it belongs; and
(3) The population segment's conservation status in relation to the Act's standards for listing, delisting, or reclassification (
Under the DPS Policy, we must first determine whether the population qualifies as a DPS; this requires a finding that the population is both: (1) Discrete in relation to the remainder of the species to which it belongs; and (2) biologically and ecologically significant to the species to which it belongs. If the population meets the first two criteria under the DPS policy, we then proceed to the third element in the process, which is to evaluate the population segment's conservation status in relation to the Act's standards for listing as an endangered or threatened species. The DPS evaluation in this finding concerns the Amargosa River population as it has been defined herein.
Under the DPS Policy, a population segment of a vertebrate taxon may be considered discrete if it satisfies either one of the following conditions:
(1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation.
(2) It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act.
Under the first test of discreteness in our DPS policy, a population segment may be considered discrete if it is “markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation.” Although absolute separation is not required under our DPS Policy, the use of the term “markedly” in the Policy indicates that the separation must be strikingly noticeable or conspicuous.
As part of the status review associated with this finding, we have examined the Amargosa River population of Mojave fringed-toed lizard and expanded the definition of this population to include the newly discovered occupied dunes, as described above in the “Species Range, Habitat, and Dispersal” section. We have examined the Amargosa River population of the Mojave fringe-toed lizard to determine if it is markedly separated from other populations of the same taxon.
The important question with regard to discreteness under our DPS policy is whether or not the Amargosa River population is markedly separated from other populations of Mojave fringed-toed lizard. The Amargosa River population could be found to be markedly physically separated if the distance between any part of that population and any other population is greater than the distance the lizard is believed to be able to travel across areas without suitable habitat (
As noted above in the “Species Range, Habitat, and Dispersal” section, surveys conducted subsequent to the submittal of the petition show that there are more Mojave fringe-toed lizards in the Amargosa River area than was previously thought. New locations with documented Mojave fringe-toed lizards include Little Dumont Dunes, Valjean Dunes, the area between Dumont and Valjean dunes, and three unnamed dunes located between Valjean Dunes and Coyote Holes (Glenn 2008,
As also noted above in the “Species Range, Habitat, and Dispersal” section, there are other dunes and areas of suitable wind-blown sand that could allow for movement of lizards between populations. Two dry lakes, the larger Silurian Lake and a smaller, unnamed lake, lie between the Amargosa River population at Dumont Dune and the Mojave River drainage population at Silver Lake, all of which are connected by a dry streambed. In the past, Norris (1958, p. 263) personally observed this area covered in sand and occupied by Mojave fringe-toed lizards and specifically mentioned dunes at Silurian Lake being occupied. He noted migration between river drainages was allowed across low divides, such as the divide between the Mojave and the Amargosa Rivers when sand shadows (an accumulation of sand formed in the shelter of a fixed obstruction, such as clumps of vegetation) and blow-ups were present (Norris 1958, p. 316). Sand dunes are highly dynamic and continually moving, in some cases, moving several meters per year (Norris 1958, p. 262). This dune movement may have accounted for the species' movement and occupancy of the low divide between the Mojave and Amargosa River drainages, providing a corridor between populations (Norris 1958, p. 263). However, based on our review of aerial photos taken subsequent to Norris' observations, suitable dune habitat does not appear to currently exist around Silurian Lake. Gottscho (2010, p. 31) also noted that the low-divide area between the Mojave and Amargosa River drainages that Norris referred to in 1958 as being covered by sand and occupied by Mojave fringe-toed lizards does not appear to be covered by sand or occupied by Mojave fringe-toed lizards currently. Therefore, at the present time, the Amargosa River population appears to be physically isolated from other populations of Mojave fringed-toed lizards.
Thus, based on the best scientific and commercial information currently available, we believe that the 17 mi (27 km) of unsuitable habitat between the Amargosa River population and the next nearest area known to be currently occupied by the species is beyond the dispersal capability of the species, and we conclude that the Amargosa River population is markedly physically separated from other populations. Therefore, we have determined that the Amargosa River population of the
A population segment of a vertebrate species may be considered discrete if it is delimited by international governmental boundaries across which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act. The range of the Mojave fringe-toed lizard occurs solely within the continental United States and is not delimited by international governmental boundaries. Therefore, the Amargosa River population of Mojave fringe-toed lizard does not satisfy this condition.
We find that the Amargosa River population is markedly physically separated from other populations because of the limited dispersal capability of the Mojave fringe-toed lizard and the absence of intervening habitat that could provide for the regular movement of lizards between this population and other populations. Consequently, and based upon review of the best available information, the Service finds that the Amargosa River population meets the discreteness element of our DPS policy.
Because we have determined that the Amargosa River population of Mojave fringe-toed lizard is discrete under our DPS policy, we will next consider its biological and ecological significance to the taxon to which it belongs in light of Congressional guidance that the authority to list DPSs be used “sparingly” while encouraging the conservation of genetic diversity. To evaluate whether a discrete vertebrate population may be significant to the taxon to which it belongs, we consider available scientific evidence of the population segment's importance to the taxon to which it belongs. Because precise circumstances are likely to vary considerably from case to case, the DPS policy does not describe all the classes of information that might be used in determining the biological and ecological importance of a discrete population. However, the DPS policy describes four possible classes of information that provide evidence of a population segment's biological and ecological importance to the taxon to which it belongs. As specified in the DPS policy (61 FR 4722), this consideration of the population segment's significance may include, but is not limited to the following:
(1) Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon,
(2) Evidence that loss of the discrete population segment would result in a significant gap in the range of a taxon,
(3) Evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range, or
(4) Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics.
A population segment needs to satisfy only one of these criteria to be considered significant. Furthermore, the list of criteria is not exhaustive; other criteria may be used as appropriate. Here we evaluate the four potential factors suggested by our DPS policy in evaluating significance.
Available information does not indicate that differences exist in the ecological setting between the Amargosa River population and other populations within the species' range. The habitat occupied by the Amargosa River population is wind-blown sand, which is typical of other populations of Mojave fringed-toed lizard. There is no difference in climate or other physical or biological factors between the Amargosa River population and the Silver Lake population, which is located 17 mi (27 km) to the south but is part of the Mojave River drainage population. There is no available information that would suggest the existence of any morphological, behavioral, or physiological differences between individuals from the Amargosa River population and individuals from other Mojave fringed-toed lizard populations. We therefore determine that the Amargosa River population of the Mojave fringe-toed lizard does not meet the significance element of the DPS policy based on this factor.
We estimate that the areas covered by wind-blown sand habitat at Ibex and Dumont dunes and Coyote Holes, along with the newly discovered areas that constitute the Amargosa River population as defined herein, make up less than 5 percent of the total wind-blown sand habitat occupied by the species (73 FR 1855; January 10, 2008). The Amargosa River population is the most northerly population of the species, and as such, the loss of the Amargosa River population would not result in the isolation of any other populations to the south.
The Amargosa River population is a peripheral population, and peripheral populations can be important in species conservation if they are genetically divergent from populations in the central portion of the species' range (Lesica and Allendorf 1995, pp. 753-760; Lomolino and Channell 1998, pp. 481-484; Fraser 2000, pp. 49-53). Peripheral populations that are spatially distant from central populations may be exposed to different environmental conditions and thus different natural selection forces, which in some populations may result in unique adaptations that may be important for the species in adapting to future environmental changes. However, as discussed above, habitat and climate in the area occupied by the Amargosa River population are similar to environmental conditions elsewhere in the species' range. If different natural selection pressures were acting on the Amargosa River population, differences in morphological, behavioral, or physiological characteristics might be expected between Amargosa River Mojave fringed-toed lizards and Mojave fringed-toed lizards in other populations to the south, but there is no available evidence of such differences. Evidence of genetic differences is discussed below.
We conclude that the loss of the Amargosa River population would not result in a significant gap in the range of the species because the population represents only a small percentage (less than 5 percent) of the species' range, and potential loss of the population would not result in the isolation of any other Mojave fringed-toed lizard populations. Peripheral populations can have conservation value, but available evidence does not indicate that individuals from the Amargosa River population have unique morphological, behavioral, or physiological adaptations that may be significant to the species' conservation.
The Amargosa River population is not the only surviving natural occurrence of the species. Mojave fringe-toed lizards are known to occur at more than 35 sand dune complexes in California, and one in Arizona, all of which are naturally occurring within the species'
Two studies have compared genetic characteristics between the Amargosa River population and other Mojave fringed-toed lizard populations (see “Genetics” section). One study, based on analysis of mitochondrial DNA, found that individuals from the Amargosa River population possessed unique haplotypes and differed genetically from other Mojave fringed-toed lizard populations (Murphy
Different patterns of genetic variation between mitochondrial and nuclear DNA analyses are not uncommon (Moore 1995, pp. 718-726; Avise 2004, pp. 273-276, 372-380; Ballard and Whitlock 2004, pp. 729-744; Bazin
One of the implications of the differences between mitochondrial and nuclear DNA is that genetic drift will cause divergence between isolated populations to occur more slowly at nuclear gene loci than at mitochondrial gene loci (Hare 2001, pp. 701-702; Zink and Barrowclough 2008, p. 2109). Genetic drift is change in the frequency of a gene variant, or allele, within a population due to random sampling. Zink and Barrowclough (2008, pp. 2107-2121) concluded that mitochondrial DNA is more likely than nuclear DNA to reveal more recent evolutionary splits and that nuclear markers are more lagging indicators of changes in population structure.
Another implication of the differences between mitochondrial and nuclear DNA is that mitochondrial DNA is a single molecule with a single specific history that, for various reasons, can differ from the true evolutionary history of the species or population (Ballard and Whitlock 2004, p. 734). For example, because mitochondrial DNA is inherited only from the mother, mitochondrial DNA patterns might be a biased portrayal of the overall lineage history of the species if the species exhibits different dispersal patterns between males and females (Avis 2004, pp. 274-277; Zink and Barrowclough 2008, p. 2108). Indeed, sex-biased dispersal is known to occur in various lizard species (Doughty
Gottscho (2010, pp. 21-68) found zero percent genetic divergence between the Amargosa population and other Mojave fringed-toed lizard populations at 15 independent nuclear loci. He concluded that lack of genetic divergence is best explained by past gene flow between Mojave fringed-toed lizard populations (Gottscho 2010, pp. 26-34). He noted that the lack of a single fixed difference between the Amargosa River population and Mojave River population was not unexpected given that the Mojave River overflows into the Amargosa River when its current terminus at Silver Lake reaches capacity, and no mountains exist that might have impeded the movement of sand dunes and lizards between these drainages in historical times (Gottscho 2010, p. 26). Gottscho (2010, pp. 32-33) noted that although sand dune complexes may seem isolated today, in geologic time (evolutionary time) they have moved across the landscape regularly with changing climate.
We conclude that the results of Murphy
Based on the best information available, we do not find that the Amargosa River population occurs in a unique ecological setting because the population occurs in an ecological setting similar to other nearby populations. Climate and habitat within the Amargosa River population area are similar to climate and habitat in nearby population areas within the Mojave River drainage. We also do not find that the loss of the Amargosa River population would result in a significant gap in the range of the species because the loss of the population would not result in the isolation of other Mojave fringed-toed lizard populations, and the Amargosa River population makes up only a small percentage (less than 5 percent) of the entire range of the species. The Amargosa River population is not the only surviving natural occurrence of the taxon, as all known areas currently occupied by the species (see Figure 1) are naturally occurring populations within the historical range of the species. We also find that the Amargosa River population does not differ markedly from other Mojave fringed-toed lizard populations in its genetic characteristics. One study found evidence of certain genetic differences between the Amargosa River population and other Mojave fringed-toed lizard populations (Murphy
Overall, based on our review of the factors for significance as summarized herein, we find that the Amargosa River population of the Mojave fringe-toed lizard does not satisfy the considerations of the DPS policy for being significant in relation to the remainder of the taxon.
Based on the best scientific and commercial data available, we find that the Amargosa River population of Mojave fringed-toed lizard meets the discreteness element of our 1996 DPS policy, but not the significance element. To qualify as a DPS under the Services' 1996 DPS policy, a population must meet both the discreteness and significance elements of the policy. Therefore, the Amargosa River population does not qualify as a DPS under our DPS policy and is not a listable entity under the Act. Because the population does not qualify as a DPS, we will not proceed with an evaluation of the status of the population under the Act.
We have carefully assessed the best scientific and commercial information available for the Amargosa River population of the Mojave fringe-toed lizard, including information in the petition, and available published and unpublished scientific and commercial information. This 12-month finding reflects and incorporates information that we received from the public and interested parties or that we obtained through consultation, literature research, and field visits.
On the basis of this review, we have determined that the Amargosa River population of Mojave fringe-toed lizard, although discrete according to our DPS policy, does not meet the significance element of our 1996 DPS policy. The best available scientific and commercial information does not indicate that the Amargosa River population occurs in an ecological setting unusual or unique for the taxon; climate and habitat in the Amargosa River population area are similar to climate and habitat of nearby populations, and we are not aware of differences in behavior, physiology, or morphology between lizards in the Amargosa River population and nearby populations. The best available information also does not indicate that loss of the Amargosa River population would result in a significant gap in the range of the species; loss of the population would not result in the isolation of other Mojave fringed-toed lizard populations; and the population area makes up only a small portion of the entire species' range. The Amargosa River population does not represent the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range. Although an analysis of mitochondrial DNA showed genetic differences between individuals in the Amargosa River population and individuals in other Mojave fringed-toed lizard populations (Murphy
We have determined that the Amargosa River population, while markedly separated from other existing populations of Mojave fringe-toed lizard and thus discrete, does not meet the significance element of our 1996 DPS policy and, therefore, does not qualify as a DPS and is not a listable entity under the Act. Therefore, we find that the petitioned action to list the Amargosa River population of Mojave fringe-toed lizard as an endangered or threatened species under the Act is not warranted.
We request that you submit any new information concerning the status of, or threats to, this species to our Ventura Fish and Wildlife Office (see
A complete list of all references cited in this document is available on the Internet at
The primary authors of this notice are the staff members of the Ventura Fish and Wildlife Office (see
The authority for this action is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Proposed rule; revision and reopening of the comment period.
We, the U.S. Fish and Wildlife Service, announce the reopening of the October 28, 2010, public comment period on the proposed designation of critical habitat and proposed endangered status for the spikedace
•
•
Steve Spangle, Field Supervisor, U.S. Fish and Wildlife Service, Arizona Ecological Services Office, 2321 W. Royal Palm Road, Suite 103, Phoenix, AZ 85021; telephone (602) 242-0210; facsimile (602) 242-2513. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at (800) 877-8339.
We will accept written comments and information during this reopened comment period on our proposed uplisting and designation of critical habitat for the spikedace and loach minnow that was published in the
(1) The factors that are the basis for making a listing determination for a species under section 4(a) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531
(2) Additional information concerning the range, distribution, and population size of this species, including the locations of any additional populations of this species.
(3) Any information on the biological or ecological requirements of the species.
(4) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531
(5) Specific information on:
(a) The amount and distribution of spikedace and loach minnow habitat;
(b) What areas occupied at the time of listing and containing features essential to the conservation of the species should be included in the designation and why;
(c) Special management considerations or protections that features essential to the conservation of spikedace and loach minnow, as identified in this proposal, may require, including managing for the potential effects of climate change; and
(d) What areas not occupied at the time of listing are essential for the conservation of the species and why.
(6) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
(7) Any probable economic, national security, or other impacts of designating any area that may be included in the final designation. We are particularly interested in any impacts on small entities or families, and the benefits of including or excluding areas that exhibit these impacts.
(8) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.
(9) Information on whether the benefit of an exclusion of any particular area outweighs the benefit of inclusion under section 4(b)(2) of the Act. We specifically solicit the delivery of spikedace- and loach minnow-specific management plans for areas included in this proposed designation. Management plans considered in previous critical habitat exclusions for spikedace and loach minnow are available through the contact information listed in
(10) Information on the projected and reasonably likely impacts of climate change on spikedace and loach minnow and on the critical habitat areas we are proposing.
If you submitted comments or information on the proposed rule (75 FR 66482) during the initial comment period from October 28, 2010, to December 27, 2010, please do not resubmit them. We will incorporate them into the public record as part of this comment period, and we will fully consider them in the preparation of our final determination. Our final determination concerning critical habitat will take into consideration all written comments and any additional information we receive during both comment periods. On the basis of public comments, we may, during the development of our final determination, find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.
You may submit your comments and materials concerning the proposed rule, DEA, or draft environmental assessment by one of the methods listed in
If you submit a comment via
Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule, DEA, and draft environmental assessment will be available for public inspection on
It is our intent to discuss only those topics directly relevant to the designation of critical habitat for the spikedace and loach minnow in this document. For more information on previous Federal actions concerning the spikedace and loach minnow, refer to the proposed designation of critical habitat published in the
On December 20, 2005, we published a proposed critical habitat designation (70 FR 75546), and on March 21, 2007, we published a final critical habitat designation (72 FR 13356) for the spikedace and loach minnow. The 2007 designation was challenged in
On October 28, 2010, we published a proposed rule to designate critical habitat for the spikedace and loach minnow (75 FR 66482). We proposed 1,168 kilometers (km) (726 miles (mi)) of streams as critical habitat for spikedace, and 1,172.4 km (728.5 mi) of streams as critical habitat for loach minnow. Of this total mileage, 874 km (543 mi) of streams are overlapping (
We are notifying the public of several changes made to the proposed listing rule. First, in the proposed rule, we defined occupied areas as those streams for which we have species records up to 1986, when they were first listed (51 FR 39468, October 28, 1986, for loach minnow; and 51 FR 23769, July 1, 1986, for spikedace), as well as areas determined to be occupied since listing. To improve clarity, we are revising the
Second, we would like to provide clarification regarding the criteria that we used to identify critical habitat in our proposed rule. We based our criteria, in part, on a preliminary assessment of steps necessary to achieve recovery of spikedace and loach minnow. We refer to these criteria as a ruleset and the elements are described in the “Criteria Used to Identify Critical Habitat” section of the proposed rule (October 28, 2010, 75 FR 66482). One of the criteria used evaluates the potential of a stream segment to “connect to other occupied areas, which will enhance genetic exchange between populations.” In the proposed rule, we identified the following three segments under this criterion: Granite Creek in the Verde River Subbasin for both species; and Deer Creek and Turkey Creek for loach minnow in the San Pedro Subbasin. After additional review, we conclude that these three segments do not connect to other occupied areas, and there are no other unoccupied stream segments in the proposed rule that connect occupied habitats. At this time, we are unable to identify other areas that could serve as connective corridors between occupied and unoccupied habitat. Therefore, we are removing this criterion as an element of the rule set. The removal of this criterion does not alter the proposed rule or the amount of critical habitat being proposed, except for the revision within unit 6, as the areas proposed meet one or more of the remaining criteria outlined in the ruleset.
We acknowledge the absence of connective corridors in the proposed designation. We continue to believe that both loach minnow and spikedace conservation will require genetic exchange between the remaining populations to allow for genetic variation, which is important for species' fitness and adaptive capability. Our inability to identify unoccupied streams that would provide connections between occupied areas is a result of the highly degraded condition of unoccupied habitat and the uncertainty of stream corridor restoration potential. We also acknowledge that other areas, outside of the critical habitat designation, may be necessary for long-term conservation. These areas will be subject to future on-the-ground recovery actions and opportunities under section 7(a)(1) of the Act. Furthermore, we will address the issue of restoration of genetic exchange in our revised Recovery Plan.
Third, we would like to correct an error we made in the October 28, 2010, proposed rule. The error is within Unit 6 (San Francisco River Subbasin), and applies to the amount of stream miles designated as critical habitat for loach minnow on the San Francisco River. On pp. 66515, 66533 (legal description), and 66534 (map), we state that 181.0 km (112.3 mi) of the San Francisco River, from the confluence with the Gila River in Greenlee County, Arizona, upstream to the confluence with the Tularosa River in Catron County, New Mexico, is included in the designation. We intended to use the same area described in the 2007 final rule (72 FR 13356); that is, 203.5 km (126.5 mi) of the San Francisco River, from the confluence with the Gila River upstream to the mouth of the Box, a canyon above the town of Reserve in Catron County, New Mexico. This will add 22.8 km (14.2 mi) to the current designation for loach minnow. The total amount of designated habitat for loach minnow is 1,164 km (723 mi), rather than the 1,141 km (709 mi) referred to in the October 28, 2010, proposed rule. The unit descriptions, legal description, and map will be corrected in the final rule. The stream miles (181.0 km (112.3)) of the San Francisco River designated for spikedace will remain the same.
Fourth, we are going to propose an additional stream segment in New Mexico for loach minnow. In our October 28, 2010, proposed rule, Bear Creek in Grant County, New Mexico, was not included in the proposed critical habitat designation. Although we had records of loach minnow occurrence in Bear Creek in 2005, we concluded that most of the stream was intermittent and that loach minnow were not likely to persist there over time. We also concluded that the loach minnow in Bear Creek likely moved upstream during a period of high flow when Bear Creek was temporarily connected to the Gila River where loach minnow are known to persist. After the receipt of agency and public comments and our internal review, we have also been made aware of loach minnow records in Bear Creek from 2006. Bear Creek would be categorized as a 1a stream under the ruleset found in the proposed rule because of the records of loach minnow from 2005 and 2006. Given the presence of loach minnow in the upper portion of Bear Creek, in this revised proposed rule in unit 8, we propose to include 31.4 km (19.5 mi) of Bear Creek from the confluence with the Gila River upstream to the confluence with Sycamore and North Fork Walnut creeks. We recognize that portions of this stream are intermittent, but also acknowledge that streams with intermittent flows can function as connective corridors through which the species may move when the area is wetted. We will continue to solicit additional information on this stream segment during the open comment period to aid us in making a determination of the suitability of including this stream in the final rule.
We have a final clarification on the language used in our proposed rule. Under the Act and its implementing regulations, we are required to identify the physical and biological features (PBFs) essential to the conservation of spikedace and loach minnow in areas occupied at the time of listing, focusing on the features' primary constituent elements (PCEs). We consider PCEs to be the elements of physical and biological features that, when laid out in the appropriate quantity and spatial arrangement to provide for a species' life-history processes, are essential to the conservation of the species. We outline the appropriate quantities and spatial arrangements of the elements in the
Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of
Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.
When considering the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus (activities conducted, funded, permitted, or authorized by Federal agencies), the educational benefits of mapping areas containing essential features that aid in the recovery of the listed species, and any benefits that may result from designation due to State or Federal laws that may apply to critical habitat.
When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan.
The final decision on whether to exclude any areas will be based on the best scientific data available at the time of the final designation, including information obtained during the comment period and information about the economic impact of designation. Accordingly, we have prepared a draft economic analysis (DEA) concerning the proposed critical habitat designation, which is available for review and comment (see
To consider the economic impacts “of specifying any particular area as critical habitat,” as section 4(b)(2) of the Act requires, the Service must first identify the probable economic impacts that stem from a designation (50 CFR 424.19). We have interpreted “probable economic impacts” to be those potential impacts that are reasonably likely to occur as a result of the critical habitat designation. The identification of the probable incremental effects of a critical habitat designation involves comparing the economic and other relevant impacts that would be present without the designation of a particular area as critical habitat with what would be expected if the particular area is included in the designation—in other words, a comparison of the world with and without critical habitat. A key aspect of this comparison requires identifying, at a general level, the additional protections for species (
The Service traditionally understood the first sentence of section 4(b)(2) of the Act to require consideration of only those impacts that are solely attributable to—that would not occur “but for”—the proposed critical habitat designation. Under this approach, known as the “incremental effects analysis” (otherwise referred to by the courts as the “baseline approach”), the Service isolates the probable impacts that would result solely from the designation (incremental effects) from those that stem also from other causes, such as the underlying listing determination or other conservation measures being implemented for the species and its habitat (baseline effects). Once identified, the resulting incremental effects of the designation are then used in the balancing analysis, if one is conducted, under the second sentence of section 4(b)(2) for evaluating the benefits of including a particular area in, or excluding it from, critical habitat, and for evaluating compliance with the required determinations.
However, the application of this relatively straightforward paradigm had become problematic by the late 1990s, in light of our interpretations and practices that had the effect of minimizing the role of critical habitat in safeguarding species' recovery. This stemmed in part from the Service's and National Marine Fisheries Service's 1986 joint regulations implementing the interagency consultation provisions of section 7 of the Act (50 CFR 402). Those regulations govern the assessment of Federal actions that may have adverse impacts on listed species or their critical habitat. They interpret and implement the statute's prohibitions against actions that are likely to jeopardize the continued existence of listed species or result in destruction or adverse modification of critical habitat. However, two key definitions (“jeopardize the continued existence of” and “destruction or adverse modification”) had been defined in a similar manner in that they each evaluated impacts on both survival and recovery of a species.
Moreover, our general practice had been to infrequently designate critical habitat in areas where the species was not currently present; because consultation under the jeopardy standard can occur wherever the species is present, this limited the circumstances in which a consultation under the adverse-modification standard would take place without a concomitant consultation under the jeopardy standard. Because the section 7 prohibition against Federal agency actions that may result in “destruction or adverse modification” is the most significant and direct protection afforded by a critical habitat designation, equating the two standards while making them occur in conjunction with each other made it practically impossible to distinguish the protections stemming from critical habitat (
As a result, case law significantly influenced the Service's methodology for evaluating the probable economic effects of a critical habitat designation. In 2001, the United States Court of Appeals for the Tenth Circuit held that, in light of the narrow role reserved for critical habitat under the regulations and the Service's view at the time, the Service was legally precluded from relying on the incremental-effects approach.
To satisfy section 4(b)(2) of the Act in light of the then-current regulations, the court ruled that the Service must consider all impacts that stem in any way from the proposed critical habitat designation, even if they are also partially caused (or, caused “coextensively”) by listing. In other words, even if there was no “but for” economic impact as a result of critical habitat designation, the Service was still required to consider the coextensive economic impacts. The court did not define “coextensive” economic analysis; however, the Services interpreted “coextensive” to be the sum of anticipated baseline and incremental economic impacts. As a consequence, following the
Meanwhile, other courts began to conclude that the definition of “destruction or adverse modification” in the 1986 regulations did not adequately fulfill the statute's conservation purpose. In fact, the Ninth Circuit in
Similarly, in 2010, the Ninth Circuit concluded that the faulty underlying premises that led to the invalidation of the incremental effects (baseline approach) in 2001 no longer applied, and that our consideration of “but for” impacts in the increment above the baseline is permissible under the Act (
In 2008, the Solicitor for the Department of the Interior drafted a Memorandum Opinion summarizing case law on the Secretary's authority to exclude areas from a critical habitat designation under section 4(b)(2) of the Act, including the appropriate use of economic analyses in critical habitat determinations. [Department of the Interior Solicitor Memorandum, October 3, 2008, The Secretary's Authority to Exclude Areas from a Critical Habitat Designation under Section 4(b)(2) of the Endangered Species Act (Opinion M-37016)] In this opinion, the Solicitor concluded that—
Consistent with recent case law and the 2008 Solicitors Memorandum Opinion, the Service concludes that the appropriate analysis to consider economic impacts of a critical habitat designation is to limit the evaluation of the probable economic effects to those that are incremental to, or result solely from, the designation itself. The Service also believes that the use of an incremental-effects analysis is sufficient to fulfill the requirement under section 4(b)(2) of the Act. However, given that we do not have a new definition of “destruction or adverse modification,” there may be certain circumstances where we may want to evaluate impacts beyond those that are solely incremental. Such is the case with spikedace and loach minnow, where we have extensive case law and determinations of effects that suggest we evaluate not only incremental effects, but also coextensive effects. While we think that the incremental effects approach is appropriate and meets the intent of the Act, we have taken a conservative approach in this instance to ensure that we are fully evaluating the probable effects of this designation.
The Service attempted to clarify the difference between the jeopardy and adverse modification standards for the spikedace and loach minnow critical habitat in our Incremental Effects Memorandum. This memorandum outlined typical conservation actions, project modifications, and minimization measures that would be requested by the Service to meet the “not likely to destroy or adversely modify” standard, above what would be requested to avoid jeopardy to the species. This evaluation of the incremental effects as outlined in the Incremental Effects Memorandum has been used as the basis to develop the draft economic analysis of this proposed designation of critical habitat.
The purpose of the draft economic analysis is to identify and analyze the probable incremental economic impacts associated with the proposed critical habitat designation for the spikedace and loach minnow. The analysis focuses on quantification of the incremental costs of this rulemaking, but provides information on expected costs of conservation efforts expected to occur under the regulatory baseline as context. The “incremental” economic impacts are those not expected to occur absent the designation of critical habitat for the spikedace and loach minnow. For a further description of the methodology of the analysis, see Chapter 2, “Framework for Analysis,” of the draft economic analysis.
The draft economic analysis provides estimated costs of the reasonably probable incremental economic impacts of the proposed critical habitat designation for the spikedace and loach minnow over the next 20 years, which was determined to be the appropriate period for analysis because limited planning information is available for
(1)
(2)
(3)
(4)
(5)
(6)
(7)
The draft economic analysis also describes various concerns expressed by Arizona Tribes concerning possible restrictions on their water rights or water management, but does not quantify potential tribal impacts, except additional administrative costs.
Total incremental impacts for all of the above activities are estimated to be $2.29 to $47.2 million over 20 years ($202,000 to $4.16 million annually) using a real rate of seven percent. However, as discussed above, we are taking a more conservative approach in that we are also evaluating coextensive effects (the sum of baseline and incremental effects). Coextensive effects are estimated to be $75.29 to $169.2 million over 20 years ($6.602 to $15.16 million annualized) using a real rate of seven percent. Quantified baseline costs are primarily associated with:
(1) Water conservation and protection measures that are currently ongoing at Fort Huachuca related to the San Pedro River unit ($4.4 million, annualized at a seven percent discount rate). Many of these actions have been undertaken at the Fort to be protective of the Huachuca water umbel, but are expected to provide baseline protections to the spikedace and loach minnow.
(2) $0.1 million to $2.6 million (annualized at a seven percent discount rate) related to grazing-related conservation efforts, including riparian fencing construction and maintenance.
(3) $1.7 to $3.0 million (annualized at a seven percent discount rate) in other species management efforts, including activities undertaken by the U.S. Bureau of Reclamation, the Arizona Game and Fish Department, and the New Mexico Department of Game and Fish.
As we stated earlier, we are soliciting data and comments from the public on the draft economic analysis, as well as all aspects of the proposed rule and our amended required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.
The purpose of this draft EA, prepared pursuant to the National Environmental Policy Act (NEPA), is to identify and disclose the environmental consequences resulting from the proposed action of designating critical habitat for the spikedace and loach minnow. In the draft EA, three alternatives are evaluated: Alternative A, the proposed rule with exclusion areas; Alternative B, proposed rule without exclusion areas; and the no action alternative. Under Alternative A, critical habitat segments flowing through tribal and other lands could potentially be excluded in the final rule based on economic impact, national security, or other relevant impacts. The potential exclusion areas discussed in the proposed rule include stream segments that flow through Yavapai-Apache, White Mountain Apache, and San Carlos tribal lands and through lands owned by Freeport-McMoRan. Alternative B is the current proposal, and the no action alternative is equivalent to the 2007 final rule designating critical habitat for spikedace and loach minnow. The no action alternative is required by NEPA for comparison to the other alternatives analyzed in the draft EA.
As we stated earlier, we are soliciting data and comments from the public on the draft EA, as well as all aspects of the proposed rule. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the comment period on the environmental consequences resulting from our designation of critical habitat.
In our proposed rule, we indicated that we would defer our determination of compliance with several statutes and executive orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders became available in the DEA and the draft environmental assessment. We have now made use of the DEA data to make these initial determinations. In this document, we affirm the information in our proposed rule concerning Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211 (Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform Act (2 U.S.C. 1501
Under the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (
According to the Small Business Administration, small entities include small organizations, such as independent nonprofit organizations;
To determine if the proposed designation of critical habitat for the spikedace and loach minnow would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as mining, species management, transportation, and fire management activities, water management, grazing, and development. In order to determine whether it is appropriate for our agency to certify that this rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the species are present, Federal agencies already are required to consult with us under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If we finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.
In the DEA, we evaluated the potential economic effects on small entities resulting from implementation of conservation actions related to the proposed designation of critical habitat for the spikedace and loach minnow. No incremental impacts are anticipated for mining, species management, transportation, or fire management activities. The DEA concluded that incremental impacts may be borne by water management, grazing, and development activities. The analysis estimates that 92 small entities may be affected by the rule, each with estimated revenues ranging from $750,000 to $6.4 million per entity. Depending on the activity, annualized impacts may represent between 0 percent and 1.18 percent of annual revenues. Please refer to the DEA of the proposed critical habitat designation for a more detailed discussion of potential economic impacts.
In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. Information for this analysis was gathered from the Small Business Administration, stakeholders, and the Service. For the above reasons and based on currently available information, we certify that, if promulgated, the proposed designation would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.
In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the Spikedace and Loach minnow in a takings implications assessment. Critical habitat designations do not affect landowner actions that do not require Federal funding or permits, nor do they preclude development of habitat conservation programs or issuance of incidental take permits to allow actions that do require Federal funding or permits to go forward. The takings implications assessment concludes that these proposed designations of critical habitat do not pose significant takings implications for lands within or affected by the designations. However, we will further evaluate this issue as we complete our final economic analysis, and review and revise this assessment as appropriate.
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses as defined by NEPA (42 U.S.C. 4321
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to further amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as proposed to be amended at 75 FR 66482, October 28, 2010, as follows:
1. The authority citation for part 17 continues to read as follows:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Amend § 17.95(e), in the entry for “Loach minnow
(e)
(6)
(12) * * *
(i) San Francisco River for approximately 202.6 km (125.9 mi) of the San Francisco River extending from the confluence with the Gila River in Arizona in Township 5 South, Range 29 East, southeast quarter of section 21 upstream to Township 6 South, Range 19 West, section 2 in New Mexico.
(v)
(14) * * *
(vi) Bear Creek for approximately 31.4 km (19.5 mi) extending from the confluence with the Gila River at Township 15 South, Range 17 West, center of section 33 upstream to the confluence with Sycamore and North Fork Walnut creeks at Township 16 South, Range 15 West, northeast quarter of section 15.
(vii)
The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531
Animal and Plant Health Inspection Service, USDA.
Notice.
We are advising the public of our decision to authorize the importation into the continental United States of dragon fruit (multiple genera and species) from Thailand. Based on the findings of a pest risk analysis, which we made available to the public for review and comment through a previous notice, we believe that the application of one or more designated phytosanitary measures will be sufficient to mitigate the risks of introducing or disseminating plant pests or noxious weeds via the importation of dragon fruit from Thailand.
Ms. Claudia Ferguson, Regulatory Policy Specialist, Regulations, Permits, and Manuals, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1236; (301) 734-0754.
Under the regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-51, referred to below as the regulations), the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture prohibits or restricts the importation of fruits and vegetables into the United States from certain parts of the world to prevent plant pests from being introduced into and spread within the United States.
Section 319.56-4 of the regulations contains a performance-based process for approving the importation of commodities that, based on the findings of a pest risk analysis (PRA), can be safely imported subject to one or more of the designated phytosanitary measures listed in paragraph (b) of that section. Under that process, APHIS publishes a notice in the
In accordance with that process, we published a notice
Therefore, in accordance with the regulations in § 319.56-4(c)(2)(ii), we are announcing our decision to authorize the importation into the continental United States of dragon fruit from Thailand subject to the following phytosanitary measures:
• The dragon fruit may be imported into the continental United States in commercial consignments only.
• The dragon fruit must be irradiated in accordance with 7 CFR part 305 with a minimum absorbed dose of 400 Gy.
• If the irradiation treatment is applied outside the United States, each consignment of fruit must be jointly inspected by APHIS and the national plant protection organization (NPPO) of Thailand and accompanied by a phytosanitary certificate (PC) attesting that the fruit received the required irradiation treatment.
• If the irradiation treatment is to be applied upon arrival in the United States, each consignment of fruit must be inspected by the NPPO of Thailand prior to departure and accompanied by a PC.
• This commodity is subject to inspection at the U.S. port of entry.
These conditions will be listed in the Fruits and Vegetables Import Requirements database (available at
7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.
Animal and Plant Health Inspection Service, USDA.
Notice.
We are advising the public of our decision to authorize the importation into the continental United States of fresh apricot, sweet cherry, and plumcot fruit from South Africa. Based
Ms. Dorothy C. Wayson, Senior Regulatory Coordination Specialist, Regulations, Permits, and Manuals, PPQ, APHIS, 4700 River Road Unit 141, Riverdale, MD 20737; (301) 734-0772.
Under the regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-51, referred to below as the regulations), the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture prohibits or restricts the importation of fruits and vegetables into the United States from certain parts of the world to prevent plant pests from being introduced into and spreading within the United States. Under that process, APHIS may publish a notice in the
In accordance with that process, we published a notice
Therefore, in accordance with the regulations in 319.56-4(c)(2)(ii), we are announcing our decision to authorize the importation into the continental United States of fresh apricot, sweet cherry, and plumcot fruit from South Africa subject to the following phytosanitary measures:
• The fruit must be imported as a commercial consignment, as defined in 319.56-2.
• Each consignment of fruit must be accompanied by a phytosanitary certificate issued by the national plant protection organization of South Africa. For apricots and plumcots only, the phytosanitary certificate must include an additional declaration stating that the fruit was inspected and found free of cinch bug (
• Apricots and plumcots must be cold treated for fruit flies (
• Sweet cherries must be cold treated for the Mediterranean fruit fly (
• Each consignment of fruit is subject to inspection upon arrival in the United States.
We are also updating the PPQ Treatment Manual as discussed earlier in this document.
The phytosanitary conditions listed above will also be listed in the Fruits and Vegetables Import Requirements database (available at
7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.
Rural Business-Cooperative Service, USDA.
Notice.
7 CFR 4279.119(a)(1) allows the Rural Development Administrator, at the Administrator's discretion, to grant an exception to the $10 million limit for Business and Industry (B&I) guaranteed loans of $25 million or less under certain circumstances. Due to the limited program funds that will be available for Fiscal Year 2012 for the B&I Guaranteed Loan Program, the Administrator has decided not to grant exceptions to the $10 million limit during FY 2012 in an effort to make guaranteed loan funds go farther and to provide financing assistance to as many projects as possible. Limiting guaranteed loans to $10 million or less will allow the Agency to guarantee more loans and target smaller loans/projects impacting more small businesses and will assist the Agency to conserve scarce funding dollars at a time when there is unprecedented interest in the program.
Brenda Griffin, e-mail
This action has been reviewed and determined not to be a rule or regulation as defined in Executive Order 12866 as amended by Executive Order 13258.
On July 14, 2011, the Executive Secretary of the Foreign-Trade Zones (FTZ) Board filed an application submitted by the Indianapolis Airport Authority, grantee of FTZ 72, requesting temporary/interim manufacturing (T/IM) authority, on behalf of Brevini Wind USA, Inc., to manufacture wind turbine gear boxes under FTZ procedures within FTZ 72—Site 14, in Yorktown, Indiana.
The application was processed in accordance with T/IM procedures, as authorized by FTZ Board Orders 1347 (69 FR 52857, 8/30/04) and 1480 (71 FR 55422, 9/22/06), including notice in the
Import Administration, International Trade Administration, Department of Commerce.
Hermes Pinilla, AD/CVD Operations, Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-3477.
On September 13, 2011, the Department of Commerce (the Department) published the final results of the administrative review of the antidumping duty order on magnesium metal from the Russian Federation. See
We received a timely allegation of ministerial errors pursuant to 19 CFR 351.224(c) from US Magnesium LLC, the petitioner, alleging that we relied on unadjusted cost data to calculate constructed value for the respondent, PSC VSMPO-AVISMA Corporation (AVISMA), and that we inadvertently set constructed value selling expenses to zero in the calculations. We agree with the petitioner that the alleged errors are ministerial errors. Therefore, we are hereby amending the
For details regarding the ministerial errors, see the memorandum from Hermes Pinilla to the File entitled “Administrative Review of the Antidumping Duty Order on Magnesium Metal from the Russian Federation—Amended Final Results Analysis Memorandum for PSC VSMPO-AVISMA Corporation covering the period April 1, 2009, through March 31, 2010,” concurrently with this notice.
As a result of our correction of ministerial errors, we determine that, for the period April 1, 2009, through March 31, 2010, a weighted-average dumping margin of 22.38 percent exists for AVISMA.
The Department shall determine and U.S. Customs and Border Protection (CBP) shall assess antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), we have calculated an importer-specific assessment rate for AVISMA reflecting these amended final results of review.
The Department clarified its “automatic assessment” regulation on May 6, 2003. This clarification will apply to entries of subject merchandise during the POR produced by AVISMA for which AVISMA did not know its merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries of merchandise produced by AVISMA at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction. For a full discussion of this clarification, see
The Department intends to issue instructions to CBP 15 days after the publication of these amended final results of review.
Because we revoked the order effective April 15, 2010, no cash deposit for estimated antidumping duties on future entries of subject merchandise is required.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the
We are issuing and publishing this determination and notice in accordance with sections 751(a)(1) and 777(i) of the Tariff Act of 1930, as amended, and 19 CFR 351.224(e).
Import Administration, International Trade Administration, Department of Commerce.
On June 1, 2011, the Department of Commerce (“Department”) initiated the third sunset reviews of the antidumping duty orders on certain helical spring lock washers (“lock washers”) from Taiwan and the People's Republic of China (“PRC”). The Department has conducted expedited sunset reviews of these orders. As a result of these reviews, the Department finds that revocation of the antidumping duty orders would likely lead to a continuation or recurrence of dumping at the margins identified in the “Final Results of Review” section of this notice.
Joshua Morris, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-1779.
On June 1, 2011, the Department published the notice of initiation of the third sunset review of the antidumping duty orders on lock washers from Taiwan and the PRC pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”).
On June 30, 2011, the Department received a complete substantive response from Petitioner for both reviews within the deadline specified in 19 CFR 351.218(d)(3)(i). We received no substantive responses from any respondent interested parties. As a result, pursuant to section 751(c)(3)(B) of the Act and 19 CFR 351.218(e)(1)(ii)(C)(2), the Department conducted expedited sunset reviews of these antidumping duty orders.
The products covered by the orders are lock washers of carbon steel, of carbon alloy steel, or of stainless steel, heat-treated or non-heat-treated, plated or non-plated, with ends that are off-line. Lock washers are designed to: (1) Function as a spring to compensate for developed looseness between the component parts of a fastened assembly; (2) distribute the load over a larger area for screws or bolts; and (3) provide a hardened bearing surface. The scope does not include internal or external tooth washers, nor does it include spring lock washers made of other metals, such as copper.
Lock washers subject to the orders are currently classifiable under subheadings 7318.21.0000 and 7318.21.0030 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the scope of this proceeding is dispositive.
All issues raised in these reviews are addressed in the Issues and Decision Memorandum (“Decision Memorandum”) from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration, dated concurrently with this notice, which is hereby adopted by this notice. The issues discussed in the Decision Memorandum include the likelihood of continuation or recurrence of dumping and the magnitude of the margins likely to prevail if the orders were revoked. Parties can find a complete discussion of all issues raised in these reviews and the corresponding recommendations in this public memorandum, which is on file in the Central Records Unit in room 7046 of the main Department building.
In addition, a complete version of the Decision Memorandum can be accessed directly on the Internet at
Pursuant to sections 752(c)(1) and (3) of the Act, we determine that revocation of the antidumping duty orders on lock washers from Taiwan and the PRC would be likely to lead to continuation or recurrence of dumping at the following weighted-average percentage margins:
This notice also serves as the only reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of the return or destruction of APO materials or conversion to judicial protective orders is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing the final results and notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Issuance of two scientific research permits.
Notice is hereby given that NMFS has issued Permit 15824 to Santa Cruz County Environmental Health Services and Permit 16318 to Hagar Environmental Science.
The approved application for each permit is available on the Applications and Permits for Protected Species (APPS),
Jeffrey Jahn at 707-575-6097, or
The issuance of permits and permit modifications, as required by the Endangered Species Act of 1973 (16 U.S.C. 1531-1543) (ESA), is based on a finding that such permits/modifications: (1) Are applied for in good faith; (2) would not operate to the disadvantage of the listed species which are the subject of the permits; and (3) are consistent with the purposes and policies set forth in section 2 of the ESA. Authority to take listed species is subject to conditions set forth in the permits. Permits and modifications are issued in accordance with and are subject to the ESA and NMFS regulations (50 CFR parts 222-226) governing listed fish and wildlife permits.
This notice is relevant to federally endangered Central California Coast coho salmon (
A notice of the receipt of an application for a scientific research permit (15824) was published in the
Permit 15824 authorizes snorkel surveys, capture by backpack electrofishing and seining, handling (measuring), scale sampling, marking (fin-clipping), and release of juvenile Central California Coast (CCC) coho salmon, Central California Coast (CCC) steelhead, and South-California Coast (S-CCC) steelhead, henceforth referred to as ESA-listed salmonids. Permit 15824 authorizes unintentional lethal take of: Juvenile ESA-listed salmonids not to exceed one percent of the total number of fish captured. Permit 15824 does not authorize any non-lethal or lethal take of adult ESA-listed salmonids.
Permit 15824 is for research to be conducted in the San Lorenzo River, Aptos Creek, Soquel Creek, and Corralitos Creek in Santa Cruz County, California. The main purpose of the project is to track habitat conditions and site densities of juvenile salmonids in these watersheds. Permit 15824 expires on December 31, 2016.
A notice of the receipt of an application for a scientific research permit renewal (16318) was published in the
Permit 16318 authorizes HES to take juvenile ESA-listed salmonids associated with three research projects consisting of lagoon surveys and stream surveys in Santa Cruz, Monterey, and San Luis Obispo counties in central California. The data from lagoon and stream surveys will be used to track salmonid spawning and rearing conditions in lagoons and streams, prioritize restoration and conservation efforts, and inform land and water use decisions.
Under Permit 16318, authorized research methods include snorkel surveys, electrofishing, scale sampling,
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council's (Council) Groundfish Committee will meet to consider actions affecting New England fisheries in the exclusive economic zone (EEZ).
The meeting will be held on Thursday, October 20, 2011 at 9:30 a.m.
The meeting will be held at the Sheraton Harborside Hotel, 250 Market Street, Portsmouth, NH 03801;
Paul J. Howard, Executive Director, New England Fishery Management Council;
The items of discussion in the agenda are:
The Committee and Advisory Panel will review gear stowage regulations. There will be a request for comments on vessel and gear marking. There will be an open comment period for the fishing industry, concerning Compliance and Effectiveness of Regulations for New England Fishery Management Plans. The Committee and Panel will comment on draft NOAA Enforcement Priority Setting Process. Some of the actions that the Committee and Panel may be asked to review are: Scallop management measures (Framework 24 and Amendment 16); Herring Amendment 5 management measures-preliminary review; Hake (Whiting) incidental possession limits when Total Allowable Landings are reached; Skate species identification at sea and at the dock. They also plan to schedule meetings for next year. Other business may be discussed.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (see
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permit.
Notice is hereby given that a permit has been issued to the Alaska Department of Fish and Game, Juneau, AK to conduct research on marine mammals.
The permit and related documents are available for review upon written request or by appointment in the following offices:
Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376; and
Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802-1668; phone (907) 586-7221; fax (907) 586-7249.
Tammy Adams or Joselyd Garcia-Reyes, (301) 427-8401.
On July 29, 2011, notice was published in the
The permitted takes include aerial surveys for population census and radio tracking; ground surveys for photo-identification, counts and behavioral observations; vessel approaches of animals equipped with telemetry equipment; vessel surveys for radio tracking; and capture by entanglement in a net in the water or by hoop net or dip net on land. Captured animals will: be restrained (chemical or physical); be weighed and measured; have biological samples collected (blood, milk (lactating females), blubber, skin, muscle, hair, mucus membrane swabs, stomach lavage, tooth and vibrissae); be administered deuterated water; have measurement of blubber via ultrasound; be marked with flipper identification tags; and have internal (PIT tags) or external scientific instruments attached. Tissue samples will be collected from subsistence harvested animals and other mortalities and some samples will be exported to Canada for analysis. The permit is valid through December 31, 2016.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Department of Defense Office of Inspector General, Department of Defense (DoD).
Notice.
This notice announces the appointment of the members of the Senior Executive Service (SES) Performance Review Board (PRB) for the Department of Defense Office of Inspector General (DoD OIG), as required by 5 U.S.C. 4314(c)(4). The PRB provides fair and impartial review of SES performance appraisals and makes recommendations regarding performance ratings and performance awards to the Inspector General.
Ms. Phyllis Hughes, Director, Human Capital Advisory Services, Administration and Management, DoD OIG, 400 Army Navy Drive, Arlington, VA 22202, (703) 602-4516.
In accordance with 5 U.S.C. 4314(c)(4), the following executives are appointed to the DoD OIG, PRB:
Defense Nuclear Facilities Safety Board.
Notice of public hearing and meeting.
Pursuant to the provisions of the “Government in the Sunshine Act” (5 U.S.C. 552b), notice is hereby given of the Defense Nuclear Facilities Safety Board's (Board) public hearing and meeting described below. The Board will conduct a public hearing and meeting pursuant to 42 U.S.C. 2286b and invites any interested persons or groups to present any comments, technical information, or data concerning safety issues related to the matters to be considered.
Session I: 1-5 p.m., November 17, 2011; Session II: 7-9 p.m., November 17, 2011.
Santa Fe Community Convention Center, 201 West Marcy Street, Santa Fe, New Mexico 87501. Parking will be available at no cost.
Open. While the Government in the Sunshine Act does not require that the scheduled discussion be conducted in a meeting, the Board has determined that an open meeting in this specific case furthers the public interests underlying both the Sunshine Act and the Board's enabling legislation.
In this public hearing and meeting, the Board wishes to further explore safety matters and gather other information related to public and worker health and safety for defense nuclear facilities at the Los Alamos National Laboratory (LANL). During Session I, the Board will examine the seismic safety of the Plutonium Facility. The Board will receive testimony on National Nuclear Security Administration (NNSA) actions to address Plutonium Facility seismic vulnerabilities that lead to severe postulated accident scenarios. The Board is also interested in the status of actions identified in NNSA's response to the Board's Recommendation 2009-2,
Brian Grosner, General Manager, Defense Nuclear Facilities Safety Board, 625 Indiana Avenue, NW., Suite 700, Washington, DC 20004-2901, (800) 788-4016. This is a toll-free number.
Public participation in the hearing is invited. The Board is setting aside thirty minutes at the end of each session of the hearing for presentations and comments from the public. Requests to speak may be submitted in writing or by telephone. The Board asks that commentators describe the nature and scope of their oral presentations. Those who contact the Board prior to close of business on November 10, 2011, will be scheduled to speak at the session of the hearing most relevant to their presentations. At the beginning of Session I, the Board will post a schedule for speakers at the entrance to the hearing room. Anyone who wishes to comment or provide technical information or data may do so in writing, either in lieu of, or in addition to, making an oral presentation. The Board Members may question presenters to the extent
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 December 5, 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, Regulatory Information Management 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.
Department of Education.
Comment request.
The Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13).
Interested persons are invited to submit comments on or before November 3, 2011.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street, NW, Room 10222, New Executive Office Building, Washington, DC 20503, be faxed to (202) 395-5806 or e-mailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information
Copies of the information collection submission for OMB review may be accessed from the RegInfo.gov Web site at
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
U.S. Department of Education, President's Advisory Commission on Asian Americans and Pacific Islanders.
Notice of an open meeting.
The notice sets forth the schedule and agenda of the meeting of the President's Advisory Commission on Asian Americans and Pacific Islanders (Commission). The notice also describes the functions of the Commission. Notice of the meeting is required by section 10(a)(2) of the Federal Advisory Committee Act and intended to notify the public of its opportunity to attend.
The Commission will meet in Las Vegas, Nevada at a specific venue to be determined. Members of the public seeking entrance to the meeting location should e-mail their request to
Phone: 202-453-5508.
Kate Moraras, White House Initiative on Asian Americans and Pacific Islanders, 400 Maryland Avenue, SW., Washington, DC 20202;
The President's Advisory Commission on Asian Americans and Pacific Islanders is established under Executive Order 13515, dated October 14, 2009. Per E.O. 13515, the Commission shall provide advice to the President, through the Secretaries of Education and Commerce, as Co-Chairs of the Initiative, on: (i) The development, monitoring, and coordination of executive branch efforts to improve the quality of life of AAPIs through increased participation in Federal programs in which such persons may be underserved; (ii) the compilation of research and data related to AAPI populations and subpopulations; (iii) the development, monitoring, and coordination of Federal efforts to improve the economic and community development of AAPI businesses; and (iv) strategies to increase public and private-sector collaboration, and community involvement in improving the health, education, environment, and well-being of AAPIs.
The purpose of the meeting is to discuss strategic planning; review work of the White House Initiative on Asian Americans and Pacific Islanders; and determine key strategies to help meet the Commission's charge as established in E.O. 13515.
Individuals who will need accommodations for a disability in order to attend the meeting (
Records are kept of all Commission proceedings and are available for public inspection at the office of the White House Initiative on Asian Americans and Pacific Islanders, U.S. Department of Education, 400 Maryland Avenue, SW., Washington, DC 20202, Monday-Friday during the hours of 8:30 a.m. to 5 p.m.
Electronic Access to this Document: You may view this document, as well as all other documents of this Department published in the
U.S. Department of Education, Office of Special Education and Rehabilitative Services, Advisory Commission on Accessible Instructional Materials in Postsecondary Education for Students with Disabilities.
Notice of an open meeting via conference call.
The notice sets forth the schedule and agenda of the meeting of the Advisory Commission on Accessible Instructional Materials in Postsecondary Education for Students with Disabilities. The notice also describes the functions of the Commission. Notice of the meeting is required by section 10(a)(2) of the Federal Advisory Committee Act and is intended to notify the public of its opportunity to attend.
October 24, 2011.
The Commission will meet via conference call on October 24, 2011. Members of the public have the option of participating in the open meeting remotely. Remote access will be provided via an internet webinar service utilizing VoiP (Voice Over Internet Protocol). The login address for members of the public is
Elizabeth Shook, Program Specialist, Office of Special Education and Rehabilitative Services, United States Department of Education, 550 12th Street, SW., Washington, DC 20202; telephone: (202) 245-7642, fax: 202-245-7638.
The Advisory Commission on Accessible Instructional Materials in Postsecondary Education for Students with Disabilities (the Commission) is established under Section 772 of the Higher Education Opportunity Act, Public Law 110-315, dated August 14, 2008. The Commission is established to (a) conduct a comprehensive study, which will—(I) assess the barriers and systemic issues that may affect, and technical solutions available that may improve, the timely delivery and quality of accessible instructional materials for postsecondary students with print disabilities, as well as the effective use of such materials by faculty and staff; and (II) make recommendations related to the development of a comprehensive approach to improve the opportunities for postsecondary students with print disabilities to access instructional materials in specialized formats in a timeframe comparable to the availability of instructional materials for postsecondary nondisabled students.
