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Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for the Boeing Model 747-8 airplane. These airplanes will have novel or unusual design features associated with upper deck occupancy. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The effective date of these special conditions is September 28, 2011. We must receive your comments by November 25, 2011.
You must mail two copies of your comments to: Federal Aviation Administration, Transport Airplane Directorate, Attn: Rules Docket (ANM-113), Docket No. NM465, 1601 Lind Avenue, SW., Renton, Washington, 98057-3356. You may deliver two copies to the Transport Airplane Directorate at the above address. You must mark your comments: Docket No. NM465. You can inspect comments in the Rules Docket weekdays, except Federal holidays, between 7:30 a.m. and 4:00 p.m.
Jayson Claar, FAA, Airframe and Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2194 facsimile (425) 227-1232.
The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions are impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.
We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel about these special conditions. You can inspect the docket before and after the comment closing date. If you wish to review the docket in person, go to the address in the
We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.
If you want us to acknowledge receipt of your comments on these special conditions, include with your comments a self-addressed, stamped postcard on which you have written the docket number. We will stamp the date on the postcard and mail it back to you.
On November 4, 2005, The Boeing Company applied for an amendment to Type Certificate Number A20WE to include the new Model 747-8 passenger airplane. The Model 747-8 is a derivative of the 747-400. The Model 747-8 is a four-engine jet transport airplane that will have a maximum takeoff weight of 975,000 pounds, new General Electric GEnx-2B67 engines, and the capacity to carry 605 passengers.
The Model 747-8 design offers seating capacity on two separate decks: The main deck with a maximum passenger capacity of 495 and the upper deck with a maximum passenger capacity of 110. Occupants can move between decks via a staircase located near door 2 on the main deck of the airplane in the forward part of the cabin. The staircase is located in the aft end of the upper deck passenger compartment. The regulations do not adequately address a passenger airplane with separate decks for passenger occupancy, thus the FAA considers this to be a novel design, and special conditions are required.
Under the provisions of Title 14 Code of Federal Regulations (14 CFR) 21.101, Boeing must show that the Model 747-8 (hereafter referred to as the 747-8) meets the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-117, except for earlier amendments as agreed upon by the FAA. These regulations will be incorporated into Type Certificate No. A20WE after type certification approval of the 747-8.
If the Administrator finds that the applicable airworthiness regulations (i.e., part 25) do not contain adequate or appropriate safety standards for the 747-8 because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design features, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design features, these special conditions would also apply to the other model.
In addition to the applicable airworthiness regulations and special conditions, the 747-8 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the
The FAA issues special conditions, as defined in § 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.101.
The Boeing Model 747-8 will incorporate the following novel or unusual design features: seating capacity on two separate decks, a main deck with a maximum passenger capacity of 495 and an upper deck with a maximum passenger capacity of 110, and a staircase to facilitate occupant movement between the decks.
The regulations governing the certification of the 747-8 do not adequately address the certification requirements for a two-deck passenger airplane. The Airbus A380-800 and all of the earlier Boeing 747 passenger airplane models were certified with seating capacity on two separate decks. When the seating capacity of the upper deck of the Boeing 747 exceeded 24 passengers, the FAA issued Special Condition No. 25-61-NW-1 for a maximum seating capacity of 32 passengers on the upper deck for take-off and landing. A second set of special conditions, Special Condition No. 25-71-NW-3, was issued to include airplanes up to a maximum seating capacity of 45 passengers on the upper deck for take-off and landing. The second set of special conditions was modified to address airplanes with a maximum seating capacity of 110 passengers on the upper deck for take-off and landing. Special Conditions No. 25-326-SC for the Airbus A380-800 allowed a seating capacity on two separate decks: The main deck with a maximum passenger capacity of 542 and the upper deck with a maximum passenger capacity of 308. Although these previously issued special conditions provided a starting point for developing the 747-8 special conditions, the 747-8 special conditions are specific to the unique aspects of this airplane's design.
The upper deck of the 747-8 has one pair of exits at station 690, which is located approximately in the forward one-third of the upper deck passenger cabin. The stairway between the main deck and the upper deck is located in the aft end of the upper deck passenger compartment. Depending on the interior arrangement of the upper deck, access to the pair of exits on the upper deck can be reduced. This pair of exits could be rated as Type A, Type C, or Type I exits. These exit configurations and stairway evacuation route are not addressed in the regulations.
Current regulations do not address the design of the emergency lighting system(s) for two-deck airplanes including the separation of the systems between the two decks and the operational requirements of the systems when considering a single transverse vertical separation of the fuselage during a crash landing.
Additionally, with a two-deck airplane, there are concerns with communications between the two decks and between each deck and the flight deck.
The FAA issued a set of special conditions for the 747-8, Special Conditions No. 25-430-SC, specifying the design requirements of the stairway connecting the main and upper decks, including structural design, placement within the airplane, lighting, and signage.
The following special conditions address additional elements to support evacuation between decks of the 747-8 airplane in an in-flight emergency.
As discussed above, these special conditions are applicable to the Model 747-8. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design features, the special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on Model 747-8 airplanes. It is not a rule of general applicability.
The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
(a) The upper deck passenger occupancy is limited to 110 with one pair of Type A exits. If, due to the interior arrangement, the upper deck exits are rated as Type I, the upper deck passenger occupancy is limited to 45. If, due to the interior arrangement, the upper deck exits are rated as Type C, the upper deck passenger occupancy is limited to 55. The centerline of these exits is located at station 690 on the upper deck.
(a) The upper deck emergency lighting system power supplies must be independent of the main deck emergency lighting system power supplies.
(b) The upper deck emergency lighting system must be designed so that, after any single transverse vertical separation of the fuselage during a crash landing, not more than 25 percent of all required electrically illuminated emergency lights in the upper deck are rendered inoperative, in addition to the upper deck emergency lights that are directly damaged by separation.
(a) An intercom and a two-way alerting means between passenger decks and between each passenger deck and the flightdeck must be provided that meet the following requirements:
(1) They must remain operable in the event of the loss of the main power supply.
(2) They must be capable of providing crewmembers on all decks an immediate indication of emergency situation on any deck.
Federal Aviation Administration (FAA), DOT.
Final rule; correction.
The FAA is correcting an airworthiness directive (AD) that published in the
This final rule is effective October 11, 2011. The effective date for AD 2011-12-02 remains June 2, 2011.
You may examine the AD docket on the Internet at
Peter W. Hakala, Aerospace Engineer, Special Certification Office, FAA, Rotorcraft Directorate, 2601 Meacham Blvd., Fort Worth, Texas 76137; phone: (817) 222-5145; fax: (817) 222-5785; e-mail:
Airworthiness Directive 2011-12-02, Amendment 39-16709 (76 FR 31800, June 2, 2011), currently requires incorporating revised airspeed limitations and marking the airspeed indicator accordingly for Viking Air Limited Model DHC-3 (Otter) airplanes equipped with a Honeywell TPE331-10 or -12JR turboprop engine installed per STC SA09866SC (Texas Turbines Conversions, Inc.). There is also a requirement for the installation of a temporary placard until the airspeed indicator can be modified but not to exceed a certain period of time.
As published, the wording on justification for the AD and the wording of the temporary placard need clarification. The clarification does not affect the actions of the AD. Only the changed portion of the final rule is being published in the
The effective date of this AD remains June 2, 2011.
In the
On page 31800, in the third column, on line two under Airworthiness Directives; add at the end of the section the phrase “with Supplemental Type Certificate (STC) SA09866SC.”
On page 31801, in the first column, at the end of the fifth line from the top and beginning of the sixth line from the top, remove the phrase “as stated in the regulations.”
On page 31801, in the first column, in lines 10 through 12 from the top, replace the phrase “that exceed the speeds established in the federal aviation regulations for safe operation” with “that exceed those determined to be safe by the FAA.”
On page 31801, in the second column, in lines 7 and 8 from the top, remove the phrase “as stated in the regulations.”
On page 31801, in the second column, in lines 4 through 7 of the first full paragraph, replace the “with color band markings that do not comply with 14 CFR 23.1505(c). This could result in reduced safety margins that may result in an unsafe condition.” with “with color band markings that could result in reduced safety margins and cause an unsafe condition.”
On page 31801, in the second column, in lines 5 through 7 of the third full paragraph, replace the phrase “that exceed the speeds established in the federal aviation regulations for safe operation” with “that exceed those determined to be safe by the FAA.”
(e) This AD was prompted by analysis that showed that airspeed limitations for the affected airplanes are not adjusted for the installation of a turboprop engine. We are issuing this AD to prevent the loss of airplane structural integrity due to the affected airplanes being able to operate at speeds that exceed those determined to be safe by the FAA.
(f)(2) Fabricate a placard using letters of at least
Consumer Product Safety Commission.
Final rule; revocation.
The Consumer Product Safety Commission (“Commission,” “CPSC” or “we”) is revoking its interpretation of the term “unblockable drain” as used in the Virginia Graeme Baker Pool and Spa Safety Act (“VGB Act”).
You may submit comments, identified by Docket No. CPSC-2011-0071, by any of the following methods:
Submit electronic comments in the following way:
Submit written submissions in the following way:
Mail/Hand delivery/Courier (for paper (preferably in five copies), disk, or CD-ROM submissions), to: Office of the Secretary, Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814; telephone (301) 504-7923.
Troy Whitfield, Lead Compliance Officer, Office of Compliance, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814-4408; telephone (301) 504-7548 or e-mail
The Virginia Graeme Baker Pool and Spa Safety Act, Pub. L. 110-140, Title XIV (“the VGB Act”) was signed into law on December 19, 2007, and became effective on December 19, 2008. The VGB Act's purpose is to prevent suction entrapment by swimming pool and spa drains and child drowning in swimming pools and spas.
Section 1404(c)(1)(A)(i) of the VGB Act requires that each public pool and spa in the United States be equipped with drain covers that comply with the ASME/ANSI A112.19.8 performance standard or any successor standard. (In the
• Safety vacuum release system;
• Suction-limiting vent system;
• Gravity drainage system;
• Automatic pump shut-off system;
• Drain disablement; and/or
• Any other system determined by the Commission to be equally effective as, or better than, the enumerated systems at preventing or eliminating the risk of injury or death associated with pool drainage systems.
For purposes of this preamble, we will refer to these systems collectively as “secondary anti-entrapment systems.” Thus, under the VGB Act, each public pool or spa with a single main drain, other than an unblockable drain, must be equipped with a secondary anti-entrapment system. Section 1403(7) of the VGB Act defines an “unblockable drain” as “a drain of any size and shape that a human body cannot sufficiently block to create a suction entrapment hazard.”
On April 27, 2010, the Commission issued a final interpretive rule in the
A suction outlet defined as all components, including the sump and/or body, cover/grate, and hardware such that its perforated (open) area cannot be shadowed by the area of the 18″ x 23″ Body Blocking Element of ASME/ANSI A112.19.8-2007 and that the rated flow through the remaining open area (beyond the shadowed portion) cannot create a suction force in excess of the removal force values in Table 1 of that Standard. All suction outlet covers, manufactured or field-fabricated, shall be certified as meeting the applicable requirements of the ASME/ANSI A112.19.8 standard.
Since the issuance of this interpretive rule, we received 156 letters asking us to reexamine our interpretation of the definition of “unblockable drain.” In general, these letters assert that drain covers, regardless of their size, can come off or break over the course of the life of a pool or spa, even when the owners and operators have the best intentions. They claim that for this reason, backup systems are necessary, and a swimming pool or spa with a single main drain cannot be made “unblockable” by the simple installation of a drain cover meeting certain requirements. They also claim that our interpretation of the definition of “unblockable drain” undermines the law's intent of incorporating several layers of protection into pools and spas. These letters have been made part of the docket.
In light of these letters, we have reconsidered our interpretation of an “unblockable drain,” at 16 CFR 1450.2(b) and believe it was in error. Regardless of the size of a drain and its cover, the drain cover can come off, presenting a risk of entrapment. We believe that not requiring an additional layer of protection in the form of a secondary anti-entrapment system thwarts the layers of protection intended by the VGB Act. Accordingly, the Commission is revoking the interpretation of unblockable drain at 16 CFR 1450.2(b).
The revocation of this rule means that a drain cover can no longer be used to convert a blockable drain into an unblockable drain. Pursuant to the VGB Act, drains that are blockable require a secondary anti-entrapment system. Section 1404(c)(1)(A)(ii) of the VGB Act. Accordingly, if you have used an unblockable drain cover to create an unblockable drain, the revocation of the interpretative rule means that you must equip your public pool or public spa with a secondary anti-entrapment system as required by the VGB Act. A
Consumer protection, Infants and children, Law enforcement.
For the reasons stated above, the Commission amends part 1450 of title 16 of the Code of Federal Regulations as set forth below:
15 U.S.C. 2051-2089, 86 Stat. 1207; 15 U.S.C. 8001-8008, 121 Stat. 1794.
Internal Revenue Service (IRS), Treasury.
Correction to final regulations.
This document contains corrections to final regulations that were published in the
This correction is effective on October 11, 2011 and applies to any payment or document mailed and delivered in accordance with the requirements of § 301.7502-1 in an envelope bearing a postmark dated after September 21, 2004.
Steven Karon, (202) 622-4570 (not a toll-free number).
The final regulations (TD 9543) that is the subject of this correction is under sections 301 and 602 of the Internal Revenue Code.
As published on August 23, 2011 (76 FR 52561), the final regulations (TD 9543) contains errors that may prove to be misleading and is in need of clarification.
Accordingly, the final regulations (TD 9543), that were the subject of FR Doc. 2011-21416, are corrected as follows:
1. On page 52561, column 1, in the regulation heading, the CFR Title and part Number, line 3, the phrase “26 CFR part 301” is corrected to read “26 CFR parts 301 and 602”.
2. On page 52561, column 2, in the preamble, under the caption
3. On page 52562, column 3, in the preamble under the caption “Special Analyses”, lines 6 and 7 from the bottom of the second paragraph, the phrase “$2.80 and registered mail can be used for as little as $10.60” is corrected to read “$2.85 and registered mail can be used for as little as $10.75.”
4. On page 52562, column 3, in the preamble, the caption “List ofSubjects in 26 CFR part 301” is corrected to read as follows:
Employment taxes, Estate taxes, Gift taxes, Income taxes, Penalties, Reporting and recordkeeping requirements.
Reporting and recordkeeping requirements.
5. On page 52562, column 3, in the preamble under the caption “Adoption of Amendments to the Regulations”, line 1, the phrase “Accordingly, 26 CFR part 301 is amended as follows:” is corrected to read “Accordingly, 26 CFR parts 301 and 602 are amended as follows:”.
Financial Crimes Enforcement Network (“FinCEN”), Treasury.
Final rule.
FinCEN, to comply with the congressional mandate to prescribe regulations under section 104(e) of the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (“CISADA”) and consistent with its statutory mission under 31 U.S.C. 310, is issuing this final rule. The rule requires a U.S. bank that maintains a correspondent account for a foreign bank to inquire of the foreign bank, and report to FinCEN certain information with respect to transactions or other financial services provided by that foreign bank. Under the rule, U.S. banks will only be required to report this
The FinCEN regulatory helpline at (800) 949-2732 and select Option 6.
On July 1, 2010, the President signed CISADA
“(c) PROHIBITIONS AND CONDITIONS WITH RESPECT TO CERTAIN ACCOUNTS HELD BY FOREIGN FINANCIAL INSTITUTIONS.—
(1) IN GENERAL.—Not later than 90 days after the date of the enactment of this Act, the Secretary of the Treasury shall prescribe regulations to prohibit, or impose strict conditions on, the opening or maintaining in the United States of a correspondent account or a payable-through account by a foreign financial institution that the Secretary finds knowingly engages in an activity described in paragraph (2).
(2) ACTIVITIES DESCRIBED.—A foreign financial institution engages in an activity described in this paragraph if the foreign financial institution—
(A) facilitates the efforts of the Government of Iran (including efforts of Iran's Revolutionary Guard Corps or any of its agents or affiliates)—
(i) to acquire or develop weapons of mass destruction or delivery systems for weapons of mass destruction; or
(ii) to provide support for organizations designated as foreign terrorist organizations under section 219(a) of the Immigration and Nationality Act (8 U.S.C. 1189(a)) or support for acts of international terrorism (as defined in section 14 of the Iran Sanctions Act of 1996 (Public Law 104-172; 50 U.S.C. 1701 note));
(B) facilitates the activities of a person subject to financial sanctions pursuant to United Nations Security Council Resolution 1737 (2006), 1747 (2007), 1803 (2008), or 1929 (2010), or any other resolution that is agreed to by the Security Council and imposes sanctions with respect to Iran;
(C) engages in money laundering to carry out an activity described in subparagraph (A) or (B);
(D) facilitates efforts by the Central Bank of Iran or any other Iranian financial institution to carry out an activity described in subparagraph (A) or (B); or
(E) facilitates a significant transaction or transactions or provides significant financial services for—
(i) Iran's Revolutionary Guard Corps or any of its agents or affiliates whose property or interests in property are blocked pursuant to the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.); or
(ii) a financial institution whose property or interests in property are blocked pursuant to that Act in connection with—
(I) Iran's proliferation of weapons of mass destruction or delivery systems for weapons of mass destruction; or
(II) Iran's support for international terrorism.
(3) PENALTIES.—The penalties provided for in subsections (b) and (c) of section 206 of the International Emergency Economic Powers Act (50 U.S.C. 1705) shall apply to a person that violates, attempts to violate, conspires to violate, or causes a violation of regulations prescribed under paragraph (1) of this subsection to the same extent that such penalties apply to a person that commits an unlawful act described in section 206(a) of that Act.”
On August 16, 2010, the Office of Foreign Assets Control (“OFAC') published the Iranian Financial Sanctions Regulations, 31 CFR Part 561 (the “IFSR”). Section 561.201 of the IFSR implements section 104(c) of CISADA. It states that the Secretary will, consistent with authorities under CISADA, prohibit or impose strict conditions on the opening or maintaining in the United States of correspondent accounts or payable-through accounts for a foreign financial institution that the Secretary finds knowingly engages in one or more of the sanctionable activities described in section 561.201(a) of the IFSR.
Section 104(e) of CISADA requires the Secretary to prescribe regulations to establish one or more specific requirements for U.S. financial institutions maintaining correspondent accounts for foreign financial institutions, in connection with the sanctionable activities described in section 104(c)(2) of CISADA. The relevant statutory language reads as follows:
“(e) REQUIREMENTS FOR FINANCIAL INSTITUTIONS MAINTAINING ACCOUNTS FOR FOREIGN FINANCIAL INSTITUTIONS.—
(1) IN GENERAL.—The Secretary of the Treasury shall prescribe regulations to require a domestic financial institution maintaining a correspondent account or payable-through account in the United States for a foreign financial institution to do one or more of the following:
(A) Perform an audit of activities described in subsection (c)(2) that may be carried out by the foreign financial institution.
(B) Report to the Department of the Treasury with respect to transactions or other financial services provided with respect to any such activity.
(C) Certify, to the best of the knowledge of the domestic financial institution, that the foreign financial institution is not knowingly engaging in any such activity.
(D) Establish due diligence policies, procedures, and controls, such as the due diligence policies, procedures, and controls described in section 5318(i) of title 31, United States Code, reasonably designed to detect whether the Secretary of the Treasury has found the foreign financial institution to knowingly engage in any such activity.
(2) PENALTIES.—The penalties provided for in sections 5321(a) and 5322 of title 31, United States Code, shall apply to a person that violates a regulation prescribed under paragraph (1) of this subsection, in the same manner and to the same extent as such penalties would apply to any person that is otherwise subject to such section 5321(a) or 5322.”
In order to comply with the congressional mandate to prescribe regulations under section 104(e) of CISADA, and consistent with its statutory mission under 31 U.S.C. 310, FinCEN is implementing section 104(e)(1)(B) of CISADA. FinCEN considered implementing any one or more of the options under section 104(e)(1) of CISADA, and determined that implementing section 104(e)(1)(B) is the most useful vehicle for effecting the intent of section 104(e) at this time. Section 104(e)(1)(B) of CISADA authorizes the Secretary to prescribe regulations that require a domestic financial institution maintaining a correspondent account in the United States for a foreign financial institution to report to the Department of the Treasury with respect to transactions or other financial services provided with respect to sanctionable activities described in section 104(c)(2) of CISADA that may be carried out by the foreign financial institution.
FinCEN believes that among the services included within the concept of “transactions or other financial services provided” by a foreign financial institution are correspondent accounts the foreign financial institution maintains for other foreign financial institutions and transfers of funds the foreign financial institution processes for or on behalf of other foreign financial institutions, individuals, or entities. A foreign financial institution's provision of correspondent account services and transfer of funds services to a financial institution designated by the U.S. Government in connection with Iran's proliferation of weapons of mass
FinCEN is implementing section 104(e)(1)(B) of CISADA by issuing regulations that require a bank, upon receiving a written request from FinCEN, to inquire of a specified foreign bank for which it maintains a correspondent account, and report to FinCEN, with respect to the following: (1) Whether the foreign bank maintains a correspondent account for an Iranian-linked financial institution designated under the International Emergency Economic Powers Act (“IEEPA”);
In addition, the rule requires a bank to request, when making its inquiry of a specified foreign bank, that the foreign bank agree to notify the bank if the foreign bank subsequently establishes a new correspondent account for an Iranian-linked financial institution designated under IEEPA at any time within 365 calendar days from the date of the foreign bank's initial response, and report such information to FinCEN.