In making recommendations for the study, the Commission shall consider—(I) how students with print disabilities may obtain instructional materials in accessible formats within a timeframe comparable to the availability of instructional materials for nondisabled students; and to the maximum extent practicable, at costs comparable to the costs of such materials for nondisabled students; (II) the feasibility and technical parameters of establishing standardized electronic file formats, such as the National Instructional Materials Accessibility Standard as defined in Section 674(e)(3) of the Individuals with Disabilities Education Act, to be provided by publishers of instructional materials to producers of materials in specialized formats, institutions of higher education, and eligible students; (III) the feasibility of establishing a national clearinghouse, repository, or file-sharing network for electronic files in specialized formats and files used in producing instructional materials in specialized formats, and a list of possible entities qualified to administer such clearinghouse, repository, or network; (IV) the feasibility of establishing market-based solutions involving collaborations among publishers of instructional materials, producers of materials in specialized formats, and institutions of higher education; (V) solutions utilizing universal design; and (VI) solutions for low-incidence, high-cost requests for instructional materials in specialized formats.
During the meeting, the Commission will review and approve the final draft of the Commission's report to Congress and the Secretary. Given the limited meeting time, the Commission does not anticipate that there will be an opportunity for public comment during the teleconference meeting. Members of the public are encouraged to submit written comments to the AIM Commission Web site at
Detailed minutes of the meeting, including summaries of the activities of the closed sessions and related matters that are informative to the public and consistent with the policy of section 5 U.S.C. 552b(c) will be available to the public. Records are kept of all Commission proceedings and are available for public inspection at the Office of Special Education and Rehabilitative Services, United States Department of Education, 550 12th Street, SW., Washington, DC 20202, Monday-Friday during the hours of 8 a.m. to 4:30 p.m.
Individuals who will need accommodations for a disability in order to listen to the meeting (
Electronic Access to this Document: You may view this document, as well as all other documents of this Department published in the
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Paducah. The Federal Advisory Committee Act (Pub. L. No. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Thursday, October 20, 2011, 6 p.m.
Barkley Centre, 111 Memorial Drive, Paducah, Kentucky 42001.
Reinhard Knerr, Deputy Designated Federal Officer, Department of Energy Paducah Site Office, Post Office Box 1410, MS-103, Paducah, Kentucky 42001. Phone (270) 441-6825.
• Call to Order, Introductions, Review of Agenda.
• Deputy Designated Federal Officer's Comments.
• Federal Coordinator's Comments.
• Liaisons' Comments.
• Administrative Issues:
○ Presentation by Kentucky Research Consortium for Energy and Environment (KRCEE): Ground Water Model.
○ Presentation by Swift & Staley: Environmental Information Center.
• Subcommittee Chairs' Comments.
• Public Comments.
• Final Comments.
• Adjourn.
Breaks Taken As Appropriate.
Department of Energy.
Notice.
On August 12, 2011, the Defense Nuclear Facilities Safety Board (DNFSB) requested clarification on DOE's response to Recommendation 2011-1,
Send comments, data, views, or arguments concerning the Secretary's response to: Defense Nuclear Facilities Safety Board, 625 Indiana Avenue, NW., Suite 700, Washington, DC 20004 within thirty (30) days from the date of this publication.
Mr. John Vorderbrueggen, Nuclear Engineer, Departmental Representative to the Defense Nuclear Facilities Safety Board, Office of Health, Safety and Security, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585.
This letter responds to your August 12, 2011 letter, which requested clarification on four areas identified in our original June 30, 2011, response to your Recommendation 2011-1,
The Department has reviewed the incoming public comments and additional WTP safety culture-related information. On one hand, we are pleased that individuals have felt encouraged to step forward and express their concerns, to the extent that indicates that our broad message welcoming such input is being heard. On the other hand, the content of many of these messages shows that we need to continue to improve WTP's safety culture. The Department will also continue to evaluate the efficacy of applicable DOE and contractor policies and procedures, including the procedures for resolving differing professional opinions and other employee concerns.
The Health, Safety and Security (HSS) report, like all reports based on interviews, captured a snapshot in time. The report reflected the views of the interviewees as they perceived the existing situation, as interpreted by the report's authors. As your letter implies, given our steadfast commitment to safety we must continually update data and refresh conclusions based on what we learn. We have done that by reviewing the incoming comments we have received during the Deputy Secretary's July visit to Hanford and subsequently through other channels; as noted above, these have made clear that we have more work to do. That is why we have asked HSS to conduct a follow-on safety culture review at WTP as part of its broader extent-of-condition review across the DOE complex. Those reviews are scheduled to begin later this month, and we will apply what we learn in those reviews to continue our efforts to improve the safety culture at Hanford.
DOE understands the distinction being made by the Board that there is a difference between judging the merits of a particular case between opposing parties still in dispute, and the effect that the perceptions of that controversy—regardless of the merits of the underlying case—may have on a community. We also agree with the Board that such perceptions can have a material effect on the safety culture at a site and in a community. In developing our Implementation Plan on Recommendation 2011-1, the DOE therefore will continue to work to establish a strong safety culture that takes the power of perceptions fully into account.
We accept the implicit premise of the request, i.e., that the independence, stature, and leadership experience of the implementation team that will be called upon to provide safety culture insights and assessments to the Secretary and Senior DOE leadership is of crucial importance. In this regard, the review team members are selected based on their technical competence, objectivity, experience in safety management, executive leadership, and a clear understanding of corporate culture. DOE recognizes the heightened need to include “knowledgeable others” in the safety culture review process. The Department will therefore engage independent industry safety culture experts to evaluate the Implementation Plan (IP), and also to evaluate the quality of major IP deliverables.
Both DOE and Bechtel National Incorporated (BNI) will be performing safety culture reviews at WTP. The Department welcomes BNI's initiative in engaging qualified industry experts. DOE will monitor and cooperate with—but not partner in—the BNI review in order to gauge the validity of the BNI process. DOE will also examine the results of the review for relevant findings.
Of course, BNI's activities are not a substitute for DOE-directed reviews, which is why we are undertaking our own assessment concurrently. The HSS review will also help update our understanding of the current status of nuclear safety culture at WTP. The results of the HSS review will, of course, be shared with the Board upon its completion.
I hope this clarification is helpful. We are enthusiastic about our work toward the shared goal of safety excellence throughout the DOE complex. Given the importance of this issue, I hope you will continue to work closely with Deputy Secretary Poneman as we strengthen our efforts to promote a strong safety culture at WTP and across the DOE complex.
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR § 385.211 and § 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that on September 26, 2011, Acadian Gas Pipeline System (Acadian) filed a petition pursuant to section 284.123 of the Commission's regulations, a petition for approval of rates for transportation services authorized under Section 311(a)(2) of the Natural Gas Policy Act of 1978 and a revised Statement of Operating Conditions, as more fully described in the application.
Any person desiring to participate in this rate filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the date as indicated below. Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Additional comments may be submitted on or before November 3, 2011.
Submit your comments, referencing Docket ID No. EPA-HQ-OAR-2003-0213, to (1) EPA online using
Jose M. Solar, Office of Transportation and Air Quality, mail code 6406J, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 202-343-9027; fax number 202-343-2801; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On Wednesday, May 18, 2011 (76 FR 28768), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OAR-2003-0213, which is available for online viewing at
Use EPA's electronic docket and comment system at
The United States has an annual gasoline consumption of about 133 billion gallons, of which about 30% is RFG. In 2009 EPA received reports from 255 refineries, 60 importer facilities/facility groups, 44 oxygenate blending facilities, 21 independent laboratory facilities, and the RFG Survey Association, Inc. under this program.
Environmental Protection Agency (EPA).
Request for Nominations.
The EPA invites nominations from a diverse range of qualified candidates to be considered for a three-year appointment to the National Drinking Water Advisory Council (Council). The 15 member Council was established by the Safe Drinking Water Act (SDWA) to provide practical and independent advice, consultation and recommendations to the EPA Administrator on the activities, functions, policies, and regulations required by the SDWA. This notice solicits nominations to fill five (5) new vacancies through December 15, 2014. To maintain the representation required by statute, nominees will be selected to represent: State and local agencies (one vacancy), organizations or groups demonstrating an active interest in the field of public water supply and public health protection (two vacancies), and the general public (two vacancies).
Nominations should be submitted on or before October 31, 2011.
Submit nominations to Suzanne Kelly, Designated Federal Officer, National Drinking Water Advisory Council, U.S. Environmental Protection Agency, Office of Ground Water and Drinking Water (Mail Code 4601-M), 1200 Pennsylvania Avenue, NW., Washington, DC 20460. You may also e-mail nominations with the subject line NDWACResume2012 at
E-mail your questions to Jacquelyn Springer, at
National Drinking Water Advisory Council: The Council was created by Congress on December 16, 1974, as part of the Safe Drinking Water Act of 1974, Public Law 93-523, 42 U.S.C. 300j-5 and is operated in accordance with the provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C. App.2. The Council consists of 15 members, including a Chairperson, appointed by EPA's Deputy Administrator. Five members represent the general public; five members represent appropriate State and local agencies concerned with water hygiene and public water supply; and five members represent private organizations or groups demonstrating an active interest in the field of water hygiene and public water supply, of which two members shall represent small, rural public water systems. The current list of members is available on the EPA Web site at:
The Council meets face-to-face twice each year, generally in the spring and fall. Additionally, members may be asked to participate in teleconference meetings or ad hoc workgroups to develop policy recommendations, advice letters and reports to address specific program issues.
All nominations will be fully considered, but applicants need to be aware of the specific representation required by statute: State and local agencies concerned with public water supply (one vacancy), organizations or groups demonstrating an active interest in the field of public water supply and public health protection (two vacancies, one associated with small, rural public water systems), and the general public (two vacancies). Other criteria used to evaluate nominees will include:
• Background and experience that would help members to contribute to the diversity of perspectives (e.g., geographic, economic, social and cultural);
• Demonstrated experience with drinking water issues at the national, State or local level; and
• Excellent interpersonal, oral and written communication and consensus-building skills.
Persons selected for membership will receive compensation for travel and a nominal daily compensation (if appropriate) while attending meetings. Additionally, selected candidates will be required to fill out the “Confidential Financial Disclosure Form for EPA Special Government Employees.” This confidential form allows government officials to determine whether there is a statutory conflict between that person's public responsibilities (which includes membership on an EPA Federal advisory committee) and private interests and activities, or the appearance of a lack of impartiality, as defined by Federal regulation.
Other sources, in addition to this
Federal Communications Commission.
Notice and request for comments.
The Federal Communications Commission (FCC), as part of its continuing effort to reduce paperwork burdens, invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the
The FCC 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.
Written comments should be submitted on or before November 3, 2011. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, OMB, via fax 202-395-5167, or via e-mail
For additional information or copies of the information collection, contact Cathy Williams at (202) 418-2918. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the web page
A total of 8 companies have applied to the Commission to provide Broadcasting Satellite Service (BSS) or are currently authorized by the Commission to provide Direct Broadcast Satellite Service (DBS).
This Order contains the following new information collection requirements for which we seek OMB approval:
47 CFR 25.114(d)(15) (iv)—Applicants filing for a space station authorization must file the information required in Section 26.264(a)-(b).
47 CFR 25.114(d)(18)—Applicants filing for a space station authorization in the Direct Broadcast Satellite service or the 17/24 GHz broadcasting-satellite service, must provide maximum orbital eccentricity calculations.
47 CFR 25.264(a)—Each applicant for a space station license in the 17/24 GHz broadcasting-satellite service (BSS) must provide a series of tables or graphs with its application, that contain the predicted transmitting antenna off-axis gain information for each transmitting antenna in the 17.3-17.8 GHz frequency band. Using a Cartesian coordinate system wherein the X-axis is defined as tangent to the geostationary orbital arc with the positive direction pointing east, i.e., in the direction of travel of the satellite; the Y-axis is defined as parallel to a line passing through the geographic north and south poles of the Earth, with the positive direction pointing south; and the Z-axis is defined parallel to a line passing through the center of the
(1) In the X-Z plane, i.e., the plane of the geostationary orbit, over a range of ±30 Degrees from the positive and negative X-axes in increments of 5 degrees or less.
(2) In planes rotated from the X-Z plane about the Z-axis, over a range of up to ±60 degrees relative to the equatorial plane, in increments of 10 degrees or less.
(3) In both polarizations.
(4) At a minimum of three measurement frequencies determined with respect to the entire portion of the 17.3-17.8 GHz frequency band over which the space station is designed to transmit: 5 MHz above the lower edge of the band; at the band center frequency; and 5 MHz below the upper edge of the band.
(5) Over a greater angular measurement range, if necessary, to account for any planned spacecraft orientation bias or change in operating orientation relative to the reference coordinate system. The applicant must also explain its reasons for doing so.
47 CFR 25.264(b)—Each applicant for a space station license in the 17/24 GHz BSS must provide power flux density (pfd) calculations with its application that are based upon the predicted off-axis transmitting antenna gain information submitted in accordance with paragraph (a) of this section, as follows:
(1) The pfd calculations must be provided at the location of all prior-filed U.S. DBS space stations where the applicant's pfd level exceeds the coordination trigger of −117 dBW/m[FN2]/100 kHz in the 17.3-17.8 GHz band. In this rule, the term prior-filed U.S. DBS space station refers to any Direct Broadcast Satellite service space station application that was filed with the Commission (or authorization granted by the Commission) prior to the filing of the 17/24 GHz BSS application containing the predicted off-axis transmitting antenna gain information. The term prior-filed U.S. DBS space station does not include any applications (or authorizations) that have been denied, dismissed, or are otherwise no longer valid. Prior-filed U.S. DBS space stations may include foreign-licensed DBS space stations seeking authority to serve the United States market, but do not include foreign-licensed DBS space stations that have not filed applications with the Commission for market access in the United States.
(2) The pfd calculations must take into account the maximum longitudinal station-keeping tolerance, orbital inclination and orbital eccentricity of both the 17/24 GHz BSS and DBS space stations, and must:
(i) Identify each prior-filed U.S. DBS space station at whose location the coordination threshold pfd level of −117 dBW/m[FN2]/100 kHz is exceeded; and
(ii) Demonstrate the extent to which the applicant's transmissions in the 17.3-17.8 GHz band exceed the threshold pfd level of −117 dBW/m[FN2]/100 kHz at those prior-filed U.S. DBS space station locations.
(3) If the calculated pfd level is in excess of the threshold level of −117 dBW/m[FN2]/100 kHz at the location of any prior-filed U.S. DBS space station, the applicant must also provide with its application certification that all affected DBS operators acknowledge and do not object to the applicants higher off-axis pfd levels. No such certification is required in cases where the DBS and 17/24 GHz BSS assigned operating frequencies do not overlap.
47 CFR 25.264(c)—No later than nine months prior to launch, each 17/24 GHz BSS space station applicant or authorization holder must confirm the predicted transmitting antenna off-axis gain information provided in accordance with § 25.114(d)(15)(iv) by submitting measured transmitting antenna off-axis gain information over the angular ranges, measurement frequencies and polarizations described in paragraphs (a)(1)-(5) of this section. The transmitting antenna off-axis gain information should be measured under conditions as close to flight configuration as possible.
4.47 CFR 25.264(d)—No later than nine months prior to launch, each 17/24 GHz BSS space station applicant or authorization holder must provide pfd calculations based upon the measured transmitting antenna off-axis gain information that is submitted in accordance with paragraph (c) of this section as follows:
(1) The pfd calculations must be provided:
(i) At the location of all prior-filed U.S. DBS space stations as defined in paragraph (b)(1) of this section, where the applicant's pfd level in the 17.3-17.8 GHz band exceeds the coordination trigger of −117 dBW/m[FN2]/100 kHz; and
(ii) At the location of any subsequently-filed DBS U.S. DBS space station where the applicant's pfd level in the 17.3-17.8 GHz band exceeds the coordination trigger of −117 dBW/m[FN2]/100 kHz. In this rule, the term subsequently-filed U.S. DBS space station refers to any Direct Broadcast Satellite service space station application that was filed with the Commission (or authorization granted by the Commission) after the 17/24 GHz BSS operator submitted the predicted data required by paragraphs (a)-(b) of this section, but prior to the time the 17/24 GHz BSS operator submitted the measured data required in this paragraph. Subsequently-filed U.S. DBS space stations may include foreign-licensed DBS space stations seeking authority to serve the United States market. The term does not include any applications (or authorizations) that have been denied, dismissed, or are otherwise no longer valid, nor does it include foreign-licensed DBS space stations that have not filed applications with the Commission for market access in the United States.
(2) The pfd calculations must take into account the maximum longitudinal station-keeping tolerance, orbital inclination and orbital eccentricity of both the 17/24 GHz BSS and DBS space stations, and must:
(i) Identify each prior-filed U.S. DBS space station at whose location the coordination threshold pfd level of −117 dBW/m[FN2]/100 kHz is exceeded; and
(ii) Demonstrate the extent to which the applicant's or licensee's transmissions in the 17.3-17.8 GHz band exceed the threshold pfd level of −117 dBW/m[FN2]/100 kHz at those prior-filed U.S. DBS space station locations.
47 CFR 25.264(f)—The 17/24 GHz BSS applicant or licensee must modify its license, or amend its application, as appropriate, based upon new information:
(1) If the pfd levels submitted in accordance with paragraph (d) of this section, are in excess of those submitted in accordance with paragraph (b) of this section at the location of any prior-filed or subsequently-filed U.S. DBS space station as defined in paragraphs (b)(1) and (d)(1) of this section, or
(2) If the 17/24 GHz BSS operator adjusts its operating parameters in accordance with paragraphs (e)(1)(ii) or (e)(2)(ii) of this section.
Federal Communications Commission.
Notice and request for comments.
The Federal Communications Commission (FCC), as part of its continuing effort to reduce paperwork burdens, invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the
The FCC 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.
Written comments should be submitted on or before November 3, 2011. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, OMB, via fax 202-395-5167, or via e-mail
For additional information or copies of the information collection, contact Cathy Williams at (202) 418-2918. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the web page
Federal Deposit Insurance Corporation (FDIC).
Notice of information collection to be submitted to OMB for review and approval under the Paperwork Reduction Act.
In accordance with requirements of the Paperwork Reduction Act of 1995 (“PRA”), 44 U.S.C. 3501
Comments must be submitted on or before November 3, 2011.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
•
•
•
•
Gary A. Kuiper, at the FDIC address above.
Proposal to renew the following currently approved collections of information:
Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collection, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than October 28, 2011.
1.
U.S. General Services Administration (GSA).
Notice.
Pursuant to the National Environmental Policy Act (NEPA) of 1969, as implemented by the Council on Environmental Quality regulations (40 Code of Federal Regulations [CFR] parts 1500-1508), the GSA announces its intent to prepare an Environmental Impact Statement (EIS) to analyze and assess the environmental impacts of site acquisition and development of the United States Department of State (DOS), Bureau of Diplomatic Security, the Foreign Affairs Security Training Center (FASTC) at the Virginia Army National Guard's Maneuver Training Center at Fort Pickett and Pickett Park in Nottoway County, Virginia. DOS, United States Army Corps of Engineers, United States Environmental Protection Agency and National Guard Bureau are cooperating agencies in this EIS.
A public scoping meeting in open house format will be held on October 18, 2011 from 6:30 p.m. to 8:30 p.m. to provide the public with an opportunity to provide comments, ask questions, and discuss concerns regarding the scope of the EIS with GSA and DOS representatives.
GSA will hold a public scoping meeting at the Blackstone Armory, 1008 Darvills Rd., Blackstone, VA 23824 from 6:30 p.m. to 8:30 p.m.
Written comments concerning the scope of the EIS may be mailed to Abigail Low, GSA Project Manager, 20 N 8th Street, Philadelphia, PA 19107, via e-mail to
Abigail Low, GSA Project Manager; 20 N 8th Street, Philadelphia, PA 19107 (215) 446-4815,
The proposed FASTC is expected to train 8,000-10,000 students per year and include both hard skills training, such as driving tracks, firing ranges, mock urban environmental, and explosives ranges; soft skills training, such as classrooms, simulation labs, and a fitness center; and support facilities such as administrative offices, dormitories, a dining hall, and emergency response facilities.
During the initial planning process, GSA conducted a comprehensive site evaluation process that identified and evaluated 41 candidate sites in the vicinity of the Washington, DC area. GSA identified land at Fort Pickett and Pickett Park in Nottoway County, Virginia, as the only potentially suitable location for the proposed FASTC facility.
GSA is focusing the proposed development of the FASTC on two adjacent available parcels, an approximately 750 acre Fort Pickett Local Reuse Authority (LRA) parcel 9 owned by Nottoway County, and an approximately 900 acre Virginia Army National Guard parcel referred to as Maneuver Area 21/20. The proposed project would be constructed in phases.
Possible action alternatives that will be evaluated in the EIS are alternative layouts for construction of facilities for hard skills training, soft skills training, life support and infrastructure on the LRA parcel 9 and 21/20 parcels at Fort Pickett. A “No Action Alternative”, in which DOS would continue their training programs as currently conducted without constructing FASTC, will also be evaluated.
Resource areas to be addressed in the FASTC EIS will include, but not be limited to: air quality, noise, land use, socioeconomics, traffic, infrastructure and community services, natural resources, biological resources, cultural resources and safety and environmental hazards. The analysis will evaluate direct, indirect and cumulative impacts. Relevant and reasonable measures that could avoid or mitigate environmental effects will also be analyzed. Additionally, GSA will undertake any consultations required by applicable laws or regulations, including the National Historic Preservation Act.
This notice announces the initiation of the scoping process to identify community concerns and issues that should be addressed in the FASTC EIS. Federal, state, local agency representatives and interested parties or persons are encouraged to provide comments on the proposed action during the 30-day scoping period October 4, 2011 though November 3, 2011. These comments should clearly describe specific issues or topics of environmental concern that the commenter believes GSA should consider.
No decision will be made to implement any alternative until the NEPA process is completed and a Record of Decision is signed.
Office of the Secretary, Office of the National Coordinator for Health Information Technology (ONC), HHS.
30-Day notice of submission of information collection approval from the Office of Management and Budget and request for comments.
As part of a Federal Government-wide effort to streamline the process to seek feedback from the public on service delivery, the Office of the Secretary, Office of the National Coordinator for Health Information Technology (ONC), HHS has submitted a Generic Information Collection Request (Generic ICR): “Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery” to OMB for approval under the
Comments must be submitted November 3, 2011.
Written comments may be submitted to
To request additional information, please contact
Feedback collected under this generic clearance will provide useful information, but it will not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: the target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed sample size, the expected response rate, methods for assessing potential non-response bias, the protocols for data collection, and any testing procedures that were or will be undertaken prior fielding the study. Depending on the degree of influence the results are likely to have, such collections may still be eligible for submission for other generic mechanisms that are designed to yield quantitative results.
The Agency received 0 comments were received in response to the 60-day notice published in the
Below we provide the Department of Health and Human Services, projected average estimates for the next three years:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number.
Office of the Secretary, HHS.
Notice.
Notice is hereby given that the Office of Research Integrity (ORI) has taken final action in the following case:
ORI found that the Respondent engaged in research misconduct by plagiarizing text, falsifying data and references, and fabricating data from two publications (Mufson, L., Dorta, K.P., Wickramaratne, P., Nomura, Y., Olfson, M., Weissman, M.M. “A randomized effectiveness trial of interpersonal psychotherapy for depressed adolescents.”
In both manuscripts, the Respondent falsified and fabricated tables and figures by using all or nearly all of the data in tables and graphs from the plagiarized articles while altering numbers and changing text to represent data as if from another subject population; he also copied most of the original bibliographic references but
ORI also finds that the Respondent engaged in research misconduct by plagiarizing text from Cho
Dr. Weber has voluntarily agreed for a period of three (3) years, beginning on September 7, 2011:
(1) To exclude himself from any contracting or subcontracting with any agency of the United States Government and from eligibility or involvement in nonprocurement programs of the United States Government referred to as “covered transactions” pursuant to HHS' Implementation (2 CFR part 376
(2) to exclude himself from serving in any advisory capacity to PHS including, but not limited to, service on any PHS advisory committee, board, and/or peer review committee, or as a consultant.
Director, Division of Investigative Oversight, Office of Research Integrity, 1101 Wootton Parkway, Suite 750, Rockville, MD 20852, (240) 453-8800.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed project or to obtain a copy of data collection plans and instruments, call the CDC Reports Clearance Officer on 404-639-5960 or send comments to Daniel Holcomb, CDC Reports Clearance Officer, 1600 Clifton Road, MS-D74, Atlanta, GA 30333 or send an e-mail to
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 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. Written comments should be received within 60 days of this notice.
National Vital Statistics Report Forms (OMB No. 0920-0213, Expiration Date April 30, 2012)—Extension—National Center for Health Statistics (NCHS), Centers for Disease Control and Prevention (CDC).
The compilation of national vital statistics dates back to the beginning of the 20th century and has been conducted since 1960 by the Division of Vital Statistics of the National Center for Health Statistics, CDC. The collection of the data is authorized by 42 U.S.C. 242k. This submission requests approval to collect the monthly and annually summary statistics for three years.
The Monthly Vital Statistics Report forms provide counts of monthly occurrences of births, deaths, infant deaths, marriages, and divorces. Similar data have been published since 1937 and are the sole source of these data at the National level. The data are used by the Department of Health and Human Services and by other government, academic, and private research and commercial organizations in tracking changes in trends of vital events. Respondents for the Monthly Vital Statistics Report Form are registration officials in each State and Territory, the District of Columbia, and New York City. In addition, local (county) officials in New Mexico who record marriages occurring and divorces and annulments granted in each county of New Mexico will use this form. This form is also designed to collect counts of monthly occurrences of births, deaths, infant deaths, marriages, and divorces immediately following the month of occurrence.
The Annual Vital Statistics Occurrence Report Form collects final annual counts of marriages and divorces by month for the United States and for each State. The statistical counts requested on this form differ from provisional estimates obtained on the Monthly Vital Statistics Report Form in that they represent complete counts of marriages, divorces, and annulments occurring during the months of the prior year. These final counts are usually available from State or county officials about eight months after the end of the data year. The data are widely used by government, academic, private research, and commercial organizations in tracking changes in trends of family formation and dissolution. Respondents for the Annual Vital Statistics Occurrence Report Form are registration officials in each State and Territory, the District of Columbia, and New York City.
There are no costs to respondents other than their time.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639-5960 or send an e-mail to
Central America Water and Sanitation Program Sustainability Evaluation and Qualitative Interview—NEW—National Center for Environmental Health (NCEH), Centers for Disease Control and Prevention (CDC).
There is little information available on the longevity of infrastructure and hygiene behavior change after water, sanitation and hygiene education (WASH) interventions are provided. Sustainability of these WASH interventions is a crucial factor in maintaining the health and well-being of a community.
In the Latin American and Caribbean region, 20% of the rural population in 2008 had no access to an improved drinking water source. Forty-five percent of this population also has unimproved sanitation facilities with 20% of that population not using any type of sanitation facility.
Sustainability of WASH interventions ties in to goal 7 of the Millennium Development Goals developed by the United Nations Development Program, to ensure environmental sustainability. Specifically, it is to “reduce by half the proportion of the population without sustainable access to safe drinking water and basic sanitation” by 2015.
In addition to this issue, significant natural disasters such as hurricanes and tropical storms have the potential to completely destroy infrastructure. In 1998, Central America (El Salvador, Guatemala, Honduras, and Nicaragua) was struck by Hurricane Mitch. After the hurricane, the American Red Cross (ARC) responded to the disaster and provided community- and household-level WASH to hundreds of communities. What began as a disaster response/reconstruction program in 1998, has developed into a study of the long-term sustainability of WASH interventions.
This research will focus on assessing up to 16 communities that were provided WASH interventions by the ARC post-Hurricane Mitch. This survey will help to evaluate the key factors that help communities to maintain their infrastructure. The results will be used to improve ARC programs as well as to help guide other non-governmental agencies on how to best maximize their investments to ensure long-term community health.
This research includes four components which will be done in each community: (1) A community survey with community leaders and/or the local water board; (2) a cross-sectional quantitative household survey and qualitative key informant interview; (3) water sampling and analysis of community water sources/systems and stored household water; and (4) an infrastructure inspection of the community water system and sanitation facilities. United States Agency for International Development (USAID) indicators were used as the basis for measuring WASH interventions using performance indicators. Performance indicators are a way to measure the performance of disaster-related water and sanitation programs.
Four indicators will be used in this evaluation. To measure the water intervention we will estimate (1) the percent of households with access to an improved water source. The sanitation indicator measures (2) the percent of households with access to improved sanitation. Hygiene education is evaluated using two indicators, (3) the percent of households with appropriate hand washing behavior and (4) the percent of the population using hygienic sanitation facilities.
The sustainability evaluation will first conduct a face-to-face interview with the community leaders and/or members of the water board from a maximum of sixteen communities.
Second, a cross-sectional household survey (n=256) will be administered across all four countries with a randomly selected female head of household. This survey contains questions on water use, access and availability; sanitation access, use and maintenance; and hygiene education-when was the last time it was presented to the community, what topics were discussed, when was it provided and by whom. The household interview will record data using a personal data assistant (PDA), reviewed each day and then transferred into one electronic database for statistical analysis and calculation of the indicators. The survey will be done with the female head of household and take approximately 30 to 45 minutes.
Third, a qualitative key informant interview with randomly selected female head of household (n=32), will be conducted to gather study participants thoughts and opinions on the WASH services provided to them and their community. This survey will be administered verbally and responses will be tape recorded and should take approximately 45 minutes to 1 hour complete.
Every household surveyed in each country will include qualitative testing of drinking water that is stored in the home (n=288). Total coliforms and E.
Lastly, an infrastructure evaluation for each community will be done by CDC personnel using a checklist. This evaluation will help to determine the strengths and weaknesses of the water and sanitation systems for each community.
The infrastructure survey and water sampling activity is not included in the burden table as CDC will complete this survey and activity independent of input or assistance from community leaders or study participants.
There is no cost to respondents to participate in the sustainability evaluation other than their time. The total estimated annual burden hours are 240.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC), announces the following meeting for the aforementioned committee:
In December 2000, the President delegated responsibility for funding, staffing, and operating the Advisory Board to HHS, which subsequently delegated this authority to the CDC. NIOSH implements this responsibility for CDC. The charter was issued on August 3, 2001, renewed at appropriate intervals, most recently, August 3, 2011, and will expire on August 3, 2013.
The agenda is subject to change as priorities dictate.
This meeting is open to the public. In the event an individual wishes to provide comments, written comments must be submitted prior to the meeting. Any written comments received will be provided at the meeting and should be submitted to the contact person below in advance of the meeting.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice of extension of deadlines.
This notice extends the deadlines for the submission of the Bundled Payments for Care Improvement “Model 1” letters of intent and applications.
Letter of Intents and Applications should be submitted electronically in searchable PDF format via encrypted e-mail to the following e-mail address by the date specified in the
We are committed to achieving the three-part aim of better health, better health care, and reduced expenditures through continuous improvement for Medicare, Medicaid and Children's Health Insurance Program beneficiaries. Beneficiaries can experience improved health outcomes and patient experience when health care providers work in a coordinated and patient-centered manner. To this end, CMS is interested in partnering with providers who are working to redesign patient care to deliver these aims. Episode payment approaches that reward providers who take accountability for the three-part aim at the level of individual patient care for an episode are potential mechanisms for developing these partnerships.
On August 23, 2011 we posted a request for applications (RFA) on the Innovation Center Web site. In addition, on August 25, 2011 we published a notice requesting applications in the
The CMS Innovation Center has received much interest and a large number of inquiries about the BPCI initiative announced on the CMS Web site and in the
We have announced the deadline extensions via the CMS Web site and via listserv. Therefore we also wanted to announce the extensions of the deadlines via the
Section 1115A(d)(3) of the Act specifies that the requirements of the Paperwork Reduction Act of 1995 do not apply with respect to the testing and evaluation of payment and service delivery models, or the expansion of these models.
Section 1115A of the Social Security Act.
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice of meeting.
This notice announces a meeting of the Advisory Panel on Outreach and Education (APOE) (the Panel) in accordance with the Federal Advisory Committee Act. The Panel advises and makes recommendations to the Secretary of Health and Human Services and the Administrator of the Centers for Medicare & Medicaid Services on opportunities to enhance the effectiveness of consumer education strategies concerning Medicare, Medicaid, and the Children's Health Insurance Program (CHIP). This meeting is open to the public.
The meeting is open to the public, but attendance is limited to the space available. Persons wishing to attend this meeting must register by
Jennifer Kordonski, (410) 786-1840, or on the Internet at
In accordance with section 10(a) of the Federal Advisory Committee Act (FACA), this notice announces a meeting of the Advisory Panel on Outreach and Education (APOE) (the Panel). Section 9(a)(2) of the Federal Advisory Committee Act authorizes the Secretary of Health and Human Services (the Secretary) to establish an advisory panel if the Secretary determines that the panel is “in the public interest in connection with the performance of duties imposed * * * by law.” Such duties are imposed by section 1804 of the Social Security Act (the Act), requiring the Secretary to provide informational materials to Medicare beneficiaries about the Medicare program, and section 1851(d) of the Act, requiring the Secretary to provide for “activities * * * to broadly disseminate information to [M]edicare beneficiaries * * * on the coverage options provided under [Medicare Advantage] in order to promote an active, informed selection among such options.”
The Panel is also authorized by section 1114(f) of the Act (42 U.S.C. 1314(f)) and section 222 of the Public Health Service Act (42 U.S.C. 217a). The Secretary signed the charter establishing this Panel on January 21, 1999 (64 FR 7899, February 17, 1999) and approved the renewal of the charter on January 21, 2011 (76 FR 11782, March 3, 2011).
Pursuant to the amended charter, the Panel advises and makes recommendations to the Secretary of Health and Human Services and the Administrator of the Centers for Medicare & Medicaid Services (CMS) concerning optimal strategies for the following:
• Developing and implementing education and outreach programs for individuals enrolled in, or eligible for, Medicare, Medicaid and the Children's Health Insurance Program (CHIP).
• Enhancing the Federal government's effectiveness in informing Medicare, Medicaid, and CHIP consumers, providers and stakeholders pursuant to education and outreach programs of issues regarding these and other health coverage programs, including the appropriate use of public-private partnerships to leverage the resources of the private sector in educating beneficiaries, providers and stakeholders.
• Expanding outreach to vulnerable and underserved communities, including racial and ethnic minorities, in the context of Medicare, Medicaid, and CHIP education programs.
• Assembling and sharing an information base of “best practices” for helping consumers evaluate health plan options.
• Building and leveraging existing community infrastructures for information, counseling and assistance.
• Drawing the program link between outreach and education, promoting consumer understanding of health care coverage choices and facilitating consumer selection/enrollment, which in turn support the overarching goal of improved access to quality care, including prevention services, envisioned under health care reform.
The current members of the Panel are: Samantha Artiga, Principal Policy Analyst, Kaiser Family Foundation; Joseph Baker, President, Medicare Rights Center; Philip Bergquist, Manager, Health Center Operations, CHIPRA Outreach & Enrollment Project and Director, Michigan Primary Care Association, Marjorie Cadogan, Executive Deputy Commissioner, Department of Social Services; Jonathan Dauphine, Senior Vice President, AARP; Barbara Ferrer, Executive Director, Boston Public Health Commission; Shelby Gonzales, Senior Health Outreach Associate, Center on Budget & Policy Priorities; Jan Henning, Benefits Counseling & Special Projects Coordinator, North Central Texas Council of Governments' Area Agency on Aging; Warren Jones, Executive Director, Mississippi Institute for Improvement of Geographic Minority Health; Cathy Kaufmann, Administrator, Oregon Health Authority; Sandy Markwood, Chief Executive Officer, National Association of Area Agencies on Aging; Miriam Mobley-Smith, Dean, Chicago State University, College of Pharmacy; Ana Natal-Pereira, Associate Professor of Medicine, University of Medicine & Dentistry of New Jersey; Megan Padden, Vice President, Sentara Health Plans; David W. Roberts, Vice-President, Healthcare Information and Management System Society; Julie Bodën Schmidt, Associate Vice President, National Association of Community Health Centers; Alan Spielman, President & Chief Executive Officer, URAC; Winston Wong, Medical Director, Community Benefit Director, Kaiser Permanente and Darlene Yee-Melichar, Professor & Coordinator, San Francisco State University.
The agenda for the November 17, 2011 meeting will include the following:
• Recap of the Previous (July 28, 2011) Meeting
• Listening Session with CMS Leadership
• Affordable Care Act Initiatives
• An opportunity for public comment
• Next Steps
Individuals or organizations that wish to make a 5-minute oral presentation on an agenda topic should submit a written copy of the oral presentation to the DFO at the address listed in the
Section 222 of the Public Health Service Act (42 U.S.C. 217a) and section 10(a) of Pub. L. 92-463 (5 U.S.C. App. 2, sec. 10(a) and 41 CFR 102-3).
Food and Drug Administration, HHS.
Notice of availability; request for comments.
As part of the Transparency Initiative, the Food and Drug Administration (FDA) is announcing the availability of a report entitled “Food and Drug Administration Transparency Initiative: Draft Proposals for Public Comment to Increase Transparency By Promoting Greater Access to the Agency's Compliance and Enforcement Data.” This report includes eight draft proposals to make FDA's publicly available compliance and enforcement data more accessible and user-friendly. FDA is seeking public comment on these draft proposals. The Transparency Task Force will ultimately recommend specific draft proposals to the Commissioner of Food and Drugs (the Commissioner) for consideration based on the comments it receives, the feasibility of the draft proposal, relative priority, and available resources.
Submit either electronic or written comments by December 2, 2011.
Submit electronic comments to
Lisa M. Dwyer, Office of the Commissioner, Food and Drug Administration, 10903 New Hampshire Ave.,Bldg. 32, rm. 4228, Silver Spring, MD 20993, 301-796-4709, FAX: 301-847-8616, e-mail:
FDA is announcing the availability of a report entitled “FDA Transparency Initiative: Draft Proposals for Public Comment to Increase Transparency By Promoting Greater Access to the Food and Drug Administration's Compliance and Enforcement Data.” FDA is responsible for a broad range of compliance and enforcement activities. Increasing the transparency of these activities allows the public to better understand the Agency's decisions, and it promotes accountability of the Agency and the regulated industry.
On January 18, 2011, President Obama issued a Presidential Memorandum on Regulatory Compliance, 76 FR 3825 (January 21, 2011), requiring Federal Agencies to make publicly available compliance information easily accessible, downloadable, and searchable online. In that memorandum, the President highlighted the achievements of the Environmental Protection Agency (EPA) and the Department of Labor (DOL) in developing Web sites (
FDA responded to the Presidential Memorandum on Regulatory Compliance in a memorandum to the Department of Health and Human Services (HHS), on May 6, 2011 (FDA Response). The FDA Response summarized the actions that the Agency already had implemented, as well as those that were underway or proposed, to make its regulatory compliance and enforcement information more accessible to the public. FDA took those actions in response to the Presidential Memorandum on Transparency and Open Government, 74 FR 4685 (January 26, 2009), which the President issued in January 2009, and as part of FDA's own Transparency Initiative, which the Commissioner, Dr. Margaret A. Hamburg, launched in June 2009.
In the FDA response, the Agency also committed to examining the manner in which EPA and DOL disclose compliance and enforcement information to determine whether there are additional steps FDA could take to make comparable information more accessible. Specifically, FDA stated that it would: (1) Within 150 days (by October 3, 2011), issue proposals for public comment, if it concluded that there were additional opportunities to increase the transparency of its compliance and enforcement data and (2) within 270 days (January 31, 2012), determine whether to adopt those proposals.
After meeting with EPA and DOL to discuss their methods for making compliance and enforcement data more accessible, FDA has determined that there are additional steps that it could take to make its own information more transparent and accessible to the public. This report contains FDA's draft proposals for public comment.
Interested persons may submit to the Division of Dockets Management (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the Web site location where the Agency will post a list of guidance documents the Center for Devices and Radiological Health (CDRH) is considering for development. In addition, FDA has established a docket where stakeholders may provide comments and/or draft language for those topics as well as suggestions for new or different guidances.
Submit either electronic or written comments at any time.
Submit electronic comments on the draft guidance to
Philip Desjardins,Center for Devices and Radiological Health,Food and Drug Administration,10903 New Hampshire Ave.,Bldg. 66, rm. 5452,Silver Spring, MD 20993-0002,301-796-5678.
During negotiations over the reauthorization of the Medical Device User Fee and Modernization Act (MDUFMA), FDA agreed, in return for additional funding from industry, to meet a variety of quantitative and qualitative goals intended to help get safe and effective medical devices to market more quickly. These commitments include annually posting
FDA and CDRH priorities are subject to change at any time. Topics on this and past guidance priority lists may be removed or modified based on current priorities. We also note that CDRH's experience over the years has shown that there are many reasons CDRH staff does not complete the entire annual agenda of guidances it undertakes. Staff are frequently diverted from guidance development to other activities, including review of premarket submissions or postmarket problems. In addition, the center is required each year to issue a number of guidances that it cannot anticipate at the time the annual list is generated. These may involve newly identified public health issues as well as special control guidance documents for de novo classifications of devices. It will be helpful, therefore, to receive comments that indicate the relative priority of different guidance topics to interested stakeholders.
Through feedback from stakeholders, including draft language for guidance documents, CDRH expects to be able to better prioritize and more efficiently draft guidances that will be useful to industry and other stakeholders. This will be the fifth annual list CDRH has posted. FDA intends to update the list each year.
FDA invites interested persons to submit comments on any or all of the guidance documents on the list. FDA has established a docket where comments about the FY 2012 list, draft language for guidance documents on those topics, and suggestions for new or different guidances may be submitted (see
Interested persons may submit to the Division of Dockets Management (see
Food and Drug Administration, HHS.
Notice of public meeting.
The Food and Drug Administration (FDA) is announcing a public meeting entitled “Preparation for ICH Steering Committee and Expert Working Group Meetings in Seville, Spain” to provide information and receive comments on the International Conference on Harmonization (ICH) as well as the upcoming meetings in Seville, Spain. The topics to be discussed are the topics for discussion at the forthcoming ICH Steering Committee Meeting. The purpose of the meeting is to solicit public input prior to the next Steering Committee and Expert Working Group meetings in Seville, Spain, scheduled on November 5 through 10, 2011, at which discussion of the topics underway and the future of ICH will continue.
Interested persons may present data, information, or views orally or in writing, on issues pending at the public meeting. Public oral presentations will be scheduled between approximately 3:30 p.m. and 4 p.m. Time allotted for oral presentations may be limited to 10 minutes. Those desiring to make oral presentations should notify the contact person (see
If you need special accommodations due to a disability, please contact Kimberly Franklin (see
The ICH was established in 1990 as a joint
In recent years, many important initiatives have been undertaken by regulatory authorities and industry associations to promote international harmonization of regulatory requirements. FDA has participated in many meetings designed to enhance harmonization and is committed to seeking scientifically based harmonized technical procedures for pharmaceutical development. One of the goals of harmonization is to identify and then reduce differences in technical requirements for medical product development among regulatory Agencies. ICH was organized to provide an opportunity for harmonization initiatives to be developed with input from both regulatory and industry representatives. ICH is concerned with harmonization among three regions: The European Union, Japan, and the United States. The six ICH sponsors are the European Commission; the European Federation of Pharmaceutical Industries Associations; the Japanese Ministry of Health, Labor, and Welfare; the Japanese Pharmaceutical Manufactures Association; the Centers for Drug Evaluation and Research and Biologics Evaluation and Research, FDA; and the Pharmaceutical Research and Manufacturers of America. The ICH Secretariat, which coordinates the preparation of documentation, is provided by the International Federation of Pharmaceutical Manufacturers Associations. The ICH Steering Committee includes representatives from each of the ICH sponsors and Health Canada, the European Free Trade Area and the World Health Organization. The ICH process has achieved significant harmonization of the technical requirements for the approval of pharmaceuticals for human use in the three ICH regions.
The current ICH process and structure can be found at the following Web site:
The agenda for the public meeting will be made available on the Internet at
Coast Guard, DHS.
Sixty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995, the U.S. Coast Guard intends to submit an Information Collection Request (ICR) to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting approval of revisions to the following collection of information: 1625-0015, Bridge Permit Application Guide. Our ICR describes the information we seek to collect from the public. Before submitting this ICR to OIRA, the Coast Guard is inviting comments as described below.
Comments must reach the Coast Guard on or before December 5, 2011.
You may submit comments identified by Coast Guard docket number [USCG-2011-0914] to the Docket Management Facility (DMF) at the U.S. Department of Transportation (DOT). To avoid duplicate submissions, please use only one of the following means:
(1)
(2)
(3)
(4)
The DMF maintains the public docket for this Notice. Comments and material received from the public, as well as documents mentioned in this Notice as being available in the docket, will become part of the docket and will be available for inspection or copying at room W12-140 on the West Building Ground Floor, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find the docket on the Internet at
A copy of the ICR is available through the docket on the Internet at
Ms. Kenlinishia Tyler, Office of Information Management, telephone 202-475-3652, or fax 202-475-3929, for questions on these documents. Contact Ms. Renee V. Wright, Program Manager, Docket Operations, 202-366-9826, for questions on the docket.
This Notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended. An ICR is an application to OIRA seeking the approval, extension, or renewal of a Coast Guard collection of information (Collection). The ICR contains information describing the Collection's purpose, the Collection's likely burden on the affected public, an explanation of the necessity of the Collection, and other important information describing the Collection. There is one ICR for each Collection.
The Coast Guard invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. In response to your comments, we may revise this ICR or decide not to seek approval of revisions of the Collection. We will consider all comments and material received during the comment period.
We encourage you to respond to this request by submitting comments and related materials. Comments must contain the OMB Control Number of the ICR and the docket number of this request, [USCG-2011-0914], and must
If you submit a comment, please include the docket number [USCG-2011-0914], indicate the specific section of the document to which each comment applies, providing a reason for each comment. If you submit a comment online via
You may submit your comments and material by electronic means, mail, fax, or hand delivery to the DMF at the address under
To view comments, as well as documents mentioned in this Notice as being available in the docket, go to
Anyone can search the electronic form of comments received in 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 statement regarding Coast Guard public dockets in the January 17, 2008, issue of the
Coast Guard, DHS.
Committee Management; Notice of Federal Advisory Committee Meeting.
The Great Lakes Pilotage Advisory Committee (GLPAC) will meet on October 18, 2011, in Washington, District of Columbia. The meeting will be open to the public.
GLPAC will meet on Tuesday, October 18, 2011, from 9 a.m. to 4 p.m. Please note the meeting may close early if the committee completes its business. Written material and requests to make oral presentations should reach us on or before October 14, 2011.
The meeting will be held at Coast Guard Headquarters, 2100 2nd Street Southwest, Washington, District of Columbia 20593, in conference room 51309. All visitors to Coast Guard Headquarters will have to pre-register to be admitted to the building. Please provide your name, telephone number and organization by close of business on October 14, 2011, to the contact person listed in
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact the person listed in
To facilitate public participation, we are inviting public comment on the issues to be considered by the committee as listed in the “Agenda” section below. Comments must be submitted in writing no later than October 14, 2011, and must be identified by [USCG-2011-XXXX] and may be submitted by one of the following methods:
•
•
•
•
A public comment period will be held during the meeting on October 18, 2011, from 10 a.m. to 11 a.m., and speakers are requested to limit their comments to 5 minutes. Please note that the public comment period may end before the time indicated, following the last call for comments. Contact the individual listed below to register as a speaker.
Mr. David Dean, GLPAC Assistant Designated Federal Officer (ADFO), Commandant (CG-5522), U.S. Coast Guard Headquarters, 2100 Second Street, SW., Stop 7580, Washington, DC 20593-7580; telephone 202-372-1533, fax 202-372-1909, or e-mail at
Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. App. (Pub. L. 92-463). GLPAC was established under the authority of 46 U.S.C. 9307, as amended, and makes recommendations to the Secretary of Homeland Security and the Coast Guard on matters relating to Great Lakes pilotage, including review of proposed Great Lakes pilotage regulations and policies.
GLPAC expects to meet twice per year but may also meet at other times at the call of the Secretary. Further information about GLPAC is available by searching on “Great Lakes Pilotage Advisory Committee” at
The GLPAC will meet to review, discuss and formulate recommendations on the following issues:
Discussion of the comprehensive bridge hour study of Great Lakes pilotage operations. This study will include:
1. Evaluation of current bridge hour definition and standards used in the ratemaking process.
2. Replacing the current standard with a broader, more inclusive, work hour definition and developing new standards for use in measuring pilot work load to more accurately establish rates.
Status of the 2012 Appendix A ratemaking rule, the Notice of Proposed Rulemaking which was published August 4, 2011 (76 FR 47095; correction, Aug. 16, 2011, 76 FR 50713.
Status of the audits for the 2013 Appendix A ratemaking rule.
Status of the Memorandum of Arrangements between the U.S. and Canada.
Discussion of relocating the Great Lakes Pilotage Division physical office from Washington, DC to the Great Lakes region.
Election of Chairman and Vice-Chairman of the Great Lakes Pilotage Advisory Committee for a 2 year term.
Materials relating to these issues appears in the docket,
Federal Emergency Management Agency; DHS.
Notice of availability; request for comments.
The All-Hazard Position Task Books for Type 3 Incident Management Teams were developed to assist personnel achieve qualifications in the All-Hazard Incident Command System (ICS) positions. The position task books supplement the qualification requirements contained in the National Incident Management System (NIMS), Job Titles.
Comments must be received by November 3, 2011.
You may submit comments, identified by Docket ID FEMA-2011-0018, by one of the following methods:
Tom Smith, National Integration Center, National Preparedness Directorate, Protection and National Preparedness, 500 C Street, SW., Washington, DC 20472. Phone: 202-646-3850 or e-mail:
The All-Hazard Position Task Books for Type 3 Incident Management Teams were developed to assist personnel achieve qualifications in the All-Hazard ICS positions. The position task books also provide the documentation necessary for agencies and organizations to evaluate their personnel and certify their personnel as qualified to the positions. The position task books supplement the qualification requirements contained in the NIMS Job Titles, which specify any Education, Training, Experience, Physical/Medical Fitness, Currency, and Licensure/Certification for each position. The position task books have been derived from National Wildfire Coordinating Group position task books to leverage their successful experience in managing the qualifications of their personnel. The position task books in this initial group contain:
1. Incident Commander.
2. Public Information Officer.
3. Safety Officer.
4. Liaison Officer.
5. Operations Section Chief.
6. Planning Section Chief
7. Finance/Administration Section Chief.
8. Logistics Section Chief.
9. Service Branch Director/Support Branch Director.
10. Branch Director (Operations Section).
11. Division/Group Supervisor.
12. Unit Leader.
13. Strike Team/Task Force Leader.
14. Technical Specialist.
The All-Hazard Position Task Books for Type 3 Incident Management Teams are available for reviewing at
6 U.S.C. 320.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of an emergency for the Commonwealth of Pennsylvania (FEMA-3339-EM), dated August 29, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, in a letter dated August 29, 2011, the President issued an emergency declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5208 (the Stafford Act), as follows:
I have determined that the emergency conditions in certain areas of the Commonwealth of Pennsylvania resulting from Hurricane Irene beginning on August 26, 2011, and continuing, are of sufficient severity and magnitude to warrant an emergency declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
You are authorized to provide appropriate assistance for required emergency measures, authorized under Title V of the Stafford Act, to save lives and to protect property and public health and safety, and to lessen or avert the threat of a catastrophe in the designated areas. Specifically, you are authorized to provide assistance for emergency protective measures (Category B), limited to direct Federal assistance, under the Public Assistance program. This assistance excludes regular time costs for subgrantees' regular employees.
Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Public Assistance will be limited to 75 percent of the total eligible costs. In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal emergency assistance and administrative expenses.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, Department of Homeland Security, under Executive Order 12148, as amended, Ed Smith, of FEMA is appointed to act as the Federal Coordinating Officer for this declared emergency.
The following areas of the Commonwealth of Pennsylvania have been designated as adversely affected by this declared emergency:
Bucks, Chester, Delaware, Lehigh, Luzerne, Monroe, Montgomery, Northampton, Philadelphia, Pike, Sullivan, Wayne, and Wyoming Counties for emergency protective measures (Category B), limited to direct Federal assistance, under the Public Assistance program.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of an emergency for the State of New Hampshire (FEMA-3333-EM), dated August 27, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, in a letter dated August 27, 2011, the President issued an emergency declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5208 (the Stafford Act), as follows:
I have determined that the emergency conditions in certain areas of the State of New Hampshire resulting from Hurricane Irene beginning on August 26, 2011, and continuing, are of sufficient severity and magnitude to warrant an emergency declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121 et seq. (“the Stafford Act”). Therefore, I declare that such an emergency exists in the State of New Hampshire.
You are authorized to provide appropriate assistance for required emergency measures, authorized under Title V of the Stafford Act, to save lives and to protect property and public health and safety, and to lessen or avert the threat of a catastrophe in the designated areas. Specifically, you are authorized to provide assistance for emergency protective measures (Category B), including direct Federal assistance, under the Public Assistance program. This assistance excludes regular time costs for subgrantees' regular employees.
Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Public Assistance will be limited to 75 percent of the total eligible costs. In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal emergency assistance and administrative expenses.
Further, you are authorized to make changes to this declaration for the approved
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, Department of Homeland Security, under Executive Order 12148, as amended, Craig A. Gilbert, of FEMA is appointed to act as the Federal Coordinating Officer for this declared emergency.
The following areas of the State of New Hampshire have been designated as adversely affected by this declared emergency:
Belknap, Carroll, Cheshire, Coos, Grafton, Hillsborough, Merrimack, Rockingham, Strafford, and Sullivan Counties for emergency protective measure (Category B), including direct federal assistance, under the Public Assistance program.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of an emergency for the State of New Jersey (FEMA-3332-EM), dated August 27, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, in a letter dated August 27, 2011, the President issued an emergency declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5208 (the Stafford Act), as follows:
I have determined that the emergency conditions in certain areas of the State of New Jersey resulting from Hurricane Irene beginning on August 26, 2011, and continuing, are of sufficient severity and magnitude to warrant an emergency declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
You are authorized to provide appropriate assistance for required emergency measures, authorized under Title V of the Stafford Act, to save lives and to protect property and public health and safety, and to lessen or avert the threat of a catastrophe in the designated areas. Specifically, you are authorized to provide assistance for emergency protective measures (Category B), including direct Federal assistance, under the Public Assistance program. This assistance excludes regular time costs for subgrantees' regular employees.
Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Public Assistance will be limited to 75 percent of the total eligible costs. In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal emergency assistance and administrative expenses.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, Department of Homeland Security, under Executive Order 12148, as amended, William L. Vogel, of FEMA is appointed to act as the Federal Coordinating Officer for this declared emergency.
The following areas of the State of New Jersey have been designated as adversely affected by this declared emergency:
All counties in the State of New Jersey for emergency protective measures (Category B), including direct Federal assistance, under the Public Assistance program.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of an emergency for the State of Connecticut (FEMA-3331-EM), dated August 27, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, in a letter dated August 27, 2011, the President issued an emergency declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5208 (the Stafford Act), as follows:
I have determined that the emergency conditions in the State of Connecticut resulting from Hurricane Irene beginning on August 26, 2011, and continuing, are of sufficient severity and magnitude to warrant an emergency declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121 et seq. (“the Stafford Act”). Therefore, I declare that such an emergency exists in the State of Connecticut.
You are authorized to provide appropriate assistance for required emergency measures, authorized under Title V of the Stafford Act, to save lives and to protect property and public health and safety, and to lessen or
Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Public Assistance will be limited to 75 percent of the total eligible costs. In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal emergency assistance and administrative expenses.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, Department of Homeland Security, under Executive Order 12148, as amended, Gary Stanley, of FEMA is appointed to act as the Federal Coordinating Officer for this declared emergency.
The following areas of the State of Connecticut have been designated as adversely affected by this declared emergency:
All eight counties in the State of Connecticut for emergency protective measures (Category B), including direct federal assistance, under the Public Assistance program.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of an emergency for the Commonwealth of Massachusetts (FEMA-3330-EM), dated August 26, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, in a letter dated August 26, 2011, the President issued an emergency declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5208 (the Stafford Act), as follows:
I have determined that the emergency conditions in the Commonwealth of Massachusetts resulting from Hurricane Irene beginning on August 26, 2011, and continuing, are of sufficient severity and magnitude to warrant an emergency declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
You are authorized to provide appropriate assistance for required emergency measures, authorized under Title V of the Stafford Act, to save lives and to protect property and public health and safety, and to lessen or avert the threat of a catastrophe in the designated areas. Specifically, you are authorized to provide assistance for emergency protective measures (Category B), including direct Federal assistance, under the Public Assistance program. This assistance excludes regular time costs for subgrantees' regular employees.
Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Public Assistance will be limited to 75 percent of the total eligible costs. In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal emergency assistance and administrative expenses.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, Department of Homeland Security, under Executive Order 12148, as amended, James N. Russo, of FEMA is appointed to act as the Federal Coordinating Officer for this declared emergency.
The following areas of the Commonwealth of Massachusetts have been designated as adversely affected by this declared emergency:
Emergency protective measures (Category B), including direct Federal assistance, under the Public Assistance program for the entire Commonwealth of Massachusetts.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of New Jersey (FEMA-4021-DR), dated August 31, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, in a letter dated August 31, 2011, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of New Jersey resulting from Hurricane Irene beginning on August 27, 2011, and continuing, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Individual Assistance and Public Assistance in the designated areas and Hazard Mitigation throughout the State. Direct Federal assistance is authorized. Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Public Assistance, Hazard Mitigation, and Other Needs Assistance will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The time period prescribed for the implementation of section 310(a), Priority to Certain Applications for Public Facility and Public Housing Assistance, 42 U.S.C. 5153, shall be for a period not to exceed six months after the date of this declaration.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, William L. Vogel, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of New Jersey have been designated as adversely affected by this major disaster:
Bergen, Essex, Morris, Passaic, and Somerset Counties for Individual Assistance.
Atlantic, Cape May, Cumberland, and Salem Counties. Direct federal assistance is authorized for Public Assistance.
All counties within the State of New Jersey are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Vermont (FEMA-4022-DR), dated September 1, 2011, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, in a letter dated September 1, 2011, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5207 (the Stafford Act), as follows:
I have declared a major disaster under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
Individual Assistance, Public Assistance, and Hazard Mitigation will be provided. Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Public Assistance, Hazard Mitigation, and Other Needs Assistance under Section 408 will be limited to 75 percent of the total eligible costs in the designated areas.
The Department of Homeland Security, Federal Emergency Management Agency (FEMA), will coordinate Federal assistance efforts and designate specific areas eligible for such assistance. The Federal Coordinating Officer will be Mr. Craig A. Gilbert of FEMA. He will consult with you and assist in the execution of the FEMA-State Agreement for disaster assistance governing the expenditure of Federal funds.
The time period prescribed for the implementation of section 310(a), Priority to Certain Applications for Public Facility and Public Housing Assistance, 42 U.S.C. 5153, shall be for a period not to exceed six months after the date of this declaration.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Craig A. Gilbert, of FEMA is appointed to act as the Federal Coordinating Officer for this declared disaster.
The following areas of the State of Vermont have been designated as adversely affected by this declared major disaster:
Chittenden, Rutland, Washington, and Windsor Counties for Individual Assistance.
Addison, Bennington, Caledonia, Chittenden, Essex, Franklin, Lamoille, Orange, Orleans, Rutland, Washington, Windham, and Windsor Counties for Public Assistance. Direct federal assistance is authorized for Public Assistance.
All counties within the State of Vermont are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Notice of availability; request for comment.
The Federal Emergency Management Agency (FEMA) is requesting public comments on the
Comments must be received by November 3, 2011.
Comments must be identified by Docket ID FEMA-2011-0021 and may be submitted by one of the following methods:
Mike Forgy, Branch Chief; 999 E Street, NW., Washington, DC 20463; 202-646-2840 (phone);
You may submit your comments and material by the methods specified in the
The National Incident Management System (NIMS) provides a consistent nationwide template to enable Federal, State, Tribal, and local governments, nongovernmental organizations, and the private sector to work together to prevent, protect against, respond to, recover from, and mitigate the effects of incidents, regardless of cause, size, location, or complexity. The Federal Emergency Management Agency (FEMA) is requesting public comments on the
Resource typing is defined as categorizing, by capability, the resources requested, deployed, and used in incidents. Resource users at all levels use these standards to identify and inventory resources. Resource kinds may be divided into subcategories (
FEMA seeks comment on the proposed policy. Based on the comments received, FEMA may make appropriate revisions to the proposed policy. Although FEMA will consider any comments received in the drafting of the final policy, FEMA will not provide a response to comments document. When or if FEMA issues a final policy, FEMA will publish a notice of availability in the
6 U.S.C. 312; Homeland Security Presidential Directive (HSPD)—5.
Office of the Assistant Secretary for Public Development and Research, HUD.
Notice.
The proposed information collection requirement described below will be 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.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Susan Brunson, Office of University Partnerships, Department of Housing and Urban Development, 451 7th Street, SW., Room 8226, Washington, DC 20410-6000.
The Department of Housing and Urban Development will submit the proposed extension of information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
This Notice is soliciting comments from members of the public and affected 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
This Notice also lists the following information:
Pub. L. 105-244.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice.
In accordance with the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-05, approved February 17, 2009) (Recovery Act), and implementing guidance of the Office of Management and Budget (OMB), this notice advises that certain exceptions to the Buy American requirement of the Recovery Act have been determined applicable for work using Capital Fund Recovery Formula and Competition (CFRFC) grant funds. Specifically, exceptions were granted to the Cambridge Housing Authority of Cambridge, MA for the purchase and installation of Venstar ColorTouch programmable limiting thermostats for the Harry S. Truman Apartments project, and to the Denver Housing Authority for the purchase and installation of refrigerators and microwave ovens for its 1099 Osage Apartments project.
Donald J. LaVoy, Deputy Assistant Secretary for Office of Field Operations, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street, SW., Room 4112, Washington, DC 20410-4000, telephone number 202-402-8500 (this is not a toll-free number); or Dominique G. Blom, Deputy Assistant Secretary for Public Housing Investments, Office of Public Housing Investments, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street, SW., Room 4130, Washington, DC 20410-4000, telephone number 202-402-8500 (this is not a toll-free number). Persons with hearing- or speech-impairments may access this number through TTY by calling the toll-free Federal Information Relay Service at 800-877-8339.
Section 1605(a) of the Recovery Act provides that none of the funds appropriated or made available by the Recovery Act may be used for a project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States. Section 1605(b) provides that the Buy American requirement shall not apply in any case or category in which the head of a Federal department or agency finds that: (1) Applying the Buy American requirement would be inconsistent with the public interest; (2) iron, steel, and the relevant manufactured goods are not produced in the U.S. in sufficient and reasonably available quantities or of satisfactory quality, or (3) inclusion of iron, steel, and manufactured goods will increase the cost of the overall project by more than 25 percent. Section 1605(c) provides that if the head of a Federal department or agency makes a determination pursuant to section 1605(b), the head of the department or agency shall publish a detailed written justification in the
In accordance with section 1605(c) of the Recovery Act and OMB's implementing guidance published on April 23, 2009 (74 FR 18449), this notice advises the public that, on August 19, 2011, the following exceptions were granted:
Fish and Wildlife Service, Interior.
Notice of intent; request for comments.
We, the U.S. Fish and Wildlife Service (Service), intend to prepare a comprehensive conservation plan (CCP) and environmental assessment (EA) for Dungeness National Wildlife Refuge (Refuge or NWR) in Clallam County, Washington. We provide this notice in compliance with our CCP policy to advise other Federal and State agencies, Tribes, and the public of our intentions and to obtain suggestions and information on the scope of issues to consider in the planning process.
To ensure consideration, please send your written comments by November 3, 2011. We will announce opportunities for public input in local news media throughout the CCP process.
Additional information concerning the refuge is available on our
Kevin Ryan, Project Leader, phone (360) 457-8451, or e-mail
With this notice, we initiate our process for developing a CCP/EA for Dungeness NWR. This notice complies with our CCP policy to (1) Advise other Federal and State agencies, Tribes, and the public of our intention to conduct detailed planning on this refuge and (2) obtain suggestions and information on the scope of issues to consider in the environmental document and during development of the CCP.
The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee) (Refuge Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997, requires us to develop a CCP for each national wildlife refuge. The purpose for developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and contributing toward the mission of the National Wildlife Refuge System, consistent with sound principles of fish and wildlife management, conservation, legal mandates, and our policies. In addition to outlining broad management direction on conserving wildlife and their habitats, CCPs identify compatible wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation and photography, and environmental education and interpretation. We will review and update the CCP at least every 15 years in accordance with the Refuge Administration Act.
Each unit of the National Wildlife Refuge System was established for specific purposes. We use these purposes as the foundation for developing and prioritizing the management goals and objectives for each refuge within the National Wildlife Refuge System (NWRS), and to determine how the public can use each refuge. The planning process is a way for us and the public to evaluate management goals and objectives that will ensure the best possible approach to wildlife, plant, and habitat conservation, while providing for wildlife-dependent recreation opportunities that are compatible with each refuge's establishing purposes and the mission of the NWRS.
Our CCP process provides participation opportunities for the public; Tribal, State, and local governments; agencies; and organizations. At this time we encourage input in the form of issues, concerns, ideas, and suggestions for the future management of Dungeness Refuge.
We will conduct the environmental review of this project and develop an EA in accordance with the requirements of the National Environmental Policy Act of 1969, as amended (NEPA) (42 U.S.C. 4321
The refuge was established in 1915 as a “refuge, preserve, and breeding ground for native birds” (Executive Order 2123). The refuge's approved boundary encompasses 773 acres of sand spit, tidelands, and upland forest habitat along Washington's Strait of Juan de Fuca; of this, the Service manages 325 acres through perpetual easements and owns and manages approximately 448 acres.
Habitat types found on the refuge include beach, bluffs, coastal strand, eelgrass beds, mudflats, coastal lagoon, salt marsh, natural and constructed freshwater wetlands, and mixed conifer forests. At 5.5-miles (8.9 kilometers), Dungeness Spit is the longest natural sand spit in the United States. Graveyard Spit, which is attached to Dungeness Spit, is designated as a Research Natural Area due to the quality of its native plant community, which provides an excellent representation of coastal strand. The refuge's eelgrass beds are important over-wintering and staging areas for Brant. Numerous other birds use the refuge during migration and winter, including dabbling and diving ducks, shorebirds, and bald eagles. Dungeness Refuge also provides breeding habitat for black oystercatchers, pigeon guillemots, and forest birds. Harbor seals use the refuge to pup, haulout, and molt.
We have identified preliminary issues, concerns, and opportunities that we may address in the CCP. We have briefly summarized these issues below. During public scoping, we may identify additional issues.
• Should we actively manage the Dawley Unit's forest to enhance old growth forest characteristics and/or marbled murrelet habitat, and if so, how?
• Should we enhance the refuge's eelgrass beds, and/or mitigate
• How can we reduce marine debris and derelict fishing gear on and adjacent to the refuge?
• How can we reduce the risks of and impacts from oil spills and other contaminants on the refuge?
• Which invasive species should be our highest priorities for monitoring and control measures? How can we prevent the introduction and dispersal of invasive plants and animals?
• How should we address the anticipated impacts of climate change and sea level rise on the refuge's wildlife and habitat in the CCP and environmental document?
• What research or monitoring studies are needed to improve wildlife and habitat management?
• How can we reduce human-caused wildlife disturbance impacts on and adjacent to the refuge, and improve compliance with refuge regulations?
• How can we improve the refuge's environmental and cultural education and interpretation programs, partnerships, and other priority public uses that are compatible with the refuge's conservation purposes? How can we enhance opportunities for people with disabilities to experience refuge resources?
We will give the public an opportunity to provide input at a public meeting. You can obtain the schedule from our Web site or the project leader (see
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Fish and Wildlife Service, Interior.
Notice of document availability.
We, the Fish and Wildlife Service, announce the availability of our final recovery plan, for the nine Bexar County Karst Invertebrates under the
You may download the recovery plan from the internet at
Adam Zerrenner, at the above address; by phone at 512-490-0057, ext. 249; or by e-mail at
Recovering endangered or threatened animals and plants to the point where they are again secure, self-sustaining members of their ecosystems is a primary goal of our endangered species program and the Act (16 U.S.C. 1531
The following nine Bexar County karst invertebrates were listed as endangered species on December 26, 2000 (65 FR 81419):
The final recovery plan includes scientific information about the species and provides objectives and actions needed to recover the Bexar County karst invertebrates and to ultimately remove them from the list of threatened and endangered species. It also has incorporated public and peer review comments as applicable. Recovery actions designed to achieve these objectives include reducing threats to the species by securing an adequate quantity and quality of habitat. This includes selecting caves or cave clusters that represent the range of the species and potential genetic diversity for the nine species, and then preserving these karst habitats, including their drainage basins and surface communities upon which they rely. Some of the changes from the draft recovery plan include changes in the acreage requirements for medium and high quality preserves as well as the configuration of the preserves required to meet the recovery criteria. Because many aspects of the population dynamics and habitat requirements of the species are poorly understood, recovery is also dependant on incorporating research findings into adaptive management actions. Because three of these species are known to occur in only one cave, full recovery may not be possible for these species.
We developed our final recovery plan under the authority of section 4(f) of the Act, 16 U.S.C. 1533(f). We publish this notice under section 4(f)
16 U.S.C. 1531
Bureau of Land Management, Interior.
Notice of Public Meeting.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory
The meeting date is October 20, 2011, at the BLM Las Cruces District Office, 1800 Marquess Street, Las Cruces, NM 88005, from 9 a.m.-4 p.m. The public may send written comments to the RAC at the above address.
Rena Gutierrez, BLM Las Cruces District, 1800 Marquess Street, Las Cruces, NM 88005, 575-525-4338. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8229 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The 10-member RAC advises the Secretary of the Interior, through the BLM, on a variety of planning and management issues associated with public land management in New Mexico. Planned agenda items include a welcome and introduction of new Council members, election of officers, overview and procedures of resource advisory councils, issues and concerns in the BLM Las Cruces District and future project work for the RAC. A half-hour public comment period during which the public may address the Council is scheduled to begin at 2:30 p.m. on October 20, 2011. All RAC meetings are open to the public. Depending on the number of individuals wishing to comment and time available, the time for individual oral comments may be limited.
Bureau of Land Management, Interior.
Notice.
Under the provisions of the
Bureau of Land Management, Julie L. Weaver, Chief, Fluid Minerals Adjudication, at (307) 775-6176. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10 per acre or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice.
Under the provisions of the
Bureau of Land Management, Julie L. Weaver, Chief, Fluid Minerals Adjudication, at (307) 775-6176. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10 per acre or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice.
Under the provisions of the Mineral Leasing Act of 1920, as amended, the Bureau of Land Management (BLM) received a petition for reinstatement from Pogo Producing Company LLC for competitive oil and gas lease WYW163275 for land in Big Horn County, Wyoming. The petition
Bureau of Land Management, Julie L. Weaver, Chief, Fluid Minerals Adjudication, at (307) 775-6176. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10 per acre or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice.
Under the provisions of the Mineral Leasing Act of 1920, as amended, the Bureau of Land Management (BLM) received a petition for reinstatement from Pogo Producing Company LLC for competitive oil and gas lease WYW163276 for land in Big Horn County, Wyoming. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Julie L. Weaver, Chief, Fluid Minerals Adjudication, at (307) 775-6176. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10 per acre or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice.
Under the provisions of the Mineral Leasing Act of 1920, as amended, the Bureau of Land Management (BLM) received a petition for reinstatement from Pogo Producing Company LLC for competitive oil and gas lease WYW163277 for land in Big Horn County, Wyoming. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Julie L. Weaver, Chief, Fluid Minerals Adjudication, at (307) 775-6176. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10 per acre or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice.
Under the provisions of the
Bureau of Land Management, Julie L. Weaver, Chief, Fluid Minerals Adjudication, at (307) 775-6176. Persons who use a telecommunications device for the deaf (TDD) may call the
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10 per acre or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice.
Under the provisions of the Mineral Leasing Act of 1920, as amended, the Bureau of Land Management (BLM) received a petition for reinstatement from Pogo Producing Company LLC for competitive oil and gas lease WYW163280 for land in Big Horn County, Wyoming. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Julie L. Weaver, Chief, Fluid Minerals Adjudication, at (307) 775-6176. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10 per acre or fraction thereof, per year and 16
Nominations for the following properties being considered for listing or related actions in the National Register were received by the National Park Service before September 10, 2011. Pursuant to section 60.13 of 36 CFR Part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation. Comments may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St. NW., MS 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service, 1201 Eye St. NW., 8th floor, Washington DC 20005; or by fax, 202-371-6447. Written or faxed comments should be submitted by October 19, 2011. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Reclamation, Interior.
Notice of public meeting.
The Colorado River Basin Salinity Control Advisory Council (Council) was established by the Colorado River Basin Salinity Control Act of 1974 (Pub. L. 93-320) (Act) to receive reports and advise Federal agencies on implementing the Act. In accordance with the Federal Advisory Committee Act, the Bureau of Reclamation announces that the Council will meet as detailed below. The meeting of the Council is open to the public.
The Council will convene the meeting on Tuesday, October 25, 2011, at 1 p.m. and recess at approximately 5 p.m. The Council will reconvene the meeting on Wednesday, October 26, 2011, at 8:30 a.m. and adjourn the meeting at approximately 11:30 a.m.
The meeting will be held in Santa Fe, New Mexico, in the New Mexico State Capitol Building, in room 309. The Capitol Building is located at the corner of streets Old Santa Fe Trail and Paseo de Peralta. Send written comments to Mr. Kib Jacobson, Bureau of Reclamation, Upper Colorado Regional Office, 125 South State Street, Room 6107, Salt Lake City, Utah 84138-1147; telephone (801) 524-3753; facsimile (801) 524-3847; e-mail at:
Kib Jacobson, telephone (801) 524-3753; facsimile (801) 524-3847; e-mail at:
Any member of the public may file written statements with the Council before, during, or up to 30 days after the meeting either in person or by mail. To the extent that time permits, the Council chairman will allow public presentation of oral comments at the meeting. To allow full consideration of information by Council members, written notice must be provided at least 5 days prior to the meeting. Any written comments received prior to the meeting will be provided to Council members at the meeting.
The purpose of the meeting is to discuss the accomplishments of Federal agencies and make recommendations on future activities to control salinity. Council members will be briefed on the status of salinity control activities and receive input for drafting the Council's annual report. The Bureau of Reclamation, Bureau of Land Management, U.S. Fish and Wildlife Service, and United States Geological Survey of the Department of the Interior; the Natural Resources Conservation Service of the Department of Agriculture; and the Environmental Protection Agency will each present a progress report and a schedule of activities on salinity control in the Colorado River Basin. The Council will discuss salinity control activities, the contents of the reports, and the Basin States Program created by Public Law 110-246, which amended the Act.
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 it can be requested to withhold personal identifying information from public review, Reclamation cannot guarantee that this will happen.
60-Day notice of information collection under review.
The Department of Justice (DOJ) Office of Community Oriented Policing Services (COPS), 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 of 1995. The revision of a previously approved information collection is published to obtain comments from the public and affected agencies.
The purpose of this notice is to allow for 60 days for public comment until December 5, 2011. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Ashley Hoornstra, Department of Justice Office of Community Oriented Policing Services, 145 N Street, NE., Washington, DC 20530.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street, NE., Room 2E-508, Washington, DC 20530.
Notice is hereby given that on September 28, 2011, a proposed Consent Decree (the “Consent Decree”) in
For thirty (30) days after the date of this publication, the Department of Justice will receive comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
During the comment period, the Consent Decree may be examined on the following Department of Justice website:
Bureau of International Labor Affairs (ILAB), Department of Labor.
Request for comments.
This initial determination proposes to revise the list required by Executive Order No. 13126 (“Prohibition of Acquisition of Products Produced by Forced or Indentured Child Labor”) in accordance with the Department of Labor's “Procedural Guidelines for the Maintenance of the List of Products Requiring Federal Contractor Certification as to Forced or Indentured Child Labor.” Under the procurement regulations implementing this Executive Order, federal contractors who supply products on the list published by the Department of Labor must certify that they have made a good faith effort to determine whether forced or indentured child labor was used to produce the items listed. This notice proposes to add 3 new items to the list that the Department of Labor preliminarily believes might have been mined, produced or manufactured by forced or indentured child labor. The Department of Labor invites public comment on this initial determination. The Department will consider all public comments prior to publishing a final determination updating the list of products, made in consultation and cooperation with the Department of State and the Department of Homeland Security.
Information should be submitted to the Office of Child Labor, Forced Labor and Human Trafficking (OCFT) via one of the methods described below by 5 p.m., December 3, 2011.
•
•
•
•
The Department is requesting public comment on the revisions to the List proposed below, as well as any other issue related to the fair and effective implementation of Executive Order (EO) 13126. This notice is a general solicitation of comments from the public. All submitted comments will be made a part of the public record and will be available for inspection on
In conducting research for this initial determination, the Department considered a wide variety of materials based on its own research or originating from other U.S. Government agencies, foreign governments, international organizations, non-governmental organizations (NGOs), U.S. Government-funded technical assistance and field research projects, academic research, independent research, media and other sources. The Department of State and U.S. embassies and consulates abroad also provide important information by gathering data from contacts, conducting site visits and reviewing local media sources. For this initial determination, the Department also sought additional information from the public through a call for information published in the
In developing the revised List, the Department's review focused on information concerning the use of forced or indentured child labor that
As outlined in the Procedural Guidelines, several factors were weighed in determining whether or not a product should be placed on the revised list: The nature of the information describing the use of forced or indentured child labor; the source of the information; the date of the information; the extent of corroboration of the information by other sources; whether the information involved more than an isolated incident; and whether recent and credible efforts are being made to address forced or indentured child labor in a particular country or industry.
This notice constitutes the initial determination updating the EO 13126 list issued May 31, 2011.
Based on recent, credible and appropriately corroborated information from various sources, the Departments of Labor, State, and Homeland Security have preliminarily concluded that there is a reasonable basis to believe that the following products, identified by their countries of origin, might have been mined, produced, or manufactured by forced or indentured child labor:
The Department invites public comment on whether these products (and/or other products, regardless of whether they are mentioned in this Notice) should be included or removed from the revised List of products requiring federal contractor certification as to the use of forced or indentured child labor. To the extent possible, comments provided should address the criteria for inclusion of a product on the List contained in the Procedural Guidelines discussed above. The Department is also interested in public comments relating to whether products initially determined to be on the List are designated with appropriate specificity and whether alternative designations would better serve the purposes of EO 13126.
The documents and sources providing the preliminary basis for adding these goods and countries to the List are available on the Internet at
Following receipt and consideration of comments on the additions to the List set out above, the Department of Labor, in consultation and cooperation with the Departments of State Homeland Security, will issue a final determination in the
On June 12, 1999 President Clinton signed EO 13126, which was published in the
The Procedural Guidelines provide that the List may be updated through consideration of submissions by individuals and on the Department's own initiative. When proposing to update the List, the Department of Labor must publish in the
On January 18, 2001, pursuant to Section 3 of the EO 13126, the Federal Acquisition Regulatory Council published a final rule to implement specific provisions of EO 13126 that requires, among other things, that federal contractors who supply products that appear on the List certify to the contracting officer that the contractor, or, in the case of an incorporated contractor, a responsible official of the contractor, has made a good faith effort to determine whether forced or indentured child labor was used to mine, produce or manufacture any product furnished under the contract and that, on the basis of those efforts, the contractor is unaware of any such use of child labor.
On September 11, 2009, the Department of Labor published an initial determination in the
On December 16, 2010, The Department of Labor published an initial determination in the
The current List and the Procedural Guidelines can be accessed on the Internet at
Under Section 6(c) of EO 13126:
“Forced or indentured child labor” means all work or service—
(1) exacted from any person under the age of 18 under the menace of any penalty for its nonperformance and for which the worker does not offer himself voluntarily; or
(2) performed by any person under the age of 18 pursuant to a contract the enforcement of which can be accomplished by process or penalties.
The Bureau of Labor Statistics Data Users Advisory Committee will meet on Tuesday, October 25, 2011. The meeting will be held in the Postal Square Building, 2 Massachusetts Avenue, NE., Washington, DC.
The Committee provides advice to the Bureau of Labor Statistics from the points of view of data users from various sectors of the U.S. economy, including the labor, business, research, academic, and government communities, on technical matters related to the collection, analysis, dissemination, and use of the Bureau's statistics, on its published reports, and on the broader aspects of its overall mission and function.
The meeting will be held in Meeting Rooms 1, 2, and 3 of the Postal Square Building Conference Center. The schedule and agenda for the meeting are as follows:
8:30 a.m. Registration.
8:45 a.m. Introductions and Welcome.
9 a.m. Commissioner's Introduction.
9:45 a.m. Follow-up from Past Recommendations.
10:45 a.m. Discuss initiative, Current Employment Statistics data by size class.
1 p.m. Discuss initiative, Competitiveness measures in the International Price Program.
2 p.m. Request for DUAC suggestions for improving Data Access/Query Tools and Output Formats on the BLS Web site.
3 p.m. Discuss initiative, Consolidating BLS Publications.
4 p.m. Request for DUAC suggestions for reaching targeted industries with low data collection response rates.
5 p.m. Wrap-up.
The meeting is open to the public. Any questions concerning the meeting should be directed to Kathy Mele, Data Users Advisory Committee, on 202-691-6102. Individuals who require special accommodations should contact Ms. Mele at least two days prior to the meeting date.
Millennium Challenge Corporation.
Notice.
This report to Congress is provided in accordance with Section 608(b) of the Millennium Challenge Act of 2003, as amended, 22 U.S.C. 7707(b) (the “Act”).
This report to Congress is provided in accordance with section 608(b) of the Millennium Challenge Act of 2003, as amended, 22 U.S.C. 7707(b) (the “Act”).
The Act authorizes the provision of Millennium Challenge Account (“MCA”) assistance to countries that enter into a Millennium Challenge Compact with the United States to support policies and programs that advance the prospects of such countries achieving lasting economic growth and poverty reduction. The Act requires the Millennium Challenge Corporation (“MCC”) to take a number of steps in determining what countries will be selected as eligible for MCA compact assistance for fiscal year 2012 (“FY12”) based on the countries' demonstrated commitment to just and democratic governance, economic freedom, and investing in their people, as well as MCC's opportunity to reduce poverty and generate economic growth in the country. These steps include the submission of reports to the congressional committees specified in the Act and publication of notices in the Federal Register that identify:
The countries that are “candidate countries” for MCA assistance for FY12 based on their per-capita income levels and their eligibility to receive assistance under U.S. law. This report also identifies countries that would be candidate countries but for specified legal prohibitions on assistance (section 608(a) of the Act; 22 U.S.C. § 7707(a));
The criteria and methodology that MCC's Board of Directors (“the Board”) will use to measure and evaluate the policy performance of the candidate countries consistent with the requirements of section 607 of the Act (22 U.S.C. 7706) in order to determine “MCA eligible countries” from among the “candidate countries” (section 608(b) of the Act); and
The list of countries determined by the Board to be “MCA eligible countries” for FY12, with justification for eligibility determination and selection for compact negotiation, including which of the MCA eligible countries the Board will seek to enter into MCA compacts (section 608(d) of the Act).
This report sets out the criteria and methodology to be applied in determining eligibility for FY12 MCA assistance.
The Board will base its selection of eligible countries on several factors including the country's overall performance in three broad policy categories—Ruling Justly, Encouraging Economic Freedom, and Investing in People; MCC's opportunity to reduce poverty and generate economic growth in a country; and the availability of funds to MCC.
Section 607 of the Act requires that the Board's determination of eligibility be based “to the maximum extent possible, upon objective and quantifiable indicators of a country's
For FY12, there will be two groups of candidate countries—low income countries (“LIC”) and lower-middle income countries (“LMIC”). As outlined in the Report on Countries that are Candidates for Millennium Challenge Account Eligibility for Fiscal Year 2012 and Countries that would be Candidates but for Legal Prohibitions (August 2011), LIC candidates refer to those countries that have a per capita income equal to or less than $1,915 and are not ineligible to receive United States economic assistance under part I of the Foreign Assistance Act of 1961 by reason of the application of any provision of the Foreign Assistance Act or any other provision of law. LMIC candidates are those countries that have a per capita income between $1,916 and $3,975 and are not ineligible to receive United States economic assistance under the same stipulations.
MCC reviews all of its indicators annually to ensure the best measures are being used and, from time to time, recommends changes or refinements if MCC identifies better indicators or improved sources of data. MCC takes into account public comments received on the previous year's criteria and methodology and consults with a broad range of experts in the development community and within the U.S. Government. In assessing new indicators, MCC favors those that: (1) Are developed by an independent third party; (2) utilize objective and high quality data that rely upon an analytically rigorous methodology; (3) are publicly available; (4) have broad country coverage; (5) are comparable across countries; (6) have a clear theoretical or empirical link to economic growth and poverty reduction; (7) are policy linked (i.e., measure factors that governments can influence within a two to three year horizon); and (8) have broad consistency in results from year to year. There have been numerous noteworthy improvements to data quality and availability as a result of MCC's application of the indicators and the regular dialogue MCC has established with the indicator institutions.
MCC also annually reviews the methodology used to evaluate country performance. Since FY04, the methodology has been that the Board considers whether a country performs above the median
For FY12, MCC will implement a number of changes that modify the overall evaluation of candidate country performance. While improvements to the selection criteria and methodology are critical, MCC is also mindful of the need to provide countries with a fairly stable set of policy criteria to meet, if MCC is to create significant incentives for reform. Therefore, for this year of transition, the Board of Directions will consider countries' performance based on two sets of criteria and methodologies in FY12: the status quo set of indicators and decisions rules, and a revised set. Both of these are outlined below. By encouraging the Board to consider how countries would have performed under the previous system, as well as how countries perform under the new system, MCC will provide a transition year that allows countries to learn how they are being measured, engage in dialogue with MCC about performance, and solicit feedback from the institutions that produce these indicators.
It is important to recognize that all of MCC's indicators have limitations, including these revised indicators. Over the next year, MCC intends to continue working with the indicator institutions to ensure the data and methodology are the best available.
In FY12 the Board will use two sets of indicators to assess the policy performance of individual countries. These indicators are grouped under the three policy categories listed below. The changes to the revised indicators include one substitution in Ruling Justly; two additions in Economic Freedom; and three substitutions/additions in Investing in People. Specific definitions of the indicators and their sources are set out in the attached Annex A.
Similarly, in FY12 the Board will apply a status quo methodology, and a revised methodology to the respective indicator groupings. These are described below.
In making its determination of eligibility with respect to a particular candidate country, the Board will consider whether a country performs above the median in relation to its income level peers (LIC or LMIC) on at
In making its determination of eligibility with respect to a particular candidate country, the Board will consider whether a country performs above the median or absolute threshold on at least half of the indicators and at least one indicator per category, above the median on the Control of Corruption indicator, and above the absolute threshold on either the Civil Liberties or Political Rights indicators. Indicators with absolute thresholds in lieu of a median include a) Inflation, on which a country's inflation rate must be under a fixed ceiling of 15 percent; b) Immunization Rates (LMICs only), on which an LMIC must have immunization coverage above 90%; c) Political Rights, on which countries must score above 17 and d) Civil Liberties, on which countries must score above 25. The Board will also take into consideration whether a country performs substantially worse in any category (Ruling Justly, Investing in People, or Economic Freedoms) than they do on the overall scorecard. Further details on how this methodology differs from the status quo can be found in Annex B.
Approach to Income Classification Transition
Each year a number of countries shift income groups, and some countries formerly classified as LICs suddenly face new, higher performance standards in the LMIC group. As a result, they typically perform worse relative to LMIC countries, than they did compared to other LIC countries, even if in absolute terms they maintained or improved their performance over the previous year. To address the challenges associated with sudden changes in performance standards for these countries, MCC has adopted an approach to income category transition whereby the Board may consider the indicator performance of countries that transitioned from the LIC to the LMIC category both relative to their LMIC peers as well as in comparison to the current fiscal year's LIC pool for a period of three years.
Consistent with the Act, the indicators will be the predominant basis for determining which countries will be eligible for MCA assistance. However, the Board may exercise discretion when evaluating performance on the indicators and determining a final list of eligible countries. Where necessary, the Board also may take into account other quantitative and qualitative information (supplemental information) to determine whether a country performed satisfactorily in relation to its peers in a given income category. There are elements of the criteria set out in the Act for which there is either limited quantitative information (e.g., the rights of people with disabilities) or no well-developed performance indicator. Until such data and/or indicators are developed, the Board may rely on additional data and qualitative information to assess policy performance. For example, the State Department Human Rights Report contains qualitative information to make an assessment on a variety of criteria outlined by Congress, such as the rights of people with disabilities, the treatment of women and children, workers rights, and human rights. Similarly, MCC may consult a variety of third party sources to better understand the domestic potential for private sector led investment and growth.
The Board may also consider whether supplemental information should be considered to make up for data gaps, lags, trends, or other weaknesses in particular indicators. As additional information in the area of corruption, the Board may consider how a country is evaluated by supplemental sources like Transparency International's Corruption Perceptions Index, the Global Integrity Report, and the Extractive Industry Transparency Initiative among others, as well as on the defined indicator.
Countries nearing the end of compact implementation may be considered for eligibility for a subsequent compact. In determining eligibility for subsequent compacts, MCC recommends that the Board consider, among other factors, the country's policy performance using the methodology and criteria described above, the opportunity to reduce poverty and generate economic growth in the country, the funds available to MCC to carry out compact assistance, and the country's track record of performance implementing its prior compact. To assess implementation of a prior compact, MCC recommends that the Board consider the nature of the country partnership with MCC, the degree to which the country has demonstrated a commitment and capacity to achieve program results, and the degree to which the country has implemented the compact in accordance with MCC's core policies and standards.
Country partners that are developing or implementing a compact are expected to seek to maintain and improve policy performance. MCC recognizes that country partners may not meet the eligibility criteria from time to time due to a number of factors, such as changes in the peer-group median; transition into a new income category (e.g., from LIC to LMIC); numerical declines in score that are within the statistical margin of error; slight declines in policy performance; revisions or corrections of data; the introduction of new sub-data sources; or changes in the indicators used to measure performance. None of these factors alone signifies a significant policy reversal nor warrants suspension or termination of eligibility and/or assistance.
However, countries that demonstrate a significant policy reversal may be issued a warning, suspension, or termination of eligibility and/or assistance. According to MCC's authorizing legislation, “[a]fter consultation with the Board, the Chief Executive Officer may suspend or terminate assistance in whole or in part for a country or entity * * * if * * * the country or entity has engaged in a pattern of actions inconsistent with the criteria used to determine the eligibility of the country or entity. * * *” This pattern of actions need not be captured in the indicators for MCC to take action.
MCC will continue to explore potential changes to the indicators for future years. There are important areas of policy performance in which indicators have not yet been developed, or expanded, to the degree needed for inclusion in the MCC selection system. MCC would not envision expanding the number of indicators beyond the current twenty indicators. However, MCC remains interested in indicators that measure policy performance related to educational quality, maternal health, environmental degradation, budget
It should be noted that the new Freedom of Information indicator adopted as part of the revised methodology draws on independent, third party data, but is compiled by MCC, similar to how MCC compiles third party data for the Land Rights and Access indicator. MCC welcomes the efforts of third party institutions to improve and publish similar and improved indicators.
Within each policy category, the Act sets out a number of specific selection criteria. As indicated above, a set of objective and quantifiable policy indicators is used to determine eligibility for MCA assistance and measure the relative performance by candidate countries against these criteria. The Board's approach to determining eligibility ensures that performance against each of these criteria is assessed by at least one of the objective indicators. Most are addressed by multiple indicators. The specific indicators appear in parentheses next to the corresponding criterion set out in the Act.
Section 607(b)(1): Just and democratic governance, including a demonstrated commitment to —promote political pluralism, equality and the rule of law (Political Rights, Civil Liberties, and Rule of Law, Gender in the Economy); respect human and civil rights, including the rights of people with disabilities (Political Rights, Civil Liberties, and Freedom of Information); protect private property rights (Civil Liberties, Regulatory Quality, Rule of Law, and Land Rights and Access); encourage transparency and accountability of government (Political Rights, Civil Liberties, Freedom of Information, Control of Corruption, Rule of Law, and Government Effectiveness); and combat corruption (Political Rights, Civil Liberties, Rule of Law, Freedom of Information, and Control of Corruption);
Section 607(b)(2): Economic freedom, including a demonstrated commitment to economic policies that—encourage citizens and firms to participate in global trade and international capital markets (Fiscal Policy, Inflation, Trade Policy, and Regulatory Quality); promote private sector growth (Inflation, Business Start-Up, Fiscal Policy, Land Rights and Access, Access to Credit, Gender in the Economy, and Regulatory Quality); strengthen market forces in the economy (Fiscal Policy, Inflation, Trade Policy, Business Start-Up, Land Rights and Access, Access to Credit, and Regulatory Quality); and respect worker rights, including the right to form labor unions (Civil Liberties and Gender in the Economy);
Section 607(b)(3): Investments in the people of such country, particularly women and children, including programs that—promote broad-based primary education (Girls' Primary Education Completion, Girls' Secondary Education, and Public Expenditure on Primary Education); strengthen and build capacity to provide quality public health and reduce child mortality (Immunization Rates, Public Expenditure on Health, and Child Health); and promote the protection of biodiversity and the transparent and sustainable management and use of natural resources (Natural Resource Protection).
MCC is incorporating six new measures into the selection criteria and dropping two previous measures. MCC's Board of Directors approved these changes for the FY12 selection process, though the Board will also consider how countries perform on the previous set of indicators. This gradual integration of the indicators was designed to provide adequate notice to compact, threshold and candidate countries of the new measures and their performance before the new indicators fully replaced the previous indicators. A brief summary of the indicators follows; a detailed rationale for the adoption of these indicators can be found in the Public Guide to the Indicators (available at
The following indicators will be used to measure candidate countries' demonstrated commitment to the criteria found in section 607(b) of the Act. The indicators are intended to assess the degree to which the political and economic conditions in a country serve to promote broad-based sustainable economic growth and reduction of poverty and thus provide a sound environment for the use of MCA funds. The indicators are not goals in themselves; rather they are proxy measures of policies that are linked to broad-based sustainable economic growth. The indicators were selected based on their (i) relationship to economic growth and poverty reduction, (ii) the number of countries they cover, (iii) transparency and availability, and (iv) relative soundness and objectivity. Where possible, the indicators are developed by independent sources.
Civil Liberties: Independent experts rate countries on: freedom of expression; association and organizational rights; rule of law and human rights; and personal autonomy and economic rights, among other things. Source: Freedom House
Political Rights: Independent experts rate countries on: the prevalence of free and fair elections of officials with real power; the ability of citizens to form political parties that may compete fairly in elections; freedom from domination by the military, foreign powers, totalitarian parties, religious hierarchies and economic oligarchies; and the political rights of minority groups, among other things. Source: Freedom House
Voice and Accountability (status quo indicators only): An index of surveys and expert assessments that rate countries on: the ability of institutions to protect civil liberties; the extent to which citizens of a country are able to participate in the selection of governments; and the independence of the media, among other things. Source: Worldwide Governance Indicators (World Bank/Brookings)
Freedom of Information (revised indicators only): Measures the legal and practical steps taken by a government to enable or allow information to move freely through society; this includes measures of press freedom, national freedom of information laws, and the extent to which a county is filtering internet content or tools. Source: Freedom House/FRINGE Special/Open Net Initiative
Government Effectiveness: An index of surveys and expert assessments that rate countries on: the quality of public service provision; civil servants' competency and independence from political pressures; and the government's ability to plan and implement sound policies, among other things. Source: Worldwide Governance Indicators (World Bank/Brookings)
Rule of Law: An index of surveys and expert assessments that rate countries on: the extent to which the public has confidence in and abides by the rules of society; the incidence and impact of violent and nonviolent crime; the effectiveness, independence, and predictability of the judiciary; the protection of property rights; and the enforceability of contracts, among other things. Source: Worldwide Governance Indicators (World Bank/Brookings)
Control of Corruption: An index of surveys and expert assessments that rate countries on: “grand corruption” in the political arena; the frequency of petty corruption; the effects of corruption on the business environment; and the tendency of elites to engage in “state capture”, among other things. Source: Worldwide Governance Indicators (World Bank/Brookings)
Inflation: The most recent average annual change in consumer prices. Source: The International Monetary Fund's World Economic Outlook Database
Fiscal Policy: The overall budget balance divided by GDP, averaged over a three-year period. The data for this measure come primarily from IMF country reports or, where public IMF data are outdated or unavailable, are provided directly by the recipient government with input from U.S. missions in host countries. All data are cross-checked with the IMF's World Economic Outlook database to try to ensure consistency across countries and made publicly available. Source: International Monetary Fund Country Reports, National Governments, and the International Monetary Fund's World Economic Outlook Database
Business Start-Up: An index that rates countries on the time and cost of complying with all procedures officially required for an entrepreneur to start up and formally operate an industrial or commercial business. Source: International Finance Corporation
Trade Policy: A measure of a country's openness to international trade based on weighted average tariff rates and non-tariff barriers to trade. Source: The Heritage Foundation
Regulatory Quality: An index of surveys and expert assessments that rate countries on: the burden of regulations on business; price controls; the government's role in the economy; and foreign investment regulation, among other areas. Source: Worldwide Governance Indicators (World Bank)
Land Rights and Access: An index that rates countries on the extent to which the institutional, legal, and market framework provide secure land tenure and equitable access to land in rural areas and the time and cost of property registration in urban and peri-urban areas. Source: The International Fund for Agricultural Development and the International Finance Corporation
Access to Credit (revised indicators only): An index that rates countries on rules and practices affecting the coverage, scope and accessibility of credit information available through either a public credit registry or a private credit bureau; as well as legal rights in collateral laws and bankruptcy laws. Source: International Finance Corporation
Gender in the Economy (revised indicators only): An index that measures the extent to which laws provide men and women equal capacity to generate income or participate in the economy, including the capacity to access institutions, get a job, register a business, sign a contract, open a bank account, choose where to live, and travel freely. Source: International Finance Corporation
Public Expenditure on Health: Total expenditures on health by government at all levels divided by GDP. Source: The World Health Organization
Immunization Rates: The average of DPT3 and measles immunization coverage rates for the most recent year available. Source: The World Health Organization and the United Nations Children's Fund
Total Public Expenditure on Primary Education: Total expenditures on primary education by government at all levels divided by GDP. Source: The United Nations Educational, Scientific and Cultural Organization and National Governments
Girls' Primary Completion Rate: The number of female students enrolled in the last grade of primary education minus repeaters divided by the population in the relevant age cohort (gross intake ratio in the last grade of primary). Source: United Nations Educational, Scientific and Cultural Organization
Girls Secondary Education (revised indicators only): The number of female pupils enrolled in lower secondary school, regardless of age, expressed as a percentage of the population of females in the theoretical age group for lower secondary education. Lower middle income counties (LMICs) will be assessed on this indicator instead of Girls Primary Completion Rates. Source: United Nations Educational, Scientific and Cultural Organization
Natural Resource Management (status quo indicators only): An index made up of four indicators: eco-region protection, access to improved water, access to improved sanitation, and child (ages 1-4) mortality. Source: The Center for International Earth Science Information Network and the Yale Center for Environmental Law and Policy
Natural Resource Protection (revised indicators only): Assesses whether countries are protecting up to 10 percent of all their biomes (e.g., deserts, tropical rainforests, grasslands, savannas and tundra). Source: The Center for International Earth Science Information Network and the Yale Center for Environmental Law and Policy
Child Health (revised indicators only): An index made up of three indicators: access to improved water, access to improved sanitation, and child (ages 1-4) mortality. Source: The Center for International Earth Science Information Network and the Yale Center for Environmental Law and Policy
Political Rights: Countries that receive a score above 17 will be considered as passing this indicator. The median will no longer be calculated or utilized.
Civil Liberties: Countries that receive a score above 25 will be considered as passing this indicator. The median will no longer be calculated or utilized.
Immunization Rates: Lower middle income countries (LMICs) that exceed an immunization coverage rate of 90% will be considered as passing this indicator. The median will no longer be calculated or utilized for countries classified as LMICs.
In making its determination of eligibility with respect to a particular candidate country, the Board will consider whether a country performs above the thresholds described above on either Political Rights or Civil Liberties.
In making its determination of eligibility with respect to a particular candidate country, the Board will consider whether a country performs above the median or absolute threshold on at least half of the indicators and at least one indicator per category. In order to maintain a focus on the breadth of sound policy performance, the Board will also take into consideration whether a country performs substantially worse on any category (Ruling Justly, Investing in People, or Economic Freedoms).
As with the current selection system, the Board may exercise discretion in evaluating and translating the indicators into a final list of eligible countries and, in this respect, the Board may also consider whether any adjustments should be made for data gaps, lags, trends or other weaknesses in particular indicators. Where necessary, the Board may also take into account other data and quantitative and qualitative information to determine whether a country performed satisfactorily in relation to its peers in a given category (“supplemental information”).
Nuclear Regulatory Commission.
Notice of the OMB review of information collection and solicitation of public comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted to OMB for review the following proposal for the collection of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The NRC published a
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
The public may examine and have copied for a fee publicly available documents, including the final supporting statement, at the NRC's Public Document Room, Room O-1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. OMB clearance requests are available at the NRC Web site:
Comments and questions should be directed to the OMB reviewer listed below by November 3, 2011. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date.
Chad Whiteman, Desk Officer, Office of Information and Regulatory Affairs (3150-0193), NEOB-10202, Office of Management and Budget, Washington, DC 20503.
Comments can also be e-mailed to
The NRC Clearance Officer is Tremaine Donnell, 301-415-6258.
For the Nuclear Regulatory Commission.
Pursuant to Section 189a. (2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (the Commission or NRC) is publishing this regular biweekly notice. The Act requires the Commission publish notice of any amendments issued, or proposed to be issued and grants the Commission the authority to issue and make immediately effective any amendment to an operating license upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This biweekly notice includes all notices of amendments issued, or proposed to be issued from September 7, 2011, to September 21, 2011. The last biweekly notice was published on September 20, 2011 (76 FR 58303).
Please include Docket ID NRC-2011-0230 in the subject line of your comments. For additional instructions on submitting comments and instructions on accessing documents related to this action, see “Submitting Comments and Accessing Information” in the
•
•
•
Comments submitted in writing or in electronic form will be posted on the NRC Web site and on the Federal rulemaking Web site,
The NRC requests that any party soliciting or aggregating comments received from other persons for submission to the NRC inform those persons that the NRC will not edit their comments to remove any identifying or contact information, and therefore, they should not include any information in their comments that they do not want publicly disclosed.
You can access publicly available documents related to this document using the following methods:
•
•
•
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in Title 10 of the Code of Federal Regulations (10 CFR), 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) Involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. The basis for this proposed determination for each amendment request is shown below.
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period should circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example in derating or shutdown of the facility. Should the Commission take action prior to the expiration of either the comment period or the notice period, it will publish in the
Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this action may file a request for a hearing and a petition to intervene with respect to issuance of the amendment to the subject facility operating license. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's ”Rules of Practice for Domestic Licensing Proceedings” in 10 CFR part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the NRC's PDR, located at One White Flint North, Room O1-F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. NRC regulations are accessible electronically from the NRC Library on the NRC Web site at
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also identify the specific contentions which the requestor/petitioner seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the requestor/petitioner shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the requestor/petitioner intends to rely in proving the contention at the hearing. The requestor/petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the requestor/petitioner intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the requestor/petitioner to relief. A requestor/petitioner who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing.
If a hearing is requested, the Commission will make a final determination on the issue of no
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E-Filing rule (72 FR 49139, August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by e-mail at
Information about applying for a digital ID certificate is available on NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with the NRC guidance available on the NRC public Web site at
A person filing electronically using the agency's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) first class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland, 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at
Petitions for leave to intervene must be filed no later than 60 days from the date of publication of this notice. Non-timely filings will not be entertained absent a determination by the presiding
For further details with respect to this license amendment application, see the application for amendment which is available for public inspection at the NRC's PDR, located at One White Flint North, Room O1-F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. Publicly available documents created or received at the NRC are accessible electronically through ADAMS in the NRC Library at
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed amendment will revise TS 3.7.4, to require four ADV lines be OPERABLE in MODES 1, 2, and 3, as well as in MODE 4, when a SG is relied upon for heat removal. The proposed change to TS 3.7.4 is consistent with the PVNGS UFSAR [Updated Final Safety Analysis Report] Chapters 6 and 15 safety analyses. The proposed change does not involve any design or physical changes to the facility, including the ADV lines and their associated ADVs, block valves, pneumatic controllers, instrument power circuits, or control circuits. The design and functional performance requirements, operational characteristics, and reliability of the ADV lines remain unchanged. Therefore, there is no impact on the design safety function of the ADVs to open (which mitigates certain postulated accidents by providing Reactor Coolant System heat removal) nor on the design safety function of the ADVs to close (which mitigates certain postulated accidents by providing containment isolation). Furthermore, there is no change with respect to an inadvertent opening of an ADV (as a potential transient initiator).
With regard to the consequences of postulated design basis accidents and the equipment required for mitigation of those accidents, the proposed TS changes involve no design or physical changes to the ADV lines or any other equipment required for accident mitigation. The proposed ADV TS change does not affect any design basis analysis or the results of those analyses. The change provides additional assurance that ADVs will be available as required.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously analyzed.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed amendment will revise TS 3.7.4, to require four ADV lines be OPERABLE in MODES 1, 2, and 3, as well as in MODE 4, when a SG is relied upon for heat removal. The proposed change to TS 3.7.4 is consistent with the PVNGS UFSAR Chapters 6 and 15 safety analyses. The proposed change does not involve any design or physical changes to the facility, including the ADV lines and their associated ADVs, block valves, pneumatic controllers, instrument power circuits, or control circuits. No physical alteration of the plant is involved. The proposed change does not involve or introduce any changes to plant procedures that could cause a new or different kind of accident from any previously evaluated. The proposed change ensures that the ADVs perform their intended functions during all design basis accidents for which they are credited. The proposed change does not involve the creation of any new or different kind of accident initiator. The proposed change does not create any new failure modes for the ADVs and does not affect the interaction between the ADVs and any other system.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
The proposed amendment will revise TS 3.7.4, to require four ADV lines be OPERABLE in MODES 1, 2, and 3, as well as in MODE 4, when a SG is relied upon for heat removal. The proposed change to TS 3.7.4 is consistent with the PVNGS UFSAR Chapters 6 and 15 safety analyses. The proposed change does not alter the manner in which safety limits or limiting safety system settings are determined. No changes to instrument and/or system actuation setpoints are involved. Safety and Branch Technical Position (BTP) RSB 5-1 analysis acceptance criteria are not impacted by this change and the proposed change will not permit plant operation in a configuration outside the design basis.
Therefore, the proposed change does not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on that review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the request for amendments involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change relocates the volume of diesel fuel oil required to support 7 day operation of the onsite diesel generators, and the volume equivalent to a 6 day supply, to licensee control. The specific volume of fuel oil equivalent to a 7 and 6 day supply is calculated using the NRC-approved methodology described in Regulatory Guide 1.137, Revision 1, “Fuel-Oil Systems for Standby Diesel Generators” and ANSI-N195 1976, “Fuel Oil Systems for Standby Diesel-Generators” based on the diesel generator manufacturer's consumption values including consideration of minimum required energy content. Because the requirement to maintain a 7 day supply of diesel fuel oil is not changed and is consistent with the assumptions in the accident analyses, and the actions taken when the volume of fuel oil are less than a 6 day supply have not changed, neither the probability nor the consequences of any accident previously evaluated will be affected.
The proposed change also relocates the volume of diesel fuel oil required to support one hour of diesel generator operation at full load in the day tank. The specific volume and time is not changed and is consistent with the existing plant design basis to support the emergency diesel generator under accident loading conditions.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The change does not involve a physical alteration of the plant (i.e., no new or different type of equipment will be installed) or a change in the methods governing normal plant operation. The change does not alter assumptions made in the safety analysis but ensures that the diesel generator operates as assumed in the accident analysis. The proposed change is consistent with the safety analysis assumptions.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The proposed change relocates the volume of diesel fuel oil required to support 7 day operation of the onsite diesel generators, and the volume equivalent to a 6 day supply, and one hour day tank supply to licensee control. As the bases for the existing limits on diesel fuel oil are not changed, no change is made to the accident analysis assumptions and no margin of safety is reduced as part of this change.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change continues to implement the Waterford 3 Steam Generator (SG) Program performance criteria for tube structural integrity, accident induced leakage, and operational leakage for the replacement SGs. Meeting the performance criteria provides reasonable assurance that the replacement SG tubing will remain capable of fulfilling its specific safety function of maintaining reactor coolant system (RCS) pressure boundary integrity throughout each operating cycle and in the unlikely event of a design basis accident.
Sufficient SG tube structural margin above the 40 [percent (%)] SG tube plugging criteria is retained for the replacement SGs to ensure that the probability of an accident is unchanged. The replacement SGs are designed with substantial margin to burst. Therefore, the proposed change does not affect the probability of a[n] SGTR [steam generator tube rupture] accident. The extension of the SG tube inspection frequency after initial inspection is based on the low likelihood of having potential tube flaws and is considered to be an acceptable inspection period to preserve pressure boundary integrity. As a result, there will be no affect on the previous dose analysis reported in the Updated Final Safety Analysis Report [(UFSAR)] and the consequences of any accident are unchanged.