The rule also requires a bank to report to FinCEN instances in which the bank does not maintain a correspondent account for a foreign bank specified in a written request from FinCEN. This requirement will only apply when FinCEN specifically requests in writing that the bank report such information. To the extent possible and based on all available information, FinCEN intends to send requests directly to banks that FinCEN believes may maintain correspondent accounts for the specified foreign bank(s). The number of banks that receive a request may vary in each specific case, based on the availability of information to FinCEN and other circumstances.
On August 16, 2010, OFAC published the IFSR, 31 CFR part 561. As noted above, section 561.201 of the IFSR implements section 104(c) of CISADA. It states that the Secretary will, consistent with authorities under CISADA, prohibit or impose strict conditions on the opening or maintaining in the United States of correspondent accounts or payable-through accounts for a foreign financial institution that the Secretary finds knowingly engages in one or more of the sanctionable activities described in section 561.201(a) of the IFSR. The names of foreign financial institutions that are found by the Secretary to knowingly engage in such sanctionable activities, and for which U.S. financial institutions may not open or maintain correspondent accounts or payable-through accounts in the United States, will be published in the
The CISADA reports received as a result of this rulemaking will be used primarily to provide FinCEN with potentially useful information from U.S. banks regarding the nature of foreign bank activities that may be relevant to CISADA. Based on the reports, immediate action may be taken under section 104(c) of CISADA, or, among other things, there may be consultation with those foreign banks that maintain correspondent accounts for Iranian-linked financial institutions designated under IEEPA, that have processed one or more transfers of funds for or on behalf of, directly or indirectly, an Iranian-linked financial institution or an IRGC-linked person designated under IEEPA, or that have been unwilling to respond to inquiries from the banks at which the foreign banks maintain correspondent accounts. An investigation by OFAC into the activities of such foreign banks could result in a finding by the Secretary under section 104(c) of CISADA and section 561.201 of the IFSR. For example, when a bank reports that a foreign bank maintains a correspondent account for an Iranian-linked financial institution designated under IEEPA, or has processed one or more transfers of funds for or on behalf of, directly or indirectly, an Iranian-linked financial institution or an IRGC-linked person designated under IEEPA, OFAC could use the information to corroborate or supplement data derived from other sources and may request further information from the foreign bank to clarify whether the foreign bank is facilitating significant transactions or providing significant financial services for an Iranian-linked financial institution or an IRGC-linked person designated under IEEPA. Such transactions or services can be the basis for prohibiting or imposing strict conditions on the foreign bank's correspondent or payable-through accounts in the United States under section 104(c) of CISADA and section 561.201 of the IFSR.
The final rule contained in this document is based on the Notice of Proposed Rulemaking published in the
The comment period for the Notice ended on June 1, 2011. We received a total of seven comment letters from 14 entities and individuals.
Comments on the Notice focused on the following general matters: (A) The approach to implementing section 104(e) of CISADA; (B) the ability of a foreign bank to respond to a CISADA request; (C) the impact of the rule on foreign correspondent account relationships; (D) the scope of information to be reported by a foreign bank; (E) the timeframe for a foreign bank and a U.S. bank to respond to a CISADA request; (F) clarification regarding the proposed model certification; (G) clarification regarding certain definitions and terms; (H) record retention and supporting documentation; (I) sharing information regarding a CISADA request; and (J) estimate of burden.
One of the comments asserted that the Notice was not published in the
Section 104(e) of CISADA offers FinCEN four options for rulemaking. One commenter requested clarification regarding how FinCEN determined that implementing section 104(e)(1)(B) would be the most useful way to implement section 104(e) of CISADA. As noted above, FinCEN considered a number of different approaches to implementing section 104(e) of CISADA. We believe that implementing section 104(e)(1)(B) will produce the most useful information in the most workable manner and will best achieve our policy aims. In fact, this belief is echoed in a number of comments FinCEN received. One commenter asserted that section 104(e) of CISADA allows FinCEN to implement any one or more of four requirements, some of which the commenter believes are potentially very burdensome to industry. The commenter believes the proposed requirements appropriately balance the need of the U.S. government to isolate Iran from the global financial system with the need to maintain an effectively functioning correspondent banking system. Another commenter asserted that FinCEN has taken elements of the four options Congress outlined in the statute and incorporated them with existing requirements to develop a rule that considers the costs to industry, the ability of the industry to comply, appropriate use of limited enforcement resources, and the need for information. Yet another commenter asserted that banks providing correspondent relationships in the U.S. are not in a position to speak to the overall activities of their foreign counterparts. The commenter further asserted that as such, if those activities are at issue under section 104(e) of CISADA, it is more appropriate to ask the U.S.-based banks to transmit inquiries to their foreign correspondents than to ask them to conduct independent investigations for which they are ill-suited.
One commenter believes that the proposed rule treats section 104(e) of CISADA as a discretionary provision in which banks will only have to certify they are not doing business with relevant Iranian-linked designated entities and individuals upon a written inquiry from FinCEN. Another commenter suggested that the proposed rule would not meet the requirements of the statute, as domestic financial institutions should be required to provide information to FinCEN, not only when asked, but as soon as they are aware that the foreign financial institution is engaged in a “prohibited activity.” FinCEN does not interpret 104(e) to be discretionary. To the contrary, we understand 104(e) to require the Secretary to prescribe regulations mandating that domestic financial institutions take one or more actions, one of which is to provide requested reports to FinCEN, and we believe the final rule reflects this understanding. We also note that the activities described in section 104(c)(2) of CISADA are not “prohibited activities.” Instead they are activities that can be grounds for imposing the sanctions described in section 104(c)(1) of CISADA.
FinCEN proposed to target this reporting requirement on those foreign banks that there is some basis to suspect may be engaged in activities that may be sanctionable under section 104(c) of CISADA. We considered requiring every U.S. bank to provide periodic reports from every foreign bank for which they maintain correspondent accounts, but concluded that we would be better served by a rule that focused on those foreign banks that are of interest for purposes of CISADA. By requiring reports from those U.S. banks that maintain correspondent accounts for the specific foreign banks that are of interest for purposes of CISADA implementation, we believe that we will receive the information needed without generating a multitude of unnecessary and uninformative reports.
The reporting requirement in the final rule is scalable. Based on the circumstances, it permits FinCEN to expand the number of U.S. banks that would be required to file reports, as well as the number of foreign banks from whom information would be sought. This means that FinCEN may ask any number of U.S. banks about any number of foreign banks as is necessary, based on the number of foreign banks there is some basis to suspect may be engaged in activities that may be sanctionable under section 104(c) of CISADA.
The targeted approach that FinCEN has proposed is supported by a number of commenters. One commenter strongly recommended incorporating the concept of targeted requests in the final rule. That same commenter noted that it appreciated FinCEN's effort to craft a
One commenter correctly noted that banks are only required to request information from a foreign bank for which they maintain a correspondent account upon receiving a written request from FinCEN regarding that specific foreign bank. This rule does not require a bank to proactively inquire of any one or more of the foreign banks for which it maintains correspondent accounts.
One commenter suggested that under CISADA, a foreign financial institution should be required to report if it has facilitated the activities of a person subject to financial sanctions pursuant to United Nations (“U.N.”) Security Council Resolutions with respect to Iran. The commenter suggested that the proposed rule should be amended to require this additional disclosure. We recognize that foreign banks' transactions involving persons subject to financial sanctions pursuant to U.N. Security Council Resolutions with respect to Iran are among the sanctionable activities described in section 104(c)(2) of CISADA; however, there are other avenues for obtaining information on such transactions and FinCEN has determined that this specific reporting mechanism is not the most efficacious means to obtain such information at this time. However, as FinCEN collects and assesses the information required under this rule, we will continue to consider whether expanding the scope of this rule to include information pertaining to whether a foreign bank has facilitated the activities of a person subject to financial sanctions pursuant to U.N. Security Council Resolutions with respect to Iran would provide additional useful information as it relates to CISADA. If that is determined to be the case, FinCEN will consider proposing an expansion of this reporting requirement to include such information. At this time, FinCEN believes that a focus on foreign banks' transactions involving Iranian-linked financial institutions designated under IEEPA and IRGC-linked persons designated under IEEPA will provide the most beneficial information for purposes of implementing section 104(c) of CISADA.
One commenter suggested that alternative resources might better serve the same purpose as the proposed rule. The commenter encouraged FinCEN to place greater reliance on government-to-government requests given the commenter's belief that such requests are likely to be far more reliable when collecting information to identify sanctions targets. The same commenter asserted that the benefit of an inter-governmental approach is the opportunity to urge other countries to adopt and implement similar sanctions. FinCEN clarifies that this rule is one tool that is being utilized to collect information as it relates to identifying potential sanctions targets under CISADA. As the commenter correctly suggested, additional methods of information collection are being utilized to identify sanctions targets. The commenter also suggested that FinCEN utilize existing Bank Secrecy Act (“BSA”) reporting tools as necessary to implement this reporting requirement. FinCEN agrees, and will leverage existing BSA reporting tools as appropriate.
Four commenters asserted that privacy legislation in certain jurisdictions may prohibit foreign banks from providing the requested information with respect to individual customer accounts and transactions. Three of these same commenters asserted that under CISADA banks have no legal authority to compel foreign banks to provide the requested information. FinCEN acknowledges that some foreign banks may choose not to respond or may not be able to respond due to their own jurisdictions' privacy legislation. For this reason the rule incorporates an option for U.S. banks to report to FinCEN instances in which they have not received a response from a foreign bank.
Although foreign banks are not necessarily required to respond under CISADA authority, those foreign banks may feel compelled to respond in order to maintain good relationships with the U.S. banks with which they maintain correspondent accounts. Even in instances in which a foreign bank does not respond to a bank's inquiry, that information is still valuable. As noted elsewhere in this rulemaking, based on the reports received, immediate action may be taken under section 104(c) of CISADA, or, among other things, there may be consultation with foreign banks, including those that have been unwilling to respond to inquiries. An investigation by OFAC into the activities of such foreign banks could result in a finding by the Secretary under section 104(c) of CISADA and section 561.201 of the IFSR.
One commenter suggested that the proposed rule should clearly outline the ramifications for foreign banks that fail to provide the required information or provide incorrect information. The commenter suggested that those ramifications should mirror the sanctions outlined in section 104(c)(1) of CISADA. If a foreign bank fails to respond or provides incorrect information an investigation may be conducted into the activities of such foreign bank which could, in turn, result in a finding under section 104(c) of CISADA.
One commenter contended that the proposed rule does not take into account the fact that a foreign bank may conduct legitimate business with an Iranian-linked financial institution designated under IEEPA, through licensed transactions and clearing. The commenter further asserted that for this reason, it would be possible for a U.S. authority to impose a penalty under CISADA on a foreign bank for undertaking transactions which had been licensed by its own competent authority. If a foreign bank wishes to explain that a correspondent account or transfer of funds identified in a certification was licensed by a competent authority in the foreign bank's home jurisdiction, the foreign bank may provide this explanatory information in the certification form. Such explanatory information may be taken into account when the foreign bank's certification is reviewed and it is determined what further action, if any, is appropriate under section 104(c) of CISADA. The model certification has been revised to include language that identifies this type of circumstance as an example of information a foreign bank can include in its certification.
One commenter requested that FinCEN clarify that a request for information regarding a foreign bank or even a positive report from a foreign bank is not a mandate to close or restrict an account. The commenter asserted that one option under the rule is for a bank to report that it cannot determine to its satisfaction that the foreign bank does not maintain a relevant account or
As explained elsewhere in the rulemaking, this rule does not require a bank to take any steps with respect to the foreign bank other than those relating to the collection of information outlined in the rule, regardless of the response received from the foreign bank. While the rule does not preclude a bank from taking any other action based on the bank's assessment of the facts and bank policy, including restricting or terminating a correspondent account relationship with a foreign bank or filing a suspicious activity report, a bank is not required to take any additional action based solely upon the fact that the bank: (i) Has received a request for information under this regulation; (ii) has received a response from the foreign bank; or (iii) has not received a response from the foreign bank.
If a foreign bank does not respond to an inquiry made by a bank under this rule, the bank will be in compliance with these reporting requirements so long as the bank timely reports to FinCEN that the foreign bank did not respond to the bank's inquiry. In addition, if a bank cannot determine that the foreign bank does not maintain a relevant account or has not processed relevant transfers of funds, the bank will be in compliance with these reporting requirements so long as the bank timely reports such information to FinCEN, together with the reason(s) for this, such as the failure of the foreign bank to respond to the inquiry by or a request from the bank, the failure of the foreign bank to certify its response, or if the bank has information that is inconsistent with the certification.
FinCEN requested comment regarding the impact of this information collection on banks' correspondent account relationships with foreign banks. One commenter suggested that a barrage of requests from the United States could create, over time, an unintended consequence of alienating foreign correspondents. The commenter also asserted that foreign banks might be driven to find alternate ways to direct transactions to avoid dealing with the United States. The commenter sees this as having a two-part negative impact: the immediate detriment to the economy and the decreasing ability of the United States to receive valuable information on international transactions. As stated elsewhere in the rulemaking, FinCEN proposed to target this reporting requirement on those foreign banks that there is some basis to suspect may be engaged in activities that may be sanctionable under section 104(c) of CISADA. We considered requiring every U.S. bank to provide periodic reports from every foreign bank for which they maintain correspondent accounts, but concluded that we would be better served by a rule that focused on those foreign banks that are of interest for purposes of CISADA. We believe that by taking a targeted approach we will avoid alienating foreign banks for which we have no concern regarding sanctionable Iranian-related activities. For these reasons, we believe the commenter's concerns are unfounded.
FinCEN requested comment as to whether the terminology “processed one or more transfers of funds” should be further clarified, and if so, how and what terms should be used in the alternative. A few commenters requested further clarification; however FinCEN did not receive any suggestions regarding alternative terminology.
One commenter asserted that the broad definition of the term “processed one or more transfers of funds” appears problematic. The commenter suggested that according to the definition, this term would include each and every transaction, in particular those that do not require using a correspondent account. Another commenter suggested that it would need further clarity regarding the term “processed one or more transfers of funds” to identify which transactions FinCEN intends to reach. Another commenter questioned what is meant by the term “other than through a correspondent account,” in the context of a request that a foreign bank certify whether it has processed one or more transfers of funds within the preceding 90 calendar days related to an Iranian-linked financial institution designated under IEEPA, “other than through a correspondent account.”
As explained in the Notice, the terminology “processed one or more transfers of funds” is meant to address circumstances through which transfers of funds are made without requiring a correspondent account, specifically including circumstances in which financial institutions are part of a common payments or clearing mechanism that provides for transfers of funds among participants without requiring bilateral correspondent account relationships. If a foreign bank is reporting that it maintains a correspondent account for a specific Iranian-linked financial institution designated under IEEPA, the foreign bank does not also have to report that it has processed transfers of funds for that specific Iranian-linked financial institution, as that is assumed within the context of the reported correspondent account. Alternatively, for example, in instances in which a foreign bank is part of a common payments or clearing mechanism that provides for transfers of funds among participants without requiring bilateral correspondent account relationships, those foreign banks should report whether they have processed transfers of funds for an Iranian-linked financial institution designated under IEEPA through such common payments or clearing mechanisms. This type of example is the reason we used the terminology processed one or more transfers of funds within the preceding 90 calendar days related to an Iranian-linked financial institution designated under IEEPA, “other than through a correspondent account.”
FinCEN also clarifies that in the context of a request that a foreign bank certify whether it has processed one or more transfers of funds within the preceding 90 calendar days related to an IRGC-linked person designated under IEEPA, the foreign bank should report whether it has processed any transfers of funds related to an IRGC-linked person designated under IEEPA, regardless of whether the transfers of funds were processed through a correspondent account or through some other common payments or clearing mechanism.
One commenter noted that under section 1060.300(b), the foreign bank is requested to certify that it has not “processed one or more transfers of funds within the preceding 90 calendar days related to an Iranian-linked financial institution” or “related to an IRGC-linked person.” The commenter contended that this concept is broader than can reasonably be expected. The commenter explained that while the foreign bank could reasonably determine whether such relevant designated entities and individuals were parties to a transaction, it has no reliable way of ascertaining whether a transaction with a third party has a relationship to such relevant designated entities and individuals. The commenter provided the following example: if the head office of a foreign bank processes a non-USD-denominated payment from its customer in another country outside the United States to a Middle Eastern trading company, it would have no way of knowing whether the trading company may in turn be acting on behalf of a relevant designated entity or individual. The commenter suggested that the requested certification relate to payments “to or from” the relevant designated entities or individuals as opposed to “related to.”
Another commenter noted that it is conceivable that transactions can be conducted that are settled through correspondent accounts held for other credit institutions where the foreign bank does not or cannot recognize that a relevant transaction is conducted on behalf of or in the interest of an Iranian-linked financial institution designated under IEEPA. The commenter suggested that the certification from the foreign bank, therefore, must at least contain the qualification that it is not aware of, or should not necessarily have been aware of, such circumstance.
In the context of the request that a foreign bank certify whether it has processed one or more transfers of funds within the preceding 90 calendar days “related to” an Iranian-linked financial institution designated under IEEPA, other than through a correspondent account, and whether it has processed one or more transfers of funds within the preceding 90 calendar days “related to” an IRGC-linked person designated under IEEPA, FinCEN has agreed to replace “related to” with “for or on behalf of, directly or indirectly.” The terminology “for or on behalf of, directly or indirectly,” is meant to include situations where a foreign bank has knowledge that a transfer of funds it is processing is for or on behalf of an Iranian-linked financial institution designated under IEEPA, or an IRGC-linked person designated under IEEPA, but where the designated entity or individual does not appear on the face of the transaction. In other words, the phrase is meant to include those situations in which the processing is being done with knowledge based on a relationship that exists through a third party such as a money exchange or trading house.
Consistent with the above mentioned revision and based on comments received, FinCEN has also incorporated the phrase “to its knowledge” into the reporting requirement that upon receiving a written request from FinCEN, a bank shall report to FinCEN, in such format and manner as may be prescribed by FinCEN, the following information for any specified foreign bank the name of any specified foreign bank, for which the bank maintains a correspondent account, that certifies that it does not maintain a correspondent account for an Iranian-linked financial institution designated under IEEPA, that certifies that
In order to be consistent with the revisions to the regulation text, FinCEN has also incorporated the phrase “to its knowledge” into the model certification in the following places: “Foreign Bank hereby certifies that
One commenter noted that when inquiring of a foreign bank, the U.S. bank would also be required to ask the foreign bank to agree to report if it establishes a new correspondent account for an Iranian-linked financial institution designated under IEEPA within 365 calendar days after its initial response and that would in turn be reported to FinCEN by the U.S. bank. The commenter believes this is the most difficult element of the proposal. The commenter asserted that a request is based on whether the United States has designated an entity under IEEPA. The commenter further suggested that since IEEPA is a U.S. law, and the IEEPA lists are constantly changing, any affected foreign bank would be required to develop systems to monitor and track whether or not a transaction might be covered. The commenter also suggested that foreign banks would have to sort through the entire OFAC list as a first step to identify which entities are covered and then apply it to its own records. The commenter recommended that FinCEN or OFAC create a special section/list for IEEPA designations that is easily accessed by foreign banks around the world.
FinCEN clarifies that the rule does not call on a foreign bank to report on new transfers of funds processed for a relevant designated entity or individual following its initial response. The rule only calls on a foreign bank to report any new correspondent accounts opened for an Iranian-linked financial institution designated under IEEPA within 365 calendar days after the foreign bank's initial response. Also, as noted elsewhere in the rulemaking and in the model certification, a list of financial institutions that meet the criteria of Iranian-linked financial institutions designated under IEEPA ([IFSR] tags) are included at the following link on OFAC's
The commenter also suggested that FinCEN call on a foreign bank to respond to these requests within 30 calendar days after the foreign bank identifies a new correspondent account with an Iranian-linked financial institution designated under IEEPA. This comment is addressed by text in the model certification, which provides as follows: “Foreign Bank hereby agrees to notify in writing the Bank if Foreign Bank establishes a new Correspondent Account for an Iranian-Linked Financial Institution Designated Under IEEPA at any time within 365 calendar days from the date of this response. Foreign Bank agrees to provide such notification within 30 calendar days of the establishment of the new correspondent account.”
FinCEN requested comment regarding whether setting a minimum dollar threshold for a foreign bank to report on transfers of funds processed within the preceding 90 calendar days related to an Iranian-linked financial institution designated under IEEPA or related to an IRGC-linked person designated under IEEPA would lessen the reporting obligations, while still providing useful information. FinCEN also requested comment regarding what that minimum dollar threshold should be.
Three commenters suggested that a threshold should be set. Two of these commenters asserted that section 104 of CISADA applies to a “significant transaction or transactions.” For this reason, the commenters suggested that a threshold should be set to require foreign banks to only report on significant transactions. As it relates to section 104(c) of CISADA, a determination of significance will be decided on a case-by-case basis. Neither section 104 of CISADA nor the IFSR defines a minimum dollar threshold for “significant transactions.”
Only one commenter proposed what that minimum dollar threshold should be. The commenter suggested that FinCEN should apply the $3,000 threshold that exists in some other anti-money laundering rules because monitoring transactions of lesser value can be overly burdensome with little benefit. The commenter also suggested that a threshold for minimum aggregate through-put in a correspondent account can also serve to better focus resources on identifying the riskiest correspondent accounts. However, the commenter further asserted that it is mindful that parsing activity at the margins of the threshold can incur its own compliance costs and therefore thresholds should always be applied permissively and not as technical standards that generate compliance complexities.
Considering the fact that a threshold of $3,000 is unlikely to eliminate a substantial number of responses from foreign banks, and considering the commenter's proposal that utilizing the minimum threshold should be at the foreign bank's discretion due to the potential burden of added compliance costs, FinCEN has determined that it will not set a minimum threshold for reporting on transfers of funds. In addition, for these same reasons, FinCEN will not set a minimum threshold for reporting on correspondent accounts. This rule calls for reports on all correspondent accounts with Iranian-linked financial institutions designated under IEEPA regardless of the volume of transactions conducted through the correspondent accounts.
In the Notice, FinCEN proposed that a bank would be required to report the information required by this rule to FinCEN within 30 calendar days of the date of the written request from FinCEN. In addition, FinCEN proposed that if a bank receives notification from a foreign bank that the foreign bank has established a new correspondent account for an Iranian-linked financial institution designated under IEEPA, the bank is required to report the information required by this rule within 10 calendar days of receiving that notification. FinCEN requested comment as to whether these proposed timeframes were appropriate.
Four commenters contended that 30 calendar days to report the information required by this rule to FinCEN is not sufficient. Three of these commenters proposed that the timeframe be extended to 90 calendar days. Two of these commenters asserted that it will take a foreign bank time to research whether it maintains a correspondent account or has processed transfers of funds in the previous 90 calendar days for the relevant designated entities and individuals. Two of these commenters asserted that foreign banks' responses may be subject to legal review by local regulators prior to submission to the bank. One of these commenters suggested that a bank will have to do some level of due diligence to “certify” that it does not know that the foreign bank's certification is incorrect. Another one of these commenters asserted that it would be unfortunate if a U.S. bank had to report to FinCEN that a foreign bank has not replied in time, specifically in instances in which the foreign bank is making efforts to do so, as this could cast a bad and perhaps false light on the foreign bank. Another commenter suggested that a 30-day timeframe to respond will likely produce a significant number of “no response” reports to FinCEN.
FinCEN has taken these comments into consideration. For this reason, FinCEN is revising the timeframe to respond to 45 calendar days from the date of the written request from FinCEN. FinCEN acknowledges the concerns raised by the commenters; however, these requests are time-sensitive by nature and extending the timeframe for a response to 90 days is not feasible. In addition, as noted elsewhere in this rulemaking, a U.S. bank is not expected to independently verify the information provided by a foreign bank. This should lessen the amount of time necessary for a U.S. bank to review a foreign bank's response prior to submission to FinCEN.
FinCEN does recognize the possibility that there may be certain situations in which additional time for a foreign bank to respond is needed. For this reason, we are amending the final rule to require that if a U.S. bank receives a certification from a foreign bank after the 45 calendar day deadline, the U.S. bank is required to report that information to FinCEN within 10 calendar days of receiving that certification. This additional obligation does not relieve the U.S. bank of its obligation to report to FinCEN within 45
One commenter suggested that a bank should be given 30 days to respond to FinCEN upon receiving a notification from a foreign bank that it has opened a new account with an Iranian-linked financial institution designated under IEEPA. As has been clarified elsewhere in this rulemaking, a U.S. bank is not expected to independently verify the information provided by a foreign bank. For this reason, FinCEN believes that if a bank receives notification from a foreign bank that the foreign bank has established a new correspondent account for an Iranian-linked financial institution designated under IEEPA, the bank will have sufficient time to report the information required by this rule within 10 calendar days of receiving that notification.
FinCEN requested comment as to the effectiveness of the proposed model certification. One commenter noted that under the proposed rule, the person signing on behalf of the U.S. bank would be required to state that he has read and understood the foreign bank's certification, that the statements made are complete and correct, and that the U.S. bank does not know or suspect, or have reason to suspect that the foreign bank's certification is incorrect. The commenter suggested that a statement that the foreign bank's response is complete and correct would require the certifying U.S. officer to have intimate knowledge of the foreign bank's customers and activities, something that the U.S. bank will never have. The commenter also suggested that the terminology “know, suspect, and reason to suspect” raises questions about the level of due diligence a U.S. bank is expected to perform under the proposed rule.
Another commenter noted that section 1060.300(c)(1)(v) requires that the reporting U.S. bank identify any specified foreign bank for which the inquiring U.S. bank “has not been able to establish to its satisfaction” does not engage in the listed activities and, further, certify to FinCEN that it does not “know[], suspect[], or ha[ve] reason to suspect” that any certification provided by the foreign bank is incorrect. With these few words, the commenter suggested, the proposed rule would appear to shift the burden on the inquiring bank from simply acting as a conduit for FinCEN's inquiries to independently investigating and evaluating the truthfulness of the foreign bank's response.
Another commenter noted that a U.S. bank has no ability to verify the information reported by a foreign bank. The commenter recommended that the final rule acknowledge that the only obligation of the U.S. bank is to request the data and pass along the information it receives as received. An additional commenter expressed similar concerns.
FinCEN clarifies that our expectation with regard to knowledge is only knowledge a U.S. bank would have based on the monitoring it already conducts to comply with OFAC requirements and BSA requirements regarding due diligence over foreign correspondent accounts. We also clarify that we do not expect a U.S. bank to independently verify the information provided by a foreign bank. However, we do expect a bank to report if it has information that is inconsistent with the foreign bank's certification. An example of a situation in which information is inconsistent with the certification might involve a scenario where a U.S. bank's transaction monitoring software recently blocked a transaction on behalf of a certain foreign bank, but that foreign bank does not include such transaction in the report provided to the U.S. bank.
To reflect these clarifications in the final rule more clearly, FinCEN has decided to make revisions to section 1060.300(c)(1)(v) and to the portion of the model certification to be completed by the bank. These revisions directly address the recommendations offered by these commenters.
FinCEN is revising the language in section 1060.300(c)(1)(v) of the final rule to clarify our expectations with regard to the U.S. bank's responsibilities as they relate to the information reported by a foreign bank. Section 1060.300(c)(1)(v) proposed that a bank report to FinCEN the following information regarding a specified foreign bank: The name of any specified foreign bank, for which the bank maintains a correspondent account,
FinCEN is amending section 1060.300(c)(1)(v) by revising the phrase “about which the bank has not been able to establish to its satisfaction that the foreign bank” to read as follows: “that the bank cannot determine;” and revising the phrase “or if the bank knows, suspects, or has reason to suspect that the certification is incorrect” to read as follows: “or if the bank has information that is inconsistent with the certification.”
In addition, FinCEN is also revising the corresponding portion of the model certification to be completed by the bank. The proposed language in the model certification stated as follows: “I, _________________________ (name of signatory), have read and understand this Certification; the statements made in this Certification are complete and correct, to the best of the knowledge of the Bank; and the Bank does not know, suspect, or have reason to suspect that the Certification made by Foreign Bank is incorrect. I am authorized to submit this document on behalf of the Bank.”
In the final rule, FinCEN is revising the portion of the model certification to be completed by the bank to read as follows: “I, _________________________ (name of signatory), have received and reviewed this Certification. To the best of its knowledge, the Bank has no information that is inconsistent with the Certification made by Foreign Bank. I am authorized to submit this document on behalf of the Bank.”
This revision is consistent with the revisions made to section 1060.300(c)(1)(v). FinCEN believes that this revision to the model certification, together with the amendments to section 1060.300(c)(1)(v) discussed above, will alleviate the concerns raised by commenters and more accurately describe FinCEN's expectations with regard to the U.S. bank's obligations as they relate to information received from a foreign bank.
Furthermore, as requested by three commenters, FinCEN clarifies that the individual signing the model certification is only signing on behalf of the relevant bank in his capacity as a duly authorized officer of the bank and not in his personal capacity. As noted in the language in the model certification, the individual signing on behalf of the bank is submitting the “document on behalf of the Bank.”
Similarly, as requested by one commenter, FinCEN clarifies that the individual signing the model certification is only signing on behalf of the relevant foreign bank in his capacity as a duly authorized officer of the foreign bank and not in his personal capacity. As noted in the language in the model certification, the individual signing on behalf of the foreign bank is “authorized to execute this certification on behalf of Foreign Bank.”
One commenter requested that FinCEN clarify how foreign banks should convert foreign currency as it relates to the foreign banks' reporting on the approximate value of transactions processed through a correspondent account or transfer(s) of funds processed within the preceding 90 calendar days. FinCEN will not prescribe any specific method or reference rate for the conversion of foreign exchange, but rather leaves it to the foreign bank to convert the sums using a reasonable rate informed by good banking practices. The purpose of this conversion is to help in assessing the significance of the transaction(s) at issue. Examples of reasonable rates may include the rate that the foreign bank would have applied to convert the respective payment into U.S. dollars on the date of the transaction, or, in the case of aggregation of multiple transactions over a time period, the average exchange rate over the applicable time period.
One commenter asserted that while the proposed model certification includes links to websites with information about relevant designated entities and individuals, the commenter believes that the process of responding would be simpler and produce better information if requests to foreign banks also included a list of relevant designated entities and individuals covered by that particular request. The model certification includes a link to the list of relevant designated entities and individuals exclusively applicable to this reporting requirement. FinCEN believes that providing access to this link is sufficient to assist foreign banks in clearly identifying the designated entities and individuals relevant to a request.
As requested by one commenter, FinCEN will consider evaluating the adequacy of the model certification in 12 to 18 months in order to determine if revisions are necessary.
Refer to Section V.A., below, for clarification regarding the terms bank, correspondent account, and foreign bank.
One commenter requested clarification regarding a number of aspects of the record retention requirement, including the record retention period and supporting documentation to be maintained as part of the record retention. The commenter requested that the record retention period be reduced from five years. FinCEN clarifies that the record retention period for this rulemaking will remain five years consistent with FinCEN's other record retention requirements. FinCEN also clarifies that this specific recordkeeping requirement does not serve to change any other applicable recordkeeping requirements. The record retention period will begin on the date the request from FinCEN is issued. If the bank receives notification from a foreign bank that the foreign bank has established a new correspondent account with an Iranian-linked financial institution designated under IEEPA at any time within 365 calendar days from the date of the foreign bank's initial response, this will not affect the beginning of the record retention period. The record retention period with regard to that specific foreign bank will still begin on the date the request from FinCEN was issued.
FinCEN clarifies that supporting documentation related to this rulemaking includes any and all correspondence between the bank and FinCEN, or between the bank and the foreign bank, regarding a request for information under this rulemaking. For example, this would include the initial request from FinCEN to the bank, the request from the bank to the foreign bank, the response from the foreign bank to the bank, the report to FinCEN from the bank, and any correspondence associated with any one of these requests/reports. FinCEN also clarifies that although we will maintain a copy of the report the bank submits to FinCEN, the bank must also maintain a copy of that report in order to confirm compliance with this regulation.
One of the commenters questioned in what instances it would be appropriate for a bank to inform others internally or externally that it has received a request from FinCEN regarding a specific foreign bank. To the extent that FinCEN would require a request regarding a specific foreign bank remain confidential, we will explicitly state the requirement for confidentiality in the request sent to the bank.
Refer to Section IX., below, for a summary of comments regarding the burden estimates.
As proposed, section 31 CFR 1060.300(a) requires that, upon receiving a written request from FinCEN, a bank that maintains a correspondent account for a specified foreign bank shall inquire of the foreign bank, and report to FinCEN with respect to any correspondent account maintained by such foreign bank for an Iranian-linked financial institution designated under IEEPA, any transfer of funds for or on behalf of, directly or indirectly, an Iranian-linked financial institution designated under IEEPA processed by such foreign bank within the preceding 90 calendar days, other than through a correspondent account, and any transfer of funds for or on behalf of, directly or indirectly, an IRGC-linked person designated under IEEPA processed by such foreign bank within the preceding 90 calendar days.
The language in this section of the final rule is substantially the same as proposed. However, for purposes of providing additional clarity as requested by commenters, FinCEN modified the final rule language in the following ways: the phrase “to the best of the knowledge of the bank” was removed, consistent with revisions to section 1060.300(c)(1)(v);
For the purpose of this rule the term “bank” is defined in 31 CFR 1010.100(d). A bank includes each agent, agency, branch, or office within the United States of persons doing business in one or more of the following capacities: commercial banks or trust companies, private banks, savings and loan associations, national banks, thrift institutions, credit unions, other organizations chartered under banking laws and supervised by banking supervisors of any State, and banks organized under foreign law.
FinCEN proposed to limit the reporting requirement in this rulemaking to banks, as opposed to all U.S. financial institutions that could fall
Two commenters requested clarification as to why FinCEN proposed to limit this reporting requirement to banks instead of the broader category of U.S. financial institutions as would be permissible under CISADA. One of these commenters also requested clarification as to how FinCEN would determine whether to expand the reporting requirement to other domestic financial institutions.
As explained in the Notice, FinCEN determined that limiting the reporting requirement in this rule to banks will provide useful information as it relates to CISADA, while limiting the obligations of the financial industry. Although there are other financial institutions that could fall within the scope of this rule in light of the breadth of the definition of financial institution in CISADA and the breadth of the definition of correspondent account, this rule focuses on those financial institutions deemed to provide the services most traditionally associated with correspondent banking.
Two trade associations commented on this aspect of the rulemaking. These commenters were in favor of limiting the rulemaking to banks, in order to avoid redundancy and overlapping information. FinCEN did not receive any comments that provided justification for expanding this reporting requirement to include other domestic financial institutions. Based on the comments received, and FinCEN's prior statements regarding the scope of affected U.S. financial institutions, the reporting requirements in the final rule will be limited to banks as proposed.
As FinCEN collects and assesses the information required under this rule, we will continue to consider whether expanding the scope of this rule to include other domestic financial institutions would provide additional useful information as it relates to CISADA. If that is determined to be the case, FinCEN will consider proposing an expansion of this reporting requirement to include other domestic financial institutions.
One commenter requested clarification that the rule will only apply to depository institutions and not to non-depository institutions, even if the two may be within the same bank holding company structure. Another commenter requested clarification regarding whether this rule would apply to U.S. branches of foreign banks. FinCEN clarifies that this rule will only apply to banks as defined in 31 CFR 1010.100(d), and will not apply to any other type of non-bank financial institution that may fall within the same bank holding company structure. In addition, U.S. branches of foreign banks are included within the definition of “bank” in 31 CFR 1010.100(d).
For the purpose of this rule, the term “correspondent account” is defined in 31 CFR 1010.605(c)(1)(ii) and means an account established for a foreign bank to receive deposits from, or to make payments or other disbursements on behalf of, the foreign bank, or to handle other financial transactions related to such foreign bank.
Three commenters requested clarification regarding the scope of accounts that are included within the breadth of the definition of the term correspondent account. The definition of correspondent account that is included within this rule is the same definition of correspondent account as in 31 CFR 1010.610—Due diligence programs for correspondent accounts for foreign financial institutions. The same scope of accounts included within the requirements of 31 CFR 1010.610 are included within the requirements of this rulemaking, except that the term only applies to such accounts maintained by any bank for any foreign bank.
For the purpose of this rulemaking the term “foreign bank” is defined in 31 CFR 1010.100(u) and means a bank organized under foreign law, or an agency, branch, or office located outside the United States of a bank. The term does not include an agent, agency, branch, or office within the United States of a bank organized under foreign law.
FinCEN proposed to limit the reporting requirement in this rulemaking to information pertaining to the activities of foreign banks, as opposed to the activities of all foreign financial institutions that could fall within the scope of this rule. FinCEN requested comment as to whether this rulemaking should be expanded to include information pertaining to the activities of other types of foreign financial institutions, such as those included in FinCEN's definition of “foreign financial institution,”
As explained in the Notice, FinCEN has determined that limiting the reporting requirement in this rule to information pertaining to the activities of foreign banks will provide useful information as it relates to CISADA, while limiting the obligations of the financial industry. Although there are other foreign financial institutions that maintain correspondent accounts with U.S. financial institutions that could provide useful information with respect to CISADA-relevant activities, this rule focuses on those foreign financial institutions deemed to receive the services most traditionally associated with correspondent banking.
Two trade associations commented on this aspect of the rule. The commenters asserted that limiting the scope of the rule to inquiries regarding foreign banks was appropriate. FinCEN did not receive any comments that provided justification for expanding this reporting requirement to include information pertaining to the activities of other foreign financial institutions. Based on the comments received, and FinCEN's prior statements regarding the scope of affected foreign financial institutions, the reporting requirements in the final rule will be limited to foreign banks as proposed.
As FinCEN collects and assesses the information required under this rule, we will continue to consider whether expanding the scope of this rule to include information pertaining to the activities of other foreign financial institutions would provide additional useful information as it relates to CISADA. If that is determined to be the
One commenter asked that FinCEN clarify that the definition of foreign bank excludes U.S. representative offices of foreign banks. The commenter also asked for clarification regarding whether subsidiaries or branches of a single bank operating in different countries are one foreign bank or separate foreign banks for the purpose of a CISADA request. For purposes of this rulemaking, U.S. representative offices are not included within our definition of foreign bank at 31 CFR 1010.100(u), which excludes offices within the United States of a bank organized under foreign law. Although representative offices cannot offer banking services in the United States, they nevertheless are offices of banks organized under foreign law, and therefore are not foreign banks for purposes of the BSA rules. FinCEN will only be sending requests to banks that it knows or believes maintain a correspondent account for the specific foreign bank, specific foreign bank branch, or specific foreign bank subsidiary at issue. This means that the extent of the inquiry will be specific to the correspondent account about which a request is made. In the case of a foreign bank subsidiary, FinCEN would only be requesting information regarding a foreign bank subsidiary if that subsidiary is itself a foreign bank.
For the purpose of this rule the term “Iranian-linked financial institution designated under IEEPA” means a financial institution designated by the United States Government pursuant to IEEPA (or listed in an annex to an Executive order issued pursuant to such Act) in connection with Iran's proliferation of weapons of mass destruction or delivery systems for weapons of mass destruction, or in connection with Iran's support for international terrorism.
For the purpose of this rule the term “IRGC-linked person designated under IEEPA” means Iran's Islamic Revolutionary Guard Corps or any of its agents or affiliates designated by the United States Government pursuant to IEEPA (or listed in an annex to an Executive order issued pursuant to such Act).
The names of persons whose property and interests in property are blocked pursuant to IEEPA are published on OFAC's Specially Designated Nationals and Blocked Persons List (“SDN List”). Iranian-linked financial institutions designated under IEEPA are those whose property and interests in property are blocked pursuant to 31 CFR part 544 or 31 CFR part 594 in connection with Iran's proliferation of weapons of mass destruction or delivery systems for weapons of mass destruction or Iran's support for international terrorism and are identified by “[IFSR]” tags located at the end of their entries on the SDN List (
This section describes a bank's duty to inquire of a specified foreign bank for which the bank maintains a correspondent account, as to whether such foreign bank maintains a correspondent account for an Iranian-linked financial institution designated under IEEPA, and/or has processed one or more transfers of funds within the preceding 90 calendar days for or on behalf of, directly or indirectly, an Iranian-linked financial institution or an IRGC-linked person designated under IEEPA. Upon receiving a written request from FinCEN, a bank that maintains a correspondent account for a specified foreign bank shall inquire of such foreign bank for the purpose of having such foreign bank certify: (1) Whether it maintains a correspondent account for an Iranian-linked financial institution designated under IEEPA; (2) whether it has processed one or more transfers of funds within the preceding 90 calendar days for or on behalf of, directly or indirectly, an Iranian-linked financial institution designated under IEEPA, other than through a correspondent account; and (3) whether it has processed one or more transfers of funds within the preceding 90 calendar days for or on behalf of, directly or indirectly, an IRGC-linked person designated under IEEPA. In addition, when the bank makes its inquiry, the bank shall request that the foreign bank agree to notify the bank if the foreign bank subsequently establishes a new correspondent account for an Iranian-linked financial institution designated under IEEPA at any time within 365 calendar days from the date of the foreign bank's initial response.
The language in this section of the final rule is substantially the same as proposed. However, for purposes of providing additional clarity as requested by commenters, FinCEN modified the final rule language in the following way: “for or on behalf of, directly or indirectly,” replaced “related to.”