Therefore, this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Steam generator tube rupture events have already been postulated and analyzed in the Waterford 3 [UFSAR]. The improved Alloy 690TT SG tubing material in the Waterford 3 replacement SG reduces the likelihood of creating new or different types of tubing flaws. The proposed changes do not reduce the design requirements of the SG tubes that would affect the current accident analysis. The proposed amendment does not impact any other plant systems or components. The SG tube inspection TS requirements assure that potential tubing flaws will be detected prior to affecting tube integrity and the RCS pressure boundary.
Therefore, the proposed change does not create the possibility of a new or
3. Does the proposed change involve a significant reduction in a margin of safety?
The structural integrity, accident induced leakage, and operational leakage performance criteria required by the Waterford 3 technical specifications provide substantial design margin for assuring SG tube integrity against the possibility of a[n] SG tube pressure boundary failure. The analyzed 55% structural limit provides sufficient margin above the SG tube plugging criteria of 40% for consideration of eddy current measurement uncertainty and allowance for inspection cycle flaw growth. The proposed change removes an existing alternate repair criterion that is not applicable to the replacement SGs and establishes appropriate SG tube subsequent inspection periods consistent with the new SG tubing design. The replacement SGs will continue to meet their required performance criteria. The Waterford 3 SG tube inspection program will assure that this margin is maintained through the operational life of the plant.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed TS change does not affect any plant systems, structures, or components designed for the prevention or mitigation of previously evaluated accidents. The amendment would only change how the reactivity anomaly check is performed. Verifying that the core reactivity is consistent with predicted values ensures that accident and transient safety analyses remain valid. This amendment changes the LCO 3.1.2 and Surveillance Requirement (SR) 3.1.2.1 requirements such that the check is performed by a direct comparison of k
Therefore, since the reactivity anomaly check will continue to be performed by a viable method, the proposed amendment does not involve a significant increase in the probability or consequence of any previously evaluated accident.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
This TS amendment request does not involve any changes to the operation, testing, or maintenance of any safety-related or otherwise important to safety, system. All systems that are important to safety will continue to be operated and maintained within their design bases. The proposed changes to LCO 3.1.2 and SR 3.1.2.1 will only provide a new, efficient method of detecting an unexpected change in core reactivity.
Since all systems continue to be operated within their design bases, no new failure modes are introduced, nor is the possibility of a new or different kind of accident created.
3. Does the proposed change involve a significant reduction in a margin of safety?
This proposed TS amendment proposes to change the method for performing the reactivity anomaly surveillance from a comparison of predicted to actual control rod density to a comparison of predicted to actual k
Therefore, the proposed amendment does not therefore involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Upon approval by the NRC staff, the risk-informed and performance-based NFPA 805 fire protection program will provide the same level of safety as the current licensing basis. None of the accidents evaluated in the CNP Updated Final Safety Analysis Report (UFSAR) were postulated to be initiated by fire protection equipment or elements of the fire protection program. Thus, the proposed transition of the fire protection licensing basis to NFPA 805 will not involve any change, increase or decrease, in the probability of previously evaluated accidents.
Elements or equipment of the CNP fire protection program have no impact in the evaluation of the consequences of accidents in the UFSAR; thus, the consequences of the previously evaluated accidents will remain the same regardless of whether the current fire protection licensing basis or NFPA 805 is in place.
Therefore, the proposed licensing basis change will not lead to any change, increase or decrease, of the consequences of previously evaluated accidents.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed change of the fire protection licensing basis to NFPA 805 pertains only to the fire protection program and equipment (e.g., modifying fire wrap, modifying control circuitry of certain fire protection systems, changing the carbon dioxide system from manual actuation to automatic). The proposed change does not affect structures, systems, or components that were involved with previously evaluated accidents.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The proposed change does not alter the manner in which safety limits, limiting safety system settings, or limiting conditions for operation are determined. The proposed change does not involve any safety analysis acceptance criteria in the current CNP licensing basis, and does not adversely affect existing plant safety margins or the reliability of equipment assumed to mitigate accidents in the UFSAR.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on the NRC staff's own analysis, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the proposed amendment involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of any accident previously evaluated?
The proposed change relocates the specified frequencies for periodic surveillance requirements to licensee control under a new Surveillance Frequency Control Program. Surveillance frequencies are not an initiator to any accident previously evaluated. As a result, the probability of any accident previously evaluated is not significantly increased. The systems and components required by the technical specifications for which the surveillance frequencies are relocated are still required to be operable, meet the acceptance criteria for the surveillance requirements, and be capable of performing any mitigation function assumed in the accident analysis. As a result, the consequences of any accident previously evaluated are not significantly increased.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any previously evaluated?
No new or different accidents result from utilizing the proposed change. The changes do not involve a physical alteration of the plant (i.e., no new or different type of equipment will be installed) or a change in the methods governing normal plant operation. In addition, the changes do not impose any new or different requirements. The changes do not alter assumptions made in the safety analysis. The proposed changes are consistent with the safety analysis assumptions and current plant operating practice.
Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in the margin of safety?
The design, operation, testing methods, and acceptance criteria for systems, structures, and components (SSCs), specified in applicable codes and standards (or alternatives approved for use by the NRC) will continue to be met as described in the plant licensing basis (including the Final Safety Analysis Report and Bases to TS), since these are not affected by changes to the surveillance frequencies. Similarly, there is no impact to safety analysis acceptance criteria as described in the plant licensing basis. To evaluate a change in the relocated surveillance frequency, Luminant Power [Luminant Generation Company LLC] will perform a probabilistic risk evaluation using the guidance contained in NRC approved NEI 04-10, Rev. 1 in accordance with the TS SFCP. NEI 04-10, Rev. 1, methodology provides reasonable acceptance guidelines and methods for evaluating the risk increase of proposed changes to surveillance frequencies consistent with Regulatory Guide 1.177 [“An Approach for Plant-Specific, Risk-Informed Decision-making: Technical Specifications,” August 1998 (ADAMS Accession No. ML003740176)].
Therefore, the proposed changes do not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed amendment is a title change only. There is no reduction in commitments in the Physical Security Plan therefore; the proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed amendment is a title change only. There is no reduction in commitments in the Physical Security Plan therefore; the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
Notice of Consideration of Issuance of Amendment to Facility Operating License, Proposed No Significant Hazards Consideration Determination, and Opportunity for A Hearing in connection with these actions was published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.22(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) The applications for amendment, (2) the amendment, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment as indicated. All of these items are available for public inspection at the NRC's Public Document Room (PDR), located at One White Flint North, Room O1-F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. Publicly available documents created or received at the NRC are accessible electronically through the Agencywide Documents Access and Management System (ADAMS) in the NRC Library at
The Commission's related evaluation of these amendments is contained in a Safety Evaluation dated September 8, 2011.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated August 31, 2011.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated September 12, 2011.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation Dated September 19, 2011.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated September 12, 2011.
The supplements dated March 18, 2011, April 21, 2011, and May 27, 2011, provided additional information that clarified the application, did not expand the scope of the application as originally noticed, and did not change the NRC staff's original proposed no significant hazards determination.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated September 14, 2011.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated September 8, 2011.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated September 8, 2011.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated September 14, 2011.
The Commission's related evaluation of the amendment is contained in a safety evaluation dated August 31, 2011.
The Commission's related evaluation of the amendment is contained in a safety evaluation dated August 31, 2011.
For the Nuclear Regulatory Commission.
On October 31, 2011, the Atomic Safety and Licensing Board will convene an evidentiary hearing to receive testimony and exhibits regarding the application of Nuclear Innovation North America LLC (NINA) for combined licenses for the construction and operation of two new nuclear reactor units on an existing site near Bay City, Texas. In addition, in accordance with 10 CFR 2.315(a), the Board will entertain written limited appearance statements from members of the public in connection with this proceeding. Finally, the Board gives notice that it may hold oral argument on a new contention proposed by Intervenors
This evidentiary hearing will consider an environmental contention originally scheduled to be heard in August 2011. The Board deferred—without objection by NINA or Staff—hearing this contention in August 2011 because Intervenors' expert witness was unavailable as a result of a medical emergency. This contention, referred to as DEIS-1-G, relates to accounting for energy efficient building code rules in the assessment of a need for power.
The Board will conduct this evidentiary hearing
Any members of the public who plan to attend the evidentiary hearing are advised that security measures will be employed at the entrance to the facility, including searches of hand-carried items such as briefcases or backpacks.
As provided in 10 CFR 2.315(a), any person (other than a party or the representative of a party to this proceeding) may submit a written statement setting forth his or her position on matters of concern relating to this proceeding. Although these statements do not constitute testimony or evidence, they nonetheless may help the Board or the parties in their consideration of the issues in this proceeding.
A written limited appearance statement may be submitted at any time and should be sent to the Office of the Secretary using one of the methods prescribed below:
In addition, using the same method of service, a copy of the written limited appearance statement should be sent to the Chairman of this Licensing Board as follows:
The Board may hold oral argument on Intervenors' newly proffered Fukushima-related contention immediately after the conclusion of the evidentiary hearing. As with hearing attendance, members of the public are welcome to attend oral argument, subject to facility security protocol.
NINA's application and various Staff documents relating to the application are available on the NRC Web site at
These and other documents relating to this proceeding are available for public inspection at the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, MD 20852, or electronically from the publicly available records component of NRC's document system (ADAMS). ADAMS is accessible from the NRC Web site at
It is so
For the Atomic Safety and Licensing Board.
Nuclear Regulatory Commission.
Draft NUREG; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is announcing the availability of and requesting comment on draft NUREG-1614, Volume 5. “U.S. Nuclear Regulatory Commission, FY 2012-2016 Strategic Plan,” dated September 2011. The NRC's draft FY 2012-2016 strategic plan describes the agency's mission and strategic objective, which remain unchanged. The NRC's priority continues to be ensuring the adequate protection of public health and safety, and promoting the common defense and security.
Submit comments on the draft strategic plan by November 2, 2011. Comments received after the above date will be considered if it is practical to do so, but the NRC is able to assure consideration only for comments received on or before this date.
Please include Docket ID NRC-2011-0233 in the subject line of your comments. For additional instructions on submitting comments and instructions on accessing documents related to this action, see “Submitting Comments and Accessing Information” in the
•
•
•
Comments submitted in writing or in electronic form will be posted on the NRC Web site and on the Federal rulemaking Web site,
The NRC requests that any party soliciting or aggregating comments received from other persons for submission to the NRC inform those persons that the NRC will not edit their comments to remove any identifying or contact information, and therefore, they should not include any information in their comments that they do not want publicly disclosed.
You can access publicly available documents related to this document using the following methods:
•
•
•
James E. Coyle, Planning and Performance Management Branch, Division of Planning and Budget, Office of the Chief Financial Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-6087, e-mail:
The Government Performance and Results Act Modernization Act of 2010 (GRPAMA) requires that an agency's strategic plan be updated for submission to the Congress and the President every four years. The NRC is developing a new strategic plan for FY 2012-2016 to replace the agency's existing strategic plan.
The NRC's draft FY 2012-2016 strategic plan describes the agency's mission and strategic objective, which remain unchanged. The NRC's priority continues to be ensuring the adequate protection of public health and safety,
The draft strategic plan reflects the agency's Safety and Security goals, and their associated strategic outcomes. The goals continue to accurately describe the agency's core functions and therefore remain essentially unchanged. This focus on Safety and Security ensures that the NRC remains a strong, independent, stable, and effective regulator.
The draft strategic plan addresses the challenges the NRC will face due to changes in the regulatory environment. This includes the review of applications to construct and operate new nuclear power plants including small modular reactors, while continuing to ensure the safe and secure operation of the existing licensed facilities, as well as addressing any national policy decisions related to the management of radioactive waste.
The draft Strategic Plan also describes the agency's Organizational Excellence Objectives of Openness, Regulatory Effectiveness, and Operational Excellence, which characterize the manner in which the agency intends to achieve its mission. The NRC encourages all interested parties to comment on the draft strategic plan.
The draft strategic plan establishes the agency's long-term strategic direction and outcomes. It provides a foundation to guide the NRC's work and to allocate the NRC's resources.
Stakeholder feedback will be valuable in helping the Commission develop a final plan that has the benefit of the many views in the regulated civilian nuclear industry.
The final version of NUREG-1614, Volume 5, is expected to be released in the spring of 2012.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission;
Weeks of October 3, 10, 17, 24, 31, November 7, 2011.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of October 24, 2011.
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of November 7, 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 (e.g., braille, large print), please notify Bill Dosch, Chief, Work Life and Benefits Branch, at 301-415-6200, TDD: 301-415-2100, or by e-mail at
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
Postal Regulatory Commission.
Notice.
This document informs the public that an appeal of the closing of the Redfield, New York post office has been filed. It identifies preliminary steps and provides a procedural schedule. Publication of this document
Submit comments electronically by accessing the “Filing Online” link in the banner at the top of the Commission's Web site (
Stephen L. Sharfman, General Counsel, at 202-789-6820 (case-related information) or
Notice is hereby given that, pursuant to 39 U.S.C. 404(d), on September 23, 2011, the Commission received a petition for review and application for suspension of the Postal Service's determination to close the Redfield post office in Redfield, New York. The petition was filed by the Redfield Citizens Committee, Kathleen M. Gallo, Martha A. Harvey and Tanya M. Yerdon (Petitioners) and is postmarked September 20, 2011. The Commission hereby institutes a proceeding under 39 U.S.C. 404(d)(5) and establishes Docket No. A2011-86 to consider Petitioners' appeal. If Petitioners would like to further explain their position with supplemental information or facts, Petitioners may either file a Participant Statement on PRC Form 61 or file a brief with the Commission no later than October 28, 2011.
After the Postal Service files the administrative record and the Commission reviews it, the Commission may find that there are more legal issues than those set forth above, or that the Postal Service's determination disposes of one or more of those issues. The deadline for the Postal Service to file the applicable administrative record with the Commission is October 11, 2011.
The appeal and all related documents are also available for public inspection in the Commission's docket section. Docket section hours are 8 a.m. to 4:30 p.m., eastern time, Monday through Friday, except on Federal government holidays. Docket section personnel may be contacted via electronic mail at
The Commission reserves the right to redact personal information which may infringe on an individual's privacy rights from documents filed in this proceeding.
1. The Postal Service shall file an answer to the application for suspension of the Postal Service's determination no later than October 3, 2011.
2. The Postal Service shall file the applicable administrative record regarding this appeal no later than October 11, 2011.
3. Any responsive pleading by the Postal Service to this notice is due no later than October 11, 2011.
4. The procedural schedule listed below is hereby adopted.
5. Pursuant to 39 U.S.C. 505, James F. Callow is designated officer of the Commission (Public Representative) to represent the interests of the general public.
6. The Secretary shall arrange for publication of this notice and order in the
By the Commission.
Postal Regulatory Commission.
Notice.
This document informs the public that an appeal of the closing of the Pomfret Center, Connecticut post office has been filed. It identifies preliminary steps and provides a procedural schedule. Publication of this document will allow the Postal Service, petitioners, and others to take appropriate action.
Submit comments electronically by accessing the “Filing Online” link in the banner at the top of the Commission's Web site (
Stephen L. Sharfman, General Counsel, at 202-789-6820 (case-related information) or
Notice is hereby given that, pursuant to 39 U.S.C. 404(d), on September 23, 2011, the Commission received a petition for review of the Postal Service's determination to close the Pomfret Center post office in Pomfret Center, Connecticut. The petition was filed by Tima Smith (Petitioner) and is postmarked September 9, 2011. The Commission hereby institutes a proceeding under 39 U.S.C. 404(d)(5) and establishes Docket No. A2011-87 to consider Petitioner's appeal. If Petitioner would like to further explain her position with supplemental information or facts, Petitioner may either file a Participant Statement on PRC Form 61 or file a brief with the Commission no later than October 28, 2011.
After the Postal Service files the administrative record and the Commission reviews it, the Commission may find that there are more legal issues than the one set forth above, or that the Postal Service's determination disposes of one or more of those issues. The deadline for the Postal Service to file the applicable administrative record with the Commission is October 11, 2011.
The appeal and all related documents are also available for public inspection in the Commission's docket section. Docket section hours are 8 a.m. to 4:30 p.m., eastern time, Monday through Friday, except on Federal government holidays. Docket section personnel may be contacted via electronic mail at
The Commission reserves the right to redact personal information which may infringe on an individual's privacy rights from documents filed in this proceeding.
1. The Postal Service shall file the applicable administrative record regarding this appeal no later than October 11, 2011.
2. Any responsive pleading by the Postal Service to this notice is due no later than October 11, 2011.
3. The procedural schedule listed below is hereby adopted.
4. Pursuant to 39 U.S.C. 505, Derrick D. Dennis is designated officer of the Commission (Public Representative) to
5. The Secretary shall arrange for publication of this notice and order in the
By the Commission.
Tuesday, October 18, 2011, at 10 a.m.
Washington, DC, at U.S. Postal Service Headquarters, 475 L'Enfant Plaza, SW.
Closed.
1. Strategic Issues.
2. Financial Matters.
3. Pricing.
4. Personnel Matters and Compensation Issues.
5. Governors' Executive Session—Discussion of prior agenda items and Board Governance.
Julie S. Moore, Secretary of the Board, U.S. Postal Service, 475 L'Enfant Plaza, SW., Washington, DC 20260-1000. Telephone (202) 268-4800.
The Presidio Trust.
Notice of Public Meeting.
In accordance with § 103(c)(6) of the Presidio Trust Act, 16 U.S.C. 460bb appendix, and in accordance with the Presidio Trust's bylaws, notice is hereby given that a public meeting of the Presidio Trust Board of Directors will be held commencing 6:30 p.m. on Wednesday, October 19, 2011, at the Golden Gate Club, 135 Fisher Loop, Presidio of San Francisco, California. The Presidio Trust was created by Congress in 1996 to manage approximately eighty percent of the former U.S. Army base known as the Presidio, in San Francisco, California.
The purposes of this meeting are to take action on the minutes of a previous Board meeting, to provide the Chairperson's report, to provide the Executive Director's report, to take action on the Archaeological Collections Policy, to provide project updates, and to receive public comment on other matters in accordance with the Trust's Public Outreach Policy.
Individuals requiring special accommodation at this meeting, such as needing a sign language interpreter, should contact Mollie Matull at 415.561.5300 prior to October 12, 2011.
The meeting will be held at the Golden Gate Club, 135 Fisher Loop, Presidio of San Francisco.
Karen Cook, General Counsel, the Presidio Trust, 34 Graham Street, P.O. Box 29052, San Francisco, California 94129-0052,
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, October 6, 2011 at 9:30 a.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 Paredes, 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, October 6, 2011 will be:
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.
On August 11, 2011, the Municipal Securities Rulemaking Board (“MSRB” or “Board”), filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”),
This order approves the proposed rule change.
The purpose of the proposed rule change is to make changes to MSRB Rule A-3 as are necessary and appropriate to establish a permanent Board structure of 21 Board members divided into three classes, each class being comprised of seven members who would serve three year terms. The terms would be staggered and, each year, one class would be nominated and elected to the Board of Directors.
Rule A-3 would include a transitional provision, Rule A-3(h), applicable for the Board's fiscal years commencing October 1, 2012 and ending September 30, 2014, which would provide that Board members who were elected prior to July 2011 and whose terms end on or after September 30, 2012 may be considered for term extensions not exceeding two years, in order to facilitate the transition to three staggered classes of seven Board members per class. The transitional provision would further provide that Board members would be nominated for term extensions by a Special Nominating Committee formed pursuant to Rule A-6, on committees of the Board, and that the Board would then vote on each proposed term extension. The selection of Board members whose terms would be extended would be consistent with ensuring that the Board is in compliance with the composition requirements of revised Section (a) of Rule A-3 during such extension periods.
In an order approving changes to MSRB Rule A-3 to comply with the provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act
The Commission also approved a provision in MSRB Rule A-3 that defined an independent public member as one with no material business relationship with an MSRB regulated entity, meaning that, within the last two years, the individual was not associated with a municipal securities broker, municipal securities dealer, or municipal advisor, and that the individual has no relationship with any such entity, whether compensatory or otherwise, that reasonably could affect the independent judgment or decision making of the individual. The rule further provided that the Board, or by delegation, its Nominating and Governance Committee, could also determine that additional circumstances involving the individual could constitute a material business relationship with an MSRB regulated entity.
In finding that the proposed rule change was reasonable and consistent with the requirements of the Exchange Act, in that it provided for fair representation of public representatives and MSRB regulated entities, the Commission noted that the MSRB had committed to monitor the effectiveness of the structure of the Board to determine to what extent, if any, proposed changes might be appropriate. Additionally, in its response to comment letters to the transitional rule proposal, the MSRB suggested that, at the end of the transitional period, the MSRB would be in a better position to make long-term decisions regarding representation, size and related matters. While the transitional period has not yet concluded, the Board believes it is now in a position to establish a permanent structure. A more complete description of the proposal is provided in the Commission's Notice.
The Commission received three comment letters and a response from the MSRB to the comment letters.
SIFMA opposed a permanent Board of 21 members. SIFMA stated that such a Board is too big, would result in problems filling the “public” seats with qualified members, and would impose unnecessary costs. SIFMA noted that the 21-member Board exceeds the statutory minimum Board size provided in the Dodd-Frank Act, and believes any deviation from the Board size referenced in the statute should be for compelling reasons. SIFMA believes that a Board that includes 11 public representatives will create challenges in terms of recruiting candidates for Board seats with sufficient knowledge and expertise in the municipal securities market so as
The MSRB responded that it provided a strong justification for a 21-member Board in its proposed rule change. In the proposal, the MSRB stated that, given the diversity of municipal entities, broker-dealers, bank dealers, and municipal advisors, a Board of 21 members provides more flexibility to provide representation from various sectors of the markets. The MSRB also stated that, at a 21-member level, the Board would be similar in size to its counterpart, the Board of Governors of the Financial Industry Regulatory Authority, and that a Board of 21 members is appropriate and consistent with industry norms. The MSRB does not agree with SIFMA's comment concerning the difficulty of filling the “public” seats with individuals with sufficient knowledge and expertise in the municipal securities market. The MSRB stated that the municipal securities market is replete with individuals who, while satisfying Rule A-3's definition of “independent,” are very knowledgeable about the workings of the municipal securities market and have devoted a considerable amount of their time to the improvement of that market, and that previous MSRB searches for public Board members have elicited strong responses from such public servants.
The MSRB also stated that the additional costs associated with a larger Board were not substantial, and estimated the incremental cost of the larger Board at approximately one percent of its budget. The Board further stated that it does not consider such additional costs to be an impediment to the fulfillment of its key initiatives, and that the larger Board contributes significantly to those initiatives.
The Commission finds that the 21-member Board size is not inconsistent with the Exchange Act. Section 15B(b)(2)(B)(iii) of the Exchange Act provides that the rules of the Board may increase the number of Board members over the default 15-member Board structure set forth in the Exchange Act,
All three commenters raised concerns about the Board's composition. NAIPFA agreed with the rule's requirement that there be at least one municipal advisor representative who is not associated with a broker-dealer in each elected class of board members, but commented that the Board's composition of seven broker-dealer and bank dealer members compared to three municipal advisor members did not constitute “fair representation” of municipal advisors as was called for by the Dodd-Frank Act.
SIFMA opposed the proposal's mandate that at least 30 percent of “regulated” members of the Board be representatives of municipal advisor firms that are not broker-dealers or bank dealers. SIFMA indicated that there is no comparable minimum for representatives of broker-dealers or bank dealers, noted that the 30 percent minimum representation for municipal advisors exceeds the statutory minimum, and stated that the MSRB offered no justification for this provision.
GFOA stated that the MSRB should ensure that there is adequate issuer representation on its Board in light of the MSRB's new mission to protect municipal entities and obligated persons in addition to investors. GFOA acknowledged that the Dodd-Frank Act states that the Board must be comprised of “at least” one issuer and “at least” one investor, but recommended that, if the Board remains at 21 members, the Board should include four issuers, four investors, and three general public members. GFOA also stated that the issuer positions should be filled by qualified and long-standing representatives of various-sized state and local governments so that there would be a balanced representation of the issuer community. GFOA further stated that these issuer representatives should generally come from general purpose governments that issue the most often used types of debt (
GFOA also stated that having adequate independent financial advisors on the Board is essential and that the number of such independent financial advisor representatives should be no less than the number of those representing banks and broker-dealers; GFOA further recommended allowing only those financial advisors who are unaffiliated with broker-dealers and banks to serve as the municipal advisor representatives on the Board.
In addition, GFOA said that, in order for a public Board member to be considered “independent” from a regulated entity, such member should have had no material business relationship with a regulated entity for the past five years, rather than the two years provided for in Rule A-3. GFOA said that this two-year bar is set too low to guarantee that a public board member has true independence, and that other criteria may also be needed to ensure that any particular independent board position be filled by a professional that has significant experience in the particular community for which he or she serves on the Board.
The MSRB stated that it has carefully considered the interests of municipal advisors, broker-dealers, and bank dealers as regulated entities, the MSRB's obligation to write rules that protect investors and municipal entities, and the statutory mandate that there be fair representation on the Board of broker-dealers, bank dealers, municipal advisors, and the public. The MSRB indicated that while the statute requires that there be at least one municipal advisor representative on the Board, it is the view of the Board that no less than 30 percent of the members representing regulated entities should be municipal advisors that are not associated with broker-dealers or bank dealers. The MSRB did not agree with SIFMA's comment that the level of representation of municipal advisors is disproportionately large, noting that the development of rules for municipal advisors is not complete and that it is essential that municipal advisors participate in the development of rules that affect them. The MSRB also did not agree with NAIPFA's comment that this level of representation of municipal advisors is disproportionately small, in relation to the representation of broker-dealers and bank dealers, stating that because many broker-dealers and bank dealers engage in municipal advisory activities, it is inappropriate to assume that the interests of the municipal advisor Board representatives and the
The MSRB believes that the proposal adequately addresses GFOA's concerns about the adequacy of issuer representation on the Board and its proposed independence standards. The MSRB does not believe that Rule A-3 should be amended to provide for a greater minimum number of municipal entity representatives than that mandated by the Exchange Act, and noted that they have a mandate to protect all municipal entities. The MSRB also noted that the proposed rule language already addresses GFOA's concern that municipal advisor representatives not be broker-dealers or bank dealers. Further, the MSRB believes that no change to the definition of “independent” in Rule A-3 is warranted because the definition is already more stringent than the definition used by other self-regulatory organizations (“SROs”), and because the definition strikes the right conservative balance of ensuring sufficient independence while not permanently restricting knowledgeable individuals.
The Commission finds that the proposed Board composition is consistent with the requirements of the Exchange Act, and the rules and regulations thereunder applicable to the MSRB, including the fair representation requirements of the Exchange Act. Section 15B(b)(2)(B) of the Exchange Act requires, among other things, that the rules of the Board establish fair procedures for the nomination and election of members of the Board and assure fair representation in such nominations and elections of public representatives, broker-dealer representatives, bank representatives, and advisor representatives.
The MSRB proposes that the permanent Board, like the current Board operating under the transitional rule for the Board's fiscal years commencing October 1, 2010 and ending September 30, 2012, consist of 11 public representatives and 10 regulated representatives. Of those 10 regulated representatives, the MSRB proposes that at least one, and not less than 30 percent shall be advisor representatives (
As noted in the Transitional Board Approval,
Under the MSRB proposal, of the 10 regulated representatives, at least one would be a broker-dealer representative, at least one would be a bank representative, and at least one, and not less than 30 percent of the total regulated representatives (
The Commission also notes that Section 15B(b)(1) of the Exchange Act sets forth minimum representation requirements for bank, broker-dealer and advisor representatives.
In finding that the transitional Board was reasonable and consistent with the requirements of the Exchange Act, the Commission noted that the MSRB had committed to monitor the effectiveness of the structure of the Board to determine to what extent, if any, proposed changes in representation might be appropriate.
NAIPFA and GFOA expressed concerns about the transparency of various Board processes. NAIPFA requested that the MSRB's Board member selection and leadership processes become more transparent in order to ensure that the public interest is being served. The MSRB responded by noting that the Board recently made the application process for Board members more transparent by establishing a policy of publishing the names of all applicants on the Board's website within one week of the publication of the names of the new Board members. NAIPFA also expressed concern that the Board members who are to serve on the Special Nominating Committee to be established as part of the proposed rule have already been selected, and expressed concerns regarding the process by which the Special Nominating Committee members were selected. The MSRB responded to the concerns about the Special Nominating Committee by stating that the selection complied with MSRB Rule A-6(a), which permits the Board to establish special committees by resolution, and noting that the members who were selected for the Special Nominating Committee for term extensions were the only Board members who met their criteria of being “disinterested” in the selection process because of their ineligibility for a term extension.
NAIPFA also requested that the MSRB utilize a more transparent process with regard to future rulemaking by giving member firms more information about the rules the MSRB addresses at particular Board meetings and providing the timeline with which the MSRB anticipates rule releases. NAIPFA suggested that the MSRB post meeting agendas at least 48 hours in advance of a meeting date, and allow for public attendance at Board meetings and public participation in Board conference calls. In addition, NAIPFA requested that the MSRB act to ensure that statements made by leadership are consistent with the actions of the Board.
GFOA also stated that there is a need for greater transparency with Board practices. GFOA suggested that the Board hold their meetings in public and allow for outside participation. GFOA also suggested that Board meeting agendas be made available well before the scheduled meetings, and that the meeting minutes be published within 10 business days of each meeting.
The MSRB responded that it believes its rulemaking process provides considerable opportunities for full public involvement and comment on regulatory initiatives, and that the Board is careful to consider all feedback regarding potential improvements to its governance processes. The Board does not believe that there have been inconsistencies between statements made by MSRB leadership and actions of the Board. The MSRB stated that its Board meetings are closed to the public in order to promote free and frank discussion on all topics and to promote an environment in which impartial judgment may be exercised. However, the Board indicated that it is exploring other alternatives to promote transparency, as transparency is an important priority of the Board.
Although the provisions of the proposed rule change do not directly relate to the transparency of Board processes, the Commission notes that the Board has indicated that it is exploring alternatives to promote transparency.
The Commission has carefully considered the proposed rule change, the comment letters received, and the MSRB's response to the comment letters and finds that the proposed rule change is consistent with the requirements of the Exchange Act and the rules and regulations thereunder applicable to the MSRB.
The proposed rule change is also consistent with Section 15B(b)(2)(B) of the Act,
Establish fair procedures for the nomination and election of members of the Board and assure fair representation in such nominations and elections of public representatives, broker dealer representatives, bank representatives, and advisor representatives. Such rules—
(i) Shall provide that the number of public representatives of the Board shall at all times exceed the total number of regulated representatives and that the membership shall at all times be as evenly divided in number as possible between public representatives and regulated representatives;
(ii) shall specify the length or lengths of terms members shall serve;
(iii) may increase the number of members which shall constitute the whole Board, provided that such number is an odd number; and
(iv) shall establish requirements regarding the independence of public representatives.
The Commission believes that the proposal provides for fair representation of public representatives, broker-dealers, bank dealers and municipal advisors consistent with the Exchange Act, and that providing a minimum number of non-dealer municipal advisor representatives—at least 30 percent of the regulated representatives—is reasonable, and consistent with the Exchange Act. The Commission notes that the proposal provides that the number of public representatives on the Board shall exceed the total number of regulated representatives by one so that the membership shall be as evenly divided as possible between public representatives and regulated representatives—11 to 10. The proposal specifies the length of terms that Board members will serve—three years—which is consistent with the length of the terms served by Board members prior to the adoption of the Dodd-Frank Act. The proposal increases the size of the Board from 15 to 21, consistent with the size of the Board during the transitional period that commenced on October 1, 2010. Finally, the proposal maintains the existing requirement regarding the independence of public representatives.
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 (the “Act”)
The Exchange proposes to amend Commentary .04 to Rule 6.4 in order to simplify the $1 Strike Price Program. The text of the proposed rule change is available on the Exchange's Web site at
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 those 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 parts of such statements.
The Exchange is proposing to amend Commentary .04 to Rule 6.4 in order to simplify the $1 Strike Price Program (“Program”).
In 2003, the Commission issued an order permitting the Exchange to establish the Program on a pilot basis.
The Exchange renewed the pilot program on a yearly basis and, in 2008, the Exchange adopted the pilot program on a permanent basis.
Since the Program was made permanent, the number of class selections per exchange has been increased from ten (10) classes to 55 classes
The most recent expansion of the Program was approved by the Commission in early 2011 and increased the number of $1 strike price intervals permitted within the $1 to $50 range.
These numerous expansions have resulted in very lengthy rule text that the Exchange believes is complicated and difficult to understand. The Exchange believes that the proposed changes to simplify the rule text of the Program would benefit market
• When the price of the underlying stock is equal to or less than $20, permit $1 strike price intervals with an exercise price up to 100% above and 100% below the price of the underlying stock.
○ However, the above restriction would not prohibit the listing of at least five (5) strike prices above and below the price of the underlying stock per expiration month in an option class.
○ For example, if the price of the underlying stock is $2, the Exchange would be permitted to list the following series: $1, $2, $3, $4, $5, $6 and $7.
• When the price of the underlying stock is greater than $20, permit $1 strike price intervals with an exercise price up to 50% above and 50% below the price of the underlying security up to $50.
• For the purpose of adding strikes under the Program, the “price of the underlying stock” shall be measured in the same way as “the price of the underlying security” is, as set forth in Rule 6.4A(b)(1).
• Prohibit the listing of additional series in $1 strike price intervals if the underlying stock closes at or above $50 in its primary market and provide that additional series in $1 strike price intervals may not be added until the underlying stock closes again below $50.
The early 2011 expansion of the Program permitted for some limited listing of LEAPS in $1 strike price intervals for classes that participate in the Program. The Exchange is proposing to maintain the expansion as to LEAPS, but simplify the language and provide examples of the simplified rule text. These changes are set forth in proposed new paragraph (b)(v) to Commentary .04 to Rule 6.4.
For stocks in the Program, the Exchange may list one $1 strike price interval between each standard $5 strike price interval, with the $1 strike price interval being $2 above the standard strike for each interval above the price of the underlying stock, and $2 below the standard strike for each interval below the price of the underlying stock (“$2 wings”). For example, if the price of the underlying stock is $24.50, the Exchange may list the following standard strikes in $5 intervals: $15, $20, $25, $30 and $35. Between these standard $5 strikes, the Exchange may list the following $2 wings: $18, $27 and $32.
In addition, the Exchange may list the $1 strike price interval which is $2 above the standard strike just below the underlying price at the time of listing. In the above example, since the standard strike just below the underlying price ($24.50) is $20, the Exchange may list a $22 strike. The Exchange may add additional LEAP strikes as the price of the underlying stock moves, consistent with the Options Listing Procedures Plan (“OLPP”).
The early 2011 expansion of the Program prohibited the listing of $2.50 strike price intervals for classes that participate in the Program. This prohibition applies to non-LEAPS and LEAPS. The Exchange proposes to maintain this prohibition and codify it in paragraph (a) to Commentary .04 to Rule 6.4 (Program Description).
For ease of reference, the Exchange is proposing to add the headings “Program Description,” “Initial and Additional Series” and “LEAPS” to Commentary .04 to Rule 6.4.
The Exchange is proposing to more accurately reflect the nature of the Program and is proposing to make stylistic changes throughout Commentary .04 to Rule 6.4 by renaming the Program “The $1 Strike Price Interval Program” and by adding the phrase “price interval.”
The Exchange proposes to reorganize certain text of Commentary .04 to Rule 6.4 and portions of the Delisting Policy therein in order to better organize Commentary .04. This would include moving current paragraph (b) out of Commentary .04 and instead including the text as new Commentary .13 to Rule 6.4.
Lastly, the Exchange is making technical changes to Commentary .04 to Rule 6.4,
The Exchange represents that it has the necessary systems capacity to support the increase in new options series that would result from the proposed streamlining changes to the Program.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not significantly affect the protection of investors or the public interest, does not impose any significant burden on competition, and, by its terms, does not become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay. The Commission believes that waiver of the operative delay is consistent with the protection of investors and the public interest because the proposal is substantially similar to that of another exchange that has been approved by the Commission.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
The Exchange is filing with the Commission a proposal to modify Commentary .05 to Phlx Rule 1012 (Series of Options Open for Trading) to simplify the Exchange's $1 Strike Price Program (the “$1 Strike Program” or “Program”).
The Exchange requests that the Commission waive the 30-day operative delay period contained in Exchange Act Rule 19b-4(f)(6)(iii).
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to modify Commentary .05 to Phlx Rule 1012 to simplify the Exchange's $1 Strike Program.
In 2003, the Commission issued an order permitting the Exchange to establish the Program on a pilot basis.
In 2008, the Program was expanded and the Commission granted permanent approval of the Program.
The development and expansion of the Program has resulted in very lengthy rule text that is complicated and could be difficult to understand. The Exchange believes that the proposed changes to simplify the rule text of the Program will benefit market participants since the Program will be easier to understand and will maintain the expansions that were made to the Program in 2010. Through the current proposal, the Exchange also hopes to make administration of the Program easier (
• When the price of the underlying stock is equal to or less than $20, permit $1 strike price intervals with an exercise price up to 100% above and 100% below the price of the underlying stock.
○ However, the above restriction would not prohibit the listing of at least five (5) strike prices above and below the price of the underlying stock per expiration month in an option class.
○ For example, if the price of the underlying stock is $2, the Exchange would be permitted to list the following series: $1, $2, $3, $4, $5, $6 and $7.
• When the price of the underlying stock is greater than $20, permit $1 strike price intervals with an exercise price up to 50% above and 50% below the price of the underlying security up to $50.
• For the purpose of adding strikes under the Program, the “price of the underlying stock” shall be measured in the same way as “the price of the underlying security” set forth in subparagraph (a) of Commentary .10 to Rule 1012.
• Prohibit the listing of additional series in $1 strike price intervals if the underlying stock closes at or above $50 in its primary market and provide that additional series in $1 strike price intervals may not be added until the underlying stock closes again below $50.
The 2010 expansion of the Program permitted for some limited listing of LEAPS in $1 strike price intervals for classes that participate in the Program. The Exchange is proposing to maintain the expansion as to LEAPS, but simplify the language and provide examples of the simplified rule text. These changes are set forth in proposed subparagraph (a)(i)(B)(5) of Commentary .05 to Rule 1012.
For stocks in the Program, the Exchange may list one $1 strike price interval between each standard $5 strike interval, with the $1 strike price interval being $2 above the standard strike for each interval above the price of the underlying stock, and $2 below the standard strike for each interval below the price of the underlying stock (“$2 wings”). For example, if the price of the underlying stock is $24.50, the Exchange may list the following standard strikes in $5 intervals: $15, $20, $25, $30 and $35. Between these standard $5 strikes, the Exchange may list the following $2 wings: $18, $27 and $32.
In addition, the Exchange may list the $1 strike price interval which is $2 above the standard strike just below the underlying price at the time of listing. In the above example, since the standard strike just below the underlying price ($24.50) is $20, the Exchange may list a $22 strike. The Exchange may add additional long-term options series strikes as the price of the underlying stock moves, consistent with the OLPP.
The 2010 expansion of the Program prohibited the listing of $2.50 strike price intervals for classes that participate in the Program. This prohibition applies to non-LEAP and LEAPS. The Exchange proposes to maintain this prohibition and codify it in proposed new subparagraph (a)(i)(A) of Commentary .05 to Rule 1012.
For ease of reference, the Exchange is proposing to add the headings “$1 Strike Price Interval Program,” “Initial and Additional Series,” and “LEAPS” to Commentary .05 of Rule 1012. And finally, the Exchange is making non- substantive, technical changes to the proposed rule such as replacing the word “security” with the word “stock.”
The Exchange represents that it has the necessary systems capacity to support the increase in new options series that will result from the proposed streamlining changes to the Program.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not significantly affect the protection of investors or the public interest, does not impose any significant burden on competition, and, by its terms, does not become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay. The Commission believes that waiver of the operative delay is consistent with the protection of investors and the public interest because the proposal is substantially similar to that of another exchange that has been approved by the Commission.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-Phlx-2011-128. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
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
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Exchange Rule 4121 to revise the current methodology for determining when to halt trading in all stocks due to extraordinary market volatility. The Exchange is proposing this rule change in consultation with other equity, options, and futures markets, the Financial Industry Regulatory Authority, Inc. (“FINRA”), and staffs of the Commission and the Commodity Futures Trading Commission.
Since May 6, 2010, when the markets experienced excessive volatility in an abbreviated time period,
The Joint CFTC-SEC Advisory Committee on Emerging Regulatory Issues (“Committee”) has recommended that, in addition to the initiatives already adopted or proposed, the markets should consider reforming the existing market-wide circuit breakers. Among other things, the Committee noted that the interrelatedness of today's highly electronic markets warrants the need to review the present operation of the system-wide circuit breakers now in place. Specifically, the Committee recommended that the markets consider replacing the Dow Jones Industrial Average (“DJIA”) with the S&P 500® Index (“S&P 500”), revising the 10%, 20%, and 30% decline percentages, reducing the length of trading halts, and allowing halts to be triggered up to 3:30 p.m.
The exchanges and FINRA have taken into consideration the Committee's recommendations, and with some modifications, have proposed changes to market-wide circuit breakers that the Exchange believes will provide for a more meaningful measure in today's faster, more electronic markets, of when to halt stocks on a market-wide basis as a result of rapid market declines.
The Exchange adopted Rule 4121 when it registered as an exchange in January of 2006.
The purpose of a marketwide halt, as embodied in Rule 4121, is to enable market participants to establish an equilibrium between buying and selling interest and to ensure that market participants have an opportunity to become aware of and respond to significant price movements. Importantly, the market-wide circuit breakers were not intended to prevent markets from adjusting to new price levels; rather, they provide for a speed
The current standard, set forth in the rules of other exchanges,
Once a marketwide circuit breaker is in effect, trading in all stocks halt for the time periods specified below:
Unless stocks are halted for the remainder of the trading day, price indications are disseminated during a Rule 80B trading halt for stocks that comprise the DJIA.
As noted above, the Exchange, other equities, options, and futures markets, and FINRA propose to amend the market-wide circuit breakers to take into consideration the recommendations of the Committee, and to provide for more meaningful measures in today's markets of when to halt trading in all stocks. Accordingly, the Exchange proposes to amend Rule 4121 to create the following standards: (i) Replace the DJIA with the S&P 500; (ii) replace the quarterly calendar recalculation of Rule 80B triggers with daily recalculations; (iii) replace the 10%, 20%, and 30% market decline percentages with 7%, 13%, and 20% market decline percentages; (iv) modify the length of the trading halts associated with each market decline level; and (v) modify the times when a trading halt may be triggered. The Exchange believes that these proposed amendments update the rule to reflect today's high-speed, highly electronic trading market while still ensuring that market participants have an opportunity to become aware of and respond to significant price movements.
First, the Exchange proposes to replace the DJIA with the S&P 500. The Exchange believes that because the S&P 500 is based on the trading prices of 500 stocks, as compared to the 30 stocks that comprise the DJIA, the S&P 500 represents a broader base of securities against which to measure whether extraordinary market-wide volatility is occurring. In addition, as noted by the Committee, using an index that correlates closely with derivative products, such as the E-Mini and SPY, will allow for a better cross-market measure of market volatility.
Second, the Exchange proposes to change the recalculation of the trigger values from once every calendar quarter to daily. The Exchange believes that updating the trigger values daily will better reflect current market conditions. In particular, a daily recalculation will ensure that the percentage drop triggers relate to current market conditions, and are not compared to what may be stale market conditions. As noted in the proposed rule, the daily calculations of the trigger values will be published before the trading day begins.
Third, the Exchange proposes to decrease the current Level 1, 2, and 3 declines of 10%, 20%, and 30% to a Level 1 Market Decline of 7%, a Level 2 Market Decline of 13%, and Level 3 Market Decline of 20%. In particular, as demonstrated by the May 6, 2010 flash crash, the current Level 1 10% decline may be too high a threshold before determining whether to halt trading across all securities. In fact, since adoption, the markets have halted only once, on October 27, 1997.
As further proposed, the Exchange would halt trading based on a Level 1 or Level 2 Market Decline only once per day. For example, if a Level 1 Market Decline were to occur and trading were halted, following the reopening of trading, the Exchange would not halt the market again unless a Level 2 Market Decline were to occur. Likewise, following the reopening of trading after a Level 2 Market Decline, the Exchange would not halt trading again unless a Level 3 Market Decline were to occur, at which point, trading in all stocks would be halted until the primary market opens the next trading day.
Fourth, to correspond with the lower percentages associated with triggering a trading halt, the Exchange also proposes to shorten the length of the market-wide trading halts associated with each Level. As proposed, a Level 1 or 2 Market Decline occurring after 9:30 a.m. Eastern and up to and including 3:25 p.m. Eastern, would result in a trading halt in all stocks for 15 minutes.
The Exchange believes that by reducing the percentage threshold, coupled with the reduced length of a trading halt, the proposed rule would allow for trading halts for serious market declines, while at the same time, would minimize disruption to the market by allowing for trading to continue after the proposed more-abbreviated trading halt. The Exchange believes that in today's markets, where trading information travels in micro-second speed, a 15-minute trading halt strikes the appropriate balance between the need to halt trading for market participants to assess the market, while at the same time reducing the time that the market is halted.
Finally, because the proposed Level 1 and Level 2 trading halts will now be 15 minutes, the Exchange proposes amending the rule to allow for a Level 1 or 2 Market Decline to trigger a trading halt up to 3:25 p.m. (or, in the case of scheduled early closure, at 12:25 p.m.). Under the current rule, a trading halt cannot be triggered after 2:30 p.m., and this time corresponds to the need for the markets both to reopen following a 30-minute halt and to engage in a fair and orderly closing process. However, as the markets experienced on May 6, 2010,
Accordingly, to accommodate existing Exchange rules concerning closing procedures, including the publication of imbalance information beginning at 3:50 p.m. and the restrictions on entry and cancellation of market on close (“MOC”) and limit on close (“LOC”) orders after 3:45 p.m.,
Under the proposed rule, a Level 3 Market Decline would halt trading for the remainder of the trading day, including any trading that may take place after 4 p.m., Eastern, and would not resume until the next trading day.
In addition to these proposed changes, the Exchange proposes to add to Rule 4121 how the markets will reopen following a 15-minute trading halt. In particular, the Exchange proposes that if the primary market halts trading in all stocks, all markets will halt trading in those stocks until the primary market has resumed trading or notice has been provided by the primary market that trading may resume. As further proposed, if the primary market does not re-open a security within 15 minutes following the end of the trading halt, other markets may resume trading in that security.
The statutory basis for the proposed rule change is Section 6(b)(5) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such 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 changes to the market-wide circuit breaker regime are consistent with the Act. The Commission specifically requests comment on the following:
• As discussed above, the proposed rule change would narrow the percentage market declines that would trigger a market-wide halt in trading. How would the proposed changes interact with the existing single-stock circuit breaker pilot program
• To what extent could the concurrent triggering of single stock circuit breakers in many S&P 500 Index stocks lead to difficulties in calculating the index? Would the triggering of many single stock circuit breakers in a general market downturn cause the index calculation to become stale and thereby delay the triggering of the market-wide circuit breaker?
• Should the market-wide circuit breaker be triggered if a sufficient number of single-stock circuit breakers or price limits are triggered, and materially affect calculations of the S&P 500 Index?
• Should market centers implement rules that mandate cancellation of pending orders in the event a market-wide circuit breaker is triggered? If so, should such a rule require cancellation of all orders or only certain order types (
• Should some provision be made to end the regular trading session if a market decline suddenly occurs after 3:25 p.m. but does not reach the 20% level?
• In the event of a Level 3 Market Decline, should some provision be made for the markets to hold a closing auction?
• Should the primary market have a longer period (
• In the event of a Level 3 Market Decline, should the markets wait for the primary market to reopen trading in a particular security on the next trading day before trading in that security resumes?
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 amend Exchange Rule 133 to revise the methodology for determining when to halt trading in all stocks due to extraordinary market volatility. The proposal is made in conjunction with all national securities exchanges and the Financial Industry Regulatory Authority (“FINRA”).
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Exchange Rule 133 to revise the current methodology for determining when to halt trading in all stocks due to extraordinary market volatility. The Exchange is proposing this rule change in consultation with other equity, options, and futures markets, the Financial Industry Regulatory Authority, Inc. (“FINRA”), and staffs of the Commission and the Commodity Futures Trading Commission.
Since May 6, 2010, when the markets experienced excessive volatility in an abbreviated time period, i.e., the “flash crash,” the exchanges and FINRA have implemented market-wide measures designed to restore investor confidence by reducing the potential for excessive market volatility. Among the measures adopted include pilot plans for stock-by-stock trading pauses
The Joint CFTC-SEC Advisory Committee on Emerging Regulatory Issues (“Committee”) has recommended that, in addition to the initiatives already adopted or proposed, the markets should consider reforming the existing market-wide circuit breakers. Among other things, the Committee noted that the interrelatedness of today's highly electronic markets warrants the need to review the present operation of the system-wide circuit breakers now in place. Specifically, the Committee recommended that the markets consider replacing the Dow Jones Industrial Average (“DJIA”) with the S&P 500® Index (“S&P 500”), revising the 10%, 20%, and 30% decline percentages, reducing the length of trading halts, and allowing halts to be triggered up to 3:30 p.m.
The exchanges and FINRA have taken into consideration the Committee's recommendations, and with some modifications, have proposed changes to market-wide circuit breakers that the Exchange believes will provide for a more meaningful measure in today's faster, more electronic markets, of when to halt stocks on a market-wide basis as a result of rapid market declines.
The Exchange adopted Rule 133 in October 1988 as part of an effort by the securities and futures markets to implement a coordinated means to address potentially destabilizing market volatility.
In its current form,
Once a marketwide circuit breaker is in effect, trading in all stocks halt for the time periods specified below:
Anytime before 2 p.m.—one hour;
at or after 2 p.m. but before 2:30 p.m.—30 minutes;
at or after 2:30 p.m.—trading shall continue, unless there is a Level 2 Halt.
Anytime before 1 p.m.—two hours;
at or after 1 p.m. but before 2 p.m.—one hour;
at or after 2 p.m.—trading shall halt and not resume for the rest of the day.
At any time—trading shall halt and not resume for the rest of the day.
Unless stocks are halted for the remainder of the trading day, price indications are disseminated during a Rule 80B trading halt for stocks that comprise the DJIA.
As noted above, the Exchange, other equities, options, and futures markets, and FINRA propose to amend the market-wide circuit breakers to take into consideration the recommendations of the Committee, and to provide for more meaningful measures in today's markets of when to halt trading in all stocks. Accordingly, the Exchange proposes to amend Rule 133 to create the following standards: (i) Replace the DJIA with the S&P 500; (ii) replace the quarterly calendar recalculation of Rule 133 triggers with daily recalculations; (iii) replace the 10%, 20%, and 30% market decline percentages with 7%, 13%, and 20% market decline percentages; (iv) modify the length of the trading halts associated with each market decline level; and (v) modify the times when a trading halt may be triggered. The Exchange believes that these proposed amendments update the rule to reflect today's high-speed, highly electronic trading market while still ensuring that market participants have an opportunity to become aware of and respond to significant price movements.
First, the Exchange proposes to replace the DJIA with the S&P 500. The Exchange believes that because the S&P 500 is based on the trading prices of 500 stocks, as compared to the 30 stocks that comprise the DJIA, the S&P 500 represents a broader base of securities against which to measure whether extraordinary market-wide volatility is occurring. In addition, as noted by the Committee, using an index that correlates closely with derivative products, such as the E-Mini and SPY, will allow for a better cross-market measure of market volatility.
Second, the Exchange proposes to change the recalculation of the trigger values from once every calendar quarter to daily. The Exchange believes that updating the trigger values daily will better reflect current market conditions. In particular, a daily recalculation will ensure that the percentage drop triggers relate to current market conditions, and are not compared to what may be stale market conditions. As noted in the proposed rule, the daily calculations of the trigger values will be published before the trading day begins.
Third, the Exchange proposes to decrease the current Level 1, 2, and 3 declines of 10%, 20%, and 30% to a Level 1 Market Decline of 7%, a Level 2 Market Decline of 13%, and Level 3 Market Decline of 20%. In particular, as demonstrated by the May 6, 2010 flash crash, the current Level 1 10% decline may be too high a threshold before determining whether to halt trading across all securities. In fact, since adoption, the markets have halted only once, on October 27, 1997.
As further proposed, the Exchange would halt trading based on a Level 1 or Level 2 Market Decline only once per day. For example, if a Level 1 Market Decline were to occur and trading were halted, following the reopening of trading, the Exchange would not halt the market again unless a Level 2 Market Decline were to occur. Likewise, following the reopening of trading after a Level 2 Market Decline, the Exchange would not halt trading again unless a Level 3 Market Decline were to occur, at which point, trading in all stocks would be halted until the primary market opens the next trading day.
Fourth, to correspond with the lower percentages associated with triggering a trading halt, the Exchange also proposes to shorten the length of the market-wide trading halts associated with each Level. As proposed, a Level 1 or 2 Market Decline occurring after 9:30 a.m. Eastern
The Exchange believes that by reducing the percentage threshold, coupled with the reduced length of a trading halt, the proposed rule would allow for trading halts for serious market declines, while at the same time, would minimize disruption to the market by allowing for trading to continue after the proposed more-abbreviated trading halt. The Exchange believes that in today's markets, where trading information travels in micro-second speed, a 15-minute trading halt strikes the appropriate balance between the need to halt trading for market participants to assess the market, while at the same time reducing the time that the market is halted.
Finally, because the proposed Level 1 and Level 2 trading halts will now be 15 minutes, the Exchange proposes amending the rule to allow for a Level 1 or 2 Market Decline to trigger a trading halt up to 3:25 p.m. (or, in the case of scheduled early closure, at 12:25 p.m.). Under the current rule, a trading halt cannot be triggered after 2:30 p.m., and this time corresponds to the need for the markets both to reopen following a 30-minute halt and to engage in a fair and orderly closing process. However, as the markets experienced on May 6, 2010, even if the Level 1 decline had occurred that day, because the market decline occurred after 2:30 p.m., it would not have triggered a halt under the current rule. The Committee recommended that trading halts be triggered up to 3:30 p.m. The Exchange agrees that the proposed amendments must strike the appropriate balance between permitting trading halts as late in the day as feasible without interrupting the closing process.
Accordingly, to accommodate existing rules of other exchanges concerning closing procedures, including the publication of imbalance information beginning at 3:50 p.m. and the restrictions on entry and cancellation of market on close (“MOC”) and limit on close (“LOC”) orders after 3:45 p.m., the Exchange proposes that the last Level 1 or Level 2 Market Decline trading halt should begin no later than 3:25 p.m. (or, in the case of scheduled early closure, at 12:25 p.m.). The Exchange proposes 3:25 p.m. as the cut-off time so that there is time following the 15-minute trading halt for the markets to reopen before the 3:45 cut-off for entry and cancellation of MOC and LOC orders under Exchange rules.