To assist a bank in obtaining the required information from a specified foreign bank, FinCEN proposed a model certification format for a bank to provide to a specified foreign bank when the bank makes its inquiry regarding whether the specified foreign bank maintains a correspondent account for an Iranian-linked financial institution designated under IEEPA, and/or has processed one or more transfers of funds within the preceding 90 calendar days for or on behalf of, directly or indirectly, an Iranian-linked financial institution or an IRGC-linked person designated under IEEPA. The model certification will not appear in the Code of Federal Regulations (“CFR”); however, it is included at Appendix A to this
As part of the model certification, the foreign bank is asked to agree to notify, in writing, the bank at which it maintains a correspondent account if the foreign bank establishes a new correspondent account for an Iranian-linked financial institution designated under IEEPA at any time within 365 calendar days from the date of the foreign bank's response. The model certification sets forth the expectation that the notification shall be due to the bank within 30 calendar days of the establishment of the new correspondent account. If a bank does not utilize the model certification, the bank will need to request separately that the foreign bank provide such information with respect to the establishment of a new correspondent account for an Iranian-linked financial institution designated under IEEPA.
This section describes the filing procedures a bank shall follow to report to FinCEN information required by this rule. Upon receiving a written request from FinCEN, a bank is required to report to FinCEN, in such format and manner as may be prescribed by FinCEN, the following information for any specified foreign bank:
• The name of any specified foreign bank, for which the bank maintains a correspondent account, that certifies that it maintains a correspondent account for an Iranian-linked financial institution designated under IEEPA, together with the name of the Iranian-linked financial institution designated under IEEPA, the full name(s) on the correspondent account and the correspondent account number(s), applicable information regarding whether the correspondent account has been blocked or otherwise restricted, other applicable identifying information for the correspondent account, and the approximate value in U.S. dollars (“USD”) of transactions processed through the correspondent account within the preceding 90 calendar days;
• The name of any specified foreign bank, for which the bank maintains a correspondent account, that certifies that it has processed one or more transfers of funds within the preceding 90 calendar days for or on behalf of, directly or indirectly, an Iranian-linked financial institution designated under IEEPA, other than through a correspondent account, together with the name of the Iranian-linked financial institution designated under IEEPA, the identity of the system or means by which such transfer(s) of funds was processed, the full name on the account(s) and the account number(s), if applicable, other applicable identifying information for such transfer(s) of funds, and the approximate value in USD of such transfer(s) of funds processed within the preceding 90 calendar days;
• The name of any specified foreign bank, for which the bank maintains a correspondent account, that certifies that it has processed one or more transfers of funds within the preceding 90 calendar days for or on behalf of, directly or indirectly, an IRGC-linked person designated under IEEPA, together with the name of the IRGC-linked person designated under IEEPA, the identity of the system or means by which such transfer(s) of funds was processed, the full name on the account(s) and the account number(s), if applicable, other applicable identifying information for such transfer(s) of funds, and the approximate value in USD of such transfer(s) of funds processed within the preceding 90 calendar days;
• The name of any specified foreign bank, for which the bank maintains a correspondent account, that certifies that it does not maintain a correspondent account for an Iranian-linked financial institution designated under IEEPA, that certifies that to its knowledge it has not processed one or more transfers of funds within the preceding 90 calendar days for or on behalf of, directly or indirectly, an Iranian-linked financial institution designated under IEEPA, other than through a correspondent account, and/or that certifies that to its knowledge it has not processed one or more transfers of funds within the preceding 90 calendar days for or on behalf of, directly or indirectly, an IRGC-linked person designated under IEEPA;
• The name of any specified foreign bank, for which the bank maintains a correspondent account, that the bank cannot determine does not maintain a correspondent account for an Iranian-linked financial institution designated under IEEPA, has not processed one or more transfers of funds within the preceding 90 calendar days for or on behalf of, directly or indirectly, an Iranian-linked financial institution designated under IEEPA, other than through a correspondent account, and/or has not processed one or more transfers of funds within the preceding 90 calendar days for or on behalf of, directly or indirectly, an IRGC-linked person designated under IEEPA, together with the reason(s) for this, such as the failure of the foreign bank to respond to the inquiry by or a request from the bank, the failure of the foreign bank to certify its response, or if the bank has information that is inconsistent with the certification;
• The name of any specified foreign bank, for which the bank maintains a correspondent account, that notifies the bank that it has established a new correspondent account for an Iranian-linked financial institution designated under IEEPA at any time within 365 calendar days from the date of the foreign bank's initial response, together with the name of the Iranian-linked financial institution designated under IEEPA, the full name(s) on the correspondent account and the correspondent account number(s), applicable information regarding whether the correspondent account has been blocked or otherwise restricted, and other applicable identifying information for the correspondent account;
• If applicable, confirmation that the bank does not maintain a correspondent account for the specified foreign bank(s), but only in instances in which FinCEN specifically requests that the bank report such information; and
• If applicable, the name of any specified foreign bank, for which the bank maintains a correspondent account, that provides a certification to the bank after the 45 calendar day deadline, along with all applicable related information associated with that certification.
The language in this section of the final rule is substantially the same as proposed. However, for purposes of providing additional clarity as requested by commenters, FinCEN modified the final rule language in the following ways: “for or on behalf of, directly or indirectly,” replaced “related to;”
FinCEN also incorporated the phrase “to its knowledge” into the reporting requirement that upon receiving a written request from FinCEN, a bank shall report to FinCEN, in such format and manner as may be prescribed by FinCEN, the following information for any specified foreign bank the name of any specified foreign bank, for which the bank maintains a correspondent account, that certifies that it does not maintain a correspondent account for an Iranian-linked financial institution designated under IEEPA, that certifies that
In addition, FinCEN added the following reporting requirement in the final rule in order to provide additional clarity as requested by commenters: Upon receiving a written request from FinCEN, a bank shall report to FinCEN, in such format and manner as may be prescribed by FinCEN, the following information for any specified foreign bank, if applicable, the name of any specified foreign bank, for which the bank maintains a correspondent account, that provides a certification to the bank after the 45-calendar-day deadline, along with all applicable related information associated with that certification.”
If a bank utilizes the model certification to inquire of a specified foreign bank, the bank can submit the certification from the specified foreign bank to FinCEN in order to comply with this reporting requirement. If a bank does not utilize the model certification to inquire of a specified foreign bank, the bank shall report to FinCEN, in such format and manner as may be prescribed by FinCEN, the information required by this rule.
If a specified foreign bank, for which the bank maintains a correspondent account, does not adequately respond to the bank's inquiry, the bank shall report to FinCEN, in such format and manner as may be prescribed by FinCEN, the information required by this rule. If a bank receives a notification from a specified foreign bank regarding the establishment of a new correspondent account for an Iranian-linked financial institution designated under IEEPA, the bank shall report to FinCEN, in such format and manner as may be prescribed by FinCEN, the information required by this rule. If a bank receives a certification from a specified foreign bank after the 45-calendar-day deadline, the bank shall report to FinCEN, in such format and manner as may be prescribed by FinCEN, the information required by this rule.
If a bank receives a written request from FinCEN regarding a specified foreign bank, for which the bank does not maintain a correspondent account, and FinCEN has specifically requested that the bank report instances in which the bank does not maintain a correspondent account for such specified foreign bank, the bank shall report this information to FinCEN, in such format and manner as may be prescribed by FinCEN.
A bank is required to report the information required by this rule to FinCEN within 45 calendar days of the date of the written request from FinCEN. If a bank receives notification from a foreign bank that the foreign bank has established a new correspondent account for an Iranian-linked financial institution designated under IEEPA, the bank is required to report the information required by this rule within 10 calendar days of receiving that notification. If a bank receives a certification from a foreign bank after the 45-calendar-day deadline, the bank is required to report the information required by this rule within 10 calendar days of receiving that certification.
The language in this section of the final rule is substantially the same as proposed. However, for purposes of providing relief as requested by commenters, FinCEN modified the final rule language in the following way: 45 calendar days replaced 30 calendar days.
In addition, FinCEN added a 10-calendar-day deadline for a bank to report if it receives a certification from a foreign bank after the 45-calendar-day deadline. This corresponds with the following reporting requirement added to the final rule: Upon receiving a written request from FinCEN, a bank shall report to FinCEN, in such format and manner as may be prescribed by FinCEN, the following information for any specified foreign bank, if applicable, the name of any specified foreign bank, for which the bank maintains a correspondent account, that provides a certification to the bank after the 45-calendar-day deadline, along with all applicable related information associated with that certification.”
This section describes the recordkeeping requirements applicable to this rule. A bank shall maintain for a period of five years a copy of any report filed and the original or any business record equivalent of any supporting documentation for a report, including a foreign bank certification or other responses to an inquiry under this rule. This section of the final rule is being adopted as proposed.
Paragraph (e) states that “[n]othing in this section shall be construed to require a bank to take any action, or to decline to take any action, other than the requirements identified in this section, with respect to an account established for, or a transaction engaged in with, a foreign bank. However, nothing in this section relieves a bank of any other applicable regulatory obligation.” While this paragraph clarifies that the section does not require a bank to take any steps with respect to the foreign bank other than those relating to the collection of information outlined in this section, it also clarifies that this section does not preclude a bank from taking any other action, including restricting or terminating a correspondent account relationship with a foreign bank, or filing a suspicious activity report, based on the bank's assessment of the facts and bank policy. However, a bank is not required to restrict or terminate a correspondent account relationship with a foreign bank, or to file a suspicious activity report, based solely upon the fact that the bank: (i) Has received a request for information under
Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. It has been determined that the final rule is designated a “significant regulatory action” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.
Section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), Public Law 104-4 (March 22, 1995), requires that an agency prepare a budgetary impact statement before promulgating a rule that may result in expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule. FinCEN has determined that it is not required to prepare a written statement under section 202.
Pursuant to the Regulatory Flexibility Act (“RFA”) (5 U.S.C. 601
FinCEN invited comment on the impact of this proposal on small entities. One commenter suggested that FinCEN provided no data to support the conclusion that the regulation would not have a significant economic impact on a substantial number of small entities. However, no other commenters expressed concern that this rule would have a significant economic impact on a substantial number of small entities. The rule applies to banks that maintain correspondent accounts for foreign banks. As stated above, and in our previous rules regarding foreign correspondent accounts, we believe most banks that maintain correspondent accounts for foreign banks are large banks. In addition, as noted elsewhere in this rulemaking, FinCEN estimates that approximately 350 banks maintain correspondent accounts for foreign banks. FinCEN further estimates that on average approximately five percent of banks that maintain correspondent accounts for foreign banks will have an account with any one specific foreign bank about which FinCEN is requesting information. Furthermore, as noted elsewhere in this rulemaking, a bank will only be required to comply with this reporting requirement upon receiving a specific written request from FinCEN. Therefore, a substantial number of small entities would not be affected. Accordingly, a regulatory flexibility analysis is not required.
The collection of information contained in this rule has been approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1506-0066. Under the Paperwork Reduction Act, an agency may not conduct or sponsor, and an individual is not required to respond to, a collection of information unless it displays a valid OMB control number.
The collection of information in this rule is in 31 CFR 1060.300. The information may be transmitted to one or more departments or agencies of the United States of America for the purpose of fulfilling such departments' and agencies' governmental functions. The collection of information is mandatory. FinCEN is issuing this final rule that will require a bank to report to FinCEN, upon request, certain information regarding certain foreign banks specified by FinCEN.
FinCEN estimates that approximately 350 banks maintain correspondent accounts for foreign banks.
The scope of any request may be with respect to one foreign bank or a number of foreign banks (for example, a number of foreign banks operating in the same jurisdiction). FinCEN believes that regardless of the number of requests transmitted, such requests will pertain to approximately 50 foreign banks in any given year.
A bank will only be required to comply with the requirements of this rule if the bank receives a written request from FinCEN. As noted above, FinCEN estimates that on average approximately five percent of the banks that maintain correspondent accounts for foreign banks,
Each time a bank receives a request from FinCEN regarding a specific foreign bank for which it maintains a correspondent account, it will incur a reporting burden associated with section 1060.300(b) (inquiry); a reporting burden associated with section 1060.300(c) (reporting); and a recordkeeping burden associated with section 1060.300(d) (record retention).
The estimated average reporting burden associated with section 1060.300(b) for one request from FinCEN is one hour per responding U.S. bank with respect to each specific foreign bank about which FinCEN is requesting information. The estimated average reporting burden associated with section 1060.300(c) for one request from FinCEN is one hour per bank. The estimated average recordkeeping burden associated with section 1060.300(d) for one request from FinCEN is one hour per bank. This results in a total estimated average burden of three hours per bank with respect to each foreign bank about which FinCEN is requesting information. In the unlikely scenario in which the same bank were required to respond to FinCEN with respect to each foreign bank about which FinCEN is seeking information in any given year, the estimated annual burden hours would be 150. FinCEN believes that even with respect to the banks that are most active in the provision of correspondent accounts to foreign banks, they are likely to be required to respond to FinCEN with respect to one fifth of the foreign banks about which FinCEN is seeking information, which corresponds to roughly 30 burden hours per year based on the above calculations.
In certain instances FinCEN may request that if a bank receives a written request from FinCEN regarding a specified foreign bank, and the bank does not maintain a correspondent account for such specified foreign bank, the bank report this information to FinCEN. As noted above, FinCEN intends to send requests to banks that FinCEN is aware have a correspondent account for a specified foreign bank as often as possible. In instances in which FinCEN is not aware of which banks maintain a correspondent account for a specified foreign bank, FinCEN may send requests to those banks FinCEN believes might have a correspondent account for a specified foreign bank.
In instances in which FinCEN is sending a request to a small number of banks that FinCEN believes might maintain a correspondent account for a specified foreign bank, FinCEN may request, in the written request sent to those banks, that the banks that do not maintain a correspondent account for the specified foreign bank report such information to FinCEN. FinCEN believes that we will rarely be sending a request to a large number of banks that we are not certain maintain a correspondent account for the specified foreign bank for which we are requesting information. In those rare cases, FinCEN would most likely not ask those banks to report if they do not maintain a correspondent account for such foreign bank. One commenter noted support for this element of the proposal. The commenter asserted that barring significant need, asking for a written negative confirmation should be unnecessary because banks are subject to extensive supervision and the banking agencies should be able to assess appropriate compliance.
FinCEN believes that the estimated average reporting burden for a bank to report to FinCEN that it does not maintain a correspondent account for the foreign bank specified in a request from FinCEN will be approximately 30 minutes per request. FinCEN also estimates that across the 50 requests FinCEN anticipates making annually, on average two to five banks will receive a request from FinCEN regarding a foreign bank for which they do not maintain a correspondent account, and for which FinCEN requests that they report such information. This means that approximately 250 banks will be required to report that they do not maintain a correspondent account for a foreign bank specified in a request from FinCEN in any given year. This also means that approximately 125 estimated annual burden hours will be expended each year. FinCEN also estimates that no single bank will receive a request from FinCEN more than two times per year regarding a specified foreign bank for which it does not maintain a correspondent account, and for which FinCEN requests that it report such information. This corresponds to roughly one estimated average annual burden hour per bank.
Approximately 900 CISADA-related reports anticipated each year (provided by a varying number of banks) multiplied by three burden hours per report. (2700 total annual burden hours). Approximately 250 reports from banks that do not maintain a correspondent account with a specified foreign bank (provided by a varying number of banks) multiplied by 30 minutes of burden per report. (125 total annual burden hours).
In the Notice, FinCEN specifically requested comment concerning the following:
(a) Whether the proposed collection of information is necessary for the proper performance of the functions of FinCEN,
FinCEN received no specific comments regarding this request.
(b) The accuracy of the estimated burden associated with the proposed collection of information.
One commenter questioned the estimate that of the approximately 350 banks that maintain correspondent accounts for foreign banks, only five percent are likely to have an account affected by any single written request from FinCEN. The commenter contended that there is nothing provided to support the five percent estimate. As noted above, in order to reduce the number of affected financial institutions, when possible, FinCEN will rely on information available to help limit the number of banks requested to provide information with respect to the foreign banks that are the subject of specific requests. The number of banks that receive a request may vary in each specific case, based on the availability of information to FinCEN and other circumstances. This means that although FinCEN has the discretion to send a request to every U.S. bank that maintains a correspondent account for a specific foreign bank, in circumstances in which we feel it is appropriate, we may choose to only send a request to some of the U.S. banks that maintain a correspondent account for a specific foreign bank. For this reason, we can reasonably estimate that on average approximately five percent of banks that maintain correspondent accounts for foreign banks will have an account with the any one specific foreign bank about which FinCEN is requesting information.
The commenter also noted that FinCEN estimates the impact of a request about a specific foreign bank will require no more than three hours for a U.S. bank to comply. The commenter noted that although there is no way to verify these estimates, it believes that this rule has the potential to be burdensome and complex. In order to manage the burden of this reporting requirement, FinCEN has proposed a model certification for a bank to utilize in order to inquire of a foreign bank. The model certification includes language identifying the purpose for which the bank is requesting information from the foreign bank. In addition, the model certification defines the key terms applicable to this reporting request. The model certification clearly outlines the information a foreign bank is requested to report and provides links to the list of relevant designated entities and individuals on which a foreign bank is requested to report. As suggested by the commenter, FinCEN will track and consider reporting on the effectiveness of the reporting mechanism.
The commenter also suggested that the regulatory burden estimates are inadequate and do not seem to be a good faith effort to fulfill requirements to assess adequately the regulatory burden. However the commenter did not provide any alternative burden estimates. In addition, FinCEN did not receive any other comments which raised concerns regarding the adequacy of the burden estimates.
Based on two comments received, FinCEN clarifies that in evaluating the effect of this rule on banks, we estimated that approximately 18 U.S. banks would be required to file reports with FinCEN for each request regarding a single foreign bank. We reached this estimate based on the following calculation: FinCEN estimates that 350 U.S. banks maintain correspondent accounts for foreign banks, and approximately five percent of the U.S. banks that maintain correspondent accounts for foreign banks will have a correspondent account with any given foreign bank about which FinCEN is requesting information. Five percent of 350 is 18 (rounded up). In any given request, the actual number of U.S. banks that would be required to report will, of course, vary.
(c) How the quality, utility, and clarity of the information to be collected may be enhanced.
FinCEN received various comments regarding clarification associated with the collection of information. Those comments are addressed throughout the preamble of this rulemaking.
(d) How the burden of complying with the proposed collection of information may be minimized, including through the application of automated collection techniques or other forms of information technology.
One commenter requested that FinCEN utilize e-filing to collect the required information from banks. At this time, FinCEN cannot utilize e-filing for this collection of information. This is something we may consider in the future. FinCEN will prescribe the format and manner in which information will be collected from banks in the requests FinCEN sends to those banks.
Publication of a substantive rule not less than 30 days before its effective date is required by the Administrative Procedure Act except as otherwise provided by the agency for good cause.
In finding good cause, FinCEN considered the possible effect of providing less than 30 days notice to affected persons. FinCEN determined that immediate implementation would not unfairly burden these persons because, as explained above, U.S. banks will only be required to report to FinCEN upon receiving a specific written request from FinCEN. As also noted above, FinCEN will only request reports from those U.S. banks that maintain correspondent accounts for the specific foreign banks that are of interest for purposes of CISADA implementation, and as a result we believe that we will receive the information needed without generating a multitude of unnecessary and uninformative reports.
Banks, Banking, Counter-terrorism, Foreign banking, Reporting and recordkeeping requirements, Terrorism.
For the reasons set forth above, 31 CFR part 1060 is added to read as follows:
Pub. L. 111-195, 124 Stat. 1312.
(a)
(1) Upon receiving a written request from FinCEN, a bank (as defined in 31 CFR 1010.100(d)) that maintains a correspondent account (as defined in 31 CFR 1010.605(c)(1)(ii)) for a specified foreign bank (as defined in 31 CFR 1010.100(u)) shall inquire of the foreign bank, and report to FinCEN, with respect to any correspondent account maintained by such foreign bank for an Iranian-linked financial institution designated under IEEPA; any transfer of funds for or on behalf of, directly or indirectly, an Iranian-linked financial institution designated under IEEPA processed by such foreign bank within the preceding 90 calendar days, other than through a correspondent account; and any transfer of funds for or on behalf of, directly or indirectly, an IRGC-linked person designated under IEEPA processed by such foreign bank within the preceding 90 calendar days.
(2) For the purposes of this section, an “Iranian-linked financial institution designated under IEEPA” means a financial institution designated by the United States Government pursuant to the International Emergency Economic Powers Act (or listed in an annex to an Executive order issued pursuant to such Act) in connection with Iran's proliferation of weapons of mass destruction or delivery systems for weapons of mass destruction, or in connection with Iran's support for international terrorism. For the purposes of this section, an “IRGC-linked person designated under IEEPA” means Iran's Islamic Revolutionary Guard Corps or
Section 104(c) of the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (“CISADA”), Public Law 111-195, 124 Stat. 1312, provides the Secretary of the Treasury with authority to prohibit, or impose strict conditions on, the opening or maintaining in the United States of a correspondent account or a payable-through account by a foreign financial institution that the Secretary finds knowingly engages in certain specified activities. Those specified activities include facilitating a significant transaction or transactions or providing significant financial services for a financial institution whose property or interests in property are blocked pursuant to the International Emergency Economic Powers Act (50 U.S.C. 1701
(b)
(c)
(1)
(i) The name of any specified foreign bank, for which the bank maintains a correspondent account, that certifies that it maintains a correspondent account for an Iranian-linked financial institution designated under IEEPA, and the following related information:
(A) The name of the Iranian-linked financial institution designated under IEEPA;
(B) The full name(s) on the correspondent account and the correspondent account number(s);
(C) Applicable information regarding whether the correspondent account has been blocked or otherwise restricted;
(D) Other applicable identifying information for the correspondent account; and
(E) The approximate value in U.S. dollars of transactions processed through the correspondent account within the preceding 90 calendar days;
(ii) The name of any specified foreign bank, for which the bank maintains a correspondent account, that certifies that it has processed one or more transfers of funds within the preceding 90 calendar days for or on behalf of, directly or indirectly, an Iranian-linked financial institution designated under IEEPA, other than through a correspondent account, and the following related information:
(A) The name of the Iranian-linked financial institution designated under IEEPA;
(B) The identity of the system or means by which such transfer(s) of funds was processed;
(C) The full name on the account(s) and the account number(s), if applicable;
(D) Other applicable identifying information for such transfer(s) of funds; and
(E) The approximate value in U.S. dollars of such transfer(s) of funds processed within the preceding 90 calendar days;
(iii) The name of any specified foreign bank, for which the bank maintains a correspondent account, that certifies that it has processed one or more transfers of funds within the preceding 90 calendar days for or on behalf of, directly or indirectly, an IRGC-linked person designated under IEEPA, and the following related information:
(A) The name of the IRGC-linked person designated under IEEPA;
(B) The identity of the system or means by which such transfer(s) of funds was processed;
(C) The full name on the account(s) and the account number(s), if applicable;
(D) Other applicable identifying information for such transfer(s) of funds; and
(E) The approximate value in U.S. dollars of such transfer(s) of funds processed within the preceding 90 calendar days;
(iv) The name of any specified foreign bank, for which the bank maintains a correspondent account, that certifies that it does not maintain a correspondent account for an Iranian-linked financial institution designated under IEEPA, that certifies that to its knowledge it has not processed one or more transfers of funds within the preceding 90 calendar days for or on behalf of, directly or indirectly, an Iranian-linked financial institution designated under IEEPA, other than through a correspondent account, and/
(v) The name of any specified foreign bank, for which the bank maintains a correspondent account, that the bank cannot determine does not maintain a correspondent account for an Iranian-linked financial institution designated under IEEPA, has not processed one or more transfers of funds within the preceding 90 calendar days for or on behalf of, directly or indirectly, an Iranian-linked financial institution designated under IEEPA, other than through a correspondent account, and/or has not processed one or more transfers of funds within the preceding 90 calendar days for or on behalf of, directly or indirectly, an IRGC-linked person designated under IEEPA, together with the reason(s) for this, such as the failure of the foreign bank to respond to the inquiry by or a request from the bank, the failure of the foreign bank to certify its response, or if the bank has information that is inconsistent with the certification;
(vi) The name of any specified foreign bank, for which the bank maintains a correspondent account, that notifies the bank that it has established a new correspondent account for an Iranian-linked financial institution designated under IEEPA at any time within 365 calendar days from the date of the foreign bank's initial response, and the following related information:
(A) The name of the Iranian-linked financial institution designated under IEEPA;
(B) The full name(s) on the correspondent account and the correspondent account number(s);
(C) Applicable information regarding whether the correspondent account has been blocked or otherwise restricted; and
(D) Other applicable identifying information for the correspondent account;
(vii) If applicable, confirmation that the bank does not maintain a correspondent account for the specified foreign bank(s), but only in instances in which FinCEN specifically requests that the bank report such information; and
(viii) If applicable, the name of any specified foreign bank, for which the bank maintains a correspondent account, that provides a certification to the bank after the 45-calendar-day deadline, along with all applicable related information associated with that certification.
(2)
(ii) Reports based on subsequent notifications received from a foreign bank regarding the establishment of a new correspondent account for an Iranian-linked financial institution designated under IEEPA shall be due within 10 calendar days of receipt of the notification.
(iii) Reports based on certifications received from a foreign bank after the 45 calendar day deadline shall be due within 10 calendar days of receipt of the certification.
(d)
(e)
A person violating any requirement under this part is subject to the penalties provided for in sections 5321(a) and 5322 of title 31, United States Code, in the same manner and to the same extent as such penalties would apply to any person that is otherwise subject to such section 5321(a) or 5322.
Central Intelligence Agency.
Final rule.
The Central Intelligence agency is removing certain information security regulations which have become outdated. The Executive Order upon which the regulations are based has been superseded, and the regulations are no longer needed.
Effective October 11, 2011.
Joseph W. Lambert, (703) 613-1379.
Under the authority of Executive Order 13526, the CIA is removing and reserving 32 CFR part 1902. This part relies on authority that is no longer in force and established criteria and procedures that are superseded by Executive Order 13526. This rule is being issued as final rule without prior notice of proposed rulemaking as allowed by the Administrative Procedures Act, 5 U.S.C. 533(b)(3)(A) for rules of agency procedure and interpretation and Section 6 of the CIA Act as amended, 50 U.S.C. 403g.
Information security regulations.
United States Army Corps of Engineers, Department of Defense.
Final rule.
The U.S. Army Corps of Engineers (Corps) is amending its regulations by modifying two existing danger zones that are located adjacent to the rifle range and pistol range at the U.S. Marine Corps Recruit Depot Parris Island in Beaufort County, South Carolina. The amendments include reformatting the regulations for clarity, modifying the boundaries of both danger zones, and modifying the hours of range operations from 6:30 a.m. to 5 p.m. to 6 a.m. to 5 p.m. Monday through Friday. These amendments will enhance the ability of the U.S. Marine Corps to provide for the safe operation of the existing rifle and pistol ranges.
U.S. Army Corps of Engineers, Attn: CECW-CO (David B. Olson), 441 G Street NW., Washington, DC 20314-1000.
Mr. David B. Olson, Headquarters, Operations and Regulatory Community of Practice, Washington, DC at 202-761-4922 or Mr. Nathaniel I. Ball, U.S. Army Corps of Engineers, Charleston District, Regulatory Division, at 843-329-8047.
Pursuant to its authorities in Section 7 of the Rivers and Harbors Act of 1917 (40 Stat 266; 33 U.S.C. 1) and chapter XIX of the Army Appropriations Act of 1919 (40 Stat 892; 33 U.S.C. 3) the Corps is amending the regulations at 33 CFR part 334 to provide for the safe operation of the existing rifle and pistol ranges at the U.S. Marine Corps Recruit Depot Parris Island. The modifications to the regulations are described below.
The modifications include reformatting the regulations to describe the areas, the regulations, and enforcement. This format is consistent with other danger zone regulations and provides greater clarity. The boundaries of both danger zones have been modified to incorporate modern methods of measuring ballistic footprints and design criteria for range construction. Since these changes to the boundaries of the areas are relatively minor, the existing live fire warning signs will continue to be used to ensure safe navigation in the vicinity of the rifle and pistol ranges.
These regulations allow the Commanding General, U.S. Marine Corps Recruit Depot Parris Island to restrict passage of persons, vessels and other watercraft in navigable waters adjacent to the existing rifle range and pistol range between the hours of 6 a.m. and 5 p.m. Monday through Friday, and from 6 a.m. to 12 p.m. on Saturdays, National holidays excepted, and at other times as designated and properly published by the U.S. Marine Corps Recruit Depot Parris Island. The public will continue to be able to use these portions of Archers Creek, Ribbon Creek, and the Broad River when the rifle and pistol ranges are not in use.
The proposed rule was published in the June 17, 2011, edition of the
a.
b.
c.
d.
Danger zones, Navigation (water), Restricted areas, Waterways.
For the reasons set out in the preamble, the Corps amends 33 CFR Part 334 as follows:
40 Stat. 266 (33 U.S.C. 1) and 40 Stat. 892 (33 U.S.C. 3).
(a)
(2) The danger zone on the Broad River shall encompass all navigable waters of the United States, as defined at 33 CFR part 329, adjacent to the existing pistol range. This area is bounded by a line connecting the following coordinates: Commencing from the shoreline at the easternmost portion of the area, at latitude 32°19′36″ N, longitude 80°42′34″ W, thence to a point at latitude 32°19′23″ N, longitude 80°42′50″ W, thence to a point at latitude 32°19′06″ N, longitude 80°43′31″ W, thence to a point at latitude 32°19′28″ N, longitude 80°43′54″ W, thence to a point at latitude 32°19′59″ N, longitude 80°43′28″ W, thence to a point on the shoreline at latitude 32°20′10″ N, longitude 80°43′10″ W, and thence follow the mean high water line southeasterly approximately 0.75 nautical miles to terminate at the easternmost portion of the area (the starting point).
(b)
(2) Firing over these ranges will normally take place between the hours of 6 a.m. and 5 p.m., Monday through Friday, and from 6 a.m. to 12 p.m. on Saturday, National holidays excepted, and at other times as designated and properly published by the Commanding General, U.S. Marine Corps Recruit Depot Parris Island.
(3) Warning signs indicating the periods when the rifle range is in use will be posted by the entrances to Archers Creek and Ribbon Creek. In addition, warning signs will be placed along the shoreline on the Broad River near the upstream and downstream boundaries of both the rifle range and the pistol range.
(4) Warning flags shall be flown from the top of the lookout tower and on the rifle range and pistol range during actual firing. In addition, a sentry lookout will be on duty during actual firing and a patrol boat will be accessible for clearing the area and warning all approaching vessels of the danger zone and the schedule of firing.
(5) During storms or similar emergencies these areas shall be opened to vessels to reach safety without undue delay for the preservation of life and property.
(c)
National Archives and Records Administration.
Final rule.
The National Archives and Records Administration (NARA) is changing its regulations to add the methodology for creating and changing records reproduction fees, to remove records reproduction fees found in its regulations, and to provide a notification process for the public of new or proposed fees. This final rule covers reproduction of Federal or Presidential records accessioned, donated, or transferred to NARA. Note that there are no proposed changes to fees at any NARA facility at this time.
This rule is effective November 10, 2011.
Stuart Culy on (301) 837-0970.
On July 22, 2011, NARA published a proposed rule in the
This final rule is not a significant regulatory action for the purposes of Executive Order 12866 and has not been reviewed by the Office of Management and Budget. As required by the Regulatory Flexibility Act, I certify that this rule will not have a significant impact on a substantial number of small entities because it affects Federal agencies and individual researchers. This regulation does not have any federalism implications.
Archives and records.
44 U.S.C. 2116(c) and 44 U.S.C. 2307.
(a) 44 U.S.C. 2116(c) allows the NATF to recover all of its costs for providing records reproduction services to the public. The vast majority of materials that are reproduced are from the holdings of NARA, which require special handling, due to the age, condition and historical significance. Examples of special handling include the following:
(1)
(2)
(3)
(b) The NATF costs, at a minimum, include:
(1) Salaries and benefits of the NATF staff involved in all aspects of the records reproduction process (includes, but is not limited to, compensation for full- and part-time employees, temporary appointments, overtime, awards, Civil Service Retirement Service and Federal Employees' Retirement System contributions, health benefits, life insurance benefits and Thrift Savings Plan contributions).
(2) Travel and transportation (includes, but is not limited to, travel and transportation of persons, transportation of things, and contract mail service).
(3) Rent, communications and utilities (includes, but is not limited to, telecommunications, equipment rental, and postage).
(4) Printing and reproductions (includes, but is not limited to, commercial printing, advertising, and printing of forms).
(5) Consulting and other services (includes, but is not limited to, management and professional services, contract labor, work performed in support of reproduction orders, and maintenance of equipment).
(6) Payments to other agencies/funds (includes, but is not limited to, reimbursements and payments to other agencies and other funds within NARA). Specifically, the NATF “hires” the NARA custodial units to do reproduction work. In return, the NATF reimburses the custodial units for the cost of salaries and benefits.
(7) Supplies and materials (includes, but is not limited to, general supplies, and materials and parts).
(8) Depreciation (spreading the cost of an asset over the span of several years).
(9) System upgrades/replacement (includes, but is not limited to, installation of operating equipment, software upgrades, and system changes).
NARA calculates the fees for individual products using the following:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
This calculation is completed for each product.
(h)
(a) The NATF conducts periodic reviews of its fees to ensure that the costs of providing services to the public are properly recovered.
(b) Existing records reproduction fees may be adjusted annually based on the following factors:
(1) Inflation.
(2) The Office of Personnel Management (OPM) salary changes.
(3) Reallocation of shared costs across product lines using the methodology described in § 1258.6.
(4) The projected sales volume for the product.
(5) The actual sales volume for the product.
(6) The approval of the Archivist of the United States.
(d) NARA will place a notice on our Web site (
(a) Custodial units prepare a justification proposal for a proposed records reproduction service and send the justification to the custodial unit office head, through appropriate channels, for concurrence and forwarding to NATF. The justification proposal includes, at a minimum, the following information:
(1) Estimated monthly volume of product orders based on available historical data;
(2) Identification of the equipment and supplies required to provide the product and service;
(3) Brief description of the process required to provide the product and service, including the amount of time for each number and grade level of staff.
(4) Identification of any services or products that will be replaced by the proposed products and services;
(5) Identification of other NARA units that may have a demand for the proposed services; and
(6) Any other relevant information.
(b) After receiving the proposal, NATF staff:
(1) Assesses the potential customer base for the proposed products and services, consulting other NARA offices.
(2) If the potential demand does not warrant establishing fees for new records reproduction products and services, NATF notifies the proposing office that the new product and service are not approved and the reasons why.
(3) If the potential demand warrants, NATF prepares a cost analysis following the methodology in § 1258.6 and develops a proposed recommended fee for review by NARA's Financial Resources Division and approval by the Archivist of the United States.
(c) Notification of new records reproduction services and trial periods:
(1) The public will be notified of new records reproduction services, including the business case for determining initial fee, on-line at
(2) New records reproduction services fees have an initial trial period of one year. During this time, the public is encouraged to provide feedback to NARA about the new records reproduction services and their fees as directed in the notification of the new services.
(3) Prior to the expiration of a trial period, NATF will assess the validity of the fees for the new records reproduction products and services, and make one of three determinations:
(i) Retain products, services and fees;
(ii) Retain products or services but adjust fees up or down; or
(iii) Discontinue products or services.
(d) The public will be notified of NATF determination, including business case for determination, in NARA research rooms nationwide, on-line at
At the discretion of the Secretary of the NATF, customers are not charged a fee for records reproductions or certifications in the instances described in this section.
(a) When NARA furnishes copies of records to other elements of the Federal Government. However, a fee may be charged if the appropriate director determines that the service cannot be performed without reimbursement;
(b) When NARA wishes to disseminate information about its activities to the general public through press, radio, television, and newsreel representatives;
(c) When the reproduction is to furnish the donor of a document or other gift with a copy of the original;
(d) When the reproduction is for individuals or associations having official voluntary or cooperative relations with NARA in its work;
(e) When the reproduction is for a foreign, State, or local government or an international agency and furnishing it without charge is an appropriate courtesy; and
(f) For records of other Federal agencies in NARA Federal records centers only:
(1) When furnishing the service free conforms to generally established business custom, such as furnishing personal reference data to prospective employers of former Government employees;
(2) When the reproduction of not more than one copy of the document is required to obtain from the Government financial benefits to which the requesting person may be entitled (
(3) When the reproduction of not more than one copy of a hearing or other formal proceeding involving security requirements for Federal employment is requested by a person directly concerned in the hearing or proceeding; and
(4) When the reproduction of not more than one copy of a document is for a person who has been required to furnish a personal document to the Government (
Fees may be paid:
(a) By check or money order made payable to the
(b) By selected credit cards.
(c) Payments from outside the United States must be made by international money order payable in U.S. dollars or a check drawn on a U.S. bank.
(d) In cash (note that some locations do not accept cash).
Due to the age, original media type, and general condition of many of the items in NARA's holdings, it is occasionally difficult to make a legible reproduction. NARA staff will notify customers if they anticipate that the original will result in a reproduction of questionable legibility before requesting the reproduction and after approval of the customer. After a records reproduction is completed, the product undergoes a review to determine if it is an accurate representation of the original item. Because of the preapproval process, NARA does not provide refunds except in special cases. If a customer requests a refund, a review is made of the order to determine if the customer was properly notified of the questionable nature of the original and if the product is a true representation of the original. If the customer authorized proceeding and the product is a true representation of the original, no refund will be issued.
(a) NARA's fee schedule and ordering portal are located at
(b) Fee schedules for reproductions made from the holdings of Presidential libraries may differ because of regional cost variations. Presidential library fee schedules are available at
(c) In order to preserve certain records which are in poor physical condition, NARA may restrict customers to photographic or other kinds of duplication instead of electrostatic copies.
Environmental Protection Agency (EPA).
Final rule.
EPA is approving submittals from the Commonwealth of Virginia pursuant to the Clean Air Act (CAA) sections 110(k)(2) and (3). These submittals address the infrastructure elements specified in CAA section 110(a)(2), necessary to implement, maintain, and enforce the 1997 8-hour ozone and fine particulate matter (PM
EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2010-0160. All documents in the docket are listed in the
Marilyn Powers, (215) 814-2308, or by e-mail at
Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA.
On July 14, 2011 (76 FR 41444), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed approval of Virginia submittals that provide the basic program elements specified in CAA section 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M), or portions thereof, necessary to implement, maintain, and enforce the 1997 8-hour ozone and PM
EPA is currently acting on State Implementation Plans (SIPs) that address the infrastructure requirements of CAA section 110(a)(1) and (2) for the ozone and PM
EPA intended the statements in the other proposals concerning these four issues merely to be informational and to provide general notice of the potential existence of provisions within the existing SIPs of some states that might require future corrective action. EPA did not want states, regulated entities, or members of the public to be under the misconception that EPA's approval of the infrastructure SIP submission of a given state should be interpreted as a reapproval of certain types of provisions that might be contained in the larger existing SIP for such state. Thus, for example, EPA explicitly noted that we believe that some states may have existing SIP approved SSM provisions that are contrary to the CAA and EPA policy, but that “in this rulemaking, EPA is not proposing to approve or disapprove any existing State provisions with regard to excess emissions during SSM of operations at facilities.” EPA further explained, for informational purposes, that “EPA plans to address such State regulations in the future.” EPA made similar statements, for similar reasons, with respect to the director's discretion, minor source NSR, and NSR Reform issues. EPA's objective
The commenters and others evidently interpreted these statements to mean that EPA considered action upon the SSM provisions and the other three substantive issues to be integral parts of acting on an infrastructure SIP submission, and therefore that EPA was merely postponing taking final action on the issue in the context of the infrastructure SIPs. This was not EPA's intention. To the contrary, EPA only meant to convey its awareness of the potential for certain types of deficiencies in existing SIPs and to prevent any misunderstanding that it was reapproving any such existing provisions. EPA's intention was to convey its position that the statute does not require that infrastructure SIPs address these specific substantive issues in existing SIPs and that these issues may be dealt with separately, outside the context of acting on the infrastructure SIP submission of a state. To be clear, EPA did not mean to imply that it was not taking a full final agency action on the infrastructure SIP submission with respect to any substantive issue that EPA considers to be a required part of acting on such submissions under section 110(k) or under section 110(c). Given the confusion evidently resulting from EPA's statements in those proposals, however, we want to explain more fully EPA's reasons for concluding that these four potential substantive issues in existing SIPs may be addressed separately.
The requirement for the SIP submissions at issue arises out of CAA section 110(a)(1). That provision requires that states must make a SIP submission “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof)” and that these SIPs are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must meet. EPA has historically referred to these particular submissions that states must make after the promulgation of a new or revised NAAQS as “infrastructure SIPs.” This specific term does not appear in the statute, but EPA uses the term to distinguish this particular type of SIP submission designed to address basic structural requirements of a SIP from other types of SIP submissions designed to address other different requirements, such as “nonattainment SIP” submissions required to address the nonattainment planning requirements of part D, “regional haze SIP” submissions required to address the visibility protection requirements of CAA section 169A, new source review permitting program submissions required to address the requirements of part D, and a host of other specific types of SIP submissions that address other specific matters.
Although section 110(a)(1) addresses the timing and general requirements for these infrastructure SIPs and section 110(a)(2) provides more details concerning the required contents of these infrastructure SIPs, EPA believes that many of the specific statutory provisions are facially ambiguous. In particular, the list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive provisions, and some of which pertain to requirements for both authority and substantive provisions.