Under the proposed rule, a Level 3 Market Decline would halt trading for the remainder of the trading day, including any trading that may take place after 4:00 p.m., Eastern, and would not resume until the next trading day.
In addition to these proposed changes, the Exchange proposes to add to Rule 133 how the markets will reopen following a 15-minute trading halt. In particular, the Exchange proposes that if the primary market halts trading in all stocks, all markets will halt trading in those stocks until the primary market has resumed trading or notice has been provided by the primary market that trading may resume. As further proposed, if the primary market does not re-open a security within 15 minutes following the end of the trading halt, other markets may resume trading in that security.
The statutory basis for the proposed rule change is Section 6(b)(5) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the Federal Register or within such longer period (i) as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or (ii) as to which the Exchange consents, the Commission will:
(A) By order approve or disapprove such 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 changes to the market-wide circuit breaker regime are consistent with the Act. The Commission specifically requests comment on the following:
• As discussed above, the proposed rule change would narrow the percentage market declines that would trigger a market-wide halt in trading. How would the proposed changes interact with the existing single-stock circuit breaker pilot program
• To what extent could the concurrent triggering of single stock circuit breakers in many S&P 500 Index stocks lead to difficulties in calculating the index? Would the triggering of many single stock circuit breakers in a general market downturn cause the index calculation to become stale and thereby delay the triggering of the market-wide circuit breaker?
• Should the market-wide circuit breaker be triggered if a sufficient number of single-stock circuit breakers or price limits are triggered, and materially affect calculations of the S&P 500 Index?
• Should market centers implement rules that mandate cancellation of pending orders in the event a market-wide circuit breaker is triggered? If so, should such a rule require cancellation of all orders or only certain order types (
• Should some provision be made to end the regular trading session if a market decline suddenly occurs after 3:25 p.m. but does not reach the 20% level?
• In the event of a Level 3 Market Decline, should some provision be made for the markets to hold a closing auction?
• Should the primary market have a longer period (
• In the event of a Level 3 Market Decline, should the markets wait for the primary market to reopen trading in a particular security on the next trading day before trading in that security resumes?
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)
The Exchange proposes to NYSE Amex Equities Rule 80B to revise the current methodology for determining when to halt trading in all stocks due to extraordinary market volatility. 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 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 those 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 parts of such statements.
The Exchange proposes to amend NYSE Amex Equities Rule 80B to revise the current methodology for determining when to halt trading in all stocks due to extraordinary market volatility. The Exchange is proposing this rule change in consultation with other equity, options, and futures markets, the Financial Industry Regulatory Authority, Inc. (“FINRA”), and staffs of the Commission and the Commodity Futures Trading Commission.
Since May 6, 2010, when the markets experienced excessive volatility in an abbreviated time period, i.e., the “flash crash,” the exchanges and FINRA have implemented market-wide measures designed to restore investor confidence by reducing the potential for excessive market volatility. Among the measures adopted include pilot plans for stock-by-stock trading pauses
The Joint CFTC-SEC Advisory Committee on Emerging Regulatory Issues (“Committee”) has recommended that, in addition to the initiatives already adopted or proposed, the
The exchanges and FINRA have taken into consideration the Committee's recommendations, and with some modifications, have proposed changes to market-wide circuit breakers that the Exchange believes will provide for a more meaningful measure in today's faster, more electronic markets, of when to halt stocks on a market-wide basis as a result of rapid market declines.
The Exchange adopted Amex Rule 117 in October 1988 as part of an effort by the securities and futures markets to implement a coordinated means to address potentially destabilizing market volatility.
In its current form,
Once a Rule 80B circuit breaker is in effect, trading in all stocks halt for the time periods specified below:
Unless stocks are halted for the remainder of the trading day, price indications are disseminated during a Rule 80B trading halt for stocks that comprise the DJIA.
As noted above, the Exchange, other equities, options, and futures markets, and FINRA propose to amend the market-wide circuit breakers to take into consideration the recommendations of the Committee, and to provide for more meaningful measures in today's markets of when to halt trading in all stocks. Accordingly, the Exchange proposes to amend NYSE Amex Equities Rule 80B as follows: (i) Replace the DJIA with the S&P 500; (ii) replace the quarterly calendar recalculation of Rule 80B triggers with daily recalculations; (iii) replace the 10%, 20%, and 30% market decline percentages with 7%, 13%, and 20% market decline percentages; (iv) modify the length of the trading halts associated with each market decline level; and (v) modify the times when a trading halt may be triggered. The Exchange believes that these proposed amendments update the rule to reflect today's high-speed, highly electronic trading market while still meeting the original purpose of Rule 80B: to ensure that market participants have an opportunity to become aware of and respond to significant price movements.
First, the Exchange proposes to replace the DJIA with the S&P 500. The Exchange believes that because the S&P 500 is based on the trading prices of 500 stocks, as compared to the 30 stocks that comprise the DJIA, the S&P 500 represents a broader base of securities against which to measure whether extraordinary market-wide volatility is occurring. In addition, as noted by the Committee, using an index that correlates closely with derivative products, such as the E-Mini and SPY, will allow for a better cross-market measure of market volatility.
Second, the Exchange proposes to change the recalculation of the trigger values from once every calendar quarter to daily. The Exchange believes that updating the trigger values daily will better reflect current market conditions. In particular, a daily recalculation will ensure that the percentage drop triggers relate to current market conditions, and are not compared to what may be stale market conditions. As noted in the proposed rule, the daily calculations of the trigger values will be published before the trading day begins.
Third, the Exchange proposes to decrease the current Level 1, 2, and 3 declines of 10%, 20%, and 30% to a
As further proposed, the Exchange would halt trading based on a Level 1 or Level 2 Market Decline only once per day. For example, if a Level 1 Market Decline were to occur and trading were halted, following the reopening of trading, the Exchange would not halt the market again unless a Level 2 Market Decline were to occur. Likewise, following the reopening of trading after a Level 2 Market Decline, the Exchange would not halt trading again unless a Level 3 Market Decline were to occur, at which point, trading in all stocks would be halted until the primary market reopens the next trading day.
Fourth, to correspond with the lower percentages associated with triggering a trading halt, the Exchange also proposes to shorten the length of the market-wide trading halts associated with each Level. As proposed, a Level 1 or 2 Market Decline occurring after 9:30 a.m. Eastern and up to and including 3:25 p.m. Eastern, or in the case of an early scheduled close, 12:25 p.m. Eastern, would result in a trading halt in all stocks for 15 minutes.
The Exchange believes that by reducing the percentage threshold, coupled with the reduced length of a trading halt, the proposed rule would allow for trading halts for serious market declines, while at the same time, would minimize disruption to the market by allowing for trading to continue after the proposed more-abbreviated trading halt. The Exchange believes that in today's markets, where trading information travels in micro-second speed, a 15-minute trading halt strikes the appropriate balance between the need to halt trading for market participants to assess the market, while at the same time reducing the time that the market is halted.
Finally, because the proposed Level 1 and Level 2 trading halts will now be 15 minutes, the Exchange proposes amending the rule to allow for a Level 1 or 2 Market Decline to trigger a trading halt up to 3:25 p.m. Under the current rule, a trading halt cannot be triggered after 2:30 p.m., and this time corresponds to the need for the markets both to reopen following a 30-minute halt and to engage in a fair and orderly closing process. However, as the markets experienced on May 6, 2010, even if the Level 1 decline had occurred that day, because the market decline occurred after 2:30 p.m., it would not have triggered a halt under the current rule. The Committee recommended that trading halts be triggered up to 3:30 p.m. The Exchange agrees that the proposed amendments must strike the appropriate balance between permitting trading halts as late in the day as feasible without interrupting the closing process.
Accordingly, to accommodate existing Exchange rules concerning closing procedures, including the publication of imbalance information beginning at 3:45 p.m. and the restrictions on entry and cancellation of market on close (“MOC”) and limit on close (“LOC”) orders after 3:45 p.m.,
As with current Level 3 declines, under the proposed rule, a Level 3 Market Decline would halt trading for the remainder of the trading day, including any trading that may take place after 4 p.m., Eastern, and would not resume until the next trading day.
In addition to these proposed changes, the Exchange proposes to add to Rule 80B how the markets will reopen following a 15-minute trading halt. In particular, similar to the reopening procedures set forth in Rule 80C, the Exchange proposes that if the primary market halts trading in all stocks, all markets will halt trading in those stocks until the primary market has resumed trading or notice has been provided by the primary market that trading may resume. As further proposed, if the primary market does not re-open a security within 15 minutes following the end of the trading halt, other markets may resume trading in that security.
Finally, because NYSE Amex Equities Rule 80B governs market-wide trading halts, the Exchange proposes to delete NYSE Amex Rule 117 as moot.
The Exchange proposes to implement the changes to Rule 80B at the same time that the Limit Up-Limit Down Plan, if approved, is implemented.
The basis under the Act for these proposed rule changes are [sic] the requirement under Section 6(b)(5)
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.
Within 45 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
• As discussed above, the proposed rule change would narrow the percentage market declines that would trigger a market-wide halt in trading. How would the proposed changes interact with the existing single-stock circuit breaker pilot program
• To what extent could the concurrent triggering of single stock circuit breakers in many S&P 500 Index stocks lead to difficulties in calculating the index? Would the triggering of many single stock circuit breakers in a general market downturn cause the index calculation to become stale and thereby delay the triggering of the market-wide circuit breaker?
• Should the market-wide circuit breaker be triggered if a sufficient number of single-stock circuit breakers or price limits are triggered, and materially affect calculations of the S&P 500 Index?
• Should market centers implement rules that mandate cancellation of pending orders in the event a market-wide circuit breaker is triggered? If so, should such a rule require cancellation of all orders or only certain order types (
• Should some provision be made to end the regular trading session if a market decline suddenly occurs after 3:25 p.m. but does not reach the 20% level?
• In the event of a Level 3 Market Decline, should some provision be made for the markets to hold a closing auction?
• Should the primary market have a longer period (
• In the event of a Level 3 Market Decline, should the markets wait for the primary market to reopen trading in a particular security on the next trading day before trading in that security resumes?
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 (the “Act”),
The Exchange proposes to amend Exchange Rule 11.14 to revise the current methodology for determining when trading in all stocks will be halted due to extraordinary market volatility. The text of the proposed rule change is attached as Exhibit 5
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
The Exchange proposes to amend Exchange Rule 11.14 to revise the current methodology for determining when trading in all stocks will be halted due to extraordinary market volatility. The Exchange is proposing this rule change in consultation with other equity, options and futures markets, the Financial Industry Regulatory Authority, Inc. (“FINRA”) and staffs of the Commission and the Commodity Futures Trading Commission.
Since May 6, 2010, when the markets experienced excessive volatility in an abbreviated time period, i.e., the “flash crash,” the exchanges and FINRA have implemented market-wide measures designed to restore investor confidence by reducing the potential for excessive market volatility. Among the measures adopted include pilot plans for stock-by-stock trading pauses
The Joint CFTC-SEC Advisory Committee on Emerging Regulatory Issues (“Committee”) has recommended that, in addition to the initiatives already adopted or proposed, the markets should consider reforming the existing market-wide circuit breakers. Among other things, the Committee noted that the interrelatedness of today's highly electronic markets warrants the need to review the present operation of the system-wide circuit breakers now in place. Specifically, the Committee recommended that the markets consider replacing the Dow Jones Industrial Average (“DJIA”) with the S&P 500® Index (“S&P 500”), revising the 10%, 20% and 30% decline percentages, reducing the length of trading halts, and allowing halts to be triggered up to 3:30 p.m.
The exchanges and FINRA have taken into consideration the Committee's recommendations, and with some modifications, have proposed changes to market-wide circuit breakers. The Exchange believes these proposed changes will provide for a more meaningful measure, in today's faster, more electronic markets, of when to halt stocks on a market-wide basis as a result of rapid market declines.
EDGA Rule 11.14 provides for market-wide halts in trading at specified levels in order to promote stability and investor confidence during a period of significant stress. As the Commission noted in its approval order for the analogous rule from the New York Stock Exchange (“NYSE”),
In its current form,
Once a Rule 11.14 circuit breaker is in effect, trading in all stocks halt for the time periods specified below:
Anytime before 2 p.m.—one hour; at or after 2 p.m. but before 2:30 p.m.—30 minutes; at or after 2:30 p.m.—trading shall continue, unless there is a Level 2 Halt.
Anytime before 1 p.m.—two hours; at or after 1 p.m. but before 2 p.m.—one hour; at or after 2 p.m.—trading shall halt and not resume for the rest of the day.
At any time—trading shall halt and not resume for the rest of the day.
Unless stocks are halted for the remainder of the trading day, price indications are disseminated by the primary listing market during a Rule 11.14 trading halt for stocks that comprise the DJIA.
As noted above, the Exchange, other equities, options, and futures markets, and FINRA propose to amend the market-wide circuit breakers to take into consideration the recommendations of the Committee, and to provide for more meaningful measures in today's markets of when to halt trading in all stocks. Accordingly, the Exchange proposes to amend Rule 11.14 as follows: (i) Replace the DJIA with the S&P 500; (ii) replace the quarterly calendar recalculation of Rule 11.14 triggers with daily recalculations; (iii) replace the 10%, 20% and 30% market decline percentages with 7%, 13% and 20% market decline percentages (each a “Level 1, 2 or 3 Market Decline,” respectively); (iv) modify the length of the trading halts associated with each market decline level; and (v) modify the times when a trading halt may be
First, the Exchange proposes to replace the DJIA with the S&P 500. The Exchange believes that because the S&P 500 is based on the trading prices of 500 stocks, as compared to the 30 stocks that comprise the DJIA, the S&P 500 represents a broader base of securities against which to measure whether extraordinary market-wide volatility is occurring. In addition, as noted by the Committee, using an index that correlates closely with derivative products, such as the E-Mini and SPDR S&P 500 Exchange-Traded Fund (“SPY”), will allow for a better cross-market measure of market volatility.
Second, the Exchange proposes to change the recalculation of the trigger values from once every calendar quarter to daily. The Exchange believes that updating the trigger values daily will better reflect current market conditions. In particular, a daily recalculation will ensure that the percentage drop triggers relate to current market conditions, and are not compared to what may be stale market conditions. As noted in the proposed rule, the daily calculations of the trigger values will be published before the trading day begins.
Third, the Exchange proposes to decrease the current Level 1, 2 and 3 declines of 10%, 20% and 30% to a Level 1 Market Decline of 7%, a Level 2 Market Decline of 13% and Level 3 Market Decline of 20%. In particular, as demonstrated by the May 6, 2010 flash crash, the current Level 1 10% decline may be too high a threshold for determining whether to halt trading across all securities. In fact, since adoption, the markets have halted only once, on October 27, 1997.
As further proposed, trading on the Exchange will be halted based on a Level 1 or Level 2 Market Decline only once per day. For example, if a Level 1 Market Decline was to occur and trading was halted, following the re-opening of trading, trading would not halt again unless a Level 2 Market Decline was to occur. Likewise, following the re-opening of trading after a Level 2 Market Decline, trading would not be halted again unless a Level 3 Market Decline was to occur, at which point, trading in all stocks would be halted until the primary listing market opens the next trading day.
Fourth, to correspond with the lower percentages associated with triggering a trading halt, the Exchange also proposes to shorten the length of the market-wide trading halts associated with each level. As proposed, a Level 1 or 2 Market Decline occurring after 9:30 a.m. Eastern Time (“ET”)
The Exchange believes that by reducing the percentage threshold, coupled with the reduced length of a trading halt, the proposed rule would allow for trading halts for serious market declines, while at the same time, would minimize disruption to the market by allowing for trading to continue after the proposed more-abbreviated trading halt. The Exchange believes that in today's markets, where trading information travels in micro-second speeds, a 15-minute trading halt strikes the appropriate balance between the need to halt trading for market participants to assess the market, while at the same time reducing the time that the market is halted.
Finally, because the proposed Level 1 and Level 2 trading halts will now be 15 minutes, the Exchange proposes amending the rule to allow for a Level 1 or 2 Market Decline to trigger a trading halt up to 3:25 p.m. Under the current rule, a trading halt cannot be triggered after 2:30 p.m., and this time corresponds to the need for the markets both to re-open following a 30-minute halt and to engage in a fair and orderly closing process. However, as the markets experienced on May 6, 2010, even if the Level 1 decline had occurred that day, because the market decline occurred after 2:30 p.m., it would not have triggered a halt under the current rule. The Committee recommended that trading halts be triggered up to 3:30 p.m. The Exchange agrees that the proposed amendments must strike the appropriate balance between permitting trading halts as late in the day as feasible without interrupting the closing process.
Accordingly, to accommodate existing primary listing market rules concerning closing procedures, including the publication of imbalance information beginning at 3:45 p.m. and the restrictions on entry and cancellation of market on close (“MOC”) and limit on close (“LOC”) orders after 3:45 p.m.,
As with current Level 3 declines, under the proposed rule, a Level 3 Market Decline would halt trading for the remainder of the trading day, including any trading that may take place after 4 p.m. and would not resume until the next trading day.
In addition to these proposed changes, the Exchange proposes to add to Rule 11.14 how the markets will re-open following a 15-minute trading halt. In particular, similar to the re-opening procedures set forth in Rule 11.14, the Exchange proposes that if the primary listing market halts trading in all stocks, all markets will halt trading in those stocks until the primary listing market has resumed trading or notice has been provided by the primary listing market that trading may resume. As further proposed, if the primary listing market does not re-open a security within 15 minutes following the end of the trading halt, other markets may resume trading in that security.
As a result of the proposed changes described above, the Exchange proposes to delete Interpretations and Policies .01-.04 to Rule 11.14, move Interpretations and Policies .03 and .04 into the rule text of Rule 11.14 as sections (c)(1) and (f), respectively, and re-number existing Interpretation and Policy .05 to Rule 11.14 as Interpretation and Policy .01 to Rule 11.14. In addition, a conforming amendment is proposed to be made in Rule 11.13(c)(1) to re-number the cross-reference to Interpretation .05 of Rule 11.14 as Interpretation .01 of Rule 11.14.
The basis under the Act for these proposed rule changes are [sic] the requirement under Section 6(b)(5)
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
Within 45 days of the date of publication of this notice in the
(a) By order approve or disapprove such 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 changes to the market-wide circuit breaker regime are consistent with the Act. The Commission specifically requests comment on the following:
• As discussed above, the proposed rule change would narrow the percentage market declines that would trigger a market-wide halt in trading. How would the proposed changes interact with the existing single-stock circuit breaker pilot program
• To what extent could the concurrent triggering of single stock circuit breakers in many S&P 500 Index stocks lead to difficulties in calculating the index? Would the triggering of many single stock circuit breakers in a general market downturn cause the index calculation to become stale and thereby delay the triggering of the market-wide circuit breaker?
• Should the market-wide circuit breaker be triggered if a sufficient number of single-stock circuit breakers or price limits are triggered, and materially affect calculations of the S&P 500 Index?
• Should market centers implement rules that mandate cancellation of pending orders in the event a market-wide circuit breaker is triggered? If so, should such a rule require cancellation of all orders or only certain order types (
• Should some provision be made to end the regular trading session if a market decline suddenly occurs after 3:25 p.m. but does not reach the 20% level?
• In the event of a Level 3 Market Decline, should some provision be made for the markets to hold a closing auction?
• Should the primary market have a longer period (
• In the event of a Level 3 Market Decline, should the markets wait for the primary market to reopen trading in a particular security on the next trading day before trading in that security resumes?
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”)
FINRA is proposing to update Rule 6121 (Trading Halts Due to Extraordinary Market Volatility) (i) To reflect changes to market-wide circuit breaker triggers for NMS stocks, and (ii) amend Rule 6440 (Trading and Quotation Halt in OTC Equity Securities) to provide specifically for a halt in trading in all OTC Equity Securities when a market-wide circuit breaker is in effect for NMS stocks.
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA 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. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
FINRA is proposing to amend Rule 6121 (Trading Halts Due to Extraordinary Market Volatility) to update the methodology for determining when to halt trading due to extraordinary market volatility and Rule 6440 (Trading and Quotation Halt in OTC Equity Securities) to provide specifically that FINRA will halt trading in all OTC Equity Securities pursuant to its authority under Rule 6440(a)(3)
Since May 6, 2010, when the markets experienced excessive volatility in an abbreviated time period,
The Joint CFTC-SEC Advisory Committee on Emerging Regulatory Issues (“Committee”) has recommended that, in addition to the initiatives already adopted or proposed, the SROs consider reforming the existing market-wide circuit breakers. Among other things, the Committee noted that the interrelatedness of today's highly electronic markets warrants a review of the present operation of the system-wide circuit breakers now in place. Specifically, the Committee recommended that the SROs consider replacing the Dow Jones Industrial Average (“DJIA”) with the S&P 500® Index (“S&P 500”), revising the 10%, 20% and 30% decline percentages, reducing the length of trading halts, and allowing halts to be triggered up to 3:30 p.m.
FINRA and the other SROs have taken into consideration the Committee's recommendations and, with some modifications, are proposing changes to address market-wide circuit breakers. FINRA believes that this proposal will provide for a more meaningful measure in today's faster, more electronic markets, of when to halt stocks on a market-wide basis as a result of rapid market declines.
In 1988, the SEC approved several SRO rule proposals that provided for market-wide circuit breakers at specified levels to promote stability and investor confidence during a period of significant stress, along with a policy statement by FINRA (then known as NASD) that provided trading halt authority in the event of severe market declines.
On October 7, 2008, FINRA permanently adopted a new rule—Rule 6121—that authorizes FINRA to halt over-the-counter trading in NMS stocks if other major U.S. securities markets initiate market-wide trading halts in response to their rules or extraordinary market conditions, or if otherwise directed by the SEC.
As the Commission noted in the Order Approving SR-NASD-88-46, circuit breakers were intended to enable market participants to establish an equilibrium between buying and selling interest and to ensure that market participants have an opportunity to become aware of and respond to significant price movements. Importantly, the circuit breakers were not intended to prevent markets from adjusting to new price levels; rather, they provide a speed bump for extremely rapid market declines.
As noted above, FINRA and the other SROs are proposing amendments to their respective rules to take into consideration the recommendations of the Committee, and to provide for more meaningful measures in today's markets in determining when to halt trading in stocks on a market-wide basis. Accordingly, FINRA is proposing, in coordination with the other SROs, to update the methodology for determining the trigger for market-wide circuit breakers for trading otherwise than on an exchange in all NMS stocks and to provide specifically that FINRA will halt trading in all OTC Equity Securities until the market-wide circuit breaker no longer is in effect for NMS stocks. FINRA's proposed parameters and thresholds for market-wide circuit breakers for trading otherwise than on an exchange would track those being proposed by the other SROs.
First, FINRA and the other SROs propose to use the S&P 500 as the benchmark index for the market-wide circuit breakers.
Second, FINRA proposes to reference the triggers by the primary markets that establish a Level 1 Market Decline of 7%, a Level 2 Market Decline of 13% and a Level 3 Market Decline of 20%. As demonstrated by the May 6, 2010 flash crash, the SROs believe that the current Level 1 10% decline may be too high a threshold before determining whether to halt trading across all securities. Since adoption, the exchanges have halted only once, on October 27, 1997.
FINRA and the other SROs would halt trading based on a Level 1 or a Level 2 Market Decline only once per day. For example, if a Level 1 Market Decline was to occur and trading otherwise than on an exchange in all NMS stocks and all OTC Equity Securities was halted, following the reopening of trading on the primary listing market or the commencement of trading by another national securities exchange, FINRA would not halt market-wide trading again unless a Level 2 Market Decline was to occur. Likewise, following the resumption of trading after a Level 2 Market Decline, FINRA would not halt trading otherwise than on an exchange in all NMS stocks and all OTC Equity Securities again unless a Level 3 Market Decline was to occur, at which point all trading otherwise than on an exchange in all NMS stocks and all OTC Equity Securities would be halted until the primary listing market opens the next trading day. As proposed, a Level 1 or a Level 2 Market Decline may trigger a market-wide circuit breaker after 9:30 a.m. Eastern and up to and including 3:25 p.m. Eastern, or in the case of an early scheduled close, 12:25 p.m. Eastern.
Third, as proposed, a Level 1 or a Level 2 Market Decline would result in a market-wide circuit breaker in trading otherwise than on an exchange in all NMS stocks and all OTC Equity Securities for the duration of 15 minutes. When a primary listing market halts trading in all NMS stocks for a Level 1 or a Level 2 Market Decline, FINRA's halt on trading otherwise than on an exchange in all NMS stocks would continue until trading has resumed on the primary listing market. If, however, the primary listing market does not reopen trading within 15 minutes following the end of the 15-minute halt period, FINRA may permit the resumption of trading otherwise than on an exchange in that security if trading in the security has commenced on at least one other national securities exchange.
Following a market-wide circuit breaker due to a Level 1 or a Level 2 Market Decline, trading in OTC Equity Securities would remain halted until the market-wide circuit breaker no longer is in effect for NMS stocks, even if some individual NMS stocks have not yet resumed trading, for example, due to significant imbalances in those securities. The proposed rule would require that members halt quoting and trading in all OTC Equity Securities as of the time the market-wide trading halt in NMS stocks is publicly disseminated.
FINRA and the other SROs believe that the proposed percentage thresholds—coupled with the proposed duration of the market-wide circuit breakers for Level 1 and Level 2 Market Declines—allows for trading halts for serious market declines, while at the
Upon the occurrence of a Level 3 Market Decline occurring at any time during the trading day, FINRA would halt trading otherwise than on an exchange in all NMS stocks until the primary listing market opens the next trading day. As is the case with a Level 1 or Level 2 Market Decline, upon the occurrence of a Level 3 Market Decline, the proposed rule would require members to halt quoting and trading in all OTC Equity Securities as of the time the market-wide trading halt in NMS stocks is publicly disseminated. FINRA would halt trading in all OTC Equity Securities until such time that the market-wide circuit breaker no longer is in effect for NMS stocks, even if some individual NMS stocks have not yet resumed trading, for example, due to significant imbalances in those securities.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such 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 changes to the market-wide circuit breaker regime are consistent with the Act. The Commission specifically requests comment on the following:
• As discussed above, the proposed rule change would narrow the percentage market declines that would trigger a market-wide halt in trading. How would the proposed changes interact with the existing single-stock circuit breaker pilot program
• To what extent could the concurrent triggering of single stock circuit breakers in many S&P 500 Index stocks lead to difficulties in calculating the index? Would the triggering of many single stock circuit breakers in a general market downturn cause the index calculation to become stale and thereby delay the triggering of the market-wide circuit breaker?
• Should the market-wide circuit breaker be triggered if a sufficient number of single-stock circuit breakers or price limits are triggered, and materially affect calculations of the S&P 500 Index?
• Should market centers implement rules that mandate cancellation of pending orders in the event a market-wide circuit breaker is triggered? If so, should such a rule require cancellation of all orders or only certain order types (
• Should some provision be made to end the regular trading session if a market decline suddenly occurs after 3:25 p.m. but does not reach the 20% level?
• In the event of a Level 3 Market Decline, should some provision be made for the markets to hold a closing auction?
• Should the primary market have a longer period (
• In the event of a Level 3 Market Decline, should the markets wait for the primary market to reopen trading in a particular security on the next trading day before trading in that security resumes?
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 (the “Act”),
The Exchange is filing with the Commission a proposal to modify BYX Rule 11.18, entitled “Trading Halts Due to Extraordinary Market Volatility,” to revise the current methodology for determining when to halt trading in all stocks due to extraordinary market volatility.
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend BYX Rule 11.18 to revise the current methodology for determining when to halt trading in all stocks due to extraordinary market volatility. The Exchange is proposing this rule change in consultation with other equity, options, and futures markets, the Financial Industry Regulatory Authority, Inc. (“FINRA”), and staffs of the Commission and the Commodity Futures Trading Commission.
Since May 6, 2010, when the markets experienced excessive volatility in an abbreviated time period, i.e., the “flash crash,” the exchanges and FINRA have implemented market-wide measures designed to restore investor confidence by reducing the potential for excessive market volatility. Among the measures adopted include pilot plans for stock-by-stock trading pauses
The Joint CFTC-SEC Advisory Committee on Emerging Regulatory Issues (“Committee”) has recommended that, in addition to the initiatives already adopted or proposed, the markets should consider reforming the existing market-wide circuit breakers. Among other things, the Committee noted that the interrelatedness of today's highly electronic markets warrants the need to review the present operation of the system-wide circuit breakers now in place. Specifically, the Committee recommended that the markets consider replacing the Dow Jones Industrial Average (“DJIA”) with the S&P 500® Index (“S&P 500”), revising the 10%, 20%, and 30% decline percentages, reducing the length of trading halts, and allowing halts to be triggered up to 3:30 p.m.
The exchanges and FINRA have taken into consideration the Committee's recommendations, and with some modifications, have proposed changes to market-wide circuit breakers that the Exchange believes will provide for a more meaningful measure in today's faster, more electronic markets, of when to halt stocks on a market-wide basis as a result of rapid market declines.
The market-wide halt rules currently in effect were initially adopted in October 1988 as part of an effort by the securities and futures markets to implement a coordinated means to address potentially destabilizing market volatility.
In its current form,
Once a Rule 11.18 market-wide circuit breaker is in effect, trading in all stocks halt for the time periods specified below:
Anytime before 2 p.m.—one hour; at or after 2 p.m. but before 2:30 p.m.—30 minutes; at or after 2:30 p.m.—trading shall continue, unless there is a Level 2 Halt.
Anytime before 1 p.m.—two hours; at or after 1 p.m. but before 2 p.m.—one hour; at or after 2 p.m.—trading shall halt and not resume for the rest of the day.
at any time—trading shall halt and not resume for the rest of the day.
Unless stocks are halted for the remainder of the trading day, price indications are disseminated during a Rule 11.18 market-wide trading halt for stocks that comprise the DJIA.
As noted above, the Exchange, other equities, options, and futures markets, and FINRA propose to amend the market-wide circuit breakers to take into consideration the recommendations of the Committee, and to provide for more meaningful measures in today's markets of when to halt trading in all stocks. Accordingly, the Exchange proposes to amend Rule 11.18 as follows: (i) Replace the DJIA with the S&P 500; (ii) replace the quarterly calendar recalculation of Rule 11.18 triggers with daily recalculations: (iii) replace the 10%, 20%, and 30% market decline percentages with 7%, 13%, and 20% market decline percentages; (iv) modify the length of the trading halts associated with each market decline level; and (v) modify the times when a trading halt may be triggered. The Exchange believes that these proposed amendments update the rule to reflect today's high-speed, highly electronic trading market while still meeting the original purpose of the market-wide trading halt rule: to ensure that market participants have an opportunity to become aware of and respond to significant price movements.
First, the Exchange proposes to replace the DJIA with the S&P 500. The Exchange believes that because the S&P 500 is based on the trading prices of 500 stocks, as compared to the 30 stocks that comprise the DJIA, the S&P 500 represents a broader base of securities against which to measure whether extraordinary market-wide volatility is occurring. In addition, as noted by the Committee, using an index that correlates closely with derivative products, such as the E-Mini and SPY, will allow for a better cross-market measure of market volatility.
Second, the Exchange proposes to change the recalculation of the trigger values from once every calendar quarter to daily. The Exchange believes that updating the trigger values daily will better reflect current market conditions. In particular, a daily recalculation will ensure that the percentage drop triggers relate to current market conditions, and are not compared to what may be stale market conditions. As noted in the proposed rule, the daily calculations of the trigger values will be published before the trading day begins.
Third, the Exchange proposes to decrease the current Level 1, 2, and 3 declines of 10%, 20%, and 30% to a Level 1 Market Decline of 7%, a Level 2 Market Decline of 13%, and Level 3 Market Decline of 20%. In particular, as demonstrated by the May 6, 2010 flash crash, the current Level 1 10% decline may be too high a threshold before determining whether to halt trading across all securities. In fact, since adoption, the markets have halted only once, on October 27, 1997.
As further proposed, the Exchange would halt trading based on a Level 1 or Level 2 Market Decline only once per day. For example, if a Level 1 Market Decline were to occur and trading were halted, following the reopening of trading, the Exchange would not halt the market again unless a Level 2 Market Decline were to occur. Likewise, following the reopening of trading after a Level 2 Market Decline, the Exchange would not halt trading again unless a Level 3 Market Decline were to occur, at which point, trading in all stocks would be halted until the primary listing market opens the next trading day.
Fourth, to correspond with the lower percentages associated with triggering a trading halt, the Exchange also proposes to shorten the length of the market-wide trading halts associated with each Level. As proposed, a Level 1 or 2 Market Decline occurring after 9:30 a.m.
The Exchange believes that by reducing the percentage threshold, coupled with the reduced length of a trading halt, the proposed rule would allow for trading halts for serious market declines, while at the same time, would minimize disruption to the market by allowing for trading to continue after the proposed more-abbreviated trading halt. The Exchange believes that in today's markets, where trading information travels in micro-second speed, a 15-minute trading halt
Finally, because the proposed Level 1 and Level 2 trading halts will now be 15 minutes, the Exchange proposes amending the rule to allow for a Level 1 or 2 Market Decline to trigger a trading halt up to 3:25 p.m., or in the case of an early scheduled close, 12:25 p.m. Under the current rule, a trading halt cannot be triggered after 2:30 p.m., and this time corresponds to the need for the markets both to reopen following a 30-minute halt and to engage in a fair and orderly closing process. However, as the markets experienced on May 6, 2010, even if the Level 1 decline had occurred that day, because the market decline occurred after 2:30 p.m., it would not have triggered a halt under the current rule. The Committee recommended that trading halts be triggered up to 3:30 p.m. The Exchange agrees that the proposed amendments must strike the appropriate balance between permitting trading halts as late in the day as feasible without interrupting the closing process.
Accordingly, to accommodate existing Exchange rules concerning closing procedures, the Exchange proposes that the last Level 1 or Level 2 Market Decline trading halt should be 3:25 p.m., or in the case of an early scheduled close, 12:25 p.m.
As with current Level 3 declines, under the proposed rule, a Level 3 Market Decline would halt trading for the remainder of the trading day, including any trading that may take place after 4:00 p.m., and would not resume until the next trading day.
In addition to these proposed changes, the Exchange proposes to add to Rule 11.18 how the markets will reopen following a 15-minute market-wide trading halt. In particular, similar to the reopening procedures set forth in current Rule 11.18(d), the Exchange proposes that if the primary listing market halts trading in all stocks, all markets will halt trading in those stocks until the primary listing market has resumed trading or notice has been provided by the primary listing market that trading may resume. As further proposed, if the primary listing market does not re-open a security within 15 minutes following the end of the trading halt, other markets may resume trading in that security.
The Exchange believes that its proposal is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6(b) of the Act.
The Exchange does not believe that the proposed rule change imposes any burden on competition.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Within 45 days of the date of publication of this notice in the
A. By order approve or disapprove such 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 changes to the market-wide circuit breaker regime are consistent with the Act. The Commission specifically requests comment on the following:
• As discussed above, the proposed rule change would narrow the percentage market declines that would trigger a market-wide halt in trading. How would the proposed changes interact with the existing single-stock circuit breaker pilot program
• To what extent could the concurrent triggering of single stock circuit breakers in many S&P 500 Index stocks lead to difficulties in calculating the index? Would the triggering of many single stock circuit breakers in a general market downturn cause the index calculation to become stale and thereby delay the triggering of the market-wide circuit breaker?
• Should the market-wide circuit breaker be triggered if a sufficient number of single-stock circuit breakers or price limits are triggered, and materially affect calculations of the S&P 500 Index?
• Should market centers implement rules that mandate cancellation of pending orders in the event a market-wide circuit breaker is triggered? If so, should such a rule require cancellation of all orders or only certain order types (
• Should some provision be made to end the regular trading session if a market decline suddenly occurs after 3:25 p.m. but does not reach the 20% level?
• In the event of a Level 3 Market Decline, should some provision be made for the markets to hold a closing auction?
• Should the primary market have a longer period (
• In the event of a Level 3 Market Decline, should the markets wait for the primary market to reopen trading in a particular security on the next trading day before trading in that security resumes?
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
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Exchange Rule 4121 to revise the current methodology for determining when to halt trading in all stocks due to extraordinary market volatility. The Exchange is proposing this rule change in consultation with other equity, options, and futures markets, the Financial Industry Regulatory Authority, Inc. (“FINRA”), and staffs of the Commission and the Commodity Futures Trading Commission.
Since May 6, 2010, when the markets experienced excessive volatility in an abbreviated time period, i.e., the “flash crash,” the exchanges and FINRA have implemented market-wide measures designed to restore investor confidence by reducing the potential for excessive market volatility. Among the measures adopted include pilot plans for stock-by-stock trading pauses
The Joint CFTC-SEC Advisory Committee on Emerging Regulatory Issues (“Committee”) has recommended that, in addition to the initiatives already adopted or proposed, the markets should consider reforming the existing market-wide circuit breakers. Among other things, the Committee noted that the interrelatedness of today's highly electronic markets warrants the need to review the present operation of the system-wide circuit breakers now in place. Specifically, the Committee recommended that the markets consider replacing the Dow Jones Industrial Average (“DJIA”) with the S&P 500® Index (“S&P 500”), revising the 10%, 20%, and 30% decline percentages, reducing the length
The exchanges and FINRA have taken into consideration the Committee's recommendations, and with some modifications, have proposed changes to market-wide circuit breakers that the Exchange believes will provide for a more meaningful measure in today's faster, more electronic markets, of when to halt stocks on a market-wide basis as a result of rapid market declines.
The Exchange adopted Rule 4121 in 2008. Rule 4121 provides that upon SEC request the Exchange will halt all domestic trading in both securities listed on Nasdaq and securities traded [
The purpose of a marketwide halt, as embodied in Rule 4121, is to enable market participants to establish an equilibrium between buying and selling interest and to ensure that market participants have an opportunity to become aware of and respond to significant price movements. Importantly, the market-wide circuit breakers were not intended to prevent markets from adjusting to new price levels; rather, they provide for a speed bump for extremely rapid market declines.
The current standard, set forth in the rules of other exchanges,
Once a marketwide circuit breaker is in effect, trading in all stocks halt for the time periods specified below:
Anytime before 2 p.m.—one hour; at or after 2 p.m. but before 2:30 p.m.—30 minutes; at or after 2:30 p.m.—trading shall continue, unless there is a Level 2 Halt.
Anytime before 1 p.m.—two hours; at or after 1 p.m. but before 2 p.m.—one hour; at or after 2 p.m.—trading shall halt and not resume for the rest of the day.
At any time—trading shall halt and not resume for the rest of the day.
Unless stocks are halted for the remainder of the trading day, price indications are disseminated during a Rule 80B trading halt for stocks that comprise the DJIA.
As noted above, the Exchange, other equities, options, and futures markets, and FINRA propose to amend the market-wide circuit breakers to take into consideration the recommendations of the Committee, and to provide for more meaningful measures in today's markets of when to halt trading in all stocks. Accordingly, the Exchange proposes to amend Rule 4121 to create the following standards: (i) Replace the DJIA with the S&P 500; (ii) replace the quarterly calendar recalculation of Rule 80B triggers with daily recalculations: (iii) replace the 10%, 20%, and 30% market decline percentages with 7%, 13%, and 20% market decline percentages; (iv) modify the length of the trading halts associated with each market decline level; and (v) modify the times when a trading halt may be triggered. The Exchange believes that these proposed amendments update the rule to reflect today's high-speed, highly electronic trading market while still ensuring that market participants have an opportunity to become aware of and respond to significant price movements.
First, the Exchange proposes to replace the DJIA with the S&P 500. The Exchange believes that because the S&P 500 is based on the trading prices of 500 stocks, as compared to the 30 stocks that comprise the DJIA, the S&P 500 represents a broader base of securities against which to measure whether extraordinary market-wide volatility is occurring. In addition, as noted by the Committee, using an index that correlates closely with derivative products, such as the E-Mini and SPY, will allow for a better cross-market measure of market volatility.
Second, the Exchange proposes to change the recalculation of the trigger values from once every calendar quarter to daily. The Exchange believes that updating the trigger values daily will better reflect current market conditions. In particular, a daily recalculation will ensure that the percentage drop triggers relate to current market conditions, and are not compared to what may be stale market conditions. As noted in the proposed rule, the daily calculations of the trigger values will be published before the trading day begins.
Third, the Exchange proposes to decrease the current Level 1, 2, and 3 declines of 10%, 20%, and 30% to a Level 1 Market Decline of 7%, a Level 2 Market Decline of 13%, and Level 3 Market Decline of 20%. In particular, as demonstrated by the May 6, 2010 flash crash, the current Level 1 10% decline may be too high a threshold before determining whether to halt trading across all securities. In fact, since adoption, the markets have halted only once, on October 27, 1997.
As further proposed, the Exchange would halt trading based on a Level 1 or Level 2 Market Decline only once per day. For example, if a Level 1 Market Decline were to occur and trading were halted, following the reopening of trading, the Exchange would not halt the market again unless a Level 2 Market Decline were to occur. Likewise, following the reopening of trading after a Level 2 Market Decline, the Exchange would not halt trading again unless a
Fourth, to correspond with the lower percentages associated with triggering a trading halt, the Exchange also proposes to shorten the length of the market-wide trading halts associated with each Level. As proposed, a Level 1 or 2 Market Decline occurring after 9:30 a.m. Eastern and up to and including 3:25 p.m. Eastern, would result in a trading halt in all stocks for 15 minutes.
The Exchange believes that by reducing the percentage threshold, coupled with the reduced length of a trading halt, the proposed rule would allow for trading halts for serious market declines, while at the same time, would minimize disruption to the market by allowing for trading to continue after the proposed more-abbreviated trading halt. The Exchange believes that in today's markets, where trading information travels in micro-second speed, a 15-minute trading halt strikes the appropriate balance between the need to halt trading for market participants to assess the market, while at the same time reducing the time that the market is halted.
Finally, because the proposed Level 1 and Level 2 trading halts will now be 15 minutes, the Exchange proposes amending the rule to allow for a Level 1 or 2 Market Decline to trigger a trading halt up to 3:25 p.m. (or, in the case of scheduled early closure, at 12:25 p.m.). Under the current rule, a trading halt cannot be triggered after 2:30 p.m., and this time corresponds to the need for the markets both to reopen following a 30-minute halt and to engage in a fair and orderly closing process. However, as the markets experienced on May 6, 2010, even if the Level 1 decline had occurred that day, because the market decline occurred after 2:30 p.m., it would not have triggered a halt under the current rule. The Committee recommended that trading halts be triggered up to 3:30 p.m. The Exchange agrees that the proposed amendments must strike the appropriate balance between permitting trading halts as late in the day as feasible without interrupting the closing process.
Accordingly, to accommodate existing rules at other Exchange [
Under the proposed rule, a Level 3 Market Decline would halt trading for the remainder of the trading day, including any trading that may take place after 4 p.m., Eastern, and would not resume until the next trading day.
In addition to these proposed changes, the Exchange proposes to add to Rule 4121 how the markets will reopen following a 15-minute trading halt. In particular, the Exchange proposes that if the primary market halts trading in all stocks, all markets will halt trading in those stocks until the primary market has resumed trading or notice has been provided by the primary market that trading may resume. As further proposed, if the primary market does not re-open a security within 15 minutes following the end of the trading halt, other markets may resume trading in that security.
The statutory basis for the proposed rule change is Section 6(b)(5) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
A. By order approve or disapprove such 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 changes to the market-wide circuit breaker regime are consistent with the Act. The Commission specifically requests comment on the following:
• As discussed above, the proposed rule change would narrow the percentage market declines that would trigger a market-wide halt in trading. How would the proposed changes interact with the existing single-stock circuit breaker pilot program
• To what extent could the concurrent triggering of single stock circuit breakers in many S&P 500 Index stocks lead to difficulties in calculating the index? Would the triggering of many single stock circuit breakers in a general market downturn cause the index calculation to become stale and thereby delay the triggering of the market-wide circuit breaker?
• Should the market-wide circuit breaker be triggered if a sufficient number of single-stock circuit breakers or price limits are triggered, and materially affect calculations of the S&P 500 Index?
• Should market centers implement rules that mandate cancellation of pending orders in the event a market-wide circuit breaker is triggered? If so, should such a rule require cancellation of all orders or only certain order types (
• Should some provision be made to end the regular trading session if a market decline suddenly occurs after 3:25 p.m. but does not reach the 20% level?
• In the event of a Level 3 Market Decline, should some provision be made for the markets to hold a closing auction?
• Should the primary market have a longer period (
• In the event of a Level 3 Market Decline, should the markets wait for the primary market to reopen trading in a particular security on the next trading day before trading in that security resumes?
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 adopt Rule 2102(g) to set forth the methodology for determining when trading in all stocks will be halted due to extraordinary market volatility.
The text of the proposed rule change is available on the Exchange's Internet Web site at
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.
The Exchange proposes to adopt section (g) of Rule 2102 to set forth the current methodology for determining when trading in all stocks will be halted due to extraordinary market volatility. The Exchange is proposing this rule change in consultation with other equity, options and futures markets, the Financial Industry Regulatory Authority, Inc. (“FINRA”) and staffs of the Commission and the Commodity Futures Trading Commission.
Since May 6, 2010, when the markets experienced excessive volatility in an abbreviated time period,
The Joint CFTC-SEC Advisory Committee on Emerging Regulatory Issues (“Committee”) has recommended that, in addition to the initiatives already adopted or proposed, the markets should consider reforming the existing market-wide circuit breakers. Among other things, the Committee noted that the interrelatedness of today's highly electronic markets warrants the need to review the present operation of the system-wide circuit breakers now in place. Specifically, the Committee recommended that the markets consider replacing the Dow Jones Industrial Average (“DJIA”) with the S&P 500® Index (“S&P 500”), revising the 10%, 20% and 30% decline percentages, reducing the length of trading halts, and allowing halts to be triggered up to 3:30 p.m.
The exchanges and FINRA have taken into consideration the Committee's recommendations, and with some modifications, have proposed changes to market-wide circuit breakers. The Exchange believes these proposed changes will provide for a more meaningful measure, in today's faster, more electronic markets, of when to halt stocks on a market-wide basis as a result of rapid market declines.
New York Stock Exchange (“NYSE”) Rule 80B provides for market-wide halts in trading at specified levels in order to promote stability and investor confidence during a period of significant stress. As the Commission noted in its approval order, the rule was intended to enable market participants to establish equilibrium between buying and selling interest and to ensure that market participants have an opportunity to become aware of and respond to significant price movements. Importantly, the market-wide circuit breakers were not intended to prevent markets from adjusting to new price levels; rather, they provide for a speed bump for extremely rapid market declines.
In its current form, the rule provides for Level 1, 2 and 3 declines and specified trading halts following such declines (each a “Level 1, 2 or 3 Halt,” respectively). The values of Levels 1, 2 and 3 are calculated at the beginning of each calendar quarter by the primary listing market, using 10%, 20% and 30%, respectively, of the average closing value of the DJIA for the month prior to the beginning of the quarter. Each percentage calculation is rounded to the nearest fifty points to create the levels' trigger points. The primary listing markets disseminate the new trigger levels quarterly to the media, via information memos and publication on their Web sites. The values then remain in effect until the next quarterly calculation, notwithstanding whether the DJIA has moved and a Level 1, 2 or 3 decline is no longer equal to an actual 10%, 20% or 30% decline in the most recent closing value of the DJIA.
Once a NYSE Rule 80B circuit breaker is in effect, trading in all stocks halt for the time periods specified below:
Anytime before 2 p.m.—one hour; at or after 2 p.m. but before 2:30 p.m.—30 minutes; at or after 2:30 p.m.—trading shall continue, unless there is a Level 2 Halt.
Anytime before 1 p.m.—two hours; at or after 1 p.m. but before 2 p.m.—one hour; at or after 2 p.m.—trading shall halt and not resume for the rest of the day.
At any time—trading shall halt and not resume for the rest of the day.
Unless stocks are halted for the remainder of the trading day, price indications are disseminated by the primary listing market during a NYSE Rule 80B trading halt for stocks that comprise the DJIA.
As noted above, the Exchange, other equities, options, and futures markets, and FINRA propose to amend the market-wide circuit breakers to take into consideration the recommendations of the Committee, and to provide for more meaningful measures in today's markets of when to halt trading in all stocks. Accordingly, the Exchange proposes to adopt Rule 2102(g), which will reflect the follows [sic] changes to current NYSE Rule 80B: (i) Replace the DJIA with the S&P 500; (ii) replace the quarterly calendar recalculation of NYSE Rule 80B triggers with daily recalculations; (iii) replace the 10%, 20% and 30% market decline percentages with 7%, 13% and 20% market decline percentages (each a “Level 1, 2 or 3 Market Decline,” respectively); (iv) modify the length of the trading halts associated with each market decline level; and (v) modify the times when a trading halt may be triggered. The Exchange believes that these proposed amendments update the rule to reflect today's high-speed, highly electronic trading market while still meeting the original purpose of the rule: To ensure that market participants have an opportunity to become aware of and respond to significant price movements.
First, the Exchange proposes to replace the DJIA with the S&P 500. The Exchange believes that because the S&P 500 is based on the trading prices of 500 stocks, as compared to the 30 stocks that comprise the DJIA, the S&P 500 represents a broader base of securities against which to measure whether extraordinary market-wide volatility is occurring. In addition, as noted by the Committee, using an index that correlates closely with derivative products, such as the E-Mini and SPDR S&P 500 Exchange-Traded Fund (“SPY”), will allow for a better cross-market measure of market volatility.
Second, the Exchange proposes to change the recalculation of the trigger values from once every calendar quarter to daily. The Exchange believes that updating the trigger values daily will better reflect current market conditions. In particular, a daily recalculation will ensure that the percentage drop triggers relate to current market conditions, and are not compared to what may be stale market conditions. As noted in the proposed rule, the daily calculations of the trigger values will be published before the trading day begins.
Third, the Exchange proposes to decrease the current Level 1, 2 and 3 declines of 10%, 20% and 30% to a Level 1 Market Decline of 7%, a Level 2 Market Decline of 13% and Level 3 Market Decline of 20%. In particular, as demonstrated by the May 6, 2010 flash crash, the current Level 1 10% decline may be too high a threshold for
As further proposed, trading on the Exchange will be halted based on a Level 1 or Level 2 Market Decline only once per day. For example, if a Level 1 Market Decline was to occur and trading was halted, following the re-opening of trading, trading would not halt again unless a Level 2 Market Decline was to occur. Likewise, following the re-opening of trading after a Level 2 Market Decline, trading would not be halted again unless a Level 3 Market Decline was to occur, at which point, trading in all stocks would be halted until the primary listing market opens the next trading day.
Fourth, to correspond with the lower percentages associated with triggering a trading halt, the Exchange also proposes to shorten the length of the market-wide trading halts associated with each level. As proposed, a Level 1 or 2 Market Decline occurring after 9:30 a.m. Eastern Time (“ET”)
The Exchange believes that by reducing the percentage threshold, coupled with the reduced length of a trading halt, the proposed rule would allow for trading halts for serious market declines, while at the same time, would minimize disruption to the market by allowing for trading to continue after the proposed more-abbreviated trading halt. The Exchange believes that in today's markets, where trading information travels in micro-second speeds, a 15-minute trading halt strikes the appropriate balance between the need to halt trading for market participants to assess the market, while at the same time reducing the time that the market is halted.
Finally, because the proposed Level 1 and Level 2 trading halts will now be 15 minutes, the Exchange proposes amending the rule to allow for a Level 1 or 2 Market Decline to trigger a trading halt up to 3:25 p.m. Under the current rule, a trading halt cannot be triggered after 2:30 p.m., and this time corresponds to the need for the markets both to re-open following a 30-minute halt and to engage in a fair and orderly closing process. However, as the markets experienced on May 6, 2010, even if the Level 1 decline had occurred that day, because the market decline occurred after 2:30 p.m., it would not have triggered a halt under the current rule. The Committee recommended that trading halts be triggered up to 3:30 p.m. The Exchange agrees that the proposed amendments must strike the appropriate balance between permitting trading halts as late in the day as feasible without interrupting the closing process.
Accordingly, to accommodate existing primary listing market rules concerning closing procedures, including the publication of imbalance information beginning at 3:45 p.m. and the restrictions on entry and cancellation of market on close (“MOC”) and limit on close (“LOC”) orders after 3:45 p.m.,
As with current Level 3 declines, under the proposed rule, a Level 3 Market Decline would halt trading for the remainder of the trading day, including any trading that may take place after 4:00 p.m. and would not resume until the next trading day.
In addition to these proposed changes, the Exchange proposes to add to Rule 2102(g) how the Exchange will re-open following a 15-minute trading halt and to Rule 2102(f) how the Exchange will re-open following a 10-minute trading pause. In particular, the Exchange proposes that if the primary listing market halts trading in all stocks, the Exchange will halt trading in those stocks until the primary listing market has resumed trading or notice has been provided by the primary listing market that trading may resume. As further proposed, if the primary listing market does not re-open a security within 15 minutes following the end of the trading halt, or within 10 minutes following the end of a trading pause, the Exchange may resume trading in that security.
As a result of the proposed changes described above, the Exchange proposes to clarify that 2102(e) applies to trading halts in new derivative securities, so as to not be confused with newly proposed provisions for trading halts in 2102(g). ISE Rule 2102(e) governs trading halts in new derivative securities products when a temporary interruption occurs in the calculation or wide dissemination of the intraday indicative value (“IIV”) or the value of the underlying index by a major market data vendor. Therefore, ISE is clarifying that this subsection applies to halts in new derivative securities products and proposed ISE Rule 2102(g) applies to trading halts due to extraordinary market volatility.
The statutory basis for the proposed rule change is Section 6(b)(5) of the Act,
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
Within 45 days of the date of publication of this notice in the Federal Register or within such longer period (i) As the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or (ii) as to which the self-regulatory organization consents, the Commission will:
(A) By order approve or disapprove such 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 changes to the market-wide circuit breaker regime are consistent with the Act. The Commission specifically requests comment on the following:
• As discussed above, the proposed rule change would narrow the percentage market declines that would trigger a market-wide halt in trading. How would the proposed changes interact with the existing single-stock circuit breaker pilot program
• To what extent could the concurrent triggering of single stock circuit breakers in many S&P 500 Index stocks lead to difficulties in calculating the index? Would the triggering of many single stock circuit breakers in a general market downturn cause the index calculation to become stale and thereby delay the triggering of the market-wide circuit breaker?
• Should the market-wide circuit breaker be triggered if a sufficient number of single-stock circuit breakers or price limits are triggered, and materially affect calculations of the S&P 500 Index?
• Should market centers implement rules that mandate cancellation of pending orders in the event a market-wide circuit breaker is triggered? If so, should such a rule require cancellation of all orders or only certain order types (
• Should some provision be made to end the regular trading session if a market decline suddenly occurs after 3:25 p.m. but does not reach the 20% level?
• In the event of a Level 3 Market Decline, should some provision be made for the markets to hold a closing auction?
• Should the primary market have a longer period (
• In the event of a Level 3 Market Decline, should the markets wait for the primary market to reopen trading in a particular security on the next trading day before trading in that security resumes?