Notwithstanding that section 110(a)(2) states that “each” SIP submission must meet the list of requirements therein, EPA has long noted that this literal reading of the statute is internally inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment SIP requirements that could not be met on the schedule provided for these SIP submissions in section 110(a)(1).
Similarly, EPA notes that other types of SIP submissions required under the statute also must meet the requirements of section 110(a)(2), and this also demonstrates the need to identify the applicable elements for other SIP submissions. For example, nonattainment SIPs required by part D
Given the potential for ambiguity of the statutory language of section 110(a)(1) and (2), EPA believes that it is appropriate for EPA to interpret that language in the context of acting on the infrastructure SIPs for a given NAAQS. Because of the inherent ambiguity of the list of requirements in section 110(a)(2), EPA has adopted an approach in which it reviews infrastructure SIPs against this list of elements “as applicable.” In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the purpose of the submission or the NAAQS in question, would meet each of the requirements, or meet each of them in the same way. EPA elected to use guidance to make recommendations for infrastructure SIPs for these NAAQS.
On October 2, 2007, EPA issued guidance making recommendations for the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS and the 1997 PM
On September 25, 2009, EPA issued guidance to make recommendations to states with respect to the infrastructure SIPs for the 2006 PM
Significantly, neither the 2007 Guidance nor the 2009 Guidance explicitly referred to the SSM, director's discretion, minor source NSR, or NSR Reform issues as among specific substantive issues EPA expected states to address in the context of the infrastructure SIPs, nor did EPA give any more specific recommendations with respect to how states might address such issues even if they elected to do so. The SSM and director's discretion issues implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform issues implicate section 110(a)(2)(C). In the 2007 Guidance, however, EPA did not indicate to states that it intended to interpret these provisions as requiring a substantive submission to address these specific issues in the context of the infrastructure SIPs for these NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief that the states should make submissions in which they established that they have the basic SIP structure necessary to implement, maintain, and enforce the NAAQS. EPA believes that states can establish that they have the basic SIP structure, notwithstanding that there may be potential deficiencies within the existing SIP. Thus, EPA's other proposals mentioned these issues not because EPA considers them issues that must be addressed in the context of an infrastructure SIP as required by section 110(a)(1) and (2), but rather because EPA wanted to be clear that it considers these potential existing SIP problems as separate from the pending infrastructure SIP actions.
EPA believes that this approach to the infrastructure SIP requirement is reasonable, because it would not be feasible to read section 110(a)(1) and (2) to require a top to bottom, comprehensive, review of each and every provision of an existing SIP merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts that, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA considers the overall effectiveness of the SIP. To the contrary, EPA believes that a better approach is for EPA to determine which specific SIP elements from section 110(a)(2) are applicable to an infrastructure SIP for a given NAAQS, and to focus attention on those elements that are most likely to need a specific SIP revision in light of the new or revised NAAQS. Thus, for example, EPA's 2007 Guidance specifically directed states to focus on the requirements of section 110(a)(2)(G) for the 1997 PM
Finally, EPA believes that its approach is a reasonable reading of section 110(a)(1) and (2) because the statute provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriate tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever EPA determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or otherwise to comply with the CAA.
The submittals referenced in the Background section above address the infrastructure elements specified in the CAA section 110(a)(2). These submittals refer to the implementation, maintenance, and enforcement of the 1997 8-hour ozone NAAQS, the 1997 PM
In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) That are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.
On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. * * * ” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”
Virginia's Immunity Law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”
Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.
EPA is approving the Commonwealth of Virginia's submittals that provide the basic program elements specified in CAA sections 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M), or portions thereof, necessary to implement, maintain, and enforce the 1997 8-hour ozone and PM
EPA made completeness findings for the 1997 8-hour ozone NAAQS on March 27, 2008 (73 FR 16205) and on October 22, 2008 (73 FR 62902) for the 1997 PM
EPA has taken separate action on the portions of section 110(a)(2)(C) and (J) for the 1997 8-hour ozone NAAQS as they relate to Virginia's part C PSD permit program. With respect to this permit program, on November 29, 2005 (70 FR 71612), EPA promulgated a change that made NO
Two elements identified in section 110(a)(2) are not governed by the three year submission deadline of section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within three years after promulgation of a new or revised NAAQS, but rather are due at the time the nonattainment area plan requirements are due pursuant to section 172. This action does not cover these specific elements. This action also does not address the requirements of section 110(a)(2)(D)(i) for the 1997 8-hour ozone and 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 approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 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 the 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 rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 12, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.
This action pertaining to Virginia's section 110(a)(2) infrastructure SIP submittals for the 1997 8-hour ozone and PM
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR Part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Final rule.
EPA is making two determinations regarding the Charleston, West Virginia fine particulate matter (PM
EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2011-0454. All documents in the docket are listed in the
Asrah Khadr, (215) 814-2071, or by e-mail at
In accordance with section 179(c)(1) of the Clean Air Act (CAA), 42 U.S.C. section 7509(c)(1), and 40 Code of Federal Regulations (CFR) section 51.1004(c), EPA is determining that the Charleston Area (composed of Kanawha and Putnam Counties) has attained the 1997 annual PM
EPA published in the
In determining the Charleston Area attained the 1997 annual PM
EPA's clean data determination releases the Charleston Area from the requirement to submit an attainment demonstration and associated RACM, a RFP plan, contingency measures, and any other planning SIPs related to attainment of the 1997 annual PM
After a final clean data determination, if EPA determines that the Area has violated the 1997 annual 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 approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the 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 rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 12, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action pertaining to the determination of attainment and clean data determination for the Charleston Area may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Incorporation by reference, Particulate matter, Reporting and recordkeeping requirements.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) Based upon EPA's review of the air quality data for the 3-year period 2007-2009, EPA determined that the Charleston fine particle (PM
Federal Communications Commission.
Technical amendment.
The Federal Communications Commission (FCC) is correcting a final rule that appeared in the
Effective October 11, 2011.
For additional information on this proceeding, contact Katie Costello,
FR Doc. 2011-23010 published in the
Incorporation by reference, Radio, Television.
Accordingly, 47 CFR part 73 is corrected by making the following correcting amendments:
47 U.S.C. 154, 303, 334, 336 and 339.
(a) The materials listed in this section are incorporated by reference in this part. These incorporations by reference were approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. These materials are incorporated as they exist on the date of the approval, and notice of any change in these materials will be published in the
(b) The following materials are available from Advanced Television Systems Committee (ATSC), 1750 K Street, NW., Suite 1200, Washington, DC 20006, or at the ATSC Web site:
(1) ATSC A/52: “ATSC Standard Digital Audio Compression (AC-3),” 1995, IBR approved for § 73.682.
(2) ATSC A/53 Parts 1-4 and 6: 2007 “ATSC Digital Television Standard,” (January 3, 2007) and ATSC A/53 Part 5: 2010 “ATSC Digital Television Standard: Part 5—AC-3 Audio System Characteristic,” (July 6, 2010), as listed below:
(i) A/53, Part 1:2007, “Digital Television System” (January 3, 2007), IBR approved for § 73.682.
(ii) A/53, Part 2:2007, “RF/Transmission System Characteristics” (January 3, 2007), IBR approved for § 73.682.
(iii) A/53, Part 3:2007, “Service Multiplex and Transport Subsystem Characteristics” (January 3, 2007), IBR approved for § 73.682.
(iv) A/53, Part 4:2007, “MPEG-2 Video System Characteristics” (January 3, 2007), IBR approved for § 73.682, except for § 6.1.2 of A/53 Part 4: 2007, and the phrase “see Table 6.2” in section 6.1.1 Table 6.1 and section 6.1.3 Table 6.3.
(v) A/53, Part 5: 2010, “AC-3 Audio System Characteristics” (July 6, 2010), IBR approved for § 73.682.
(vi) A/53, Part 6:2007, “Enhanced AC-3 Audio System Characteristics” (January 3, 2007), IBR approved for § 73.682.
(3) [Reserved]
(4) ATSC A/65C: “ATSC Program and System Information Protocol for Terrestrial Broadcast and Cable, Revision C With Amendment No. 1 dated May 9, 2006,” (January 2, 2006), IBR approved for §§ 73.682.
(c) [Reserved]
(d) The following materials are available at the FCC, 445 12th St., SW., Reference Information Center, Room CY-A257, Washington, DC 20554, or at the FCC's Office of Engineering and Technology (OET) Web site:
(1) OET Bulletin No. 69: “Longley-Rice Methodology for Evaluating TV Coverage and Interference” (February 6, 2004), IBR approved for § 73.616.
(2) [Reserved]
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Quota specification.
NMFS announces that the overall annual tilefish quota for the 2012 fishing year will remain the same as it was in fishing year 2011. Regulations governing these fisheries require NMFS to notify the public in the
Effective November 1, 2011, through October 31, 2012.
Jason Berthiaume, Fishery Management Specialist, (978) 281-9177; fax (978) 281-9135.
The tilefish regulations at 50 CFR 648.292 specify that, in the absence of a new stock assessment or recommendation from the Tilefish Monitoring Committee, the previous year's tilefish specifications will remain effective for the following fishing year. The most recent tilefish stock assessment was completed in 2009, and the Tilefish Monitoring Committee has not taken any action to change the tilefish quota levels; therefore, the tilefish total allowable landings (TAL) for the 2012 fishing year will remain the same as the fishing year 2011 TAL of 1.995 million lb (904,917 kg). Five percent of the TAL (99,750 lb (45,246 kg)) is allocated to incidental catch, leaving 1,895,250 lb
This action is authorized by 50 CFR part 648 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Office of the General Counsel, Department of Energy (DOE).
Petition for rulemaking; request for comment.
On September 8, 2011, the Department of Energy received a joint petition submitted by the Association of Home Appliance Manufacturers and the Appliance Standards Awareness Project, on behalf of a number of named parties requesting that the clothes dryer test procedure be amended to address the effectiveness of automatic termination controls such as moisture and temperature sensor controls. Public comment is requested on whether DOE should grant the petition and consider the proposal contained in the petition.
Comments must be postmarked no later than December 12, 2011.
Any comments submitted must reference the petition for rulemaking. Comments may be submitted using any of the following methods:
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Stephen L.Witkowski, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue, SW., Washington, DC, 20585-0121, (202) 586-7463, e-mail:
Ms. Elizabeth Kohl or Ms. Sarah Butler, U.S. Department of Energy, Office of General Counsel, GC-71, 1000 Independence Avenue, SW., Washington, DC, 20585-0121, (202) 586-7796, e-mail:
The Administrative Procedure Act (APA), 5 U.S.C. 551
The proposed amendment sought in the petition would institute a procedure that addresses the effectiveness of automatic termination controls such as moisture and temperature sensor controls. The petitioners request that DOE test the full cycle of clothes dryers, including cool-down. The petitioners also request that the DOE modify the ending remaining moisture content (RMC) to require that the RMC be no more than 2 percent when testing units equipped with automatic termination controls using the DOE test load. This petition also requests that the DOE revise the relevant energy conservation standards under section 323 of the Energy Policy and Conservation Act to reflect the requested test procedure. The DOE seeks public comment on whether it should grant the petition.
DOE notes that it issued a Request for Information (RFI) to further investigate the effects of automatic cycle termination on the energy efficiency of clothes washers. (76 FR 50145, Aug. 12, 2011). The petition also served as a response to DOE's RFI.
Set forth below is the full text of the Association of Home Appliance Manufacturers and the Appliance Standards Awareness Project petition:
As part of the agreement between the Joint Commenters on federal minimum energy conservation standards for five products, including residential clothes dryers, and related test procedures, ENERGY STAR, and financial incentive provisions, the Joint Commenters agreed that the Department of Energy (DOE) should amend the clothes dryer test procedure to address the effectiveness of automatic termination controls such as
The American Council for an Energy Efficient Economy (ACEEE) is a nonprofit, non-partisan, organization dedicated to advancing energy efficiency as a means of promoting economicprosperity, energy security, and environmental protection. ACEEE fulfills its mission by conducting in-depth technical and policy assessments; advising policymakers and program managers; working collaboratively with businesses, public interest groups, and other organizations; publishing books, conference proceedings, and reports; organizing conferences and workshops; and educating consumers and businesses.
The Association of Home Appliance Manufacturers (AHAM) represents manufacturers of major, portable and floor care home appliances, and suppliers to the industry. AHAM's membership includes over 150 companies throughout the world. In the U.S., AHAM members employ tens of thousands of people and produce more than 95% of the household appliances shipped for sale. The factory shipment value of these products is more than $30 billion annually. The home appliance industry, through its products and innovation, is essential to U.S. consumer lifestyle, health, safety and convenience. Through its technology, employees and productivity, theindustry contributes significantly to U.S. jobs and economic security. Home appliances also are a success story in terms of energy efficiency and environmental protection. New appliances often represent the most effective choice a consumer can make to reduce home energy use and costs. AHAM represents the manufacturers of virtually all affected clothes dryers manufactured and/or sold in the United States.
The Alliance to Save Energy (ASE) is a coalition of prominent business, government, environmental, and consumer leaders who promote the efficient and clean use of energy worldwide to benefit consumers, the environment, economy, and national security. Established as an NGO in 1977, to carry out its mission, the Alliance undertakes research, educational programs, and policy advocacy, designs and implements energy-efficiency projects, promotes technology development and deployment, and builds public-private partnerships, in the U.S. and other countries.
The Alliance for Water Efficiency is a stakeholder-based 501(c)(3) non-profit organization dedicated to the efficient and sustainable use of water, with 317 member organizations from water utilities, government agencies, businesses, industry, plumbing, appliance and irrigation manufacturers, retailers, environmental and energy efficiency advocates, and other stakeholders. Located in Chicago, the Alliance serves as a North American advocate for water efficient products and programs, and provides information and assistance on water conservation efforts.
The Appliance Standards Awareness Project (ASAP) is a coalition group dedicated to advancing cost-effective energy efficiency standards for appliances and equipment. ASAP works at both the state and federal levels and is led by a Steering Committee with representatives from consumer groups, utilities, state government, environmental groups, and energy-efficiency groups.
The Consumer Federation of America is an association of nearly 300 nonprofit consumer groups that was established in 1968 to advance the consumer interest through research, advocacy, and education.
The National Consumer Law Center®, a nonprofit corporation founded in 1969, assists consumers, advocates, and public policy makers nationwide on consumer law issues. NCLC works toward the goal of consumer justice and fair treatment, particularly for those whose poverty renders them powerless to demand accountability from the economic marketplace. NCLC has provided model language and testimony on numerous consumer law issues before federal and state policy makers. NCLC publishes an 18-volume series of treatises on consumer law, and a number of publications for consumers.
The Natural Resources Defense Council (NRDC) is a national environmental advocacy organization with over 1.3 million members and online activists. NRDC has spent decades working to build and improve DOE's federal appliance standards programs because of the important energy, environmental, consumer, and reliability benefits of appliance efficiency standards. NRDC participated in the enactment of the first federal legislation establishing efficiency standards, and has been active in all significant rulemakings since then.
Northeast Energy Efficiency Partnerships (NEEP) is a non-profit organization that facilitates regional partnerships to advance the efficient use of energy in homes, buildings and industry in the Northeast U.S. NEEP works to leverage knowledge, capability, learning and funding through regionally coordinated policies, programs and practices. As a regional organization that collaborates with policy makers, energy efficient program administrators, and business, NEEP is a leader in the movement to build a cleaner environment and a more reliable and affordable energy system.
The Northwest Power and Conservation Council is an interstate compact between the states of Idaho, Montana, Oregon and Washington authorized by the Northwest Power Act of 1980 (PL96-501). The Council is charged with ensuring that the Northwest's electric power system will provide adequate and reliable energy at the lowest economic and environmental cost to its citizens.
Other supporters include the California Energy Commission, Demand Response and Smart Grid Coalition, and Earthjustice.
DOE proposed to amend DOE's test procedure for clothes dryers to incorporate the individual test procedures for timer dryers and automatic termination control dryers in AS/NSZ Standard 2442 with a few modifications. DOE sought comment on the adequacy of AS/NSZ Standard 2442, along with proposed definitions and clarifications, to measure energy consumption for timer and automatic termination control clothes dryers to account for over-drying energy consumption. The Joint Commenters supported DOE's proposal to account for the effectiveness of automatic termination controls because it would have provided an incentive to
Instead, the Joint Stakeholders proposed that the procedure should be to test the
Furthermore, for dryers that have both an automatic termination control cycle and a timer cycle, the Joint Stakeholders argued that only the automatic termination cycle should be tested.
Finally, the Joint Stakeholders argued that if DOE adopted the Joint Stakeholders' proposed test procedure, i.e., to test the full cycle including cool-down, it must also revise the relevant energy conservation standards to reflect the new test procedure, ensuring that for dryers with effective automatic termination controls, there is no change in the stringency of the standards, per section 323 of the Energy Policy and Conservation Act. Specifically, the Joint Stakeholders argued, the procedures in section 323(e)(2) should be used, with the clarification that for the purposes of establishing a representative sample of products, DOE should choose a sample of minimally compliant dryers which automatically terminate the drying cycle at no less than four percent RMC.
In the final test procedure, DOE declined to adopt the amendments it had proposed with regard to automatic termination controls (with or without the modifications proposed by the Joint Stakeholders). DOE determined, based on test results, that
DOE also stated that if data were available to develop a test procedure that accurately measures the energy consumption of clothes dryers equipped with automatic termination controls, it could consider revised amendments to the test procedure. (Id.).
The Joint Stakeholders now present data to assist in the development of a test procedure that accurately measures the energy consumption of clothes dryers equipped with automatic termination controls, and request that DOE amend the clothes dryer test procedure to include procedures to account for automatic termination controls.
DOE was concerned that the proposed test procedure may not properly measure the effectiveness of automatic termination controls, particularly in light of data that suggested that automatic termination control dryers may in fact be drying clothing to approximately five percent remaining moisture content (RMC) in the real world. The Joint Stakeholders determined that the best way to address DOE's concern was to account for the fact that the test procedure has inherent differences from consumer use that are necessary for repeatability and reproducibility. The most significant difference between the test procedure and consumer use is the DOE test cloth, which does not represent a variety of cloth used by consumers. The DOE test cloth is uniform, whereas a consumer load contains items of varying weights, composition, and size. Thus, the DOE test cloth likely dries faster and more uniformly than an actual consumer load.
AHAM members conducted testing on clothes dryers with automatic termination controls that are currently on the market—the clothes dryers tested represent about 60 percent of shipments. Because there are few consumer complaints that clothes dryers equipped with automatic termination controls do not dry clothes, the testing assumed that the current market ending RMC is appropriate. The testing was conducted per the following conditions which closely approximated DOE's proposed test procedure, except that the entire cycle was tested, including cool-down:
• Test procedure: Existing DOE test procedure, not including most recent amendments.
• Starting RMC: 70% ± 3.5%.
• Test load: DOE load.
• Test runs: Three tests on each machine, average ending RMC reported to AHAM.
• Program: A “normal” program (cycle) shall be selected. Where the dryness level can be chosen independently of the program, the “normal” level shall be selected. Where the drying temperature (setting) can be chosen independently of the program, it shall be set to the maximum.
• Tests were run until the automatic termination controls stopped the clothes dryer (i.e., cool-down was included).
• Data was de-identified and aggregated by AHAM.
The test results, shown in Table 1, demonstrated that an ending RMC of two percent using the DOE test cloth best approximates the maximum, consumer accepted, ending RMC.
Based on this data, the Joint Stakeholders request that DOE adopt the test procedure amendments it previously proposed except that it should modify the proposal to state that testing will include the full cycle, including cool-down. As the Joint Stakeholders previously commented, and is discussed in more detail in Section III above, testing the entire cycle including cool-down is more representative of actual consumer use and is less of a test burden for manufacturers than DOE's original proposal to stop the dryer when the heater switches off for the final time at the end of the drying cycle. In addition, DOE should modify its original proposal to state that ending RMC when testing units equipped with automatic termination controls shall be no more than two percent when testing with the DOE test load. That maximum percentage, according to the data above, is representative of clothes dryers currently on the market. Consistent with DOE's proposal, but substituting two percent ending RMC for five percent ending RMC, any test cycle in which the final RMC is two percent or less should be considered valid. If the final RMC is greater than two percent, the test would be invalid and a new run would be conducted using the highest dryness level setting.
If DOE adopts the Joint Stakeholders' proposals in this petition, which would test the full cycle, including cool-down, and result in a change in measured energy, it must also revise the relevant energy conservation standards to reflect the new test procedure, ensuring that for dryers with effective automatic termination controls, there is no change in the stringency of the standards, per section 323 of the Energy Policy and Conservation Act. Specifically, the procedures in section 323(e)(2) should be used, with the clarification that for the purposes of establishing a representative sample of products, DOE should choose a sample of minimally compliant dryers which automatically terminate the drying cycle at 1.5 to 2 percent RMC. By selecting products that terminate at 1.5 to 2 percent, DOE will assure that the revised standard is based upon dryers which do not over-dry. This approach will also assure that the tested sample yields valid results under both the current and proposed revised test procedure.
We note that in the test procedures SNOPR, DOE stated that for the purposes of determining the effects of an amended test procedure on the measured efficiency of clothes dryers, the measurement of only clothes dryers that terminate the drying cycle at no less than a particular RMC would not constitute a representative sample.
If DOE adopts the Joint Stakeholders' proposals in this petition, manufacturers will have an incentive to refine their automatic termination feature to terminate very close to two percent maximum ending RMC using the DOE test load. As Figure 1 demonstrates, a large percentage of clothes dryers currently on the market dry to levels below the proposed two percent ending RMC. As manufacturers make these refinements, two things will happen—the measured energyefficiency of the dryer will improve and the “real world” energy consumption of the dryer will be reduced. This is exactly what should happen as the result of such a change in the test procedure towards conditions that more closely replicate consumer use.
To estimate energy savings from the proposals for a test procedure amendment and a revision to the standards presented in this petition, we assume that the AHAM test load is representative of consumer loads. The DOE test data presented in the test procedures SNOPR showed that the maximum ending RMC using the
If DOE determines that it cannot limit the representative sample to dryers that terminate within a1.5 to 2 percent RMC range for purposes of revising the standard levels, national energy savings would be reduced, but significant savings would still be achieved. Dryers with automatic termination controls that perform worse than average would need to improve such that they consume no more energy than an average dryer. DOE noted in the test procedures SNOPR that there is an exponential trend in the plot of energy consumption as a function of RMC below an RMC of about five percent likely because it becomes more difficult to remove the lesser amounts of moisture remaining in the load.
We recognize that there are significant uncertainties in estimating energy savings from the proposed test procedure in this petition. However, energy savings will certainly be achieved by encouraging use of better automatic termination controls to reduce over-drying energy consumption. In addition, an amended test procedure as proposed in this petition would capture all the energy use of a dryer cycle, which would better represent real-world dryer energy consumption and allow manufacturers more options for improving rated dryer efficiency.
We recommend that test procedure and standards revisions adopted in response to this petition take effect on January 1, 2015. Our goal is to have a single round of standards and test procedure changes take effect. Thus, these test procedure and related standards amendments would replace the final test procedure issued in January 2011 and the dryer standards contained in the Direct Final Rule issued in April 2011.
In order to give manufacturers adequate time to prepare for a revised test procedure and standards, we urge DOE to complete and finalize the test procedure and standards revisions as soon as possible, but no later than December 31, 2011. We suggest that DOE propose the modifications to the standards required by Section 323(e) in parallel to modifications to the test procedure. Parallel revisions to the test procedure and standards will provide stakeholders the clearest understanding of the impacts of the changes and enable the fastest resolution of the issues raised in this petition. The timing suggested in this petition is contingent on DOE providing adequate lead-in time for manufacturers to develop products that will comply with the revised standard per the revised test procedure that more effectively accounts for automatic termination controls. In order to provide adequate lead-in time, it is necessary that the test procedures and standards are completed and final no later than December 31, 2011.
Because data is now available to support a test procedure that accurately measures the effectiveness of automatic termination controls, the Joint Commenters request that DOE amend the clothes dryer test procedure to account for the effectiveness of automatic termination controlsas discussed in Section IV above. Such amendments to account for the effectiveness of automatic termination controls will help to prevent over-drying and will, thus, result in energy savings. If DOE adopts procedures to amend the test procedure to measure the effectiveness of automatic termination controls, it must also revise the relevant energy conservation standards to reflect the new test procedure, ensuring that for dryers with effective automatic termination controls, there is no change in the stringency of the standards, per section 323 of the Energy Policy and Conservation Act.
Federal Aviation Administration (FAA), DOT.
Supplemental notice of proposed rulemaking (NPRM); reopening of comment period.
We are revising an earlier proposed airworthiness directive (AD) for the products listed above. That second supplemental NPRM proposed a one-time inspection to determine the part numbers of the aero/fire seals of the blocker doors on the thrust reverser torque boxes on the engines, and replacing affected aero/fire seals with new, improved aero/fire seals. That second supplemental NPRM was prompted by a report that the top 3 inches of the aero/fire seals of the blocker doors on the thrust reverser torque boxes are not fireproof. This action revises the second supplemental NPRM by prohibiting installation of certain non-fireproof thrust reverser seals. We are proposing this third supplemental NPRM to prevent a fire in the fan compartment (a fire zone) from migrating through the seal to a flammable fluid in the thrust reverser actuator compartment (a flammable fluid leakage zone), which could result in an uncontrolled fire. Since these actions impose an additional burden over that proposed in the second supplemental NPRM, we are reopening the comment period to allow the public the chance to comment on these proposed changes.
We must receive comments on this supplemental NPRM by November 25, 2011.
You may send comments by any of the following methods:
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For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; e-mail
You may examine the AD docket on the Internet at
Chris Parker, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057-3356;
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We issued a second supplemental NPRM to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to all Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes. That second supplemental NPRM was published in the
Since we issued the second supplemental NPRM (74 FR 34518, July 16, 2009), we have determined that it is necessary to propose to prohibit installation of certain non-fireproof thrust reverser seals in this third supplemental NPRM, because we have received information indicating that some thrust reversers with non-fireproof seals could be installed on certain airplanes.
We gave the public the opportunity to comment on the second supplemental NPRM (74 FR 34518, July 16, 2009). The following presents the comments received on the second supplemental NPRM and the FAA's response to each comment.
Boeing requested that the second supplemental NPRM (74 FR 34518, July 16, 2009) be revised to address spare thrust reverser halves being installed on any Model 737 Next Generation airplane. Boeing explained that some spare thrust reverser halves could be equipped with non-fireproof seals and that if these spare units are installed after the inspection, some airplanes will have non-fireproof seals.
We partially agree. While we explained in the first supplemental NPRM (73 FR 51382, September 3, 2008) that we understood affected spare assemblies had been purged from the parts supply system, we have now received information that thrust reverser interchangeability instructions might allow older thrust reverser seals having part number (P/N) 315A2245-1 or 315A2245-2 to be installed on newly delivered airplanes. While we cannot apply the inspections proposed by this third supplemental NPRM to spare parts, we can require that parts being installed on the airplane be compliant with this third supplemental NPRM. We have added paragraph (i) to this third supplemental NPRM to prohibit installation of non-fireproof thrust reverser seals.
The Air Transport Association (ATA), on behalf of two member airlines (Air Tran Airways and American Airlines), and Boeing requested that we change the proposed compliance time for the replacement of the aero/fire seals specified in paragraph (h) of the second supplemental NPRM (74 FR 34518, July 16, 2009).
Air Tran Airways (Air Tran) explained that the second supplemental NPRM (74 FR 34518, July 16, 2009) proposed to allow up to 60 months or 8,200 flight cycles after the effective date of the AD to comply with the proposed inspection specified in paragraph (g) of the second supplemental NPRM. However, Air Tran pointed out that if a non-fireproof aero/fire seal is found on a thrust reverser, the seal must be changed prior to further flight. Air Tran reasoned that the second supplemental NPRM should allow a more realistic time frame to have the seal replaced. Air Tran provided no technical justification for this request.
Boeing explained that the compliance time from the original NPRM (71 FR 34025, June 13, 2006) should be used, regardless of when the inspection for aero/fire seals of the thrust reverser torque boxes on the engines was done. Boeing stated that the second supplemental NPRM (74 FR 34518, July 16, 2009) would likely ground airplanes because operators would only accomplish the inspections if they have replacement seals on hand; Boeing only carries limited quantities of the seals and the re-order lead time for these seals is approximately 20 weeks.
We agree to revise this third supplemental NPRM to change the proposed compliance time specified in paragraph (h) of this third supplemental NPRM. However, we are revising the compliance time in paragraph (h) of this third supplemental NPRM to specify that operators have within 6 months after doing the inspection in paragraph (g) of this third supplemental NPRM to replace a non-fireproof seal. Under the provisions of paragraph (k) of this third supplemental NPRM, we will consider requests for approval of an alternative method of compliance (AMOC) that provides an acceptable level of safety, if parts availability becomes a problem. We have determined that replacement of the non-fireproof seal within 6 months after doing the inspection in paragraph (g) of this third supplemental NPRM will not adversely affect safety. We have revised this third supplemental NPRM accordingly.
The ATA, on behalf of its member American Airlines, requested that the replacement of the non-fireproof seal be done in accordance with Boeing Special Attention Service Bulletin 737-78-1074, Revision 1, dated September 15, 2005, and that the proposed AD state that this replacement is terminating action.
We agree that the replacement of the non-fireproof seals can be done in accordance with Boeing Special Attention Service Bulletin 737-78-1074, Revision 1, dated September 15, 2005, and that the replacement of the non-fireproof seals is terminating action for the inspection required by paragraph (g) of this third supplemental NPRM. We have added this information to paragraph (h) of this AD.
The ATA, on behalf of its member Air Tran, and Boeing requested that the second supplemental NPRM (74 FR 34518, July 16, 2009) apply only to thrust reverser assemblies having certain part numbers as opposed to applying to the airplane.
Air Tran explained that thrust reversers are rotable, line replaceable unit assemblies, which may be uninstalled, stand-alone spares, and can be rotated among other airplanes. For this reason, Air Tran suggested that the applicability of the second supplemental NPRM (74 FR 34518, July 16, 2009) should be against thrust reverser assembly part numbers rather than the airplane.
Boeing explained that the proposed applicability in the second supplemental NPRM (74 FR 34518, July 16, 2009) is open-ended and would apply to new Model 737 airplanes that are already compliant. Boeing explained further that thrust reversers having part number (P/Ns) 315A2295-195 through
We disagree to change the applicability of this third supplemental NPRM to apply to thrust reversers having certain part numbers. The seal is not integral to the thrust reverser and is replaceable. Therefore, a non-fireproof seal could be used on any thrust reverser—even a thrust reverser originally built with a compliant fireproof seal. It is the operator's responsibility to maintain compliance once an AD has been accomplished. The operator must ensure that the thrust reversers on its airplanes have been inspected and are using a fireproof seal. If an operator replaces a thrust reverser, the thrust reverser must be inspected to ensure compliance with this third supplemental NPRM. We have not changed the applicability of this third supplemental NPRM in this regard.
However, we have determined that the inspection required by paragraph (g) of this third supplemental NPRM is only necessary for certain airplanes. Therefore, we have revised paragraph (g) of this third supplemental NPRM to specify that only the following airplanes are subject to the requirements of that paragraph: “For airplanes having an original airworthiness certificate issued before the effective date of this AD, and for airplanes on which the date of issuance of the original export certificate of airworthiness is before the effective date of this AD * * * .”
All Nippon Airways (ANA) requested that we clarify if their IPC can be used as a form of maintenance record to identify if the airplane has the fireproof seal installed. ANA explained that the seals are not controlled by any type of part-control system, and that operators visually verify the stamped part number instead. ANA stated that since the stamped part number is often unreadable, the operator would be forced to replace the seal in order to remain in compliance with the AD, regardless if the seal was already a fireproof seal. ANA asserted that replacing a possible fireproof seal (to remain in compliance with the proposed AD) simply because the part number is unreadable, is an unreasonable action.
We disagree to allow use of the IPC as a maintenance record. If the required maintenance records, which do not include the IPC, are not available to show that the correct fireproof seal has been installed, and the part number is worn off the aero/fire seals, it is still possible to verify that the correct part is installed by visually inspecting the seal for color content, as specified in paragraph (g) of the second supplemental NPRM. We have not changed this third supplemental NPRM in this regard.
ANA also requested that we clarify the difference in the applicability between the original NPRM (71 FR 34025, June 13, 2006) and the second supplemental NPRM (74 FR 34518, July 16, 2009). ANA explained that the applicability in the original NPRM was for all Model 737-600, -700,-700C, -800, and -900 series airplanes, which is what is listed in Boeing Special Attention Service Bulletin 737-78-1074, Revision 1, dated September 15, 2005 (referenced in the original NPRM as the source of service information for replacing aero/fire seals).
We agree to clarify differences in the applicability of the various NPRMs. The applicability of the original NPRM (71 FR 34025, June 13, 2006) referenced that service bulletin for affected airplanes. After we issued the original NPRM, we received information on the interchangeability of the affected aero/fire seals. The applicability of the first supplemental NPRM (73 FR 51382, September 3, 2008) was revised to specify “all” Model 737 airplanes (including Model 737-900ER series airplanes, which had been added to the U.S. type certificate data sheet), since all of these airplanes could be affected by the interchangeability of the seals. No change to this third supplemental NPRM is necessary in this regard.
We have revised this proposed AD to identify the legal name of the manufacturer as published in the most recent type certificate data sheet for the affected airplane models.
We are proposing this third supplemental NPRM because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs. Certain changes described above expand the scope of the second supplemental NPRM (74 FR 34518, July 16, 2009). As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this third supplemental NPRM.
Since issuance of the original NPRM (71 FR 34025, June 13, 2006), we have increased the labor rate used in the Costs of Compliance from $80 per work-hour to $85 per work-hour. The Costs of Compliance information, below, reflects this increase in the specified labor rate.
We estimate that this proposed AD affects 803 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need this replacement:
According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD):
(a) We must receive comments by November 25, 2011.
(b) None.
(c) This AD applies to all The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes, certificated in any category.
(d) Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 78: Engine exhaust.
(e) This AD was prompted by a report that the top 3 inches of the aero/fire seals of the blocker doors on the thrust reverser torque boxes are not fireproof. We are issuing this AD to prevent a fire in the fan compartment (a fire zone) from migrating through the seal to a flammable fluid in the thrust reverser actuator compartment (a flammable fluid leakage zone), which could result in an uncontrolled fire.
(f) Comply with this AD within the compliance times specified, unless already done.
(g) For airplanes having an original airworthiness certificate issued before the effective date of this AD, and for airplanes on which the date of issuance of the original export certificate of airworthiness is before the effective date of this AD: Within 60 months or 8,200 flight cycles, whichever occurs first, after the effective date of this AD, perform a one-time detailed inspection to determine the color of the aero/fire seals of the blocker doors on the thrust reverser torque boxes on the engines. For any aero/fire seal having a completely grey color (which is the color of seals with part number (P/N) 315A2245-1 or 315A2245-2), with no red at the upper end of the seal, do the actions specified in paragraph (h) of this AD. For any aero/fire seal having a red color at the upper end of the seal (which indicates installation of seals with P/N 315A2245-7 or 315A2245-8), no further action is required by this AD. A review of airplane maintenance records is acceptable in lieu of this inspection if from that review the part number of the correct aero/fire seals (P/N 315A2245-7 or -8) can be conclusively determined to be installed.
For the purposes of this AD, a detailed inspection is: “An intensive examination of a specific item, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate. Inspection aids such as mirrors, magnifying lenses, etc., may be necessary. Surface cleaning and elaborate procedures may be required.”
(h) For any aero/fire seal identified during the inspection/records check required by paragraph (g) of this AD to have a non-fireproof seal: Within six months after doing the actions required by paragraph (g) of this AD, replace the aero/fire seals of the blocker doors on the thrust reverser torque boxes on the engines with new, improved aero/fire seals, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-78-1074, Revision 1, dated September 15, 2005. Replacing the aero/fire seals of the blocker doors on the thrust reverser torque boxes on the engines with new, improved aero/fire seals, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-78-1074, Revision 1, dated September 15, 2005, is terminating action for the inspection required by paragraph (g) of this AD.
(i) As of the effective date of this AD, no person may install a non-fireproof thrust reverser seal having P/N 315A2245-1 or P/N 315A2245-2 on any airplane.
(j) Replacements done before the effective date of this AD in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-78-1074, dated April 7, 2005, are acceptable for compliance with the requirements of paragraph (h) of this AD.
(k)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be e-mailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(l) For more information about this AD, contact Chris Parker, Aerospace Engineer, Propulsion Branch, ANM-140S, 1601 Lind Avenue, SW., Renton, Washington 98057-3356;
(m) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; e-mail
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above that would supersede an existing AD. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
Within the scope of the Fuel System Safety Program (FSSP), analyses of the wire routing showed that the route 2S of the fuel electrical circuit in the Right Hand (RH) wing must be modified in order to ensure better segregation between fuel quantity indication wires and the 115 Volts Alternating Current (VAC) wires of route 2S.
This condition, if not corrected, could result in short circuits leading to arcing, and possible fuel tank explosion.
We must receive comments on this proposed AD by November 25, 2011.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Airbus SAS-EAW (Airworthiness Office), 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; e-mail:
You may examine the AD docket on the Internet at
Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2125; fax (425) 227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On January 3, 2008, we issued AD 2008-01-05, Amendment 39-15330 (73 FR 2795, January 16, 2008). That AD required actions intended to address an unsafe condition on the products listed above.
Since we issued AD 2008-01-05, Amendment 39-15330 (73 FR 2795, January 16, 2008), we have determined
Within the scope of the Fuel System Safety Program (FSSP), analyses of the wire routing showed that the route 2S of the fuel electrical circuit in the Right Hand (RH) wing must be modified in order to ensure better segregation between fuel quantity indication wires and the 115 Volts Alternating Current (VAC) wires of route 2S.
This condition, if not corrected, could result in short circuits leading to arcing, and possible fuel tank explosion.
To address this unsafe condition, [Direction Générale de l'Aviation Civile] DGAC France issued AD 2002-578(B) [which corresponds to FAA AD 2004-15-16, Amendment 39-13750 (69 FR 45578, July 30, 2004)] to require improvements of the design as specified in Airbus Service Bulletin (SB) A310-28-2148 original issue or Revision 01. EASA AD 2007-0230 [which corresponds to FAA AD 2008-01-05 (73 FR 2795, January 16, 2008)], which superseded DGAC France AD 2002-578(B), required those same actions, plus additional work as defined in Airbus SB A310-28-2148 Revision 02.
Since EASA AD 2007-0230 was issued, an operator reported the possibility of chafing with the new routing of the wire bundle 2S in the RH wing pylon area to the generator wire bundle of engine 2. The modification of this zone was introduced by A310-28-2148 Revision 02 as additional work. Investigation showed that, to avoid the risk of chafing, the affected wiring harnesses must be installed at a higher position to provide sufficient clearance with the newly routed wire bundle 2S conduit.
Airbus published Revision 03 of SB A310-28-2148 to describe these changes, but a new interference has been found and requires updating SB A310-28-2148 to Revision 04 [or 05].
For the reasons described above, this new [EASA] AD retains the requirements of EASA AD 2007-0230, which is superseded, and requires the additional work as specified in Revision 04 [or 05] of Airbus SB A310-28-2148.
Airbus has issued Mandatory Service Bulletin A310-28-2148, Revision 05, dated August 3, 2010. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.
We estimate that this proposed AD would affect 61 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing Amendment 39-15330 (73 FR 2795, January 16, 2008) and adding the following new AD:
(a) We must receive comments by November 25, 2011.
(b) This AD supersedes AD 2008-01-05, Amendment 39-15330 (73 FR 2795, January 16, 2008).
(c) This AD applies to Airbus Model A310-203, -204, -221, -222, -304, -322, -324, and -325 airplanes; certificated in any category; all serial numbers.
(d) Air Transport Association (ATA) of America Code 28: Fuel.
(e) The mandatory continuing airworthiness information (MCAI) states:
Within the scope of the Fuel System Safety Program (FSSP), analyses of the wire routing showed that the route 2S of the fuel electrical circuit in the Right Hand (RH) wing must be modified in order to ensure better segregation between fuel quantity indication wires and the 115 Volts Alternating Current (VAC) wires of route 2S.
This condition, if not corrected, could result in short circuits leading to arcing, and possible fuel tank explosion.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) For all airplanes except airplanes on which Airbus Service Bulletin A310-28-2148, Revision 02, dated March 9, 2007, has been done (Airbus Modifications 12427 and 12435): Within 4,000 flight hours after September 3, 2004 (the effective date of AD 2004-15-16 (69 FR 45578, July 30, 2004)), modify the routing of wires in the RH wing by installing cable sleeves, per the Accomplishment Instructions of Airbus Service Bulletin A310-28-2148, Revision 01, dated October 29, 2002; Revision 02, dated March 9, 2007; or Revision 05, dated August 3, 2010. As of February 20, 2008 (the effective date of AD 2008-01-05, Amendment 39-15330 (73 FR 2795, January 16, 2008)), Revision 02 must be used. As of the effective date of this AD, Revision 05 must be used.
(h) Modification of the routing of wires accomplished before September 3, 2004, per Airbus Service Bulletin A310-28-2148, dated January 23, 2002, is acceptable for compliance with the corresponding requirements of paragraph (g) of this AD.
(i) For airplanes on which the actions specified in Airbus Service Bulletin A310-28-2148, dated January 23, 2002; or Airbus Service Bulletin A310-28-2148, Revision 01, dated October 29, 2002; have been done before February 20, 2008, except for airplanes on which Airbus Service Bulletin A310-28-2148, Revision 02, dated March 9, 2007, has been done (Airbus Modifications 12427 and 12435): Within 6,000 flight hours or 30 months after February 20, 2008, whichever occurs first, perform further modification by installing additional protection sleeves in the outer wing area near the cadensicon sensor and segregating wire route 2S in the RH pylon area, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A310-28-2148, Revision 02, dated March 9, 2007; or Revision 05, dated August 3, 2010. As of the effective date of this AD, Revision 05 must be used.