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 (the “Act”)
NASDAQ is filing with the Securities and Exchange Commission (“SEC” or “Commission”) a proposal for the NASDAQ Options Market (“NOM” or “Exchange”) to amend Chapter IV, Supplementary Material .02 to Section 6 (Series of Options Contracts Open for Trading) to simplify the Exchange's $1 Strike Price Program (the “$1 Strike Program” or “Program”).
The Exchange requests that the Commission waive the 30-day operative delay period contained in Exchange Act Rule 19b-4(f)(6)(iii).
The text of the proposed rule change is available from NASDAQ's Web site at
In its filing with the Commission, NASDAQ 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. NASDAQ has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to modify Chapter IV, Supplementary Material .02 to Section 6 to simplify the Exchange's $1 Strike Program.
In 2008, the Commission issued an order permitting the Exchange to establish the Program on a pilot basis.
In 2008, the Program was expanded and the Commission granted permanent approval of the Program.
The development and expansion of the Program has resulted in very lengthy rule text that is complicated and could be difficult to understand. The Exchange believes that the proposed changes to simplify the rule text of the Program will benefit market participants since the Program will be easier to understand and will maintain the expansions that were made to the Program in 2010. Through the current proposal, the Exchange also hopes to make administration of the Program easier (
• When the price of the underlying stock is equal to or less than $20, permit $1 strike price intervals with an exercise price up to 100% above and 100% below the price of the underlying stock.
○ However, the above restriction would not prohibit the listing of at least five (5) strike prices above and below the price of the underlying stock per expiration month in an option class.
○ For example, if the price of the underlying stock is $2, the Exchange would be permitted to list the following series: $1, $2, $3, $4, $5, $6 and $7.
• When the price of the underlying stock is greater than $20, permit $1 strike price intervals with an exercise price up to 50% above and 50% below the price of the underlying security up to $50.
• For the purpose of adding strikes under the Program, the “price of the underlying stock” shall be measured in the same way as “the price of the underlying security” set forth in Chapter IV, Section 6, subparagraph .06(a) of Supplementary Material to Section 6.
• Prohibit the listing of additional series in $1 strike price intervals if the underlying stock closes at or above $50 in its primary market and provide that additional series in $1 strike price intervals may not be added until the underlying stock closes again below $50.
The 2010 expansion of the Program permitted for some limited listing of LEAPS in $1 strike price intervals for classes that participate in the Program. The Exchange is proposing to maintain the expansion as to LEAPS, but simplify the language and provide examples of the simplified rule text. These changes are set forth in proposed Chapter IV, Section 6, subparagraph .02(b)(v) of Supplementary Material to Section 6.
For stocks in the Program, the Exchange may list one $1 strike price interval between each standard $5 strike interval, with the $1 strike price interval being $2 above the standard strike for each interval above the price of the underlying stock, and $2 below the standard strike for each interval below the price of the underlying stock (“$2 wings”). For example, if the price of the underlying stock is $24.50, the Exchange may list the following standard strikes in $5 intervals: $15, $20, $25, $30 and $35. Between these standard $5 strikes, the Exchange may
In addition, the Exchange may list the $1 strike price interval which is $2 above the standard strike just below the underlying price at the time of listing. In the above example, since the standard strike just below the underlying price ($24.50) is $20, the Exchange may list a $22 strike. The Exchange may add additional long-term options series strikes as the price of the underlying stock moves, consistent with the OLPP.
The 2010 expansion of the Program prohibited the listing of $2.50 strike price intervals for classes that participate in the Program. This prohibition applies to non-LEAP and LEAPS. The Exchange proposes to maintain this prohibition and codify it in proposed Chapter IV, Section 6, subparagraph .02(a) of Supplementary Material to Section 6.
For ease of reference, the Exchange is proposing to add the headings “$1 Strike Price Interval Program,” “Initial and Additional Series,” and “LEAPS” to Chapter IV, Section 6, Supplementary Material to Section 6. And finally, the Exchange is making non-substantive, technical changes to the proposed rule such as replacing the word “security” with the word “stock.”
The Exchange also proposes to call the Program the $1 Strike Program in Supplementary Material .02 to Section 6 for purposes of consistency.
The Exchange represents that it has the necessary systems capacity to support the increase in new options series that will result from the proposed streamlining changes to the Program.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
NASDAQ does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not significantly affect the protection of investors or the public interest, does not impose any significant burden on competition, and, by its terms, does not become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay. The Commission believes that waiver of the operative delay is consistent with the protection of investors and the public interest because the proposal is substantially similar to that of another exchange that has been approved by the Commission.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend Exchange Rule 11.14 to revise the current methodology for determining when trading in all stocks will be halted due to extraordinary market volatility. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Exchange Rule 11.14 to revise the current methodology for determining when trading in all stocks will be halted due to extraordinary market volatility. The Exchange is proposing this rule change in consultation with other equity, options and futures markets, the Financial Industry Regulatory Authority, Inc. (“FINRA”) and staffs of the Commission and the Commodity Futures Trading Commission.
Since May 6, 2010, when the markets experienced excessive volatility in an abbreviated time period,
The Joint CFTC-SEC Advisory Committee on Emerging Regulatory Issues (“Committee”) has recommended that, in addition to the initiatives already adopted or proposed, the markets should consider reforming the existing market-wide circuit breakers. Among other things, the Committee noted that the interrelatedness of today's highly electronic markets warrants the need to review the present operation of the system-wide circuit breakers now in place. Specifically, the Committee recommended that the markets consider replacing the Dow Jones Industrial Average (“DJIA”) with the S&P 500® Index (“S&P 500”), revising the 10%, 20% and 30% decline percentages, reducing the length of trading halts, and allowing halts to be triggered up to 3:30 p.m.
The exchanges and FINRA have taken into consideration the Committee's recommendations, and with some modifications, have proposed changes to market-wide circuit breakers. The Exchange believes these proposed changes will provide for a more meaningful measure, in today's faster, more electronic markets, of when to halt stocks on a market-wide basis as a result of rapid market declines.
EDGX Rule 11.14 provides for market-wide halts in trading at specified levels in order to promote stability and investor confidence during a period of significant stress. As the Commission noted in its approval order for the analogous rule from the New York Stock Exchange (“NYSE”),
In its current form,
Once a Rule 11.14 circuit breaker is in effect, trading in all stocks halts for the time periods specified below:
Unless stocks are halted for the remainder of the trading day, price indications are disseminated by the primary listing market during a Rule 11.14 trading halt for stocks that comprise the DJIA.
As noted above, the Exchange, other equities, options, and futures markets, and FINRA propose to amend the market-wide circuit breakers to take into consideration the recommendations of the Committee, and to provide for more meaningful measures in today's markets of when to halt trading in all stocks. Accordingly, the Exchange proposes to amend Rule 11.14 as follows: (i) Replace the DJIA with the S&P 500; (ii) replace the quarterly calendar recalculation of Rule 11.14 triggers with daily recalculations; (iii) replace the 10%, 20% and 30% market decline percentages with 7%, 13% and 20% market decline percentages (each a “Level 1, 2 or 3 Market Decline,” respectively); (iv) modify the length of the trading halts associated with each market decline level; and (v) modify the times when a trading halt may be triggered. The Exchange believes that these proposed amendments update the rule to reflect today's high-speed, highly electronic trading market while still meeting the original purpose of the rule: to ensure that market participants have an opportunity to become aware of and respond to significant price movements.
First, the Exchange proposes to replace the DJIA with the S&P 500. The Exchange believes that because the S&P 500 is based on the trading prices of 500 stocks, as compared to the 30 stocks that comprise the DJIA, the S&P 500 represents a broader base of securities against which to measure whether extraordinary market-wide volatility is occurring. In addition, as noted by the Committee, using an index that correlates closely with derivative products, such as the E-Mini and SPDR S&P 500 Exchange-Traded Fund (“SPY”), will allow for a better cross-market measure of market volatility.
Second, the Exchange proposes to change the recalculation of the trigger values from once every calendar quarter to daily. The Exchange believes that updating the trigger values daily will better reflect current market conditions. In particular, a daily recalculation will ensure that the percentage drop triggers relate to current market conditions, and are not compared to what may be stale market conditions. As noted in the proposed rule, the daily calculations of the trigger values will be published before the trading day begins.
Third, the Exchange proposes to decrease the current Level 1, 2 and 3 declines of 10%, 20% and 30% to a Level 1 Market Decline of 7%, a Level 2 Market Decline of 13% and Level 3 Market Decline of 20%. In particular, as demonstrated by the May 6, 2010, flash crash, the current Level 1 10% decline may be too high a threshold for determining whether to halt trading across all securities. In fact, since adoption, the markets have halted only once, on October 27, 1997.
As further proposed, trading on the Exchange will be halted based on a Level 1 or Level 2 Market Decline only once per day. For example, if a Level 1 Market Decline was to occur and trading was halted, following the re-opening of trading, trading would not halt again unless a Level 2 Market Decline was to occur. Likewise, following the re-opening of trading after a Level 2 Market Decline, trading would not be halted again unless a Level 3 Market Decline was to occur, at which point, trading in all stocks would be halted until the primary listing market opens the next trading day.
Fourth, to correspond with the lower percentages associated with triggering a trading halt, the Exchange also proposes to shorten the length of the market-wide trading halts associated with each level. As proposed, a Level 1 or 2 Market Decline occurring after 9:30 a.m. Eastern Time (“ET”)
The Exchange believes that by reducing the percentage threshold, coupled with the reduced length of a trading halt, the proposed rule would allow for trading halts for serious market declines, while at the same time, would minimize disruption to the market by allowing for trading to continue after the proposed more-abbreviated trading halt. The Exchange believes that in today's markets, where trading information travels in micro-second speeds, a 15-minute trading halt strikes the appropriate balance between the need to halt trading for market participants to assess the market, while at the same time reducing the time that the market is halted.
Finally, because the proposed Level 1 and Level 2 trading halts will now be 15 minutes, the Exchange proposes amending the rule to allow for a Level 1 or 2 Market Decline to trigger a trading halt up to 3:25 p.m. Under the current rule, a trading halt cannot be triggered after 2:30 p.m., and this time corresponds to the need for the markets both to re-open following a 30-minute halt and to engage in a fair and orderly closing process. However, as the markets experienced on May 6, 2010, even if the Level 1 decline had occurred that day, because the market decline occurred after 2:30 p.m., it would not have triggered a halt under the current rule. The Committee recommended that trading halts be triggered up to 3:30 p.m. The Exchange agrees that the proposed amendments must strike the appropriate balance between permitting trading halts as late in the day as feasible without interrupting the closing process.
Accordingly, to accommodate existing primary listing market rules concerning
As with current Level 3 declines, under the proposed rule, a Level 3 Market Decline would halt trading for the remainder of the trading day, including any trading that may take place after 4:00 p.m. and would not resume until the next trading day.
In addition to these proposed changes, the Exchange proposes to add to Rule 11.14 how the markets will re-open following a 15-minute trading halt. In particular, similar to the re-opening procedures set forth in Rule 11.14, the Exchange proposes that if the primary listing market halts trading in all stocks, all markets will halt trading in those stocks until the primary listing market has resumed trading or notice has been provided by the primary listing market that trading may resume. As further proposed, if the primary listing market does not re-open a security within 15 minutes following the end of the trading halt, other markets may resume trading in that security.
As a result of the proposed changes described above, the Exchange proposes to delete Interpretations and Policies .01-.04 to Rule 11.14, move Interpretations and Policies .03 and .04 into the rule text of Rule 11.14 as sections (c)(1) and (f), respectively, and re-number existing Interpretation and Policy .05 to Rule 11.14 as Interpretation and Policy .01 to Rule 11.14. In addition, a conforming amendment is proposed to be made in Rule 11.13(c)(1) to re-number the cross-reference to Interpretation .05 of Rule 11.14 as Interpretation .01 of Rule 11.14.
The basis under the Act for these proposed rule changes are the requirement under Section 6(b)(5)
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such 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 changes to the market-wide circuit breaker regime are consistent with the Act. The Commission specifically requests comment on the following:
• As discussed above, the proposed rule change would narrow the percentage market declines that would trigger a market-wide halt in trading. How would the proposed changes interact with the existing single-stock circuit breaker pilot program
• To what extent could the concurrent triggering of single stock circuit breakers in many S&P 500 Index stocks lead to difficulties in calculating the index? Would the triggering of many single stock circuit breakers in a general market downturn cause the index calculation to become stale and thereby delay the triggering of the market-wide circuit breaker?
• Should the market-wide circuit breaker be triggered if a sufficient number of single-stock circuit breakers or price limits are triggered, and materially affect calculations of the S&P 500 Index?
• Should market centers implement rules that mandate cancellation of pending orders in the event a market-wide circuit breaker is triggered? If so, should such a rule require cancellation of all orders or only certain order types (
• Should some provision be made to end the regular trading session if a market decline suddenly occurs after 3:25 p.m. but does not reach the 20% level?
• In the event of a Level 3 Market Decline, should some provision be made for the markets to hold a closing auction?
• Should the primary market have a longer period (
• In the event of a Level 3 Market Decline, should the markets wait for the primary market to reopen trading in a particular security on the next trading day before trading in that security resumes?
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 amend Exchange Rule 6.3B to revise the current methodology for determining when to halt trading in all stock options trading on CBOE and in all stocks trading on the CBOE Stock Exchange, LLC (“CBSX,” the CBOE's stock trading facility), due to extraordinary market volatility. The text of the rule proposal is available on the Exchange's Web site (
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 those 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 parts of such statements.
The Exchange proposes to amend its rules to revise the current methodology for determining when to halt trading in all stocks and stock options due to extraordinary market volatility. The Exchange is proposing this rule change in consultation with other equity, options, and futures markets, the Financial Industry Regulatory Authority, Inc. (“FINRA”), and staffs of the Commission and the Commodity Futures Trading Commission (“CFTC”).
Since May 6, 2010, when the markets experienced excessive volatility in an abbreviated time period,
The Joint CFTC-SEC Advisory Committee on Emerging Regulatory Issues (“Committee”) has recommended that, in addition to the initiatives already adopted or proposed, the markets should consider reforming the existing market-wide circuit breakers. Among other things, the Committee noted that the interrelatedness of today's highly electronic markets warrants the need to review the present operation of the system-wide circuit breakers now in place. Specifically, the Committee recommended that the markets consider replacing the Dow Jones Industrial Average (“DJIA”) with the S&P 500® Index (“S&P 500”), revising the 10%, 20%, and 30% decline percentages, reducing the length of trading halts, and allowing halts to be
The exchanges and FINRA have taken into consideration the Committee's recommendations, and with some modifications, have proposed changes to market-wide circuit breakers that the Exchange believes will provide for a more meaningful measure in today's faster, more electronic markets, of when to halt stocks and stock options on a market-wide basis as a result of rapid market declines.
The Exchange adopted is its rule on market-wide trading halts in October 1988 as part of an effort by the securities and futures markets to implement a coordinated means to address potentially destabilizing market volatility.
In its current form,
Once a market-wide circuit breaker is in effect, trading in all securities on the Exchange, including stock options on CBOE and stocks on CBSX, halt for the time periods specified below:
As noted above, the Exchange, other equities, options, and futures markets, and FINRA propose to amend the market-wide circuit breakers to take into consideration the recommendations of the Committee, and to provide for more meaningful measures in today's markets of when to halt trading in all stocks and stock options. Accordingly, the Exchange proposes to amend Rule 6.3B as follows: (i) Replace the DJIA with the S&P 500; (ii) replace the quarterly calendar recalculation of Rule 6.3B triggers with daily recalculations: (iii) replace the 10%, 20%, and 30% market decline percentages with 7%, 13%, and 20% market decline percentages; (iv) modify the length of the trading halts associated with each market decline level; and (v) modify the times when a trading halt may be triggered. The Exchange believes that these proposed amendments update the rule to reflect today's high-speed, highly electronic trading market while still meeting the original purpose of the market-wide circuit breaker rules: to ensure that market participants have an opportunity to become aware of and respond to significant price movements.
First, the Exchange proposes to replace the DJIA with the S&P 500. The Exchange believes that because the S&P 500 is based on the trading prices of 500 stocks, as compared to the 30 stocks that comprise the DJIA, the S&P 500 represents a broader base of stocks against which to measure whether extraordinary market-wide volatility is occurring. In addition, as noted by the Committee, using an index that correlates closely with derivative products, such as the E-Mini and SPY, will allow for a better cross-market measure of market volatility.
Second, the Exchange proposes to change the recalculation of the trigger values from once every calendar quarter to daily. The Exchange believes that updating the trigger values daily will better reflect current market conditions. In particular, a daily recalculation will ensure that the percentage drop triggers relate to current market conditions, and are not compared to what may be stale market conditions. As noted in the proposed rule, the daily calculations of the trigger values will be published before the trading day begins.
Third, the Exchange proposes to decrease the current Level 1, 2, and 3 declines of 10%, 20%, and 30% to a Level 1 Market Decline of 7%, a Level 2 Market Decline of 13%, and Level 3 Market Decline of 20%. In particular, as demonstrated by the May 6, 2010 flash crash, the current Level 1 10% decline may be too high a threshold before determining whether to halt trading across all securities. In fact, since adoption, the markets have halted only once, on October 27, 1997.
As further proposed, the Exchange would halt trading based on a Level 1 or Level 2 Market Decline only once per day. For example, if a Level 1 Market Decline were to occur and trading were halted, following the reopening of trading, the Exchange would not halt the market again unless a Level 2 Market Decline were to occur. Likewise, following the reopening of trading after a Level 2 Market Decline, the Exchange would not halt trading again unless a Level 3 Market Decline were to occur, at which point, trading in all stocks and stock options would be halted until the next trading day.
Fourth, to correspond with the lower percentages associated with triggering a trading halt, the Exchange also proposes to shorten the length of the market-wide trading halts associated with each Level. As proposed, a Level 1 or 2 Market Decline occurring after 8:30 a.m. and up to and including 2:25 p.m. or, in the case of an early scheduled close, 11:25 a.m., would result in a trading halt in all stocks and stock options for 15 minutes.
The Exchange believes that by reducing the percentage threshold, coupled with the reduced length of a trading halt, the proposed rule would allow for trading halts for serious market declines, while at the same time, would minimize disruption to the market by allowing for trading to continue after the proposed more-abbreviated trading halt. The Exchange believes that in today's markets, where trading information travels in micro-second speed, a 15-minute trading halt strikes the appropriate balance between the need to halt trading for market participants to assess the market, while at the same time reducing the time that the market is halted.
Finally, because the proposed Level 1 and Level 2 trading halts will now be 15 minutes, the Exchange proposes amending the rule to allow for a Level 1 or 2 Market Decline to trigger a trading halt up to 2:25 p.m. (or, in the case of an early scheduled close, 11:25 a.m.) Under the current rule, a trading halt cannot be triggered after 1:30 p.m., and this time corresponds to the need for the markets both to reopen following a 30-minute halt and to engage in a fair and orderly closing process. However, as the markets experienced on May 6, 2010, even if the Level 1 decline had occurred that day, because the market decline occurred after 1:30 p.m., it would not have triggered a halt under the current rule. The Committee recommended that trading halts be triggered up to 2:30 p.m. The Exchange agrees that the proposed amendments must strike the appropriate balance between permitting trading halts as late in the day as feasible without interrupting the closing process.
Accordingly, to accommodate certain existing exchange rules concerning closing procedures, including, for example, the publication of imbalance information beginning at 2:45 p.m. and the restrictions on entry and cancellation of market on close (“MOC”) and limit on close (“LOC”) orders after 2:45 p.m.,
As with current Level 3 declines, under the proposed rule, a Level 3 Market Decline would halt trading for the remainder of the trading day, including any trading that may take place after 3 p.m., and would not resume until the next trading day.
In addition to these proposed changes, the Exchange proposes to add to Rule 6.3B how the markets will reopen following a 15-minute trading halt.
The basis under the Act for these proposed rule changes are [sic] the requirement under Section 6(b)(5)
CBOE 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 neither solicited nor received comments on the proposal.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such 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 changes to the market-wide circuit breaker regime are consistent with the Act. The Commission specifically requests comment on the following:
• As discussed above, the proposed rule change would narrow the percentage market declines that would trigger a market-wide halt in trading. How would the proposed changes interact with the existing single-stock circuit breaker pilot program
• To what extent could the concurrent triggering of single stock circuit breakers in many S&P 500 Index stocks lead to difficulties in calculating the index? Would the triggering of many single stock circuit breakers in a general market downturn cause the index calculation to become stale and thereby delay the triggering of the market-wide circuit breaker?
• Should the market-wide circuit breaker be triggered if a sufficient number of single-stock circuit breakers or price limits are triggered, and materially affect calculations of the S&P 500 Index?
• Should market centers implement rules that mandate cancellation of pending orders in the event a market-wide circuit breaker is triggered? If so, should such a rule require cancellation of all orders or only certain order types (
• Should some provision be made to end the regular trading session if a market decline suddenly occurs after 3:25 p.m. but does not reach the 20% level?
• In the event of a Level 3 Market Decline, should some provision be made for the markets to hold a closing auction?
• Should the primary market have a longer period (
• In the event of a Level 3 Market Decline, should the markets wait for the primary market to reopen trading in a particular security on the next trading day before trading in that security resumes?
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 (the “Act”)
National Stock Exchange, Inc. (“NSX
In its filing with the Commission, the Exchange included statements
The Exchange proposes to amend Exchange Rule 11.20A to revise the current methodology for determining when to halt trading in all stocks due to extraordinary market volatility. The Exchange is proposing this rule change in consultation with other equity, options, and futures markets, the Financial Industry Regulatory Authority, Inc. (“FINRA”), and staffs of the Securities and Exchange Commission (“SEC” or the “Commission”) and the Commodity Futures Trading Commission (“CFTC”).
Since May 6, 2010, when the markets experienced excessive volatility in an abbreviated time period,
The Joint CFTC-SEC Advisory Committee on Emerging Regulatory Issues (“Committee”) has recommended that, in addition to the initiatives already adopted or proposed, the markets should consider reforming the existing market-wide circuit breakers. Among other things, the Committee noted that the interrelatedness of today's highly electronic markets warrants the need to review the present operation of the system-wide circuit breakers now in place. Specifically, the Committee recommended that the markets consider replacing the Dow Jones Industrial Average (“DJIA”) with the S&P 500® Index (“S&P 500”), revising the 10%, 20%, and 30% decline percentages, reducing the length of trading halts, and allowing halts to be triggered up to 3:30 p.m. Eastern Time.
The Exchange, along with other markets and FINRA, has taken into consideration the Committee's recommendations, and with some modifications, has proposed changes to market-wide circuit breakers that the Exchange believes will provide for a more meaningful measure in today's faster, more electronic markets, of when to halt stocks on a market-wide basis as a result of rapid market declines.
NSX Rule 11.20A provides for market-wide halts in trading at specified levels in order to promote stability and investor confidence during a period of significant stress. As the Commission noted in its approval order, Rule 11.20 was intended to enable market participants to establish an equilibrium between buying and selling interest and to ensure that market participants have an opportunity to become aware of and respond to significant price movements. Importantly, the market-wide circuit breakers were not intended to prevent markets from adjusting to new price levels; rather, they provide for a speed bump for extremely rapid market declines.
In its current form, the rule provides for Level 1, 2, and 3 declines and specified trading halts following such declines. The values of Levels 1, 2 and 3 are calculated at the beginning of each calendar quarter, using 10%, 20% and 30%, respectively, of the average closing value of the DJIA for the month prior to the beginning of the quarter. Each percentage calculation is rounded to the nearest fifty points to create the Levels' trigger points. The new trigger levels are disseminated quarterly to the media and via an NYSE Euronext Information Memo and are available on the NYSE Euronext's Web site.
Once a Rule 11.20A circuit breaker is in effect, trading in all stocks halt for the time periods specified below:
Anytime before 2 p.m.
Anytime before 1 p.m.—two hours; at or after 1 p.m. but before 2 p.m.—one hour; at or after 2 p.m.—trading shall halt and not resume for the rest of the day.
At any time—trading shall halt and not resume for the rest of the day.
Unless stocks are halted for the remainder of the trading day, price indications are disseminated during a Rule 11.20A trading halt for stocks that comprise the DJIA.
As noted above, the Exchange, other equities, options, and futures markets, and FINRA propose to amend the market-wide circuit breakers to take into consideration the recommendations of the Committee, and to provide for more meaningful measures in today's markets of when to halt trading in all stocks. Accordingly, the Exchange proposes to amend Rule 11.20A as follows: (i) Replace the DJIA with the S&P 500; (ii) replace the quarterly calendar recalculation of Rule 11.20A triggers with daily recalculations; (iii) replace the 10%, 20%, and 30% market decline percentages with 7%, 13%, and 20% market decline percentages; (iv) modify the length of the trading halts associated with each market decline level; and (v) modify the times when a trading halt may be triggered. The Exchange believes that these proposed amendments update the rule to reflect today's high-speed, highly electronic trading market while still meeting the original purpose of Rule 11.20A: to ensure that market participants have an opportunity to become aware of and respond to significant price movements.
First, the Exchange proposes to replace the DJIA with the S&P 500. The Exchange believes that because the S&P 500 is based on the trading prices of 500 stocks, as compared to the 30 stocks that comprise the DJIA, the S&P 500 represents a broader base of securities against which to measure whether extraordinary market-wide volatility is occurring. In addition, as noted by the Committee, using an index that correlates closely with derivative products, such as the E-Mini and SPY, will allow for a better cross-market measure of market volatility.
Second, the Exchange proposes to change the recalculation of the trigger values from once every calendar quarter to daily. The Exchange believes that updating the trigger values daily will better reflect current market conditions. In particular, a daily recalculation will ensure that the percentage drop triggers relate to current market conditions, and are not compared to what may be stale market conditions. As noted in the proposed rule, the daily calculations of the trigger values will be published before the trading day begins.
Third, the Exchange proposes to decrease the current Level 1, 2, and 3 declines of 10%, 20%, and 30% to a Level 1 Market Decline of 7%, a Level 2 Market Decline of 13%, and Level 3 Market Decline of 20%. In particular, as demonstrated by the May 6, 2010 flash crash, the current Level 1 10% decline may be too high a threshold before determining whether to halt trading across all securities. In fact, since adoption, the markets have halted only once, on October 27, 1997.
As further proposed, the Exchange would halt trading based on a Level 1 or Level 2 Market Decline only once per day. For example, if a Level 1 Market Decline were to occur and trading were halted, following the reopening of trading, the Exchange would not halt the market again unless a Level 2 Market Decline were to occur. Likewise, following the reopening of trading after a Level 2 Market Decline, the Exchange would not halt trading again unless a Level 3 Market Decline were to occur, at which point, trading in all stocks would be halted until the primary market opens the next trading day.
Fourth, to correspond with the lower percentages associated with triggering a trading halt, the Exchange also proposes to shorten the length of the market-wide trading halts associated with each Level. As proposed, a Level 1 or 2 Market Decline occurring after 9:30 a.m. and up to and including 3:25 p.m., would result in a trading halt in all stocks for 15 minutes.
The Exchange believes that by reducing the percentage threshold, coupled with the reduced length of a trading halt, the proposed rule would allow for trading halts for serious market declines, while at the same time, would minimize disruption to the market by allowing for trading to continue after the proposed more-abbreviated trading halt. The Exchange believes that in today's markets, where trading information travels in micro-second speed, a 15-minute trading halt strikes the appropriate balance between the need to halt trading for market participants to assess the market, while at the same time reducing the time that the market is halted.
Finally, because the proposed Level 1 and Level 2 trading halts will now be 15 minutes, the Exchange proposes amending the rule to allow for a Level 1 or 2 Market Decline to trigger a trading halt up to 3:25 p.m. (or in the case of an early scheduled close, 12:25 p.m.). Under the current rule, a trading halt cannot be triggered after 2:30 p.m., and this time corresponds to the need for the markets both to reopen following a 30-minute halt and to engage in a fair and orderly closing process. However, as the markets experienced on May 6, 2010, even if the Level 1 decline had occurred that day, because the market decline occurred after 2:30 p.m., it would not have triggered a halt under the current rule. The Committee recommended that trading halts be triggered up to 3:30 p.m. The Exchange agrees that the proposed amendments must strike the appropriate balance between permitting trading halts as late in the day as feasible without interrupting the closing process.
Accordingly, to accommodate existing Exchange rules concerning closing procedures, the Exchange proposes that the last Level 1 or Level 2 Market Decline trading halt should be 3:25 p.m. (or in the case of an early scheduled close, 12:25 p.m.). The Exchange proposes 3:25 p.m. (or in the case of an early scheduled close, 12:25 p.m.) as the cut-off time so that there is time following the 15-minute trading halt for the markets to reopen before the 3:45 cut-off (and a 12:45 p.m. cut-off time for an early scheduled close) for certain stocks under Exchange rules.
As with current Level 3 declines, under the proposed rule, a Level 3 Market Decline would halt trading for the remainder of the trading day, including any trading that may take place after 4:00 p.m., and would not resume until the next trading day.
In addition to these proposed changes, the Exchange proposes to add to Rule 11.20A how the markets will reopen following a 15-minute trading halt. In particular, similar to the reopening procedures set forth in Rule 11.20B(b), the Exchange proposes that if the primary market halts trading in all stocks, all markets will halt trading in those stocks until the primary market has resumed trading or notice has been provided by the primary market that trading may resume. As further proposed, if the primary market does not re-open a security within 15 minutes following the end of the trading halt, other markets may resume trading in that security.
The basis under the Act for these proposed rule changes are the requirement under Section 6(b)(5)
The Exchange does not believe that the proposed rule change will impose any inappropriate burden on competition.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Within 45 days of the date of publication of this notice in the Federal Register or within such longer period (i) As the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or (ii) as to which the self-regulatory organization consents, the Commission will:
(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 changes to the market-wide circuit breaker regime are consistent with the Act. The Commission specifically requests comment on the following:
• As discussed above, the proposed rule change would narrow the percentage market declines that would trigger a market-wide halt in trading. How would the proposed changes interact with the existing single-stock circuit breaker pilot program
• To what extent could the concurrent triggering of single stock circuit breakers in many S&P 500 Index stocks lead to difficulties in calculating the index? Would the triggering of many single stock circuit breakers in a general market downturn cause the index calculation to become stale and thereby delay the triggering of the market-wide circuit breaker?
• Should the market-wide circuit breaker be triggered if a sufficient number of single-stock circuit breakers or price limits are triggered, and materially affect calculations of the S&P 500 Index?
• Should market centers implement rules that mandate cancellation of pending orders in the event a market-wide circuit breaker is triggered? If so, should such a rule require cancellation of all orders or only certain order types (
• Should some provision be made to end the regular trading session if a market decline suddenly occurs after 3:25 p.m. but does not reach the 20% level?
• In the event of a Level 3 Market Decline, should some provision be made for the markets to hold a closing auction?
• Should the primary market have a longer period (
• In the event of a Level 3 Market Decline, should the markets wait for the primary market to reopen trading in a particular security on the next trading day before trading in that security resumes?
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 amend Exchange Rule 6.32.03 to revise the current methodology for determining when to halt trading in all stock options on C2 due to extraordinary market volatility. The text of the rule proposal is available on the Exchange's Web site
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 those 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 parts of such statements.
The Exchange proposes to amend its rules to revise the current methodology for determining when to halt trading in all stock options due to extraordinary market volatility. The Exchange is proposing this rule change in consultation with other equity, options, and futures markets, the Financial Industry Regulatory Authority, Inc. (“FINRA”), and staffs of the Commission and the Commodity Futures Trading Commission (“CFTC”).
Since May 6, 2010, when the markets experienced excessive volatility in an abbreviated time period,
The Joint CFTC-SEC Advisory Committee on Emerging Regulatory Issues (“Committee”) has recommended that, in addition to the initiatives already adopted or proposed, the markets should consider reforming the existing market-wide circuit breakers. Among other things, the Committee noted that the interrelatedness of today's highly electronic markets warrants the need to review the present operation of the system-wide circuit breakers now in place. Specifically, the Committee recommended that the markets consider replacing the Dow Jones Industrial Average (“DJIA”) with the S&P 500® Index (“S&P 500”), revising the 10%, 20%, and 30% decline percentages, reducing the length of trading halts, and allowing halts to be triggered up to 2:30 p.m. (all times herein are Chicago Time).
The exchanges and FINRA have taken into consideration the Committee's recommendations, and with some modifications, have proposed changes to market-wide circuit breakers that the Exchange believes will provide for a more meaningful measure in today's faster, more electronic markets, of when to halt stocks and stock options on a market-wide basis as a result of rapid market declines.
The markets' rules on market-wide trading halts were adopted in October 1988 as part of an effort by the securities and futures markets to implement a coordinated means to address potentially destabilizing market volatility.
In its current form,
Once a market-wide circuit breaker is in effect, trading in all securities on the Exchange, which currently includes only options, halts for the time periods specified below:
Anytime before 2 p.m.—one hour;at or after 2 p.m. but before 2:30 p.m.—30 minutes;at or after 2:30 p.m.—trading shall continue, unless there is a Level 2 Halt.
Anytime before 1 p.m.—two hours;at or after 1 p.m. but before 2 p.m.—one hour;at or after 2 p.m.—trading shall
At any time—trading shall halt and not resume for the rest of the day.
As noted above, the Exchange, other equities, options, and futures markets, and FINRA propose to amend the market-wide circuit breakers to take into consideration the recommendations of the Committee, and to provide for more meaningful measures in today's markets of when to halt trading in all stocks and stock options. Accordingly, the Exchange proposes to amend Rule 6.3B as follows: (i) Replace the DJIA with the S&P 500; (ii) replace the quarterly calendar recalculation of Rule 6.3B triggers with daily recalculations: (iii) replace the 10%, 20%, and 30% market decline percentages with 7%, 13%, and 20% market decline percentages; (iv) modify the length of the trading halts associated with each market decline level; and (v) modify the times when a trading halt may be triggered. The Exchange believes that these proposed amendments update the rule to reflect today's high-speed, highly electronic trading market while still meeting the original purpose of the market-wide circuit breaker rules: to ensure that market participants have an opportunity to become aware of and respond to significant price movements.
First, the Exchange proposes to replace the DJIA with the S&P 500. The Exchange believes that because the S&P 500 is based on the trading prices of 500 stocks, as compared to the 30 stocks that comprise the DJIA, the S&P 500 represents a broader base of stocks against which to measure whether extraordinary market-wide volatility is occurring. In addition, as noted by the Committee, using an index that correlates closely with derivative products, such as the E-Mini and SPY, will allow for a better cross-market measure of market volatility.
Second, the Exchange proposes to change the recalculation of the trigger values from once every calendar quarter to daily. The Exchange believes that updating the trigger values daily will better reflect current market conditions. In particular, a daily recalculation will ensure that the percentage drop triggers relate to current market conditions, and are not compared to what may be stale market conditions. As noted in the proposed rule, the daily calculations of the trigger values will be published before the trading day begins.
Third, the Exchange proposes to decrease the current Level 1, 2, and 3 declines of 10%, 20%, and 30% to a Level 1 Market Decline of 7%, a Level 2 Market Decline of 13%, and Level 3 Market Decline of 20%. In particular, as demonstrated by the May 6, 2010 flash crash, the current Level 1 10% decline may be too high a threshold before determining whether to halt trading across all securities. In fact, since adoption, the markets have halted only once, on October 27, 1997.
As further proposed, the Exchange would halt trading based on a Level 1 or Level 2 Market Decline only once per day. For example, if a Level 1 Market Decline were to occur and trading were halted, following the reopening of trading, the Exchange would not halt the market again unless a Level 2 Market Decline were to occur. Likewise, following the reopening of trading after a Level 2 Market Decline, the Exchange would not halt trading again unless a Level 3 Market Decline were to occur, at which point, trading in all stock options would be halted until the next trading day.
Fourth, to correspond with the lower percentages associated with triggering a trading halt, the Exchange also proposes to shorten the length of the market-wide trading halts associated with each Level. As proposed, a Level 1 or 2 Market Decline occurring after 8:30 a.m. and up to and including 2:25 p.m. or, in the case of an early scheduled close, 11:25 a.m., would result in a trading halt in all stocks options for 15 minutes.
The Exchange believes that by reducing the percentage threshold, coupled with the reduced length of a trading halt, the proposed rule would allow for trading halts for serious market declines, while at the same time, would minimize disruption to the market by allowing for trading to continue after the proposed more-abbreviated trading halt. The Exchange believes that in today's markets, where trading information travels in micro-second speed, a 15-minute trading halt strikes the appropriate balance between the need to halt trading for market participants to assess the market, while at the same time reducing the time that the market is halted.
Finally, because the proposed Level 1 and Level 2 trading halts will now be 15 minutes, the Exchange proposes amending the rule to allow for a Level 1 or 2 Market Decline to trigger a trading halt up to 2:25 p.m. (or, in the case of an early scheduled close, 11:25 a.m.). Under the current rule, a trading halt cannot be triggered after 1:30 p.m., and this time corresponds to the need for the markets both to reopen following a 30-minute halt and to engage in a fair and orderly closing process. However, as the markets experienced on May 6, 2010, even if the Level 1 decline had occurred that day, because the market decline occurred after 1:30 p.m., it would not have triggered a halt under the current rule. The Committee recommended that trading halts be triggered up to 2:30 p.m. The Exchange agrees that the proposed amendments must strike the appropriate balance between permitting trading halts as late in the day as feasible without interrupting the closing process.
Accordingly, to accommodate certain existing exchange rules concerning closing procedures, including, for example, the publication of imbalance information beginning at 2:45 p.m. and the restrictions on entry and cancellation of market on close (“MOC”) and limit on close (“LOC”) orders after 2:45 p.m.,
As with current Level 3 declines, under the proposed rule, a Level 3 Market Decline would halt trading for the remainder of the trading day, including any trading that may take place after 3:00 p.m., and would not resume until the next trading day.
In addition to these proposed changes, the Exchange proposes to add to Rule 6.3B how the markets will reopen following a 15-minute trading halt.
The basis under the Act for these proposed rule changes are [sic] the requirement under Section 6(b)(5)
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 neither solicited nor received comments on the proposal.
Within 45 days of the date of publication of this notice in the Federal Register or within such longer period (i) As the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or (ii) as to which the self-regulatory organization consents, the Commission will:
(A) By order approve or disapprove such 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 changes to the market-wide circuit breaker regime are consistent with the Act. The Commission specifically requests comment on the following:
• As discussed above, the proposed rule change would narrow the percentage market declines that would trigger a market-wide halt in trading. How would the proposed changes interact with the existing single-stock circuit breaker pilot program
• To what extent could the concurrent triggering of single stock circuit breakers in many S&P 500 Index stocks lead to difficulties in calculating the index? Would the triggering of many single stock circuit breakers in a general market downturn cause the index calculation to become stale and thereby delay the triggering of the market-wide circuit breaker?
• Should the market-wide circuit breaker be triggered if a sufficient number of single-stock circuit breakers or price limits are triggered, and materially affect calculations of the S&P 500 Index?
• Should market centers implement rules that mandate cancellation of pending orders in the event a market-wide circuit breaker is triggered? If so, should such a rule require cancellation of all orders or only certain order types (
• Should some provision be made to end the regular trading session if a market decline suddenly occurs after 3:25 p.m. but does not reach the 20% level?
• In the event of a Level 3 Market Decline, should some provision be made for the markets to hold a closing auction?
• Should the primary market have a longer period (
• In the event of a Level 3 Market Decline, should the markets wait for the primary market to reopen trading in a particular security on the next trading day before trading in that security resumes?
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.
All submissions should refer to File Number SR-C2-2011-024. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Exchange Rule 80B to revise the current methodology for determining when to halt trading in all stocks due to extraordinary market volatility. 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 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 those 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 parts of such statements.
The Exchange proposes to amend Exchange Rule 80B to revise the current methodology for determining when to halt trading in all stocks due to extraordinary market volatility. The Exchange is proposing this rule change in consultation with other equity, options, and futures markets, the Financial Industry Regulatory Authority, Inc. (“FINRA”), and staffs of the Commission and the Commodity Futures Trading Commission.
Since May 6, 2010, when the markets experienced excessive volatility in an abbreviated time period,
The Joint CFTC-SEC Advisory Committee on Emerging Regulatory Issues (“Committee”) has recommended that, in addition to the initiatives already adopted or proposed, the markets should consider reforming the existing market-wide circuit breakers. Among other things, the Committee noted that the interrelatedness of today's highly electronic markets warrants the need to review the present operation of the system-wide circuit breakers now in place. Specifically, the Committee recommended that the markets consider replacing the Dow Jones Industrial Average (“DJIA”) with the S&P 500® Index (“S&P 500”), revising the 10%, 20%, and 30% decline percentages, reducing the length of trading halts, and allowing halts to be triggered up to 3:30 p.m.
The exchanges and FINRA have taken into consideration the Committee's recommendations, and with some modifications, have proposed changes to market-wide circuit breakers that the Exchange believes will provide for a more meaningful measure in today's faster, more electronic markets, of when to halt stocks on a market-wide basis as a result of rapid market declines.
The Exchange adopted Rule 80B in October 1988 as part of an effort by the securities and futures markets to implement a coordinated means to address potentially destabilizing market volatility.
In its current form,
Once a Rule 80B circuit breaker is in effect, trading in all stocks halt for the time periods specified below:
Anytime before 2 p.m.—one hour; at or after 2 p.m. but before 2:30 p.m.—30 minutes; at or after 2:30 p.m.—trading shall continue, unless there is a Level 2 Halt.
Anytime before 1 p.m.—two hours; at or after 1 p.m. but before 2 p.m.—one hour; at or after 2 p.m.—trading shall halt and not resume for the rest of the day.
At any time—trading shall halt and not resume for the rest of the day.
Unless stocks are halted for the remainder of the trading day, price indications are disseminated during a Rule 80B trading halt for stocks that comprise the DJIA.
As noted above, the Exchange, other equities, options, and futures markets, and FINRA propose to amend the market-wide circuit breakers to take into consideration the recommendations of the Committee, and to provide for more meaningful measures in today's markets of when to halt trading in all stocks. Accordingly, the Exchange proposes to amend Rule 80B as follows: (i) Replace the DJIA with the S&P 500; (ii) replace the quarterly calendar recalculation of Rule 80B triggers with daily recalculations: (iii) replace the 10%, 20%, and 30% market decline percentages with 7%, 13%, and 20% market decline percentages; (iv) modify the length of the trading halts associated with each market decline level; and (v) modify the times when a trading halt may be triggered. The Exchange believes that these proposed amendments update the rule to reflect today's high-speed, highly electronic trading market while still meeting the original purpose of Rule 80B: To ensure that market participants have an opportunity to become aware of and respond to significant price movements.
First, the Exchange proposes to replace the DJIA with the S&P 500. The Exchange believes that because the S&P 500 is based on the trading prices of 500 stocks, as compared to the 30 stocks that comprise the DJIA, the S&P 500 represents a broader base of securities against which to measure whether extraordinary market-wide volatility is occurring. In addition, as noted by the Committee, using an index that correlates closely with derivative products, such as the E-Mini and SPY, will allow for a better cross-market measure of market volatility.
Second, the Exchange proposes to change the recalculation of the trigger values from once every calendar quarter to daily. The Exchange believes that updating the trigger values daily will better reflect current market conditions. In particular, a daily recalculation will ensure that the percentage drop triggers relate to current market conditions, and are not compared to what may be stale market conditions. As noted in the proposed rule, the daily calculations of the trigger values will be published before the trading day begins.
Third, the Exchange proposes to decrease the current Level 1, 2, and 3 declines of 10%, 20%, and 30% to a Level 1 Market Decline of 7%, a Level 2 Market Decline of 13%, and Level 3 Market Decline of 20%. In particular, as demonstrated by the May 6, 2010 flash crash, the current Level 1 10% decline may be too high a threshold before determining whether to halt trading across all securities. In fact, since adoption, the markets have halted only once, on October 27, 1997.
As further proposed, the Exchange would halt trading based on a Level 1 or Level 2 Market Decline only once per day. For example, if a Level 1 Market Decline were to occur and trading were halted, following the reopening of trading, the Exchange would not halt the market again unless a Level 2 Market Decline were to occur. Likewise, following the reopening of trading after a Level 2 Market Decline, the Exchange would not halt trading again unless a Level 3 Market Decline were to occur, at which point, trading in all stocks would be halted until the primary market opens the next trading day.
Fourth, to correspond with the lower percentages associated with triggering a trading halt, the Exchange also proposes to shorten the length of the market-wide trading halts associated with each Level. As proposed, a Level 1 or 2 Market Decline occurring after 9:30 a.m. Eastern and up to and including 3:25 p.m. Eastern, or in the case of an early scheduled close, 12:25 p.m. Eastern, would result in a trading halt in all stocks for 15 minutes.
The Exchange believes that by reducing the percentage threshold, coupled with the reduced length of a trading halt, the proposed rule would allow for trading halts for serious market declines, while at the same time, would minimize disruption to the market by allowing for trading to continue after the proposed more-abbreviated trading halt. The Exchange believes that in today's markets, where trading information travels in micro-second speed, a 15-minute trading halt strikes the appropriate balance between the need to halt trading for market participants to assess the market, while at the same time reducing the time that the market is halted.
Finally, because the proposed Level 1 and Level 2 trading halts will now be 15 minutes, the Exchange proposes amending the rule to allow for a Level 1 or 2 Market Decline to trigger a trading halt up to 3:25 p.m. Under the current rule, a trading halt cannot be triggered after 2:30 p.m., and this time corresponds to the need for the markets both to reopen following a 30-minute halt and to engage in a fair and orderly closing process. However, as the markets experienced on May 6, 2010, even if the Level 1 decline had occurred that day, because the market decline occurred after 2:30 p.m., it would not have triggered a halt under the current rule. The Committee recommended that trading halts be triggered up to 3:30 p.m. The Exchange agrees that the proposed amendments must strike the appropriate balance between permitting trading halts as late in the day as feasible without interrupting the closing process.
Accordingly, to accommodate existing Exchange rules concerning closing procedures, including the publication of imbalance information beginning at 3:45 p.m. and the restrictions on entry and cancellation of market on close (“MOC”) and limit on close (“LOC”) orders after 3:45 p.m.,
As with current Level 3 declines, under the proposed rule, a Level 3 Market Decline would halt trading for the remainder of the trading day, including any trading that may take place after 4 p.m., Eastern, and would not resume until the next trading day.
In addition to these proposed changes, the Exchange proposes to add to Rule 80B how the markets will reopen following a 15-minute trading halt. In particular, similar to the reopening procedures set forth in Rule 80C, the Exchange proposes that if the primary market halts trading in all stocks, all markets will halt trading in those stocks until the primary market has resumed trading or notice has been provided by the primary market that trading may resume. As further proposed, if the primary market does not re-open a security within 15 minutes following the end of the trading halt, other markets may resume trading in that security.
The Exchange proposes to implement the changes to Rule 80B at the same time that the Limit Up-Limit Down Plan, if approved, is implemented.
The basis under the Act for these proposed rule changes are [sic] the requirement under Section 6(b)(5)
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.
Within 45 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 changes to the market-wide circuit breaker regime are consistent with the Act. The Commission specifically requests comment on the following:
• As discussed above, the proposed rule change would narrow the percentage market declines that would trigger a market-wide halt in trading. How would the proposed changes interact with the existing single-stock circuit breaker pilot program
• To what extent could the concurrent triggering of single stock circuit breakers in many S&P 500 Index stocks lead to difficulties in calculating the index? Would the triggering of many single stock circuit breakers in a general market downturn cause the index calculation to become stale and thereby delay the triggering of the market-wide circuit breaker?
• Should the market-wide circuit breaker be triggered if a sufficient number of single-stock circuit breakers or price limits are triggered, and materially affect calculations of the S&P 500 Index?
• Should market centers implement rules that mandate cancellation of pending orders in the event a market-wide circuit breaker is triggered? If so, should such a rule require cancellation of all orders or only certain order types (
• Should some provision be made to end the regular trading session if a market decline suddenly occurs after 3:25 p.m. but does not reach the 20% level?
• In the event of a Level 3 Market Decline, should some provision be made for the markets to hold a closing auction?
• Should the primary market have a longer period (
• In the event of a Level 3 Market Decline, should the markets wait for the primary market to reopen trading in a
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 (the “Act”),
The Exchange proposes [sic] amend Exchange Article 20, Rule 2 to revise the current methodology for determining when to halt trading in all stocks due to extraordinary market volatility. 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 change 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.
The Exchange proposes to amend Exchange Article 20, Rule 2 to revise the current methodology for determining when to halt trading in all stocks due to extraordinary market volatility. The Exchange is proposing this rule change in consultation with other equity, options, and futures markets, the Financial Industry Regulatory Authority, Inc. (“FINRA”), and staffs of the Commission and the Commodity Futures Trading Commission.
Since May 6, 2010, when the markets experienced excessive volatility in an abbreviated time period, i.e., the “flash crash,” the exchanges and FINRA have implemented market-wide measures designed to restore investor confidence by reducing the potential for excessive market volatility. Among the measures adopted include pilot plans for stock-by-stock trading pauses
The Joint CFTC-SEC Advisory Committee on Emerging Regulatory Issues (“Committee”) has recommended that, in addition to the initiatives already adopted or proposed, the markets should consider reforming the existing market-wide circuit breakers. Among other things, the Committee noted that the interrelatedness of today's highly electronic markets warrants the need to review the present operation of the system-wide circuit breakers now in place. Specifically, the Committee recommended that the markets consider replacing the Dow Jones Industrial Average (“DJIA”) with the S&P 500® Index (“S&P 500”), revising the 10%, 20%, and 30% decline percentages, reducing the length
The exchanges and FINRA have taken into consideration the Committee's recommendations, and with some modifications, have proposed changes to market-wide circuit breakers that the Exchange believes will provide for a more meaningful measure in today's faster, more electronic markets, of when to halt stocks on a market-wide basis as a result of rapid market declines.
The Exchange adopted Article 20, Rule 2 in October 1988 as part of an effort by the securities and futures markets to implement a coordinated means to address potentially destabilizing market volatility.
In its current form,
Once an Article 20, Rule 2 circuit breaker is in effect, trading in all stocks halt [sic] for the time periods (all times are Central Time) specified below:
Unless stocks are halted for the remainder of the trading day, price indications are disseminated during an Article 20, Rule 2 trading halt for stocks that comprise the DJIA.
As noted above, the Exchange, other equities, options, and futures markets, and FINRA propose to amend the market-wide circuit breakers to take into consideration the recommendations of the Committee, and to provide for more meaningful measures in today's markets of when to halt trading in all stocks. Accordingly, the Exchange proposes to amend Article 20, Rule 2 as follows: (i) Replace the DJIA with the S&P 500; (ii) replace the quarterly calendar recalculation of Article 20, Rule 2 triggers with daily recalculations; (iii) replace the 10%, 20%, and 30% market decline percentages with 7%, 13%, and 20% market decline percentages; (iv) modify the length of the trading halts associated with each market decline level; and (v) modify the times when a trading halt may be triggered. The Exchange believes that these proposed amendments update the rule to reflect today's high-speed, highly electronic trading market while still meeting the original purpose of Article 20, Rule 2: to ensure that market participants have an opportunity to become aware of and respond to significant price movements.
First, the Exchange proposes to replace the DJIA with the S&P 500. The Exchange believes that because the S&P 500 is based on the trading prices of 500 stocks, as compared to the 30 stocks that comprise the DJIA, the S&P 500 represents a broader base of securities against which to measure whether extraordinary market-wide volatility is occurring. In addition, as noted by the Committee, using an index that correlates closely with derivative products, such as the E-Mini and SPY, will allow for a better cross-market measure of market volatility.
Second, the Exchange proposes to change the recalculation of the trigger values from once every calendar quarter to daily. The Exchange believes that updating the trigger values daily will better reflect current market conditions. In particular, a daily recalculation will ensure that the percentage drop triggers relate to current market conditions, and are not compared to what may be stale market conditions. As noted in the proposed rule, the daily calculations of the trigger values will be published before the trading day begins.
Third, the Exchange proposes to decrease the current Level 1, 2, and 3 declines of 10%, 20%, and 30% to a Level 1 Market Decline of 7%, a Level 2 Market Decline of 13%, and Level 3 Market Decline of 20%. In particular, as demonstrated by the May 6, 2010 flash crash, the current Level 1 10% decline may be too high a threshold before determining whether to halt trading across all securities. In fact, since adoption, the markets have halted only once, on October 27, 1997.
As further proposed, the Exchange would halt trading based on a Level 1 or Level 2 Market Decline only once per day. For example, if a Level 1 Market Decline were to occur and trading were halted, following the reopening of trading, the Exchange would not halt the market again unless a Level 2
Fourth, to correspond with the lower percentages associated with triggering a trading halt, the Exchange also proposes to shorten the length of the market-wide trading halts associated with each Level. As proposed, a Level 1 or 2 Market Decline occurring after 8:30 a.m. Central Time and up to and including 2:25 p.m. or in the case of an early scheduled close, 11:25 a.m. Central Time, would result in a trading halt in all stocks for 15 minutes.
The Exchange believes that by reducing the percentage threshold, coupled with the reduced length of a trading halt, the proposed rule would allow for trading halts for serious market declines, while at the same time, would minimize disruption to the market by allowing for trading to continue after the proposed more-abbreviated trading halt. The Exchange believes that in today's markets, where trading information travels in micro-second speed, a 15-minute trading halt strikes the appropriate balance between the need to halt trading for market participants to assess the market, while at the same time reducing the time that the market is halted.
Finally, because the proposed Level 1 and Level 2 trading halts will now be 15 minutes, the Exchange proposes amending the rule to allow for a Level 1 or 2 Market Decline to trigger a trading halt up to 2:25 p.m. or in the case of an early scheduled close, 11:25 a.m. Central Time. Under the current rule, a trading halt cannot be triggered after 1:30 p.m., and this time corresponds to the need for the markets both to reopen following a 30-minute halt and to engage in a fair and orderly closing process. However, as the markets experienced on May 6, 2010, even if the Level 1 decline had occurred that day, because the market decline occurred after 1:30 p.m., it would not have triggered a halt under the current rule. The Committee recommended that trading halts be triggered up to 2:30 p.m. Central Time. The Exchange agrees that the proposed amendments must strike the appropriate balance between permitting trading halts as late in the day as feasible without interrupting the closing process.
Accordingly, to accommodate existing NYSE rules concerning closing procedures, including the publication of imbalance information beginning at 2:45 p.m. Central, and the restrictions on entry and cancellation of market on close (“MOC”) and limit on close (“LOC”) orders after 2:45 p.m.,
As with current Level 3 declines, under the proposed rule, a Level 3 Market Decline would halt trading for the remainder of the trading day, including any trading that may take place after 3 p.m., Central Time, and would not resume until the next trading day.
In addition to these proposed changes, the Exchange proposes to add to Article 20, Rule 2 how the markets will reopen following a 15-minute trading halt. In particular, similar to the reopening procedures set forth in Article 20, Rule 2, the Exchange proposes that if the primary market halts trading in all stocks, all markets will halt trading in those stocks until the primary market has resumed trading or notice has been provided by the primary market that trading may resume. As further proposed, if the primary market does not re-open a security within 15 minutes following the end of the trading halt, other markets may resume trading in that security.
The bases under the Act for these proposed rule changes are the requirement under Section 6(b)(5)
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.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such 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 changes to the market-wide circuit breaker regime are consistent with the Act. The Commission specifically requests comment on the following:
• As discussed above, the proposed rule change would narrow the percentage market declines that would trigger a market-wide halt in trading. How would the proposed changes interact with the existing single-stock circuit breaker pilot program
2011) (SR-BATS-2011-016; SR-BYX-2011-011; SR-BX-2011-025; SR-CBOE-2011-049; SR-CHX-2011-09; SR-EDGA-2011-15; SR-EDGX-2011-14; SR-FINRA-2011-023; SR-ISE-2011-028; SR-NASDAQ-2011-067; SR-NYSE-2011-21; SR-NYSEAmex-2011-32; SR-NYSEArca-2011-26; SR-NSX-2011-06; SR-Phlx-2011-64) (approving the “Phase III Pilot Program”). The Phase III Pilot Program has been extended through January 2012.
• To what extent could the concurrent triggering of single stock
• Should the market-wide circuit breaker be triggered if a sufficient number of single-stock circuit breakers or price limits are triggered, and materially affect calculations of the S&P 500 Index?
• Should market centers implement rules that mandate cancellation of pending orders in the event a market-wide circuit breaker is triggered? If so, should such a rule require cancellation of all orders or only certain order types (
• Should some provision be made to end the regular trading session if a market decline suddenly occurs after 3:25 p.m. but does not reach the 20% level?
• In the event of a Level 3 Market Decline, should some provision be made for the markets to hold a closing auction?
• Should the primary market have a longer period (
• In the event of a Level 3 Market Decline, should the markets wait for the primary market to reopen trading in a particular security on the next trading day before trading in that security resumes?
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)
The Exchange proposes to amend NYSE Arca Equities Rule 7.12 to revise the current methodology for determining when to halt trading in all stocks due to extraordinary market volatility. 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 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 those 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 parts of such statements.
The Exchange proposes to amend NYSE Arca Equities Rule 7.12 to revise the current methodology for determining when to halt trading in all stocks due to extraordinary market volatility. The Exchange is proposing this rule change in consultation with other equity, options, and futures markets, the Financial Industry Regulatory Authority, Inc. (“FINRA”), and staffs of the Commission and the Commodity Futures Trading Commission.
Since May 6, 2010, when the markets experienced excessive volatility in an abbreviated time period, i.e., the “flash crash,” the exchanges and FINRA have implemented market-wide measures designed to restore investor confidence by reducing the potential for excessive market volatility. Among the measures adopted include pilot plans for stock-by-stock trading pauses
The Joint CFTC-SEC Advisory Committee on Emerging Regulatory Issues (“Committee”) has recommended that, in addition to the initiatives already adopted or proposed, the markets should consider reforming the existing market-wide circuit breakers. Among other things, the Committee noted that the interrelatedness of today's highly electronic markets warrants the need to review the present operation of the system-wide circuit breakers now in place. Specifically, the Committee recommended that the markets consider replacing the Dow Jones Industrial Average (“DJIA”) with the S&P 500® Index (“S&P 500”), revising the 10%, 20%, and 30% decline percentages, reducing the length of trading halts, and allowing halts to be triggered up to 3:30 p.m.
The exchanges and FINRA have taken into consideration the Committee's recommendations, and with some modifications, have proposed changes to market-wide circuit breakers that the Exchange believes will provide for a more meaningful measure in today's faster, more electronic markets, of when to halt stocks on a market-wide basis as a result of rapid market declines.
In October 1988 as part of an effort by the securities and futures markets to implement a coordinated means to address potentially destabilizing market volatility, the New York Stock Exchange, LLC (“NYSE”) and other markets adopted rules governing Trading Halts Due to Extraordinary Market Volatility (i.e., NYSE Rule 80B).
In its current form,
Once a Rule 7.12 circuit breaker is in effect, trading in all stocks halt for the time periods specified below:
Anytime before 2 p.m.—one hour; at or after 2 p.m. but before 2:30 p.m.—30 minutes; at or after 2:30 p.m.—trading shall continue, unless there is a Level 2 Halt.
Anytime before 1 p.m.—two hours; at or after 1 p.m. but before 2 p.m.—one hour; at or after 2 p.m.—trading shall halt and not resume for the rest of the day.
At any time—trading shall halt and not resume for the rest of the day.
As noted above, the Exchange, other equities, options, and futures markets, and FINRA propose to amend the market-wide circuit breakers to take into consideration the recommendations of the Committee, and to provide for more meaningful measures in today's markets of when to halt trading in all stocks. Accordingly, the Exchange proposes to amend NYSE Arca Equities Rule 7.12 as follows: (i) Replace the DJIA with the S&P 500; (ii) replace the quarterly calendar recalculation of Rule 7.12 triggers with daily recalculations; (iii) replace the 10%, 20%, and 30% market decline percentages with 7%, 13%, and 20% market decline percentages; (iv) modify the length of the trading halts associated with each market decline level; and (v) modify the times when a trading halt may be triggered. The Exchange believes that these proposed amendments update the rule to reflect today's high-speed, highly electronic trading market while still meeting the original purpose of Rule 7.12: To ensure that market participants have an opportunity to become aware of and respond to significant price movements.
First, the Exchange proposes to replace the DJIA with the S&P 500. The Exchange believes that because the S&P 500 is based on the trading prices of 500 stocks, as compared to the 30 stocks that comprise the DJIA, the S&P 500 represents a broader base of securities against which to measure whether extraordinary market-wide volatility is occurring. In addition, as noted by the Committee, using an index that correlates closely with derivative products, such as the E-Mini and SPY, will allow for a better cross-market measure of market volatility.
Second, the Exchange proposes to change the recalculation of the trigger values from once every calendar quarter to daily. The Exchange believes that updating the trigger values daily will better reflect current market conditions.
Third, the Exchange proposes to decrease the current Level 1, 2, and 3 declines of 10%, 20%, and 30% to a Level 1 Market Decline of 7%, a Level 2 Market Decline of 13%, and Level 3 Market Decline of 20%. In particular, as demonstrated by the May 6, 2010 flash crash, the current Level 1 10% decline may be too high a threshold before determining whether to halt trading across all securities. In fact, since adoption, the markets have halted only once, on October 27, 1997.
As further proposed, the Exchange would halt trading based on a Level 1 or Level 2 Market Decline only once per day. For example, if a Level 1 Market Decline were to occur and trading were halted, following the reopening of trading, the Exchange would not halt the market again unless a Level 2 Market Decline were to occur. Likewise, following the reopening of trading after a Level 2 Market Decline, the Exchange would not halt trading again unless a Level 3 Market Decline were to occur, at which point, trading in all stocks would be halted until the primary market reopens the next trading day.
Fourth, to correspond with the lower percentages associated with triggering a trading halt, the Exchange also proposes to shorten the length of the market-wide trading halts associated with each Level. As proposed, a Level 1 or 2 Market Decline occurring after 9:30 a.m. Eastern and up to and including 3:25 p.m. Eastern, or in the case of an early scheduled close, 12:25 p.m. Eastern, would result in a trading halt in all stocks for 15 minutes.
The Exchange believes that by reducing the percentage threshold, coupled with the reduced length of a trading halt, the proposed rule would allow for trading halts for serious market declines, while at the same time, would minimize disruption to the market by allowing for trading to continue after the proposed more-abbreviated trading halt. The Exchange believes that in today's markets, where trading information travels in micro-second speed, a 15-minute trading halt strikes the appropriate balance between the need to halt trading for market participants to assess the market, while at the same time reducing the time that the market is halted.
Finally, because the proposed Level 1 and Level 2 trading halts will now be 15 minutes, the Exchange proposes amending the rule to allow for a Level 1 or 2 Market Decline to trigger a trading halt up to 3:25 p.m. Eastern. Under the current rule, a trading halt cannot be triggered after 2:30 p.m., and this time corresponds to the need for the markets both to reopen following a 30-minute halt and to engage in a fair and orderly closing process. However, as the markets experienced on May 6, 2010, even if the Level 1 decline had occurred that day, because the market decline occurred after 2:30 p.m., it would not have triggered a halt under the current rule. The Committee recommended that trading halts be triggered up to 3:30 p.m. The Exchange agrees that the proposed amendments must strike the appropriate balance between permitting trading halts as late in the day as feasible without interrupting the closing process.
Accordingly, to accommodate existing NYSE rules concerning closing procedures, including the publication of imbalance information beginning at 3:45 p.m. Eastern and the restrictions on entry and cancellation of market on close (“MOC”) and limit on close (“LOC”) orders after 3:45 p.m.,
As with current Level 3 declines, under the proposed rule, a Level 3 Market Decline would halt trading for the remainder of the trading day, including any trading that may take place after 4:00 p.m., Eastern, and would not resume until the next trading day.
In addition to these proposed changes, the Exchange proposes to add to Rule 7.12 how the markets will reopen following a 15-minute trading halt. In particular, similar to the reopening procedures set forth in Rule 7.12, the Exchange proposes that if the primary market halts trading in all stocks, all markets will halt trading in those stocks until the primary market has resumed trading or notice has been provided by the primary market that trading may resume. As further proposed, if the primary market does not re-open a security within 15 minutes following the end of the trading halt, other markets may resume trading in that security.
The Exchange proposes to implement the changes to NYSE Arca Equities Rule 7.12 at the same time that the Limit Up-Limit Down Plan, if approved, is implemented.
The basis under the Act for these proposed rule changes are [sic] the requirement under Section 6(b)(5)
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.
Within 45 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 changes to the market-wide circuit breaker regime are consistent with the Act. The Commission specifically requests comment on the following:
• As discussed above, the proposed rule change would narrow the percentage market declines that would trigger a market-wide halt in trading. How would the proposed changes interact with the existing single-stock circuit breaker pilot program
2011).
• To what extent could the concurrent triggering of single stock circuit breakers in many S&P 500 Index stocks lead to difficulties in calculating the index? Would the triggering of many single stock circuit breakers in a general market downturn cause the index calculation to become stale and thereby delay the triggering of the market-wide circuit breaker?
• Should the market-wide circuit breaker be triggered if a sufficient number of single-stock circuit breakers or price limits are triggered, and materially affect calculations of the S&P 500 Index?
• Should market centers implement rules that mandate cancellation of pending orders in the event a market-wide circuit breaker is triggered? If so, should such a rule require cancellation of all orders or only certain order types (
• Should some provision be made to end the regular trading session if a market decline suddenly occurs after 3:25 p.m. but does not reach the 20% level?
• In the event of a Level 3 Market Decline, should some provision be made for the markets to hold a closing auction?
• Should the primary market have a longer period (
• In the event of a Level 3 Market Decline, should the markets wait for the primary market to reopen trading in a particular security on the next trading day before trading in that security resumes?
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 (the “Act”),
The Exchange is filing with the Commission a proposal to modify BATS Rule 11.18, entitled “Trading Halts Due to Extraordinary Market Volatility,” to revise the current methodology for determining when to halt trading in all stocks due to extraordinary market volatility.
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend BATS Rule 11.18 to revise the current methodology for determining when to halt trading in all stocks due to extraordinary market volatility. The Exchange is proposing this rule change in consultation with other equity, options, and futures markets, the Financial Industry Regulatory Authority, Inc. (“FINRA”), and staffs of the Commission and the Commodity Futures Trading Commission.
Since May 6, 2010, when the markets experienced excessive volatility in an abbreviated time period,
The Joint CFTC-SEC Advisory Committee on Emerging Regulatory Issues (“Committee”) has recommended that, in addition to the initiatives already adopted or proposed, the markets should consider reforming the existing market-wide circuit breakers. Among other things, the Committee noted that the interrelatedness of today's highly electronic markets warrants the need to review the present operation of the system-wide circuit breakers now in place. Specifically, the Committee recommended that the markets consider replacing the Dow Jones Industrial Average (“DJIA”) with the S&P 500® Index (“S&P 500”), revising the 10%, 20%, and 30% decline percentages, reducing the length of trading halts, and allowing halts to be triggered up to 3:30 p.m.
The exchanges and FINRA have taken into consideration the Committee's recommendations, and with some modifications, have proposed changes to market-wide circuit breakers that the Exchange believes will provide for a more meaningful measure in today's faster, more electronic markets, of when to halt stocks on a market-wide basis as a result of rapid market declines.
The market-wide halt rules currently in effect were initially adopted in October 1988 as part of an effort by the securities and futures markets to implement a coordinated means to address potentially destabilizing market volatility.
In its current form,
Once a Rule 11.18 market-wide circuit breaker is in effect, trading in all stocks halt for the time periods specified below:
Unless stocks are halted for the remainder of the trading day, price indications are disseminated during a Rule 11.18 market-wide trading halt for stocks that comprise the DJIA.
As noted above, the Exchange, other equities, options, and futures markets, and FINRA propose to amend the market-wide circuit breakers to take into consideration the recommendations of the Committee, and to provide for more meaningful measures in today's markets
First, the Exchange proposes to replace the DJIA with the S&P 500. The Exchange believes that because the S&P 500 is based on the trading prices of 500 stocks, as compared to the 30 stocks that comprise the DJIA, the S&P 500 represents a broader base of securities against which to measure whether extraordinary market-wide volatility is occurring. In addition, as noted by the Committee, using an index that correlates closely with derivative products, such as the E-Mini and SPY, will allow for a better cross-market measure of market volatility.
Second, the Exchange proposes to change the recalculation of the trigger values from once every calendar quarter to daily. The Exchange believes that updating the trigger values daily will better reflect current market conditions. In particular, a daily recalculation will ensure that the percentage drop triggers relate to current market conditions, and are not compared to what may be stale market conditions. As noted in the proposed rule, the daily calculations of the trigger values will be published before the trading day begins.
Third, the Exchange proposes to decrease the current Level 1, 2, and 3 declines of 10%, 20%, and 30% to a Level 1 Market Decline of 7%, a Level 2 Market Decline of 13%, and Level 3 Market Decline of 20%. In particular, as demonstrated by the May 6, 2010 flash crash, the current Level 1 10% decline may be too high a threshold before determining whether to halt trading across all securities. In fact, since adoption, the markets have halted only once, on October 27, 1997.
As further proposed, the Exchange would halt trading based on a Level 1 or Level 2 Market Decline only once per day. For example, if a Level 1 Market Decline were to occur and trading were halted, following the reopening of trading, the Exchange would not halt the market again unless a Level 2 Market Decline were to occur. Likewise, following the reopening of trading after a Level 2 Market Decline, the Exchange would not halt trading again unless a Level 3 Market Decline were to occur, at which point, trading in all stocks would be halted until the primary listing market opens the next trading day.
Fourth, to correspond with the lower percentages associated with triggering a trading halt, the Exchange also proposes to shorten the length of the market-wide trading halts associated with each Level. As proposed, a Level 1 or 2 Market Decline occurring after 9:30 a.m.
The Exchange believes that by reducing the percentage threshold, coupled with the reduced length of a trading halt, the proposed rule would allow for trading halts for serious market declines, while at the same time, would minimize disruption to the market by allowing for trading to continue after the proposed more-abbreviated trading halt. The Exchange believes that in today's markets, where trading information travels in micro-second speed, a 15-minute trading halt strikes the appropriate balance between the need to halt trading for market participants to assess the market, while at the same time reducing the time that the market is halted.
Finally, because the proposed Level 1 and Level 2 trading halts will now be 15 minutes, the Exchange proposes amending the rule to allow for a Level 1 or 2 Market Decline to trigger a trading halt up to 3:25 p.m., or in the case of an early scheduled close, 12:25 p.m. Under the current rule, a trading halt cannot be triggered after 2:30 p.m., and this time corresponds to the need for the markets both to reopen following a 30-minute halt and to engage in a fair and orderly closing process. However, as the markets experienced on May 6, 2010, even if the Level 1 decline had occurred that day, because the market decline occurred after 2:30 p.m., it would not have triggered a halt under the current rule. The Committee recommended that trading halts be triggered up to 3:30 p.m. The Exchange agrees that the proposed amendments must strike the appropriate balance between permitting trading halts as late in the day as feasible without interrupting the closing process.
Accordingly, to accommodate existing Exchange rules concerning closing procedures, the Exchange proposes that the last Level 1 or Level 2 Market Decline trading halt should be 3:25 p.m., or in the case of an early scheduled close, 12:25 p.m.
As with current Level 3 declines, under the proposed rule, a Level 3 Market Decline would halt trading for the remainder of the trading day, including any trading that may take place after 4:00 p.m., and would not resume until the next trading day.
In addition to these proposed changes, the Exchange proposes to add to Rule 11.18 how the markets will reopen following a 15-minute market-wide trading halt. In particular, similar to the reopening procedures set forth in current Rule 11.18(d), the Exchange proposes that if the primary listing market halts trading in all stocks, all markets will halt trading in those stocks until the primary listing market has resumed trading or notice has been provided by the primary listing market that trading may resume. As further proposed, if the primary listing market does not re-open a security within 15 minutes following the end of the trading halt, other markets may resume trading in that security.
The Exchange believes that its proposal is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6(b) of the Act.
The Exchange does not believe that the proposed rule change imposes any burden on competition.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Within 45 days of the date of publication of this notice in the Federal Register or within such longer period (i) As the Commission may designated up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or (ii) as to which the self-regulatory organization consents, the Commission will:
(A) By order approve or disapprove such 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 changes to the market-wide circuit breaker regime are consistent with the Act. The Commission specifically requests comment on the following:
• As discussed above, the proposed rule change would narrow the percentage market declines that would trigger a market-wide halt in trading. How would the proposed changes interact with the existing single-stock circuit breaker pilot program
• To what extent could the concurrent triggering of single stock circuit breakers in many S&P 500 Index stocks lead to difficulties in calculating the index? Would the triggering of many single stock circuit breakers in a general market downturn cause the index calculation to become stale and thereby delay the triggering of the market-wide circuit breaker?
• Should the market-wide circuit breaker be triggered if a sufficient number of single-stock circuit breakers or price limits are triggered, and materially affect calculations of the S&P 500 Index?
• Should market centers implement rules that mandate cancellation of pending orders in the event a market-wide circuit breaker is triggered? If so, should such a rule require cancellation of all orders or only certain order types (
• Should some provision be made to end the regular trading session if a market decline suddenly occurs after 3:25 p.m. but does not reach the 20% level?
• In the event of a Level 3 Market Decline, should some provision be made for the markets to hold a closing auction?
• Should the primary market have a longer period (
• In the event of a Level 3 Market Decline, should the markets wait for the primary market to reopen trading in a particular security on the next trading day before trading in that security resumes?
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 (the “Act”)
The Exchange proposes to amend Commentary .06 to Rule 903 in order to simplify the $1 Strike Price Program. The text of the proposed rule change is available on the Exchange's Web site at
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 those 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 parts of such statements.
The Exchange is proposing to amend Commentary .06 to Rule 903 in order to simplify the $1 Strike Price Program (“Program”).
In 2003, the Commission issued an order permitting the Exchange to establish the Program on a pilot basis.
The Exchange renewed the pilot program on a yearly basis and, in 2008, the Commission granted permanent approval of the Program.
Since the Program was made permanent, the number of class selections per exchange has been increased from ten (10) classes to 55 classes
The most recent expansion of the Program was approved by the Commission in early 2011 and increased the number of $1 strike price intervals permitted within the $1 to $50 range.
Amendments To Simplify Non-LEAPS Rule Text
These numerous expansions have resulted in very lengthy rule text that the Exchange believes is complicated and difficult to understand. The Exchange believes that the proposed changes to simplify the rule text of the Program would benefit market participants since the Program will be easier to understand and would maintain the expansions made to the Program, including those in early 2011. Through the current proposal, the Exchange also hopes to make administration of the Program easier,
• When the price of the underlying stock is equal to or less than $20, permit $1 strike price intervals with an exercise price up to 100% above and 100% below the price of the underlying stock.
o However, the above restriction would not prohibit the listing of at least five (5) strike prices above and below the price of the underlying stock per expiration month in an option class.
○ For example, if the price of the underlying stock is $2, the Exchange would be permitted to list the following series: $1, $2, $3, $4, $5, $6 and $7.
• When the price of the underlying stock is greater than $20, permit $1 strike price intervals with an exercise price up to 50% above and 50% below the price of the underlying security up to $50.
• For the purpose of adding strikes under the Program, the “price of the underlying stock” shall be measured in the same way as “the price of the underlying security” is, as set forth in Rule 903A(b)(1).
• Prohibit the listing of additional series in $1 strike price intervals if the underlying stock closes at or above $50 in its primary market and provide that additional series in $1 strike price intervals may not be added until the underlying stock closes again below $50.
The early 2011 expansion of the Program permitted for some limited listing of LEAPS in $1 strike price intervals for classes that participate in
For stocks in the Program, the Exchange may list one $1 strike price interval between each standard $5 strike price interval, with the $1 strike price interval being $2 above the standard strike for each interval above the price of the underlying stock, and $2 below the standard strike for each interval below the price of the underlying stock (“$2 wings”). For example, if the price of the underlying stock is $24.50, the Exchange may list the following standard strikes in $5 intervals: $15, $20, $25, $30 and $35. Between these standard $5 strikes, the Exchange may list the following $2 wings: $18, $27 and $32.
In addition, the Exchange may list the $1 strike price interval which is $2 above the standard strike just below the underlying price at the time of listing. In the above example, since the standard strike just below the underlying price ($24.50) is $20, the Exchange may list a $22 strike. The Exchange may add additional LEAP strikes as the price of the underlying stock moves, consistent with the Options Listing Procedures Plan (“OLPP”).
The early 2011 expansion of the Program prohibited the listing of $2.50 strike price intervals for classes that participate in the Program. This prohibition applies to non-LEAPS and LEAPS. The Exchange proposes to maintain this prohibition and codify it in paragraph (a) to Commentary .06 to Rule 903 (Program Description).
For ease of reference, the Exchange is proposing to add the headings “Program Description,” “Initial and Additional Series” and “LEAPS” to Commentary .06 to Rule 903.
The Exchange is proposing to more accurately reflect the nature of the Program and is proposing to make stylistic changes throughout Commentary .06 to Rule 903 by renaming the Program “The $1 Strike Price Interval Program” and by adding the phrase “price interval.”
The Exchange proposes to reorganize current paragraphs (c) through (f) of Commentary .06 to Rule 903 and portions of the Delisting Policy therein in order to better organize Commentary .06. This would include moving current paragraph (d) out of Commentary .06 and instead including the text as new Commentary .13 to Rule 903.
Lastly, the Exchange is making technical changes to Commentary .06 to Rule 903,
The Exchange represents that it has the necessary systems capacity to support the increase in new options series that would result from the proposed streamlining changes to the Program.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition 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.
Because the foregoing proposed rule change does not significantly affect the protection of investors or the public interest, does not impose any significant burden on competition, and, by its terms, does not become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay. The Commission believes that waiver of the operative delay is consistent with the protection of investors and the public interest because the proposal is substantially similar to that of another exchange that has been approved by the Commission.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission,
Determinations: “The Game of Kings: Medieval Ivory Chessmen From the Isle of Lewis”
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6469). The mailing address is U.S. Department of State, SA-5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522-0505.
Pursuant to Section 2121(h) of the Full-Year Continuing Appropriations Act, 2011 (Div. B, Pub. L. 112-10) (CR), I hereby determine that provision of $74,850,000 in Foreign Military Financing funds appropriated by the CR for assistance for Lebanon is in the national security interest of the United States.
This determination shall be published in the
Office of the United States Trade Representative.
Notice.
The Office of the United States Trade Representative (USTR) is providing notice of additional country-by-country allocations of the fiscal year (FY) 2011 in-quota quantity of the tariff-rate quota (TRQ) for imported refined sugar for entry through November 30, 2011.
Inquiries may be mailed or delivered to Ann Heilman-Dahl, Director of Agricultural Affairs, Office of Agricultural Affairs, Office of the United States Trade Representative, 600 17th Street, NW., Washington, DC 20508.
Ann Heilman-Dahl, Office of Agricultural Affairs,
Pursuant to Additional U.S. Note 5 to chapter 17 of the Harmonized Tariff Schedule of the United States (HTS), the United States maintains a tariff-rate quota for imports of refined sugar.
Section 404(d)(3) of the Uruguay Round Agreements Act (19 U.S.C. 3601(d)(3)) authorizes the President to allocate the in-quota quantity of a TRQ for any agricultural product among supplying countries or customs areas. The President delegated this authority to the USTR under Presidential Proclamation 6763 (60 FR 1007).
On August 5, 2010, the Secretary of Agriculture established the FY 2011 (October 1, 2010—September 30, 2011) refined sugar TRQ at an aggregate quantity of 99,111 MTRV, of which 20,344 MTRV was refined sugar other than specialty sugar. On August 17, 2010, USTR allocated this refined sugar as follows: 10,300 MTRV to Canada; 2,954 MTRV to Mexico; and 7,090 MTRV to be administered on a first-come, first-served basis. On August 2, 2011, the Secretary of Agriculture increased the FY 2011 specialty sugar TRQ by 9,072 MTRV, resulting in a FY 2011 specialty sugar TRQ of 87,839
On September 29, 2011, the Secretary of Agriculture announced an increase in the FY 2011 refined sugar TRQ of 136,078 MTRV, to a total of 244,261 MTRV, none of which is reserved for specialty sugars. This addition to the refined sugar TRQ will open on September 29, 2011, and may be entered until November 30, 2011. This sugar must have a sucrose content, by weight in the dry state, corresponding to a polarimeter reading of 99.5 degrees or more. 25,000 MTRV is being allocated to Canada, increasing Canada's allocation from 10,300 to 35,300 MTRV. The remaining 111,078 MTRV of the increased in-quota quantity may be supplied by any country on a first-come, first-served basis, subject to any other provision of law, which raises the first-come, first-served in-quota quantity from 7,090 to 118,168 MTRV. The certificate of quota eligibility is required for sugar entering under the TRQ for refined sugar that is the product of a country that has been allocated a share of the tariff-rate quota for refined sugar.
*
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number involved and must be received on or before October 24, 2011.
You may send comments identified by Docket Number FAA-2011-0728 using any of the following methods:
•
•
•
•
Keira Jones (202) 267-4024, Tyneka Thomas (202) 267-7626, or David Staples (202) 267-4058, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of title 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before October 24, 2011.
You may send comments identified by Docket Number FAA-2011-0824 using any of the following methods:
•
•
•
•
David Staples, 202-267-4058, Keira Jones, 202-267-4025, or Tyneka L. Thomas, 202-267-7626, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Description of Relief Sought: American Eurocopter is seeking relief from the requirement that any geometric error between the image generator eye point and the pilot eye point must be 8 degrees or less for the EC175 Level D FFS currently being designed. American Eurocopter requests that a geometric error of 10 to 12 degrees be allowed subject to justification and agreement with the National Simulator Program Manager (NSPM) in accordance with helicopter characteristics and training needs.
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number involved and must be received on or before October 24, 2011.
You may send comments identified by Docket Number FAA-2011-1018 using any of the following methods:
•
•
•
•
Keira Jones (202) 267-4024, Tyneka Thomas (202) 267-7626, or David Staples (202) 267-4058, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration, DOT.
Notice of intent of waiver with respect to land.
The Federal Aviation Administration (FAA) is considering a proposal to change a portion of the airport from aeronautical use to non-aeronautical use and to authorize the release of 75.46 acres of airport property for non-aeronautical development. The land consists of portions of 11 original airport acquired parcels. These parcels were acquired under grants: 6-18-0038-10 and 6-18-0038-14 or without federal participation. The land is currently vacant. The future use of the property is for non-aviation development.
There are no impacts to the airport by allowing the Indianapolis Airport Authority to dispose of the property.
The land is not needed for aeronautical use. Approval does not constitute a commitment by the FAA to financially assist in the sale or lease of the subject airport property nor a determination of eligibility for grant-in-aid funding from the FAA.
In accordance with section 47107(h) of title 49, United States Code, this notice is required to be published in the
Comments must be received on or before November 3, 2011.
Written comments on the Sponsor's request must be delivered or mailed to: Melanie Myers, Program Manager, Chicago Airports District Office, 2300 East Devon Avenue, Des Plaines, IL 60018.
Melanie Myers, Program Manager, Federal Aviation Administration, Great Lakes Region, Detroit Airports District Office, CHI-ADO 609, 2300 East Devon Avenue, Des Plaines, IL 60018 Telephone Number (847-294-7525)/FAX Number (847-294-7046). Documents reflecting this FAA action may be reviewed at this same location or at Indianapolis International Airport, Indianapolis, Indiana.
A part of the Northeast Quarter, the Northwest Quarter, the Southwest Quarter, and the Southeast Quarter of Section 33, Township 15 North, Range 2 East, Decatur Township, Marion County, Indiana, more particularly described as follows: Commencing at a brass disk (IAA monument 33-M) found at the Southeast corner of the Northwest Quarter of said Section 33; thence South 88 degrees 54 minutes 54 seconds West (all bearings are based on the Indiana State Plane Coordinate system, East Zone (NAD 83)) along the South line of said Northwest Quarter 164.56 feet; thence North 01 degrees 05 minutes 06 seconds West perpendicular to the last described line 316.96 feet to the POINT OF BEGINNING; thence South 87 degrees 58 minutes 46 seconds East 138.95 feet; thence South 62 degrees 24 minutes 14 seconds East 639.29 feet; thence South 48 degrees 54 minutes 55 seconds East 516.42 feet; thence South 60 degrees 57 minutes 17 seconds East 91.32 feet; thence South 53 degrees 40 minutes 33 seconds West 157.81 feet; thence South 45 degrees 00 minutes 17 seconds East 889.05 feet; thence South 45 degrees 07 minutes 10 seconds West 116.20 feet; thence South 44 degrees 52 minutes 50 seconds East 121.69 feet; thence North 45 degrees 07 minutes 10 seconds East 116.47 feet; thence South 45 degrees 00 minutes 17 seconds East 360.66 feet to the North right of way of I-70 per Indiana Department of Transportation plans for Project No. ST-70-3(Q) (the following two courses are along said North right of way); (1) thence South 68 degrees 47 minutes 46 seconds West 613.10 feet to a tangent curve to the left having a radius of 20,040.00 feet, the radius point of which bears South 21 degrees 12 minutes 14 seconds East; (2) thence Southwesterly along said curve 849.39 feet to a point which bears North 23 degrees 37 minutes 57 seconds West from said radius point; thence North 86 degrees 06 minutes 02 seconds West 439.92 feet to the Eastern right of way of the I-70 Off-ramp to the Midfield Terminal per Indiana Department of Transportation plans for said Project No. ST-70-3(Q) (the following twelve courses are along said Eastern right of way); (1) thence North 29 degrees 09 minutes 48 seconds West 219.65 feet; (2) thence North 24 degrees 52 minutes 02 seconds West 208.94 feet; (3) thence North 38 degrees 55 minutes 00 seconds West 235.07 feet; (4) thence North 33 degrees 00 minutes 23 seconds West 271.99 feet; (5) thence North 29 degrees 06 minutes 08 seconds West 244.10 feet; (6) thence North 20 degrees 02 minutes 46 seconds West 147.56 feet; (7) thence North 11 degrees 10 minutes 40 seconds West 127.36 feet; (8) thence North 06 degrees 26 minutes 54 seconds West 94.15 feet; (9) thence North 02 degrees 09 minutes 53 seconds East 115.55 feet; (10) thence North 18 degrees 28 minutes 47 seconds East 338.00 feet; (11) thence North 27 degrees 48 minutes 50 seconds East 129.82 feet to a non-tangent curve to the right having a radius of 1125.00 feet, the point of which bears South 58 degrees 52 minutes 42 seconds East; (12) thence Northeasterly along said curve 264.92 feet to a point which bears North 45 degrees 23 minutes 10 seconds West from said radius point; thence North 44 degrees 36 minutes 50 seconds East 198.54 feet to the POINT OF BEGINNING, containing 75.390 acres, more or less.
Issued in Des Plaines, Illinois, on September 22, 2011.
Federal Highway Administration (FHWA), DOT.
Notice of intent.
The FHWA is issuing this notice to advise the public that an Environmental Impact Statement (EIS) will be prepared for a proposed highway project in Walton and Bay Counties, Florida.
Ms. Cathy Kendall, Environmental Specialist, Federal Highway Administration, 545 John Knox Road, Suite 200, Tallahassee, FL, 32303, Telephone (850) 553-2225
The FHWA, in partnership with the Florida Department of Transportation (FDOT) will prepare an EIS for a proposal to develop a new alignment extension of CR 388 from SR 79 in Bay County, FL westward to SR 30 (US 98) in Walton County, FL. The FDOT refers to this project as West Bay Parkway, Segment 1. This proposed Segment 1 project would extend CR 388 to the west from its current western terminus at SR 79 and provide a new four-lane divided highway and potentially a new high level bridge across the Intracoastal Waterway (ICWW). Depending on the alternative selected, the project is approximately 9 to 12 miles in length.
Alternatives under consideration include (1) Taking no action; (2) widening SR 30 (US 98) to a six or eight lane divided roadway; (3) alternate corridors.
Letters describing the proposed action and soliciting comments will be sent to appropriate Federal, State, and local agencies, and to private organizations and citizens who have expressed interest in this proposal.
A series of public meetings in Santa Rosa Beach in Walton County, and Panama City Beach in Bay County began in April 2010 and will continue to be held through December 2012. In addition a public hearing will be held. Public notice will be given for the time and place of the meetings and hearing. The Draft EIS will be made available for public and agency review and comment. Additional project information can be found at the following web address:
To ensure that the full range of issues related to the proposed action is addressed and all significant issues identified, comments and suggestions are invited from all interested parties. Comments or question concerning this proposed action and the EIS should be directed to the FHWA at the address provided above.
Federal Highway Administration (FHWA), DOT.
Notice of Limitation on Claims for Judicial Review of Actions by FHWA.
This notice announces actions taken by the FHWA that are final within the meaning of 23 U.S.C. 139(
By this notice, the FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(
For FHWA: Mr. Edward T. Woolford, Environmental Program Manager, Federal Highway Administration, 2520 West 4700 South, Suite 9A, Salt Lake City, UT 84118. FHWA's regular business hours are Monday through Friday, 7:30 a.m. to 4:30 p.m. MST. For UDOT: Mr. Brandon Weston, 4501 South 2700 West, Salt Lake City, Utah 84119-5998;
Notice is hereby given that the FHWA has taken final agency actions subject to 23 U.S.C. 139(
The actions by the Federal agency, and the laws under which such actions were taken, are described in the Environmental Assessment (EA) for the project, approved on April 8, 2011, in the FHWA Finding of No Significant Impact (FONSI) decision issued on September 6, 2011, and in other documents in the FHWA project records. The EA, FONSI, and other project records are available by contacting FHWA or the Utah Department of Transportation at the addresses provided above. The FHWA EA and FONSI can be viewed at public libraries in the project area.
This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
1. General: National Environmental Policy Act (NEPA) [42 U.S.C. 4321- 4351]; Federal-Aid Highway Act [23 U.S.C. 109 and 23 U.S.C. 128].
2. Air: Clean Air Act [42 U.S.C. 7401- 7671(q)].
3. Land: Section 4(f) of the Department of Transportation Act of 1966 [49 U.S.C. 303];.
4. Wildlife: Endangered Species Act [16 U.S.C. 1531-1544 and Section 1536]; Migratory Bird Treaty Act [16 U.S.C. 703-712].
5. Historic and Cultural Resources: Section 106 of the National Historic Preservation Act of 1966, as amended [16 U.S.C. 470(f)
6. Social and Economic: Civil Rights Act of 1964 [42 U.S.C. 2000(d)- 2000(d)(1)]; Farmland Protection Policy Act (FPPA) [7 U.S.C. 4201-4209].
7. Executive Orders: E.O. 11990, Protection of Wetlands; E.O. 11988, Floodplain Management; E.O. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations; E.O. 13175, Consultation and Coordination with Indian Tribal Governments; E.O. 13112, Invasive Species.
23 U.S.C. 139(
In accordance with Part 211 of Title 49 of the Code of Federal Regulations (CFR), this document provides the public notice that by a document dated August 23, 2011, the Canadian National Railway (CN) has petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR part 236. FRA assigned the petition Docket Number FRA-2011-0071.
CN seeks relief from the 2-year periodic testing requirements of the rules, standards, and instructions contained in 49 CFR 236.377,
• Verify and record that the software has not changed since the previous testing. This is accomplished by verifying the Cyclic Redundancy Code, checksum, and/or unique check number (UCN) of the software in the solid-state device.
• Test and record the interconnection to the signaling hardware and equipment outside of the processor (switch indication, switch locking, track circuits and indications, and searchlight signal indications).
• Verify and record duration of any variable timers unless protected by a UCN.
The relief is requested for the following three cases:
1. Locations as listed in Exhibit B.
2. All future purchases of microprocessor-controlled interlocking locations.
3. Interlocking sites upgraded to microprocessor control.
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
•
•
•
•
Communications received by November 18, 2011 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable.
Anyone is able to search the electronic form of any written communications and 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 DOT's complete Privacy Act Statement in the
National Highway Traffic Safety Administration (NHTSA), U.S. Department of Transportation (DOT).
Grant of petition for exemption.
This document grants in full the Volkswagen Group of America's (VW) petition for exemption of the Audi A4 allroad vehicle line in accordance with § 543.9(c)(2) of 49 CFR part 543,
The exemption granted by this notice is effective beginning with the 2013 model year.
Ms. Carlita Ballard, Office of International Policy, Fuel Economy and Consumer Programs, NHTSA,1200 New Jersey Avenue, SE., West Building, W43-439, Washington, DC 20590. Ms. Ballard's phone number is (202) 366-5222. Her fax number is (202) 493-2990.
In a petition dated August 8, 2011, VW requested an exemption from the parts-marking requirements of the Theft Prevention Standard(49 CFR part 541) for the Audi A4 allroad vehicle line beginning with MY 2013. The petition requested an exemption from parts-marking pursuant to 49 CFR part 543,
Under § 543.5(a), a manufacturer may petition NHTSA to grant an exemption for one vehicle line per model year. In its petition, VW provided a detailed description and diagram of the identity, design and location of the components of the antitheft device for its new Audi A4 allroad vehicle line. VW will install its passive, transponder-based electronic engine immobilizer antitheft device as standard equipment on its Audi A4 allroad vehicle line. VW stated that its antitheft device is an electronic engine immobilizer which utilizes a transponder ignition key and an alarm system. Key components of the antitheft device will include a passive electronic engine immobilizer, electronic ignition lock, adapted ignition key, engine control unit, electronic steering column lock and an automatic transmission gear box (if available). VW stated that its vehicle line will also include an antitheft alarm system as standard equipment. Specifically, VW stated that when the vehicle is locked, the alarm system monitors and protects the engine compartment, luggage compartment and doors, and when the system is activated, the alarm will trigger if one of the doors, the engine hood or the rear hatch lid are opened. Specifically, VW stated that when any of the protected components within its vehicle enclosure deterrent system are violated, an audible horn signal is emitted and the vehicle's emergency flasher system is activated. VW's submission is considered a complete petition as required by 49 CFR 543.7, in that it meets the general requirements contained in § 543.5 and the specific content requirements of § 543.6.
VW stated that activation occurs when the key fob advanced key system is removed from the car, or when the mechanical ignition key is switched to the OFF position causing lock out of the engine control unit. VW also stated that deactivation of the antitheft system occurs when the mechanical ignition key is switched to the ON position or while the key fob advanced key is located inside the car. VW stated that the key transponder sends a fixed code to the immobilizer control unit, and if the code is identified as the correct code, a variable code is generated in the immobilizer control unit and sent to the transponder. VW further stated that after the electronic steering column is unlocked and there is full authorization for the ignition switch to be on, the engine control unit sends a variable code to the immobilizer control unit, enabling start up of the vehicle. VW believes that the code is undecipherable because a new variable code is generated each time during this secret computing process.
In addressing the specific content requirements of 543.6, VW provided information on the reliability and durability of its proposed device. To ensure reliability and durability of the
VW stated that the Audi A4 allroad will be a new, small multipurpose passenger vehicle (MPV) line based on the Audi A4 sedan. The Audi A4 allroad has no theft rate history or data available. However, VW provided data on the theft reduction benefits experienced by other vehicle lines installed with immobilizer devices that have already been granted petitions for exemptions by the agency.
VW compared the device proposed for its vehicle line with other devices which NHTSA has determined to be as effective in reducing and deterring motor vehicle theft as would compliance with the parts-marking requirements of the Theft Prevention Standard. VW stated that except for the 2004 MY, the Audi allroad MPV had a lower theft rate than its passenger car counterpart, Audi A6. Specifically, the agency's data show that theft rates for the Audi A6 for MYs 2006-2008 are 1.8143, 1.5437 and 1.4414 respectively. Using an average of 3 MYs' data (2006-2008), the theft rate for the Audi A6 is well below the median at 1.5998. VW also stated that the theft rates for the Audi A4 have been near the median and based on comparison, the Audi A4 allroad is expected to have a lower theft rate. Specifically, the agency's data show that theft rates for the Audi A4 for MYs' 2006-2008 are 1.0203, 1.2892 and 1.1463 respectively. Using an average of 3 MYs' data (2006-2008), the theft rate for the Audi A4 vehicle line is well below the median at 1.1520. VW also provided data from NICB in support of the effectiveness of immobilizer-installed vehicles to reduce thefts. VW stated that according to the National Insurance Crime Bureau (NICB) theft statistics, MY 1997 Ford Mustangs installed with a standard immobilizer showed a 70% reduction in theft rate when compared to MY 1995 Ford Mustangs without an immobilizer.
Based on the evidence submitted by VW, the agency believes that the antitheft device for the Audi A4 allroad vehicle line is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the Theft Prevention standard (49 CFR part 541).
Pursuant to 49 U.S.C. 33106 and 49 CFR 543.7(b), the agency grants a petition for exemption from the parts-marking requirements of part 541 either in whole or in part, if it determines that, based upon substantial evidence, the standard equipment antitheft device is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts marking requirements of part 541. The agency finds that VW has provided adequate reasons for its belief that the antitheft device for the VW Audi A4 allroad vehicle line is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the Theft Prevention Standard (49 CFR part 541). This conclusion is based on the information VW provided about its device.
The agency concludes that the device will provide the five types of performance listed in § 543.6(a)(3): promoting activation; attracting attention to the efforts of an unauthorized person to enter or move a vehicle by means other than a key; preventing defeat or circumvention of the device by unauthorized persons; preventing operation of the vehicle by unauthorized entrants; and ensuring the reliability and durability of the device.
For the foregoing reasons, the agency hereby grants in full VW's petition for exemption for the VW Audi A4 allroad vehicle line from the parts-marking requirements of 49 CFR Part 541. The agency notes that 49 CFR Part 541, Appendix A-1, identifies those lines that are exempted from the Theft Prevention Standard for a given model year. 49 CFR part 543.7(f) contains publication requirements incident to the disposition of all Part 543 petitions. Advanced listing, including the release of future product nameplates, the beginning model year for which the petition is granted and a general description of the antitheft device is necessary in order to notify law enforcement agencies of new vehicle lines exempted from the parts-marking requirements of the Theft Prevention Standard.
If VW decides not to use the exemption for this line, it must formally notify the agency. If such a decision is made, the line must be fully marked according to the requirements under 49 CFR 541.5 and 541.6 (marking of major component parts and replacement parts).
NHTSA notes that if VW wishes in the future to modify the device on which this exemption is based, the company may have to submit a petition to modify the exemption. Part 543.7(d) states that a Part 543 exemption applies only to vehicles that belong to a line exempted under this part and equipped with the anti-theft device on which the line's exemption is based. Further, Part 543.9(c)(2) provides for the submission of petitions “to modify an exemption to permit the use of an antitheft device similar to but differing from the one specified in that exemption.”
The agency wishes to minimize the administrative burden that Part 543.9(c)(2) could place on exempted vehicle manufacturers and itself. The agency did not intend in drafting Part 543 to require the submission of a modification petition for every change to the components or design of an antitheft device. The significance of many such changes could be
49 U.S.C. 33106; delegation of authority at 49 CFR 1.50.
Departmental Offices, Treasury.
Notice of open meeting.
The President's Council on Jobs and Competitiveness will meet on October 11, 2011, in Pittsburgh, Pennsylvania at 12 p.m. Eastern Time. The meeting will be open to the public via live Webcast at
The meeting will be held on October 11, 2011 at 12 p.m. Eastern Time.
The PCJC will convene its meeting in Pittsburgh, Pennsylvania. The public is invited to submit written
• Send written statements to the PCJC's electronic mailbox at
• Send paper statements in triplicate to John Oxtoby, Designated Federal Officer, President's Council on Jobs and Competitiveness, Office of the Under Secretary for Domestic Finance, Room 1325A, Department of the Treasury, 1500 Pennsylvania Avenue, NW., Washington, DC 20220.
John Oxtoby, Designated Federal Officer, President's Council on Jobs and Competitiveness, Office of the Under Secretary for Domestic Finance, Department of the Treasury, Main Department Building, 1500 Pennsylvania Avenue, NW., Washington, DC 20220, at (202) 622-2000.
In accordance with Section 10(a) of the Federal Advisory Committee Act, 5 U.S.C. App. II, 10(a), and the regulations thereunder, John Oxtoby, Designated Federal Officer of the PCJC, has ordered publication of this notice that the PCJC will convene its next meeting on October 4, 2011, in Pittsburgh, Pennsylvania beginning at 12 p.m. Eastern Time. The meeting will be broadcast on the internet via live Webcast at
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 Bureau of the Public Debt within the Department of the Treasury is soliciting comments concerning Regulations governing U.S. Treasury Securities—State and Local Government Series.
Written comments should be received on or before December 7, 2011, to be assured of consideration.
Direct all written comments to Bureau of the Public Debt, Bruce A. Sharp, 200 Third Street A4-A, Parkersburg, WV 26106-1328, or bruce.sharp@bpd.treas.gov. The opportunity to make comments online is also available at
Requests for additional information or copies should be directed to Bruce A. Sharp, Bureau of the Public Debt, 200 Third Street A4-A, Parkersburg, WV 26106-1328, (304) 480-8150.
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service, propose to list the Alabama pearlshell (
These eight species are endemic to portions of the Escambia River, Yellow River, and Choctawhatchee River basins of Alabama and Florida; and to localized portions of the Mobile River Basin in Alabama. These mussel species have disappeared from other portions of their natural ranges primarily due to habitat deterioration and poor water quality as a result of excessive sedimentation and environmental contaminants.
We are also proposing to designate critical habitat under the Act for these eight species. In total, approximately 2,406 (kilometers (km) (1,495) miles (mi)) of stream and river channels fall within the boundaries of the proposed critical habitat designation. The proposed critical habitat is located in Bay, Escambia, Holmes, Jackson, Okaloosa, Santa Rosa, Walton, and Washington Counties, FL; and Barbour, Bullock, Butler, Coffee, Conecuh, Covington, Crenshaw, Dale, Escambia, Geneva, Henry, Houston, Monroe, and Pike Counties, Alabama.
These proposals, if made final, would implement Federal protection provided by the Act.
We will accept comments received or postmarked on or before December 5, 2011. We must receive requests for public hearings, in writing, at the address shown in the
You may submit comments by one of the following methods:
(1)
(2)
We will not accept e-mail or faxes. We will post all comments on
Don Imm, Field Supervisor, U.S. Fish and Wildlife Service, Panama City, FL, Fish and Wildlife Office, 1601 Balboa Avenue, Panama City, FL 32405; telephone 850-769-0552; facsimile 850-763-2177. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
This document consists of: (1) A proposed rule to list the Alabama pearlshell (
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from the public, other concerned governmental agencies, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:
(1) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to these species and regulations that may be addressing those threats.
(2) Additional information concerning the historical and current status, range, distribution, and population size of any of these species, including the locations of any additional populations.
(3) Any information on the biological or ecological requirements of these species, and ongoing conservation measures for the species and their habitat.
(4) Current or planned activities in the areas occupied by these species and possible impacts of these activities on these species.
(5) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531
(6) Specific information on:
(a) The amount and distribution of habitat for these eight mussels;
(b) What areas, that were occupied at the time of listing (or are currently occupied) and that contain features essential to the conservation of these species, should be included in the designation and why;
(c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and
(d) What areas not occupied at the time of listing are essential for the conservation of these species and why.
(7) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
(8) Information on the projected and reasonably likely impacts of climate change on these species and proposed critical habitat.
(9) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation; in particular, any impacts on small entities or families, and the benefits of including
(10) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act.
(11) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.
Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is a threatened or endangered species must be made “solely on the basis of the best scientific and commercial data available.”
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
If you submit information via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
The Alabama pearlshell, round ebonyshell, southern sandshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, and fuzzy pigtoe were first identified as candidates for protection under the Act in the May 4, 2004,
It is our intent to discuss only those topics directly relevant to the listing of the Alabama pearlshell, round ebonyshell, southern sandshell, southern kidneyshell, and Choctaw bean as endangered; and the tapered pigtoe, narrow pigtoe and fuzzy pigtoe as threatened in this section of the proposed rule. For information relevant to the designation of critical habitat, see “Critical Habitat” section below.
North American freshwater mussel fauna is the richest in the world and historically numbered around 300 species (Williams
These eight species are all freshwater bivalve mussels of the families Margaritiferidae and Unionidae. The Alabama pearlshell is a member of the family Margaritiferidae, while the round ebonyshell, southern sandshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, and fuzzy pigtoe belong to the family Unionidae. These mussels are endemic to portions of three Coastal Plain rivers that drain south-central and southeastern Alabama and northwestern Florida: the Escambia (known as the Escambia River in Florida and the Conecuh River in Alabama), the Yellow, and the Choctawhatchee. All three rivers originate in Alabama and flow across the Florida panhandle before emptying into the Gulf of Mexico, and are entirely contained within the East Gulf Coastal Plain Physiographic Region. The Alabama pearlshell is also known from three locations in the Mobile River Basin; however, only one of those is considered to be currently occupied.
Freshwater mussels generally live embedded in the bottom of rivers, streams, and other bodies of water. They siphon water into their shells and across four gills that are specialized for respiration and food collection. Food items include detritus (disintegrated organic debris), algae, diatoms, and bacteria (Strayer
Sexes in margaritiferid and unionid mussels are usually separate. Males release sperm into the water column, which females take in through their
Recent distributions are based on surveys conducted from 1995 to 2011, and historical distributions are based on collections made prior to 1995. Historical distribution data from museum records and surveys dated between the late 1800s and 1994 are sparse, and most of these species were more than likely present throughout their respective river basins. Knowledge of historical and current distribution and abundance data were summarized from Butler 1989; Williams
Assessing the state of a freshwater mussel population is challenging. We looked at trends in distribution (range) and abundance (numbers), by comparing recent occurrence data to historical data. One difficulty of investigating temporal trends in these eight species is the lack of historical collection data within the drainages, particularly in the lower portion of the main channels. Athearn (1964, p. 134) noted the streams of western Florida were inadequately sampled, particularly the lower Choctawhatchee, Yellow, and the lower Escambia Rivers. Blalock-Herod
Most of the eight species have experienced a decline in populations and numbers of individuals within populations, but not all have experienced a decline in range. Recent, targeted surveys for the Alabama pearlshell and southern kidneyshell show a dramatic decline in historical range. The southern sandshell, Choctaw bean, narrow pigtoe, fuzzy pigtoe and tapered pigtoe still occur in much of their historical range; however, their current range is fragmented and their numbers appear to be declining.
The Alabama pearlshell (
The Alabama pearlshell is one of five North American species in the family Margaritiferidae. The family is represented by only two genera,
The Alabama pearlshell typically inhabits small headwater streams with mixed sand and gravel substrates, occasionally in sandy mud, with slow to moderate current. Very little is known about the life-history requirements of this species. However, Shelton (1995, p. 5 unpub. data) suggests that the Alabama pearlshell, as opposed to the Louisiana pearlshell, which occurs in large colonies, typically occurs in low numbers. The Alabama pearlshell is also believed to occur in male-female pairs. Of the 68 Alabama pearlshell observed by Shelton (1995, p. 5 unpub. data), 85 percent occurred in pairs. Males were always located upstream of the females and were typically not more than 1 meter (m) apart, and juveniles were usually found just a few inches apart. The species is believed to be a long-term brooder, where gravid females have been observed in December. The host fish and other aspects of its life history are currently unknown.
Historically, the Alabama pearlshell occurred in portions of the Escambia River drainage, and has also been reported from two systems in the Alabama River drainage. The Alabama pearlshell's known historical and current occurrences, by water body and county, are shown in Table 1 below.
The Amos Mill population, discovered in 2010, represents a new record, and possibly the only known surviving population in the Sepulga River drainage. The Burnt Corn and Otter Creek populations reaffirm historical records that had not been reported in nearly 30 years. Two of the Sandy Creek locations, discovered in 2011, are new populations. Since the late 1990's, more than 70 locations within the Alabama River Basin were surveyed for mollusks (McGregor
Recent data suggest that, of the nine remaining populations, the largest populations may occur in Little Cedar and Otter Mill Creeks. In 2011, Fobian and Pritchett reported new populations at two locations in an unnamed tributary to Sandy Creek. Although this is not the first report from the Sandy Creek basin, it is, however, the first for the two unnamed tributaries. In 2010, Buntin and Fobian (2011 pers. comm.) reported 10 live individuals from Otter Creek. This is the first time since 1981 that the pearlshell has been reported from this drainage. Also in 2010, Powell and Ford reported 3 individuals, and several relic shells, from Amos Mill Creek, in Escambia County, AL. This is the first report of the pearlshell from this drainage, and county, and the first live individual from the Sepulga River system in nearly 50 years. Little Cedar Creek supported good numbers of Alabama pearlshell in the late 1990's (54 individuals reported in 1998). However, during a qualitative search of the same area in 2005, only two live pearlshell were found (Powell 2005 pers. obs.), and in 2006, three live pearlshells were observed (Johnson 2006 in litt.). Live Alabama pearlshell have not been observed in Hunter Creek since 1998, when eight live individuals were reported (Shelton 1998 pers. comm.). During two visits to the stream in 1999, Shelton found no evidence of the species (Shelton 1999 in litt.), and reported high levels of sedimentation. However, in 2005 the shells of three fresh dead Alabama pearlshells were reported from Hunter Creek, indicating the persistence of the species in that drainage (Powell, pers. obs. 2005).
Evidence suggests that much of the rangewide decline of this species has occurred within the past few decades. Specific causes of the decline and disappearance of the Alabama pearlshell from historical stream localities are unknown. However, they are likely related to past and present land use patterns. Many of the small streams historically inhabited by the Alabama pearlshell are impacted to various degrees by nonpoint-source pollution.
The round ebonyshell (
Very little is known about the habitat requirements or life history of the round ebonyshell. It occurs typically in stable substrates of sand, small gravel, or sandy mud in slow to moderate current. It is believed to be a short-term brooder, and gravid females have been observed in the spring and summer. The fish host(s) for the round ebonyshell is currently unknown (Williams
The round ebonyshell is known only from the main channel of the Escambia-Conecuh River and is the only mussel species endemic to the drainage (Williams
The round ebonyshell has one of the most restricted distributions of any North American unionid (Williams and Butler 1994, p. 61). Its current range (based on live individuals and shell material) is confined to approximately 120 km (75 mi) of river channel. The round ebonyshell is also extremely rare (Williams
The southern sandshell (
The southern sandshell is typically found in small creeks and rivers in stable substrates of sand or mixtures of sand and fine gravel, with slow to moderate current. It is a long-term brooder, and females are gravid from late summer or autumn to the following spring (Williams
The southern sandshell is endemic to the Escambia River drainage in Alabama, and the Yellow and Choctawhatchee River drainages in Alabama and Florida (Blalock-Herod
The southern sandshell persists in its historical range; however, its range is fragmented and numbers appear to be declining (Williams
The southern sandshell is classified as a species of highest conservation concern in Alabama by Garner
The southern kidneyshell (
Very little is known about the habitat requirements or life history of the southern kidneyshell. It is typically found in medium creeks to medium rivers in firm sand substrates with slow to moderate current (Williams
The southern kidneyshell is endemic to the Escambia, Choctawhatchee, and Yellow River drainages in Alabama and Florida (Williams
Since 1995, the southern kidneyshell has been detected at only 10 locations within the Choctawhatchee River drainage. The species appears to have been common historically (In 1964, H. D. Athearn collected 98 individuals at one site on the West Fork Choctawhatchee), but it is currently considered one of the most imperiled species in the United States (Blalock-Herod
The Choctaw bean (
Very little is known about the habitat requirements or life history of the Choctaw bean. It is found in large creeks and small rivers in stable substrates of silty sand to sandy clay with moderate current. It is believed to be a long-term brooder, with females gravid from late summer or autumn to the following summer. Its fish host is currently unknown (Williams
The Choctaw bean is known from the Escambia, Yellow, and Choctawhatchee River drainages in Alabama and Florida (Williams
The Choctaw bean persists in most of its historical range. However, its populations are fragmented and its numbers are low, particularly in the Escambia and Yellow drainages. The number of locations in the Escambia River drainage known to support the species has declined from a total of 13 to 6 currently. Also, its numbers within the drainage are very low; a total of only 10 individuals have been collected since 1995. The number of locations known to support the Choctaw bean in the Yellow River drainage has declined from a total of 7 to 4 currently. Since 1995, a total of 28 individuals have been collected within the Yellow drainage. In the Choctawhatchee River drainage, the Choctaw bean continues to persist in most areas. It is known from a total of 40 locations throughout the drainage, 34 of which are recent occurrences.
Heard assessed the status of the Choctaw bean in 1975 (p. 17) and stated that it was formerly abundant in the main channel of the Choctawhatchee River in Florida, but has become quite rare. Garner
The tapered pigtoe (
The tapered pigtoe is found in small to medium rivers in stable substrates of sand, small gravel, or sandy mud, with slow to moderate current (Williams
The tapered pigtoe is endemic to the Choctawhatchee River drainage in Alabama and Florida (Williams
The tapered pigtoe appears to be absent from portions of its historical range and found only in isolated locations (Blalock-Herod
Due to its limited distribution, rarity, and habitat degradation, Garner
The narrow pigtoe (
Little is known about the habitat requirements or life history of the narrow pigtoe. It is found in creeks and small to medium rivers in stable substrates of sand, sand and gravel, or silty sand, with slow to moderate current. It is believed to be a short-term brooder, with females gravid during spring and summer. The host fish for the narrow pigtoe is currently unknown (Williams
The narrow pigtoe is endemic to the Escambia River drainage in Alabama and Florida, and to the Yellow River drainage in Florida (Williams
The narrow pigtoe still occurs in much of its historic range, but may be extirpated from localized areas. In the Escambia drainage, the number of locations that support the species has declined from 32 to 24 currently. It was not detected at two historical sites examined recently (four historical sites were not examined) in the drainage. In the Yellow drainage, the number of sites supporting narrow pigtoe populations has declined from four to three currently. The species is rare in the Yellow River drainage; a total of only 23 individuals from 3 locations have been collected since 1995.
Garner
The fuzzy pigtoe (
The fuzzy pigtoe is found in medium creeks and rivers in stable substrates of sand and silty sand with slow to moderate current. The reproductive biology of the fuzzy pigtoe was studied by White
The fuzzy pigtoe is endemic to the Escambia, Yellow, and Choctawhatchee River drainages in Alabama and Florida (Williams
Within the Escambia River drainage, the fuzzy pigtoe is historically known from a total of 38 locations. It is currently known from 20 of these locations, however, its status in the Escambia drainage is difficult to assess as 15 of the 18 remaining historical sites have not be surveyed since 1995. The fuzzy pigtoe is exceedingly rare in the Yellow River drainage, where it is known from a total of only five localities. A single individual collected in 2010 in the Florida portion of the main channel is the only recent record of the species in the drainage. Its range in the Yellow drainage has declined, and the species may no longer occur in the Alabama portions of the drainage. In the Choctawhatchee River drainage, the number of locations that support fuzzy pigtoe populations has declined from 61 to 54. At one site on Limestone Creek, a once abundant population may have disappeared: A total of 56 individuals was collected in 1988; only 3 were collected in 1993 by the same collector; and none were collected during site visits at the same location in 1996 and 2011. Although the species still occurs in much of its historic range in the drainage, it may be extirpated from localized areas.
The fuzzy pigtoe is considered vulnerable to extinction because of its limited distribution and dwindling habitat by Garner
Section 4 of the Act and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal List of Endangered and Threatened Wildlife
The habitats of freshwater mussels are vulnerable to water quality degradation and habitat modification from a number of activities associated with modern civilization. The primary cause of the decline of these eight mussels has been the modification and destruction of their stream and river habitat, with sedimentation as the leading cause. Their stream habitats are subject to pollution and alteration from a variety of sources including adjacent land use activities, effluent discharges, and impoundments.
Nonpoint-source pollution from land surface runoff originates from virtually all land use activities and includes sediments, fertilizer, herbicide and pesticide residues; animal wastes; septic tank leakage and gray water discharge; and oils and greases. Current activities and land uses that can negatively affect populations of these eight mussels include unpaved road crossings, improper silviculture and agriculture practices, highway construction, housing developments, pipeline crossings, and cattle grazing. These activities can result in physical disturbance of stream substrates or the riparian zone, excess sedimentation and nutrification, decreased dissolved oxygen concentration, increased acidity and conductivity, and altered flow. Limited range and low numbers make these eight mussels vulnerable to land use changes that would result in increases in nonpoint-source pollution.
Sedimentation is one of the most significant pollution problems for aquatic organisms (Williams and Butler 1994, p. 55), and has been determined to be a major factor in mussel declines (Ellis 1936, pp. 39-40). Impacts resulting from sediments have been noted for many components of aquatic communities. For example, sediments have been shown to abrade or suffocate periphyton (organisms attached to underwater surfaces); affect respiration, growth, reproductive success, and behavior of aquatic insects and mussels; and affect fish growth, survival, and reproduction (Waters 1995, pp. 173-175). Heavy sediment loads can destroy mussel habitat, resulting in a corresponding shift in mussel fauna (Brim Box and Mossa 1999, p. 100). Excessive sedimentation can lead to rapid changes in stream channel position, channel shape, and bed elevation (Brim Box and Mossa 1999, p. 102). Sedimentation has also been shown to impair the filter feeding ability of mussels. When in high silt environments, mussels may keep their valves closed more often, resulting in reduced feeding activity (Ellis 1936, p. 30); and high amounts of suspended sediments can dilute their food source (Dennis 1984, p. 212). Increased turbidity from suspended sediment can reduce or eliminate juvenile mussel recruitment (Negus 1966, p. 525; Box and Mossa 1999, pp. 101-102). Many mussel species use visual cues to attract host fishes; such a reproductive strategy depends on clear water. For example, increased turbidity may impact the southern sandshell life cycle by reducing the chance that a sight-feeding host fish will encounter the visual display of its superconglutinate lure (Haag
Biologists conducting mussel surveys within the drainages have reported observations of excessive sedimentation in the streams and rivers of the three basins. While searching for the Alabama pearlshell in headwater streams of the Conecuh and Alabama drainages, D. N. Shelton (1996, pp. 1-5 in litt.) reported many streams within the study area had experienced heavy siltation, and that all species of mollusks appeared to be adversely affected. M. M. Gangloff (Gangloff and Hartfield 2009, p. 253) observed large amounts of sand and silt in the mainstem Pea and Choctawhatchee rivers during a 2006-2007 survey, and considered this a possible reason for the decline of mussels in the drainage.
In 2009-2010, The Nature Conservancy completed an inventory and prioritization of impaired sites in the Yellow River watershed in Alabama and Florida (Herrington
Potential sediment sources within a watershed include virtually any activity that disturbs the land surface. Current sources of sand, silt, and other sediment accumulation in south-central Alabama and western Florida stream channels include unpaved road runoff, agricultural lands, timber harvest, livestock grazing, and construction and other development activities (Williams and Butler 1994, p. 55; Bennett 2002, p. 5 and references therein; Hoehn 1998, pp. 46-47 and references therein). The Choctawhatchee, Pea, and Yellow Rivers Watershed Management Plan (CPYRWMP) and the Conecuh-Sepulga-Blackwater Rivers Watershed Protection Plan (CSBRWPP) document water quality impairments to the Alabama portions of the watersheds. Both plans identify elevated levels of sediment as one of the primary causes of impairment (CPYRWMP, p. 156; CSBRWPP, p. 110). In the Choctawhatchee and Yellow river drainages, four out of the nine streams in which sediment loads were calculated by the Geological Survey of
Land surface runoff also contributes nutrients (for example, nitrogen and phosphorus from fertilizers, sewage, and animal manure) to rivers and streams, causing them to become eutrophic. Excessive nutrient input stimulates excessive plant growth (algae, periphyton attached algae, and nuisance plants). This enhanced plant growth can cause dense mats of filamentous algae that can expose juvenile mussels to entrainment or predation and be detrimental to the survival of juvenile mussels (Hartfield and Hartfield 1996, p. 373). Excessive plant growth can also reduce dissolved oxygen in the water when dead plant material decomposes. In a review of the effects of eutrophication on mussels, Patzner and Muller (2001, p. 329) noted that stenoecious (narrowly tolerant) species disappear as waters become more eutrophic. They also refer to studies that associate increased levels of nitrate with the decline and absence of juvenile mussels (Patzner and Muller 2001, pp. 330-333). Filamentous algae may also displace certain species of fish, or otherwise affect fish-mussel interactions essential to recruitment (for example, Hartfield and Hartfield 1996, p. 373). Nutrient sources include fertilizers applied to agricultural fields and lawns, septic tanks, and municipal wastewater treatment facilities.
Because of their sedentary characteristics, mussels are extremely vulnerable to toxic effluents (Sheehan
States maintain water-use classifications through issuance of National Pollutant Discharge Elimination System (NPDES) permits to industries, municipalities, and others that set maximum limits on certain pollutants or pollutant parameters. The Alabama Department of Environmental Management (ADEM) has designated the water use classification for most portions of the Escambia, Yellow, and Choctawhatchee Rivers as “Fish and Wildlife” (F&W), and a few portions (mostly lakes) as “Swimming” (S). The F&W designation establishes minimum water quality standards that are believed to protect existing species and water uses like fishing and recreation within the designated area, while the S classification establishes higher water quality standards that are protective of human contact with the water. The Florida Department of Environmental Protection (FDEP) classifies all three river drainages as Class III waters. The Class III designation establishes minimum water quality standards that are believed to protect species and uses such as recreation. The Choctawhatchee and Shoal Rivers are also designated as Outstanding Florida Waters (OFW) by the State of Florida. The designation prevents the discharge of pollutants, which would lower existing water quality or significantly degrade the OFW.
Section 303(d) of the Clean Water Act requires States to identify waters that do not fully support their designated use classification. These impaired water bodies are placed on the State's 303(d) list, and a total maximum daily load (TMDL) must be developed for the pollutant of concern. A TMDL is an estimate of the total load of pollutants that a segment of water can receive without exceeding applicable water quality criteria. Alabama's 303(d) list identifies a total of 25 impaired stream segments within the Escambia, Yellow, and Choctawhatchee River basins that either support populations of the eight species or that flow into streams that support them. The list identifies metals (mercury and lead), organic enrichment, pathogens, siltation, excess nutrients, or unknown toxicity as reasons for impairment (ADEM 2010a, pp. 4-8). Various potential point and non-point pollution sources are identified, such as atmospheric deposition, pasture grazing, feedlots, municipal, industrial, urban runoff, agriculture, and land development. Florida's 303(d) list identifies a total of 22 impaired stream segments within the basins that either support populations of seven of the species (the Alabama pearlshell does not occur in Florida) or that flow into streams that support them. The list identifies coliform bacteria, low dissolved oxygen (nutrients), and mercury (in fish tissue) as reasons for inclusion (FDEP 2010a, pp. 4-6).
While the negative effects of point-source discharges on aquatic communities in Alabama and Florida have been reduced over time by compliance with State and Federal regulations pertaining to water quality, there has been less success in dealing with nonpoint-source pollution impacts. Because these contaminant sources stem from urban surface runoff, private landowner activities (construction, grazing, agriculture, silviculture), and public construction works (bridge and highway construction and maintenance), they are often more difficult to regulate.
The damming of rivers has been a major factor contributing to the demise of freshwater mussels (Bogan 1993, p. 604). Dams eliminate or reduce river flow within impounded areas, trap silts and cause sediment deposition, alter water temperature and dissolved oxygen levels, change downstream water flow and quality, affect normal flood patterns, and block upstream and downstream movement of mussels and their host fishes (Bogan 1993, p. 604; Vaughn and Taylor 1999, pp. 915-917; Watters 1999, pp. 261-264; McAllister
Three significant mainstem impoundments are situated within the three drainages, all in Alabama. Constructed in 1923 for hydroelectric power generation, Point A Lake and Gantt Lake dams are located on the mainstem of the Conecuh River in Covington County, AL. Combined, these two dams impound approximately 3,400 acres at normal pool. Both impoundments have limited storage capacity and are operated as modified run-of-river projects with daily peaking. For example, when inflows to Gantt are greater than 1,500 cubic feet per second (cfs), the outflow matches the inflow at Point A. However, during the summer months, when inflows can fall below 1,500 cfs, a portion of the inflow may be stored and released when power generation is in high demand. Regardless of the inflow, Point A Dam has a minimum continuous discharge requirement of 500 cfs and a requirement to meet a dissolved oxygen level of no less than 4.0 milligram per liter (mg/l).
The Elba Dam on the Pea River mainstem in Alabama was constructed in 1903 for power generation, but is no longer in use. The dam does not store water, so outflow basically equals inflow. The Elba Dam does not have a reservoir, only a widened channel, which is roughly one and a half to two times wider above the dam than below. Channel scour (deepening of the streambed as a result of erosion) is occurring downstream of the Elba Dam (Williams 2010 pers. comm.). All three dams are barriers to fish migration and to the movement of mussel host species. By blocking fish movement, the dams prevent gene exchange between upstream and downstream mussel populations. The three dams currently separate populations of southern sandshell, southern kidneyshell, Choctaw bean, tapered pigtoe, and fuzzy pigtoe. In addition, two smaller impoundments are located on tributary streams. Lake Frank Jackson is situated on Lightwood Knot Creek, a tributary to the Yellow River in Covington County, Alabama; and Lake Tholocco, on Claybank Creek, is a tributary to the Choctawhatchee River in Dale County, AL. Waters released from these shallow impoundments can have extremely elevated temperatures in summer, which alters the normal temperature cycle downstream (Williams
The potential exists for more dams to be constructed within the three drainages, and at least four additional impoundments are proposed. These include proposed impoundments on Murder Creek and Big Escambia Creek in the Escambia drainage in Alabama, the Yellow River mainstem in Florida, and the Little Choctawhatchee River in Alabama. These proposed projects have implications for the populations of all eight species. Given projected population increases and the need for municipal water supply, other proposals for impoundment construction are expected in the future.
In summary, the loss of habitat and range from various forms of pollution and impoundments is a significant threat to the continued existence of these eight species. Degradation from sedimentation and contaminants threatens the habitat and water quality necessary to support these species throughout their entire range. Sedimentation can cause mortality by suffocation, impair the ability to feed, respire, and reproduce; and destabilize substrate. Contaminants associated with municipal and industrial effluents (metals, ammonia, chlorine) and with agriculture and silviculture (pesticides) are lethal to mussels particularly to the highly sensitive early life stages. The effects of impoundments are more discreet, but can cause severe alternations to mussel habitat both upstream and downstream of the dam, and can impair dispersal and breeding ability. While recent surveys for these species have documented several new populations, they have also documented a decline in (and the loss of) many of the known populations due to human impact. Therefore, we have determined that the present or threatened destruction, modification, or curtailment of habitat and range is a threat of high magnitude to the Alabama pearlshell, round ebonyshell, southern kidneyshell, southern sandshell, and Choctaw bean; and a threat of moderate magnitude to the tapered pigtoe, narrow pigtoe, and fuzzy pigtoe. This threat is current (as evidenced by population declines) and is projected to continue and increase into the future with additional anthropogenic pressures.
None of the eight mussels are commercially valuable species, and the streams and rivers that they inhabit are not subject to harvesting activities for commercial mussel species. Although the eight species have been taken for scientific and private collections in the past, collecting is not considered a factor in the decline of these species. Such activity may increase as their rarity becomes known; however, we have no specific information indicating that overcollection is currently a threat. Therefore, we find that overutilization for commercial, recreational, scientific, or educational purposes is not a threat to the eight mussels at this time.
Diseases of freshwater mussels are poorly known, and we have no specific information indicating that disease poses a threat to populations of these eight species. Juvenile and adult mussels are prey items for some invertebrate predators and parasites (for example, nematodes and mites), and provide prey for a few vertebrate species (for example, raccoons, muskrats, otters, and turtles) (Hart and Fuller 1974, pp. 225-240). However, we have no evidence of any specific declines in these species due to predation. Therefore, diseases and predation of freshwater mussels remain largely unstudied and are not considered a threat to the eight mussels at this time.
There is no information on the sensitivity of the Alabama pearlshell, round ebonyshell, southern kidneyshell, southern sandshell, Choctaw bean, tapered pigtoe, narrow pigtoe, or fuzzy pigtoe to aquatic pollutants. Current State and Federal regulations regarding pollutants are designed to be protective of aquatic organisms; however, freshwater mussels may be more susceptible to some pollutants than test organisms commonly used in bioassay tests. A multitude of bioassay tests conducted on 16 mussel species (summarized by Augspurger
Ammonia is an important aquatic pollutant because of its relatively high toxicity and common occurrence in
As indicated in the Factor A discussion above, sedimentation is considered the most significant threat to these eight species. Best Management Practices (BMPs) for sediment and erosion control are often recommended or required for construction projects, however, compliance, monitoring, and enforcement of these recommendations are often poorly implemented. Although unpaved roads likely contribute the majority of sediment to the river basins, other sources including forestry, row crops, and construction contribute to the total sediment load.
States are required under the Clean Water Act to establish a TMDL for the pollutants of concern that the water body can receive without exceeding the applicable standard (see discussion under Factor A). However, the Federal Clean Water Act is not fully utilized in the protection of these river systems. For example, of the 51 impaired water bodies identified within the drainages, less than one-fourth currently have approved TMDLs (ADEM 2010b, pp. 3-6; FDEP 2010a, pp. 4-6).
In summary, some regulatory mechanisms exist that protect aquatic species, however, these regulations are not effective at protecting mussels and their habitats from sedimentation and contaminants. This is apparent from the decline in all eight mussels. Pollution from non-point sources is the greatest threat to these eight mussels (see Factor A discussion); however, this type of pollution is difficult to regulate and not effectively controlled by State and Federal water quality regulations within the proposed designation. Therefore, we find current existing regulatory mechanisms are inadequate to protect the eight mussels throughout their ranges. This threat is current and is projected to continue into the future.
The Gulf coastal region is prone to extreme hydrologic events. Extended droughts result from persistent high-pressure systems, which inhibit moisture from the Gulf of Mexico from reaching the region (Jeffcoat
During high flows, flood scour can dislodge mussels where they may be injured, buried, swept into unsuitable habitats, or stranded and perish when flood waters recede (Vannote and Minshall 1982, p. 4105; Tucker 1996, p. 435; Hastie
During drought, stream channels may become disconnected pools where mussels are exposed to higher water temperatures, lower dissolved oxygen levels, and predators; or channels may become dewatered entirely. Johnson
There is a growing concern that climate change may lead to increased frequency of severe storms and droughts (McLaughlin
The linear nature of their habitat, reduced range, and small population sizes make these eight mussels vulnerable to contaminant spills. Spills as a result of transportation accidents are a constant, potential threat as numerous highways and railroads cross the stream channels of the basins. Also, more than 400 oil wells are located within Conecuh and Escambia Counties, Alabama. In Conecuh County, most of these wells are concentrated in the Cedar Creek drainage, which supports at least two populations of the Alabama pearlshell. These wells are subject to periodic spills either directly at the well site or associated with the transport of the oil. For example, on February 5, 2010, an oil spill occurred in the headwaters of Feagin Creek. Feagin Creek is located between two known pearlshell locations, Little Cedar and Amos Mill Creeks. The resulting spill discharged more than 150 gallons of oil into Feagin Creek. Although there were no known populations of the pearlshell in Feagin Creek, this type of spill could have easily occurred in one of the adjacent watersheds that supports the pearlshell. Since 2000, there have been 13 spills reported in Conecuh, 36 in Escambia, and 33 in Covington Counties, Alabama.
Population fragmentation and isolation prohibits the natural interchange of genetic material between
As mentioned in the General Biology section above, all of these eight species require a fish host in order to complete their life cycle. Therefore, these mussels would be adversely affected by the loss or reduction of fish species essential to their parasitic glochidial stage. The blacktail shiner (
The Asian clam (
The flathead catfish (
In summary, a variety of natural or manmade factors currently threaten these eight mussels. Stochastic events such as droughts and floods have occurred in these three river drainages in the past, and climate change may increase the frequency and intensity of similar events in the future. The withdrawal of surface and ground waters during drought can cause further drastic flow reductions and alterations that may cause declines in mussel abundance and distribution. Contaminant spills have also occurred in these drainages and currently are a threat, particularly in the Alabama portions of the Escambia River drainage where there are numerous oil wells. It is not known if these species are currently experiencing a loss of genetic viability; however, their restricted or reduced ranges, fragmented habitats, and small population sizes increases the risks and consequences of inbreeding depression and loss of genetic variation. Introduced species, such as the Asian clam, may adversely impact these mussels through direct competition for resources. Another introduced species, the flathead catfish, may consume host fishes, thereby affecting mussel recruitment. Therefore, we have determined that other natural or manmade factors, specifically threats from flooding, drought, and contaminant spills, are high in magnitude to the Alabama pearlshell, round ebonyshell, southern kidneyshell, southern sandshell, and Choctaw bean; and are moderate in magnitude to the tapered pigtoe, narrow pigtoe, and fuzzy pigtoe. These threats are currently impacting these species and are projected to continue or increase in the future. We have determined that threats from the Asian clam are moderate in magnitude to the Alabama pearlshell, round ebonyshell, southern kidneyshell, southern sandshell, and Choctaw bean; and are low in magnitude to the tapered pigtoe, narrow pigtoe, and fuzzy pigtoe. We have determined that reduced genetic diversity, the absence or reduction of fish hosts, and the presence of flathead catfish have the potential to adversely impact the eight mussels, however, we do not know the magnitude of these threats at this time.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Alabama pearlshell, round ebonyshell, southern sandshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, and fuzzy pigtoe. Section 3(6) of the Act defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range,” and defines a threatened species as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” As described in detail above, these eight species are currently at risk throughout all of their respective ranges due to ongoing threats of habitat destruction and modification (Factor A), inadequacy of existing regulatory mechanisms (Factor D), and other natural or manmade factors affecting their continued existence (Factor E). Specifically, these factors include sedimentation, municipal and industrial
Species with small ranges, few populations, and small or declining population sizes, are the most vulnerable to extinction (Primack 2008, p. 137). The effects of certain factors, particularly habitat degradation and loss, catastrophic events, and introduced species, increase in magnitude when population size is small (Soulé 1987, pp. 33, 71; Primack 2008, pp. 133-135, 152). We believe the impact of habitat degradation, catastrophic events, and introduced species are more severe (magnitude is higher) to the Alabama pearlshell, round ebonyshell, southern sandshell, southern kidneyshell, and Choctaw bean, which have few populations coupled with low numbers of individuals and/or very limited ranges, than they are to the tapered pigtoe, narrow pigtoe, and fuzzy pigtoe which have declining and fragmented populations and limited ranges. We believe that, when combining the effects of historical, current, and future habitat loss and degradation, historical and ongoing drought, and the exacerbating effects of small and declining population sizes and curtailed ranges, the Alabama pearlshell, round ebonyshell, southern sandshell, southern kidneyshell, and Choctaw bean are in danger of extinction throughout all of their ranges; and the tapered pigtoe, narrow pigtoe, and fuzzy pigtoe are threatened to become endangered within the foreseeable future throughout all of their ranges. In addition, any factor (
Therefore, based on the best available scientific and commercial information, we propose to list the Alabama pearlshell, round ebonyshell, southern kidneyshell, southern sandshell, and Choctaw bean as endangered species throughout all of their ranges; and we propose to list the tapered pigtoe, narrow pigtoe, and fuzzy pigtoe as threatened species throughout all of their ranges. Furthermore, we examined each of the five species proposed for endangered status and each of the three species proposed for threatened status to analyze if any significant portions of their ranges may warrant a different status. However, because of their limited and curtailed ranges, and uniformity of the threats throughout their entire respective, we find there are no significant portions of any of the species' ranges that may warrant a different determination of status.
Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness and conservation by Federal, State, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and requires that recovery actions be carried out for all listed species. The protection measures required of Federal agencies and the prohibitions against certain activities involving listed wildlife are discussed in Effects of Critical Habitat Designation and are further discussed, in part, below.
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into formal consultation with the Service.
Federal agency actions that may affect the eight mussel species include, but are not limited to: the management of and any other landscape altering activities on Federal lands administered by the Department of Defense and U.S. Forest Service; issuance of section 404 Clean Water Act permits by the Army Corps of Engineers; licensing of hydroelectric dams, and construction and management of gas pipeline and power line rights-of-way approved by the Federal Energy Regulatory Commission; construction and maintenance of roads or highways funded by the Federal Highway Administration; and land management practices administered by the Department of Agriculture. It has been the experience of the Service from consultations on other species, however, that nearly all section 7 consultations have been resolved so that the species have been protected and the project objectives have been met.
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered wildlife. The prohibitions, codified at 50 CFR 17.21 for endangered wildlife make it illegal for any person subject to the jurisdiction of the United States to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these), import, export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to agents of the Service and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 for endangered species, and at 17.32 for threatened species. With regard to endangered wildlife, a permit must be issued for the following purposes: for scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities.
It is our policy, as published in the
(1) Unauthorized collecting, handling, possessing, selling, delivering, carrying, or transporting of the species, including import or export across State lines and international boundaries, except for properly documented antique specimens of these taxa at least 100 years old, as defined by section 10(h)(1) of the Act.
(2) Introduction of nonnative species that compete with or prey upon these eight mussel species, such as the zebra mussel (
(3) The unauthorized release of biological control agents that attack any life stage of these species.
(4) Unauthorized modification of the channel or water flow of any stream or water body in which these species are known to occur.
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Panama City Ecological Services Field Office (see
It is our intent to discuss below only those topics directly relevant to the designation of critical habitat for the Alabama pearlshell, round ebonyshell, southern sandshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, and fuzzy pigtoe in this section of the proposed rule.
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a) Essential to the conservation of the species and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner seeks or requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
For inclusion in a critical habitat designation, the habitat within the geographical area occupied by the species at the time it was listed must contain physical or biological features which are essential to the conservation of the species and which may require special management considerations or protection. Critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat), focusing on the principal biological or physical constituent elements (primary constituent elements) within an area that are essential to the conservation of the species (such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type). Primary constituent elements are the elements of physical or biological features that, when laid out in the appropriate quantity and spatial arrangement to provide for a species' life-history processes, are essential to the conservation of the species.
Under the Act, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species. When the best available scientific data do not demonstrate that the conservation needs of the species require such additional areas, we will not designate critical habitat in areas outside the geographical area occupied by the species. An area currently occupied by the species but that was not occupied at the time of listing may, however, be essential to the conservation of the species and may be included in the critical habitat designation.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished
Habitat is dynamic, and species may move from one area to another over time. Climate change will be a particular challenge for biodiversity because the interaction of additional stressors associated with climate change and current stressors may push species beyond their ability to survive (Lovejoy 2005, pp. 325-326). The synergistic implications of climate change and habitat fragmentation are the most threatening facet of climate change for biodiversity (Hannah and Lovejoy 2005, p. 4). Current climate change predictions for terrestrial areas in the Northern Hemisphere indicate warmer air temperatures, more intense precipitation events, and increased summer continental drying (Field
We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to insure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) the prohibitions of section 9 of the Act if actions occurring in these areas may affect the species. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species.
There is currently no imminent threat of take attributed to collection or vandalism under Factor B for any of these species, and identification and mapping of critical habitat is not expected to initiate any such threat. In the absence of finding that the designation of critical habitat would increase threats to a species, if there are any benefits to a critical habitat designation, then a prudent finding is warranted. Here, the potential benefits of designation include: (1) Triggering consultation under section 7 of the Act, in new areas for actions in which there may be a Federal nexus where it would not otherwise occur because, for example, it is or has become unoccupied or the occupancy is in question; (2) focusing conservation activities on the most essential features and areas; (3) providing educational benefits to State or county governments or private entities; and (4) preventing people from causing inadvertent harm to the species. Therefore, because we have determined that the designation of critical habitat will not likely increase the degree of threat to the species and may provide some measure of benefit, we find that designation of critical habitat is prudent for the Alabama pearlshell, round ebonyshell, southern sandshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, and fuzzy pigtoe.
Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the eight species is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist:
(i) Information sufficient to perform required analyses of the impacts of the designation is lacking, or
(ii) The biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat. When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where these species are located. This and other information represent the best scientific data available and led us to conclude that the designation of critical habitat is determinable for these eight species.
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and the regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied at the time of listing to propose as critical habitat, we consider the physical and biological features (PBFs) essential to the conservation of the species which may require special management considerations or protection. These include, but are not limited to:
(1) Space for individual and population growth and for normal behavior;
(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and
(5) Habitats that are protected from disturbance or are representative of the historic, geographical, and ecological distributions of a species.
We derive the specific PBFs required for the Alabama pearlshell, round ebonyshell, southern sandshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, and fuzzy pigtoe based on their biological needs. Unfortunately, little is known of the specific habitat requirements of any of these eight mussel species other than all require flowing water, stable stream or river channels, adequate water quality, and fish hosts for larval mussel development to juvenile mussels. To identify the physical and biological needs of the species, we have relied on current conditions at locations where each of the species survive, the limited information available on these eight mussels and their close relatives, and factors associated with the decline and extirpation of these and other freshwater
The Alabama pearlshell, round ebonyshell, southern kidneyshell, southern sandshell, Choctaw bean, tapered pigtoe, narrow pigtoe, and fuzzy pigtoe are all historically associated with the Escambia, Yellow, and Choctawhatchee River drainages in Alabama and Florida. The Alabama pearlshell is also known from three locations in the Mobile River Basin; however, only one of those is considered to be currently occupied. The eight mussels are found embedded in stable substrates composed mainly of fine to coarse sand, with occasional patches of clay or gravel (Williams
Freshwater mussels, such as these eight species, filter algae, detritus, and bacteria from the water column (Williams
The Alabama pearlshell, round ebonyshell, southern kidneyshell, southern sandshell, Choctaw bean, tapered pigtoe, narrow pigtoe, and fuzzy pigtoe are riverine species that depend upon adequate water flow. Continuously flowing water is a habitat feature associated with all of the eight species. Flowing water maintains the stream bottom habitats where these species are found, transports food items to the sedentary juvenile and adult life stages, removes wastes, and provides oxygen for respiration. Populations of the narrow pigtoe were recently discovered in Gantt and Point A Lakes (Williams
The ranges of standard physical and chemical water quality parameters (such as temperature, dissolved oxygen, pH, and conductivity) that define suitable habitat conditions for the eight species have not been investigated. However, as relatively sedentary animals, mussels must tolerate the full range of such parameters that occur naturally within the streams where they persist. Both the amount (flow) and the physical and chemical conditions (water quality) where each of the eight species currently exist vary widely according to season, precipitation events, and seasonal human activities within the watershed. Conditions across their historical ranges vary even more due to watershed size, geology, geography, and differences in human population densities and land uses. In general, each of the species survives in areas where the magnitude, frequency, duration, and seasonality of water flow are adequate to maintain stable habitats (for example, sufficient flow to remove fine particles and sediments without causing degradation), and where water quality is adequate for year-round survival (for example, moderate to high levels of dissolved oxygen, low to moderate input of nutrients, and relatively unpolluted water and sediments). Therefore, adequate water flow and water quality (as defined below) are essential to the conservation of the Alabama pearlshell, round ebonyshell, southern sandshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, and fuzzy pigtoe.
We currently believe that most numeric standards for pollutants and water quality parameters (for example, dissolved oxygen, pH, heavy metals) that have been adopted by the States under the Clean Water Act represent levels that are essential to the conservation of each of these eight mussels. However, some States' standards may not adequately protect mollusks, or are not being appropriately measured, monitored, or achieved in some reaches (see Factors A and D above). The Service is currently in consultation with the EPA to evaluate the protectiveness of criteria approved in EPA's water quality standards for threatened and endangered species and their critical habitats as described in the Memorandum of Agreement that our agencies signed in 2001 (66 FR 11201, February 22, 2011). Other factors that can potentially alter water quality are droughts and periods of low flow, non-point-source runoff from adjacent land surfaces (for example, excessive amounts of sediments, nutrients, and pesticides), point-source discharges from municipal and industrial wastewater treatment facilities (for example, excessive amounts of ammonia, chlorine, and metals), and random spills or unregulated discharge events. This could be particularly harmful during drought conditions when flows are depressed and pollutants are more concentrated. Therefore, adequate water quality is essential for normal behavior, growth, and viability during all life stages of the Alabama pearlshell, round ebonyshell, southern sandshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, and fuzzy pigtoe.
Freshwater mussels require a host fish for transformation of larval mussels
Juvenile mussels require stable bottom habitats for growth and survival. Excessive sediments or dense growth of filamentous algae can expose juvenile mussels to entrainment or predation and be detrimental to the survival of juvenile mussels (Hartfield and Hartfield 1996, p. 373). Geomorphic instability can result in the loss of habitats and juvenile mussels due to scouring or deposition (Hartfield 1993, p. 138). Therefore, stable bottom substrate with low to moderate amounts of filamentous algae growth is essential to the conservation of Alabama pearlshell, round ebonyshell, southern sandshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, and fuzzy pigtoe.
Under the Act and its implementing regulations, we are required to identify the PBFs essential to the conservation of these eight mussel species in areas occupied at the time of listing, focusing on the features' primary constituent elements (PCEs). We consider PCEs to be the elements of PBFs that, when laid out in the appropriate quantity and spatial arrangement to provide for a species' life-history processes, are essential to the conservation of the species.
Based on the above needs and our current knowledge of the life history, biology, and ecology of the species and the habitat requirements for sustaining the essential life-history functions of the species, we have determined that the PCEs for the Alabama pearlshell, round ebonyshell, southern sandshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, and fuzzy pigtoe are:
(1) Geomorphically stable stream and river channels and banks (channels that maintain lateral dimensions, longitudinal profiles, and sinuosity patterns over time without an aggrading or degrading bed elevation).
(2) Stable substrates of sand or mixtures of sand with clay or gravel with low to moderate amounts of fine sediment and attached filamentous algae.
(3) A hydrologic flow regime (the magnitude, frequency, duration, and seasonality of discharge over time) necessary to maintain benthic habitats where the species are found, and to maintain connectivity of rivers with the floodplain, allowing the exchange of nutrients and sediment for habitat maintenance, food availability, and spawning habitat for native fishes.
(4) Water quality, including temperature (not greater than 32 °C), pH (between 6.0 to 8.5), oxygen content (not less than 5.0 mg/L), hardness, turbidity, and other chemical characteristics necessary for normal behavior, growth, and viability of all life stages.
(5) The presence of fish hosts. Diverse assemblages of native fish species will serve as a potential indication of host fish presence until appropriate host fishes can be identified. For the fuzzy pigtoe and tapered pigtoe, the presence of blacktail shiner (
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features that are essential to the conservation of the species and that may require special management considerations or protections. None of the portions of the critical habitat units proposed for these eight species below have been designated as critical habitat for other mussel species that are already listed under the Act. None of the areas proposed are presently under special management or protection provided by a legally operative management plan or agreement for the conservation of either the Alabama pearlshell, round ebonyshell, southern sandshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, or fuzzy pigtoe. Various activities in or adjacent to each of the critical habitat units described in this proposed rule may affect one or more of the PCEs. Some of these activities include, but are not limited to, those discussed in the “Summary of Factors Affecting the Species,” above (see Factors A and D). Other activities that may affect PCEs in the proposed critical habitat units include those listed in the “Available Conservation Measures” section above.
Many of the threats to the eight mussels and their habitat are pervasive and common in all of the nine units. These include the potential of significant changes in stream bed material composition and quality by activities such as construction projects, livestock grazing, timber harvesting, and other watershed and floodplain disturbances that release sediments or nutrients into the water; the potential of significant alteration of water chemistry or water quality; the potential of anthropogenic activities such as channelization, impoundment, and channel excavation that could cause aggradation or degradation of the channel bed elevation or significant bank erosion; and the potential of significant changes in the existing flow regime due to such activities as impoundment, water diversion, or water withdrawal. Because the areas proposed for critical habitat below are facing these threats, they require special management consideration and protection.
As required by section 4(b) of the Act, we used the best scientific and commercial data available in determining areas within the geographical area occupied at the time of listing that contain the features essential to the conservation of the species, and areas outside of the geographical area occupied at the time of listing that are essential for the conservation of the species. We are proposing to designate as critical habitat all stream channels that we have determined are essential to the conservation of the eight species. These include streams that are currently occupied by one or more of the species, as well as some specific areas not currently occupied, but that were historically occupied, because we have determined that the additional areas are essential for the conservation of those species and that designating only occupied habitat is not sufficient to conserve them.
We began our analysis by considering historical and current ranges of each of the eight species. We used various sources including published literature and museum collection databases, as well as surveys, reports, and field notes prepared by biologists (see Background
We then evaluated occupied stream reaches to delineate the probable upstream and downstream extent of each species' distribution. Known occurrences for some mussel species are extremely localized, and rare mussels can be difficult to locate. In addition, creek and river habitats are highly dependent upon upstream and downstream channel habitat conditions for their maintenance. Therefore, where more than one occurrence record of a particular species was found within a stream reach, we considered the entire reach between the uppermost and lowermost locations as occupied habitat.
We then considered whether this essential area was adequate for the conservation of each of the eight species. Small, isolated, aquatic populations are subject to chance catastrophic events and to changes in human activities and land use practices that may result in their elimination. Larger, more contiguous populations can reduce the threat of extinction due to habitat fragmentation and isolation. For these reasons, we believe that conservation of the Alabama pearlshell and southern kidneyshell requires expanding their ranges into currently unoccupied portions of their historical habitat. Given that threats to these two species are compounded by their limited distribution and isolation, it is unlikely that currently occupied habitat is adequate for their conservation. The range of each has been severely curtailed, their occupied habitats are limited and isolated, and population sizes are small. For example, the Alabama pearlshell is no longer believed to occur in the Limestone Creek system (Monroe County), several tributaries in the Murder Creek system, or in the Patsaliga Creek drainage. The southern kidneyshell once occurred in all three river basins, but is currently known only from the Choctawhatchee basin. While occupied units provide habitat for current populations, these species are at high risk of extirpation and extinction from stochastic events, whether periodic natural events or potential human-induced events (see “Summary of Factors Affecting the Species”). The inclusion of essential unoccupied areas will provide habitat for population reintroduction and will decrease the risk of extinction. Based on the best scientific data available, we believe areas not currently occupied by the Alabama pearlshell and southern kidneyshell are essential for their conservation. However, we eliminated from consideration the Yellow River drainage as critical habitat for the southern kidneyshell. Its occurrence in the Yellow River is based on a 1919 collection of one specimen from Hollis Creek in Covington County, Alabama. We believe this single, historical collection is not sufficient to include any portions of the Yellow River drainage as essential to the conservation of the southern kidneyshell at this time. All of the stream habitat areas proposed as critical habitat that are currently not known to be occupied contain sufficient PBFs (e.g., geomorphically stable channels, perennial water flows, adequate water quality, and appropriate benthic substrates) to support life-history functions of the mussels. The stream reaches also lack major anthropogenic disturbance, and have potential for reoccupation by the species through future reintroduction efforts. Based on the above factors, all unoccupied stream reaches included in the proposed designations for the Alabama pearlshell and southern kidneyshell are essential to their conservation.
Following the identification of occupied and unoccupied stream reaches, the next step was to delineate the probable upstream and downstream extent of each species' distribution. We used USGS 1:100,000 digital stream maps to delineate these boundaries of proposed critical habitat units according to the criteria explained below. The upstream boundary of a unit in a stream is the first perennial, named tributary confluence, a road-crossing bridge, or a permanent barrier to fish passage (such as a dam) above the upstream-most current occurrence record. Many of the Alabama pearlshell survey sites are located near watershed headwaters. In these areas, the upstream boundary of a unit is the point where the stream and its tributaries are no longer perennially flowing streams. The confluence of a tributary typically marks a significant change in the size of the stream and is a logical and recognizable upstream terminus. When a named tributary was not available, a road-crossing bridge was used to mark the boundary. Likewise, a dam or other barrier to fish passage marks the upstream extent to which mussels may disperse via their fish hosts. The downstream boundary of a unit in a stream is the confluence of a named tributary, the upstream extent of tidal influence, or the upstream extent of an impoundment, below the downstream-most occurrence record. In the unit descriptions, distances between landmarks marking the upstream or downstream extent of a stream segment are given in kilometers (km) and equivalent miles (mi), as measured tracing the course of the stream, not straight-line distance. Distances less than 10 km (6.2 mi) are rounded to the nearest half number; and distances of 10 km and greater are rounded to the nearest whole number.
Because mussels are naturally restricted by certain physical conditions within a stream or river reach (
Using the above criteria, we delineated a total of nine critical habitat units—two Alabama pearlshell units (AP1, AP2), and seven Gulf Coast mussels units (GCM1 through GCM7) for the other seven mussel species. We depicted the Alabama pearlshell units separately as this species tends to inhabit headwater stream environments and seldom co-occurs with the other seven species, although some critical habitat in the downstream portions of Unit AP2 overlaps with the upstream portions of Unit GCM1 in the Escambia River drainage. The round ebonyshell, southern sandshell, southern kidneyshell, Choctaw bean, tapered pigtoe, narrow pigtoe, and fuzzy pigtoe often co-occur within the same stream segments, so most of the GCM critical habitat units are designated for more than one species. Unit GCM2: Point A Lake and Gantt Lake Reservoirs is the only exception, and the unit is designated only for the narrow pigtoe.
When determining proposed critical habitat boundaries within this proposed rule, we made every effort to avoid including developed areas and other structures because these lack PCEs for the eight species. The areas proposed for critical habitat below include only stream channels within the ordinary high-water line and do not contain developed areas or structures. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical and biological features in the adjacent critical habitat.
We are proposing nine habitat units encompassing 2,406 km (1,495 mi) of stream channel in Alabama and Florida for these eight freshwater mussel species. Unit name, location, and the approximate stream length of each proposed critical habitat unit are shown in Table 2. The proposed critical habitat units include the creek and river channels within the ordinary high-water line only. For this purpose, we have applied the definition found at 33 CFR 329.11, and consider the ordinary high-water line on nontidal rivers to be the line on the shore established by the fluctuations of water and indicated by physical characteristics, such as a clear, natural line impressed on the bank; shelving; changes in the character of soil; destruction of terrestrial vegetation; the presence of litter and debris; or other appropriate means that consider the characteristics of the surrounding areas.
States were granted ownership of lands beneath navigable waters up to the ordinary high-water line upon achieving statehood (
Below we present brief descriptions of all units, and reasons why they meet the definition of critical habitat for each species. We also present any threats unique to the unit's features that may require special management of the PCEs. For each stream reach proposed as a critical habitat unit, the upstream and downstream boundaries are described generally below. More precise estimates are provided in the Regulation Promulgation section at the end of this proposed rule.
Unit AP1 encompasses 92 km (57 mi) of the Big Flat Creek drainage, in Monroe and Wilcox Counties, AL. The unit is within the Mobile River basin. It includes the mainstem of Big Flat Creek from Hwy 41 upstream 56 km (35 mi), Monroe County, AL; Flat Creek from its confluence with Big Flat Creek upstream 20 km (12 mi), Monroe County, AL; and Dailey Creek from its confluence with Flat Creek upstream 17 km (11 mi), Wilcox County, AL.
Unit AP1 is proposed as critical habitat for the Alabama pearlshell. Based on collection records, the species was last collected in the Big Flat Creek system in 1995, when Shelton (1995, p. 3 unpub. data) documented a fresh dead individual. Although it is likely that the Alabama pearlshell has always been rare in Big Flat Creek, the unit currently supports healthy populations of several other native mussel species indicating the presence of PCEs 1, 2, 3, and 4. A diverse fish fauna, including potential fish host(s) for the Alabama pearlshell, are known from the Big Flat Creek drainage, indicating the potential presence of PCE 5.
Threats to the Alabama pearlshell and its habitat may require special management of the PCEs including maintaining natural stream flows and protecting water quality from excessive point- and non-point-source pollution. For example, runoff from agricultural and industrial sites can alter water quality through added nutrients and sediment. Runoff from unpaved roads can also add sediments, and poorly designed road culverts can degrade habitats and limit distribution of the species. Some culverts can isolate pearlshell populations by acting as a barrier for dispersion and movement of host fish(es).
Unit AP2 encompasses 156 km (97 mi) of the Burnt Corn Creek, Murder Creek, and Sepulga River drainages within the Escambia River drainage in Escambia and Conecuh Counties, AL. It includes the mainstem of Burnt Corn Creek from its confluence with Murder Creek upstream 66 km (41 mi), Conecuh County, AL; the mainstem of Murder Creek from its confluence with Jordan Creek upstream 17 km (11 mi) to the confluence of Otter Creek, Conecuh County, AL; Jordan Creek from its confluence with Murder Creek upstream 12 km (7 mi), Conecuh County, AL; Otter Creek from its confluence with Murder Creek upstream 9 km (5.5 mi), Conecuh County, AL; Hunter Creek from its confluence with Murder Creek upstream 8 km (5 mi), Conecuh County, AL; Sandy Creek from County Road 29 upstream 5 km (3.5 mi) to Hagood Road; two unnamed tributaries to Sandy Creek—one from its confluence with Sandy Creek upstream 8.5 km (5.0 mi) to Hagood Road and the other from its confluence with the previous unnamed tributary 2.5 km (1.5 mi) upstream to Hagood Road, Conecuh County, AL; Little Cedar Creek from County Road 6 upstream 8 km (5 mi), Conecuh County, AL; Amos Mill Creek from its confluence with the Sepulga River upstream 12 km (8 mi), Escambia and Conecuh Counties, AL; Polly Creek from its confluence with Amos Mill Creek upstream 3 km (2 mi), Conecuh County, AL; and Bottle Creek from its confluence with the Sepulga River upstream 5.5 km (3.5 mi) to County Road 42, Conecuh County, AL.
The Alabama pearlshell currently occurs in Jordan, Hunter, Otter, Sandy, and Little Cedar, Bottle, and Amos Mill Creek drainages. Although it historically occurred in the mainstem of Murder Creek, it has not been collected there in recent years. Therefore, this short reach of Murder Creek is considered unoccupied by the Alabama pearlshell, but essential to the conservation of the species. This unoccupied reach retains the features of a natural stream channel and supports other native mussel species. It has potential for reoccupation by the pearlshell, particularly if threats can be identified and mitigated.
The unit currently supports healthy populations of several other native mussel species indicating the presence of PCEs 1, 2, 3, and 4. In addition, other mussel species, requiring similar PCEs, co-occur with the pearlshell. A diverse fish fauna, including potential fish host(s) for the Alabama pearlshell, are known from these drainages, indicating the potential presence of PCE 5.
Threats to the Alabama pearlshell and its habitat may require special management of the PCEs including, alteration of natural stream flows, maintaining natural stream flows (including the construction of impoundments), and protecting water quality from excessive point- and non-point-source pollution.
Unit GCM1 encompasses 558 km (347 mi) of the lower Escambia River mainstem and 12 tributary streams in Escambia and Santa Rosa Counties, FL; and Escambia, Covington, Conecuh, and Butler Counties, AL. The unit consists of the main channel of the Escambia-Conecuh River from the confluence of Spanish Mill Creek, Escambia and Santa Rosa Counties, FL, upstream 204 km (127 mi) to the Point A Lake dam, Covington County, AL; Murder Creek from its confluence with the Conecuh River, Escambia County, AL, upstream 62 km (38 mi) to the confluence of Cane Creek, Conecuh County, AL; Burnt Corn Creek from its confluence with Murder Creek, Escambia County, AL, upstream 59 km (37 mi) to County Road 20, Conecuh County, AL; Jordan Creek from its confluence with Murder Creek, upstream 5.5 km (3.5 mi) to Interstate 65, Conecuh County, AL; Mill Creek from its confluence with Murder Creek upstream 2.5 km (1.5 mi) to the confluence of Sandy Creek, Conecuh County, AL; Sandy Creek from its confluence with Mill Creek upstream 5.5 km (3.5 mi) to County Road 29, Conecuh County, AL; Sepulga River from its confluence with the Conecuh River upstream 69 km (43 mi) to the confluence of Persimmon Creek, Conecuh County, AL; Bottle Creek from its confluence with the Sepulga River upstream 5.5 km (3.5 mi) to County Road 42, Conecuh County, AL; Persimmon Creek from its confluence with the Sepulga River, Conecuh County upstream 36 km (22 mi) to the confluence of Mashy Creek, Butler County, AL; Panther Creek from its confluence with Persimmon Creek upstream 11 km (7 mi) to State Route 106, Butler County, AL; Pigeon Creek from its confluence with the Sepulga River, Conecuh and Covington Counties upstream 89 km (55 mi) to the confluence of Three Run Creek, Butler County, AL; and Three Run Creek from its confluence with Pigeon Creek upstream 9 km (5.5 mi) to the confluence of Spring Creek, Butler County, AL.
Unit GCM1 is proposed as critical habitat for the round ebonyshell, southern sandshell, southern kidneyshell, Choctaw bean, narrow pigtoe, and fuzzy pigtoe. The southern kidneyshell is not currently known to occur in the unit; however, this portion of the Escambia River system is within
Threats to the five species and their habitat that may require special management of the PCEs include the potential of significant changes in the existing flow regime and water quality due to two upstream impoundments. As discussed in Summary of Factors Affecting the Species, under Dams and Impoundments, mollusk declines below dams are associated with changes and fluctuation in flow regime, scouring and erosion, reduced dissolved oxygen levels and water temperatures, and changes in resident fish assemblages. These alterations can cause mussel declines for many miles below the dam.
Unit GCM2 encompasses 21 km (13 mi) of the Point A Lake and Gantt Lake reservoir system in Covington County, AL. Both lakes are impoundments on the Conecuh River main channel in the Escambia River drainage. The unit extends from Point A Lake dam, Covington County upstream 21 km (13 mi) to the Covington-Crenshaw County line in Alabama.
Unit GCM2 is proposed as critical habitat for the narrow pigtoe. As mentioned in the PCEs for the narrow pigtoe (above), we attribute its occurrence in these two impoundments to the small size of the reservoirs and to the operational regime of the dams. This allows for water movement through the system, and prevents silt accumulation in some areas. The largest narrow pigtoe population occurs in the middle reach of Gantt Lake, where the reservoir narrows and becomes somewhat riverine. Although the natural state of the river's hydrological flow regime is modified, it does retain the features necessary to maintain the benthic habitats where the species are found. The persistence of the narrow pigtoe within these reservoirs indicates the presence of an appropriate fish host. Although its fish host(s) is unknown, other mussels of the genus
Threats to the narrow pigtoe and its habitat that may require special management of the PCEs include the potential of significant changes in water levels due to periodic drawdowns of the reservoirs for maintenance to the dams. Within the two reservoirs, mussels occur in shallow areas near the shore, where they are susceptible to exposure when water levels are lowered. A drawdown of Point A Lake in 2005 and Gantt Lake in 2006 exposed and killed a substantial number of mussels (Johnson 2006a
Unit GCM3 encompasses 149 km (92 mi) of Patsaliga Creek and two tributary streams in Covington, Crenshaw, and Pike Counties, AL, within the Escambia River basin. The unit consists of the Patsaliga Creek mainstem from its confluence with Point A Lake at County Road 59, Covington County, AL, upstream 108 km (67 mi) to Crenshaw County Road 66-Pike County Road 1 (the creek is the county boundary), AL; Little Patsaliga Creek from its confluence with Patsaliga Creek upstream 28 km (17 mi) to Mary Daniel Road, Crenshaw County, AL; and Olustee Creek from its confluence with Patsaliga Creek upstream 12 km (8 mi) to County Road 5, Pike County, AL.
Unit GCM3 is proposed as critical habitat for the southern sandshell, southern kidneyshell, Choctaw bean, narrow pigtoe, and fuzzy pigtoe. The southern kidneyshell is not currently known to occur in the unit; however, this portion of the Patsaliga Creek system is within the species' historical range. We consider it essential to the conservation of the southern kidneyshell due to the need to re-establish the species within other portions of its historical range in order to reduce threats from stochastic events. The unit does currently support populations of southern sandshell, Choctaw bean, narrow pigtoe, and fuzzy pigtoe indicating the presence of PCEs 1, 2, 3, and 4. In addition, other mussel species, requiring similar PCEs, co-occur with these four species. A diverse fish fauna, including a potential fish host for the fuzzy pigtoe, are known from the Patsaliga Creek drainage, indicating the potential presence of PCE 5.
Prior to construction of the Point A Lake and Gantt Lake dams in 1923, Patsaliga Creek drained directly to the Conecuh River main channel. It now empties into Point A Lake and is effectively isolated from the main channel by the dams. The dams are barriers to upstream fish movement, particularly to anadromous fishes. Therefore, a potential threat that may require special management of the PCEs includes the absence of fish hosts.