(j) For airplanes on which the actions specified in Airbus Service Bulletin A310-28-2148, Revision 02, dated March 9, 2007, have been accomplished, and do not have production modification 07633 and on which Airbus Service Bulletin A310-36-2015 has not been done: Within 6,000 flight hours or 30 months after the effective date of this AD, whichever occurs first, modify the wire routings, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A310-28-2148, Revision 05, dated August 3, 2010.
(k) For airplanes on which the actions specified in Airbus Service Bulletin A310-28-2148, Revision 02, dated March 9, 2007, have been accomplished, and have production modification 07633 or on which Airbus Service Bulletin A310-36-2015 has been done: Within 1,000 flight hours after the effective date of this AD, install a modified bracket, in accordance with paragraph 3.B.(7) “Additional Work 2” of the Accomplishment Instructions of Airbus Service Bulletin A310-28-2148, Revision 05, dated August 3, 2010.
(l) For airplanes on which the actions specified in Airbus Service Bulletin A310-28-2148, Revision 03, dated June 2, 2009, have been accomplished; and have modification 07633 done in production or on which the actions specified in Airbus Service Bulletin A310-36-2015 have been done; no further action is required by this AD.
(m) Modifications done in accordance with Airbus Service Bulletin A310-28-2148, Revision 04, dated April 14, 2010, before the effective date of this AD are acceptable for compliance with the corresponding modification required by paragraph (g), (i), (j), and (k) of this AD.
This AD differs from the MCAI and/or service information as follows: No differences.
(n) The following provisions also apply to this AD:
(1)
(2)
(o) Refer to MCAI European Aviation Safety Agency (EASA) Airworthiness Directive 2011-0005, dated January 17, 2011; and Airbus Service Bulletin A310-28-2148, Revision 05, dated August 3, 2010; for related information.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above that would supersede an existing AD. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
In 2003, a number of reports had been received concerning broken wires and corroded connectors in the SAAB 340 main landing gear (MLG) emergency release system. The investigation results showed that these were due to improper repairs and installations, not conforming to the approved type design.
This condition, if not corrected, could inhibit the functioning of the separation bolt, preventing proper release of the MLG during an emergency situation, possibly resulting in damage to aeroplane during landing and injury to the occupants.
The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI.
We must receive comments on this proposed AD by November 25, 2011.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Saab AB, Saab Aerosystems, SE-581 88, Linköping, Sweden; telephone +46 13 18 5591; fax +46 13 18 4874; e-mail
You may examine the AD docket on the Internet at
Shahram Daneshmandi, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-1112; fax (425) 227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On May 28, 2004, we issued AD 2004-12-03, Amendment 39-13662 (69 FR 35235, June 24, 2004). That AD required actions intended to address an unsafe condition on the products listed above.
Since we issued AD 2004-12-03, Amendment 39-13662 (69 FR 35235, June 24, 2004), we have received reports that the previous modification does not fully meet the expected results; therefore, an improved separation bolt harness having part number (P/N) 7292520-691 has been designed to replace the current separation bolt harness having P/N 7292520-678. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2011-0003, dated January 17, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
In 2003, a number of reports had been received concerning broken wires and corroded connectors in the SAAB 340 main landing gear (MLG) emergency release system. The investigation results showed that these were due to improper repairs and installations, not conforming to the approved type design.
This condition, if not corrected, could inhibit the functioning of the separation bolt, preventing proper release of the MLG during an emergency situation, possibly resulting in damage to aeroplane during landing and injury to the occupants.
To address that unsafe condition, Swedish AD (SAD) 1-186 was issued to require an inspection and, depending on findings, corrective action, in accordance with SAAB Service Bulletin (SB) 340-32-127.
Subsequently, Saab introduced a modification to ensure correct functioning of the MLG emergency release system. Accomplishment of that modification (SAAB SB 340-32-128) was made mandatory by SAD 1-189 [which corresponds to FAA AD 2004-12-03 (69 FR 35235, June 24, 2004)].
Since that [SAD] AD was issued, service experience has shown that this modification does not fully meet the expected results.
Prompted by these findings, SAAB has developed an improved separation bolt harness with a new routing.
For the reasons described above, this AD requires replacement of the current
You may obtain further information by examining the MCAI in the AD docket.
Saab has issued Service Bulletin 340-32-139, Revision 01, dated November 1, 2010. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 111 products of U.S. registry. We estimate the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing Amendment 39-13662 (69 FR 35235, June 24, 2004) and adding the following new AD:
(a) We must receive comments by November 25, 2011.
(b) This AD supersedes AD 2004-12-03, Amendment 39-13662 (69 FR 35235, June 24, 2004).
(c) This AD applies to Saab AB, Saab Aerosystems Model 340A (SAAB/SF340A) and SAAB 340B airplanes, all serial numbers, certificated in any category.
(d) Air Transport Association (ATA) of America Code 32: Landing gear.
(e) The mandatory continuing airworthiness information (MCAI) states:
In 2003, a number of reports had been received concerning broken wires and corroded connectors in the SAAB 340 main landing gear (MLG) emergency release system. The investigation results showed that these were due to improper repairs and installations, not conforming to the approved type design.
This condition, if not corrected, could inhibit the functioning of the separation bolt, preventing proper release of the MLG during an emergency situation, possibly resulting in damage to aeroplane during landing and injury to the occupants.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) Within 3 months after July 29, 2004 (the effective date of AD 2004-12-03, Amendment 39-13662 (69 FR 35235, June 24, 2004)), perform an inspection of the MLG's separation bolt harness for broken wires and corroded connectors, and any applicable corrective actions by doing all of the actions, in accordance with the Accomplishment Instructions of Saab Service Bulletin 340-32-127, dated December 18, 2002; or Revision 01, dated January 23, 2003. Perform the inspection/corrective actions in accordance with Saab Service Bulletin 340-32-127, dated December 18, 2002; or Revision 01, dated January 23, 2003. Perform any applicable corrective actions before further flight.
(h) For Model SAAB SF340A series airplanes: Within 12 months after July 29, 2004, do the actions specified in table 1 of this AD, as applicable.
(i) Within 12 months after the effective date of this AD: Replace the separation bolt harnesses having part number (P/N) 7292520-678 with separation bolt harnesses having P/N 7292520-691, in accordance with the Accomplishment Instructions of Saab Service Bulletin 340-32-139, Revision 01, dated November 1, 2010.
(j) As of the effective date of this AD, no person may install a separation bolt harness having P/N 7292520-678, on any airplane.
(k) Actions done before the effective date of this AD in accordance with Saab Service Bulletin 340-32-139, dated January 12, 2010, are acceptable for compliance with the requirements of paragraph (i) of this AD.
This AD differs from the MCAI and/or service information as follows: Although the MCAI states not to install a separation bolt having P/N 7292520-678 on any airplane after modification of the airplane, this AD states not to install a separation bolt having P/N 7292520-678 on any airplane as of the effective date of this AD.
(l) The following provisions also apply to this AD:
(1)
(2)
(m) Refer to MCAI EASA Airworthiness Directive 2011-0003, dated January 17, 2011; and the service information specified in paragraphs (m)(1) through (m)(5) of this AD, as applicable; for related information.
(1) Saab Service Bulletin 340-32-139, Revision 01, dated November 1, 2010.
(2) Saab Service Bulletin 340-32-127, dated December 18, 2002.
(3) Saab Service Bulletin 340-32-127, Revision 01, dated January 23, 2003.
(4) Saab Service Bulletin 340-32-041, Revision 01, dated October 9, 1987.
(5) Saab Service Bulletin 340-32-028, Revision 01, dated November 25, 1986.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
As required by current certification standards, each transport aeroplane has passenger compartment exit signs and emergency lighting strips installed to locate the emergency exits. A number of these strips
To remain compliant with regulations, Tritium exit signs and lighting strips should be replaced when their brightness has deteriorated below accepted levels. Currently, the Maintenance Review Board (MRB) Maintenance Planning Document does not include an inspection task for signs and strips containing Tritium.
This condition, if not detected and corrected, could result in insufficiently bright exit signs and lighting strips, preventing safe evacuation during an emergency, possibly resulting in injury to occupants.
We must receive comments on this proposed AD by November 25, 2011.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Fokker Services B.V., Technical Services Dept., P.O. Box 231, 2150 AE Nieuw-Vennep, the Netherlands; telephone +31 (0)252-627-350; fax +31 (0)252-627-211; e-mail
You may examine the AD docket on the Internet at
Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-1137; fax (425) 227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2010-0261, dated December 9, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
As required by current certification standards, each transport aeroplane has passenger compartment exit signs and emergency lighting strips installed to locate the emergency exits. A number of these strips and signs are not electrically powered, but are self illuminated by means of a hydrogen isotope, known as Tritium. As this isotope decays over time, these signs will [lose] their brightness.
To remain compliant with regulations, Tritium exit signs and lighting strips should be replaced when their brightness has deteriorated below accepted levels. Currently, the Maintenance Review Board (MRB) Maintenance Planning Document does not include an inspection task for signs and strips containing Tritium.
This condition, if not detected and corrected, could result in insufficiently bright exit signs and lighting strips, preventing safe evacuation during an emergency, possibly resulting in injury to occupants.
To correct this unsafe condition, EASA issued AD 2010-0200, which required [a detailed visual] inspection of the brightness of all Tritium exit signs and strips and, depending on findings, replacement of insufficiently bright signs and lighting strips.
Following the issuance of [EASA] AD 2010-0200, Fokker Services discovered that one Service Bulletin (SB), SBF100-33-023, contained errors in the two groups of aeroplane serial numbers and, consequently, in the related instructions for those aeroplanes in that SB.
For the reasons described above, this new [EASA] AD retains the requirements of EASA AD 2010-0200, which is superseded, amends the Applicability and refers to Revision 1 of SBF100-33-023 for the accomplishment instructions.
The MRB document will be updated before July 2011 to include an appropriate maintenance task to ensure that the Tritium exit signs and lighting strips meet the minimum brightness requirements.
Fokker Services B.V. has issued Service Bulletins SBF50-33-038, dated July 5, 2010; and SBF100-33-023, Revision 1, dated November 4, 2010. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 4 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $340, or $85 per product.
In addition, we estimate that any necessary follow-on actions would take about 2 work-hours and require parts costing $833, for a cost of $1,003 per product. We have no way of determining the number of products that may need these actions.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by November 25, 2011.
(b) None.
(c) This AD applies to Fokker Services B.V. Model airplanes identified in paragraphs (c)(1), (c)(2), and (c)(3) of this AD, certificated in any category.
(1) F.27 Mark 050 airplanes having serial numbers (S/N)s: 20104, 20105, 20121 through 20123 inclusive, 20130 through 20135 inclusive, 20141 through 20145 inclusive, 20150, 20156 through 20176 inclusive, 20178 through 20180 inclusive, 20182 through 20199 inclusive, 20202, 20204 through 20207 inclusive, 20210, 20211, 20213 through 20252 inclusive, 20254 through 20266 inclusive, 20270 through 20279 inclusive, 20281, 20283 through 20288 inclusive, 20296 through 20303 inclusive, 20306, 20307, 20312, 20313, 20316, 20317, 20328, 20331, 20333, and 20335.
(2) F.28 Mark 0070 and 0100 airplanes having S/Ns: 11257, 11258, 11262, 11264 through 11266 inclusive, 11287, 11301, 11317, 11340, 11342, 11352 through 11356 inclusive, 11360, 11368 through 11370 inclusive, 11376, 11377, 11385, 11395, 11402, 11403, 11405 through 11408 inclusive, 11411 through 11419 inclusive, 11425 through 11428 inclusive, 11434 through 11437 inclusive, 11447 through 11449 inclusive, 11457 through 11459 inclusive, 11467, 11469, 11478, 11479, 11481, 11482, 11487, 11492 through 11495 inclusive, 11497, 11498, 11501, 11503, 11506, 11507, 11509, 11514, 11521, 11528, 11529, 11532, 11536 through 11541 inclusive, 11543, 11545, 11547, 11549, 11551, 11553 through 11583 inclusive, and 11585.
(3) F.28 Mark 0100 airplanes, if in a post-Fokker Service Bulletin SBF100-52-060 configuration, having S/Ns: 11244 through 11256 inclusive, 11259 through 11261 inclusive, 11263, 11267 through 11286 inclusive, 11288 through 11300 inclusive, 11302 through 11316 inclusive, 11318 through 11339 inclusive, 11341, 11343 through 11351 inclusive, 11357 through 11367 inclusive, 11371 through 11375 inclusive, 11378 through 11384 inclusive, 11386 through 11394 inclusive, 11396 through 11401 inclusive, 11404, 11409, 11410, 11420 through 11424 inclusive, 11429 through 11433 inclusive, 11438 through 11446 inclusive, 11450 through 11456 inclusive, 11460 through 11466 inclusive, 11468, 11470 through 11477 inclusive, 11480, 11483 through 11486 inclusive, 11488 through 11491 inclusive, 11496, 11499, 11500, 11502, 11504, 11505, 11508, 11510 through 11513 inclusive, 11515 through 11520 inclusive, 11522, 11523, and 11527.
(d) Air Transport Association (ATA) of America Code 33: Lights.
(e) The mandatory continuing airworthiness information (MCAI) states:
As required by current certification standards, each transport aeroplane has passenger compartment exit signs and emergency lighting strips installed to locate the emergency exits. A number of these strips and signs are not electrically powered, but are self illuminated by means of a hydrogen isotope, known as Tritium. As this isotope decays over time, these signs will [lose] their brightness.
To remain compliant with regulations, Tritium exit signs and lighting strips should be replaced when their brightness has deteriorated below accepted levels. Currently, the Maintenance Review Board (MRB) Maintenance Planning Document does not include an inspection task for signs and strips containing Tritium.
This condition, if not detected and corrected, could result in insufficiently bright exit signs and lighting strips, preventing safe evacuation during an emergency, possibly resulting in injury to occupants.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) Within six months after the effective date of this AD, do a detailed visual inspection of the tritium exit signs and emergency lighting strips for required brightness, in accordance with the Accomplishment Instructions of Fokker Service Bulletin SBF50-33-038, dated July 5, 2010; or SBF100-33-023, Revision 1, dated November 4, 2010; as applicable. If any exit signs or emergency lighting strips are insufficiently bright, before further flight, replace the exit signs or emergency lighting strips, in accordance with the
(h) As of the effective date of this AD, no person may install any tritium exit signs or emergency lighting strips if the manufacturing date is seven years or more before the intended installation date, or if the manufacturing date cannot be determined; unless the tritium exit sign or emergency lighting strip has been inspected in accordance with paragraph (g) of this AD, and does not need replacement.
(i) Inspecting and replacing the tritium exit sign or emergency lighting strip in accordance with Fokker Service Bulletin SBF100-33-023, dated July 5, 2010, before the effective date of this AD is acceptable for compliance with the corresponding inspection and replacement required by paragraph (g) of this AD.
This AD differs from the MCAI and/or service information as follows: No differences.
(j) The following provisions also apply to this AD:
(1)
(2)
(k) Refer to MCAI European Aviation Safety Agency Airworthiness Directive 2010-0261, dated December 9, 2010; Fokker Service Bulletin SBF50-33-038, dated July 5, 2010; and Fokker Service Bulletin SBF100-33-023, Revision 1, dated November 4, 2010; for related information.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Model 767-200 and 767-300 series airplanes. This proposed AD would require installing cargo bulkhead supports, ceiling supports, secondary dam support, drainage tubing, and ceiling panels to the forward lower lobe in the forward cargo compartment. This proposed AD was prompted by reports of water accumulation in the forward lower lobe of the forward cargo compartment. We are proposing this AD to prevent water from accumulating in the forward lower lobe of the forward cargo compartment and entering the adjacent electronic equipment bay, which could result in an electrical short and the potential loss of several functions essential for safe flight.
We must receive comments on this proposed AD by November 25, 2011.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207;
You may examine the AD docket on the Internet at
Francis Smith, Aerospace Engineer, Cabin Safety & Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, WA 98057-3356;
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We received reports of high levels of water accumulation in the forward lower lobe of the forward cargo compartment and the potential for water to enter into the electronic equipment bay adjacent to it. Water coming through the floor panels can accumulate up to 12 gallons at this location and typical aircraft movement may not remove all the water. This condition, if not corrected, could result in water accumulating in the forward lower lobe of the forward cargo compartment and entering the adjacent electronic equipment bay, which could result in an electrical short and the potential loss of several functions essential for safe flight.
We reviewed Boeing Alert Service Bulletin 767-25A0505, Original Issue, dated January 14, 2011. The service information describes procedures for the installing cargo bulkhead supports, right-side ceiling supports, left-side ceiling supports, secondary dam support, drainage tubing, and ceiling panels in the forward lobe of the forward cargo compartment.
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs.
This proposed AD would require accomplishing the actions specified in the service information described previously.
We estimate that this proposed AD affects 1 airplane of U.S. registry.
We estimate the following costs to comply with this proposed AD:
According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD):
(a) We must receive comments by November 25, 2011.
(b) None.
(c) This AD applies to The Boeing Company Model 767-200 and 767-300 series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 767-25A0505, Original Issue, dated January 14, 2011.
(d) Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 25: Equipment and Furnishings.
(e) This AD was prompted by reports of water accumulation in the forward lower lobe of the forward cargo compartment. We are issuing this AD to prevent water from accumulating in the forward lower lobe of the forward cargo compartment and entering the adjacent electronic equipment bay, which could result in an electrical short and the potential loss of several functions essential for safe flight.
(f) Comply with this AD within the compliance times specified, unless already done.
(g) Within 24 months after the effective date of this AD: Install cargo bulkhead
(h)(1) The Manager, Seattle Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be e-mailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(i) For more information about this AD, contact Francis Smith, Aerospace Engineer, Cabin Safety & Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, WA 98057-3356;
(j) For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207;
Federal Aviation Administration (FAA), DOT.
Supplemental notice of proposed rulemaking (NPRM); reopening of comment period.
We are revising an earlier proposed airworthiness directive (AD) for all Model 767 airplanes. That NPRM proposed repetitive inspections to detect fatigue cracking in the wing skin, and corrective actions if necessary. That NPRM was prompted by reports of cracking in the upper wing skin at the fastener holes common to the inboard and outboard pitch load fittings of the front spar which could result in the loss of the strut-to-wing upper link load path and possible separation of a strut and engine from the airplane during flight. This action revises that NPRM by reducing compliance times. We are proposing this supplemental NPRM to correct the unsafe condition on these products. Since these actions impose an additional burden over that proposed in the NPRM, we are reopening the comment period to allow the public the chance to comment on these proposed changes.
We must receive comments on this supplemental NPRM by November 25, 2011.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; e-mail
You may examine the AD docket on the Internet at
Berhane Alazar, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue, SW., Renton, Washington 98057-3356; phone: 425-917-6577; fax: 425-917-6590; e-mail:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We issued an NPRM to amend 14 CFR part 39 to include an AD that would apply to Model 767-200, -300, -300F, and -400ER series airplanes. That NPRM was published in the
Since we issued the previous NPRM (75 FR 15357, March 29, 2010), one
Boeing has issued Alert Service Bulletin 767-57A0117, Revision 1, dated March 2, 2011, to reduce certain initial inspection compliance times (grace periods) from 4,000 flight cycles or 12,000 flight hours, to 2,000 flight cycles or 6,000 flight hours (whichever occurs first), respectively. The procedures in Revision 1 of this service bulletin are essentially the same as those in Boeing Alert Service Bulletin 767-57A0117, Original Issue, dated October 1, 2009, which was referenced in the NPRM (75 FR 15357, March 29, 2010) as the appropriate source of service information for accomplishing the proposed requirements.
We have revised this supplemental NPRM to refer to Boeing Alert Service Bulletin 767-57A0117, Revision 1, dated March 2, 2011, given credit for Boeing Alert Service Bulletin 767-57A0117, Original Issue, dated October 1, 2009, and re-identified subsequent paragraphs.
We gave the public the opportunity to comment on the previous NPRM (75 FR 15357, March 29, 2010). The following presents the comments received on the NPRM and the FAA's response to each comment.
Continental Airlines requested that we clarify the locations on which the inspections are done because the Accomplishment Instructions of Boeing Alert Service Bulletin 767-57A0117, Original Issue, dated October 1, 2009, specify doing detailed and ultrasonic inspections of the upper wing skin surface, but also mention certain instructions that specify doing the inspections on the lower surface of the upper wing skin.
We agree that clarification is needed. The upper surface of the upper wing skin is the location for the inspection. Boeing Alert Service Bulletin 767-57A0117, Revision 1, dated March 2, 2011 (described previously), specifies that the inspections be done on the “upper wing skin surface.” To clarify the location of the inspections, we have changed the wording of that phrase in the Summary and paragraphs (e) and (g) of this supplemental NPRM to “upper surface of the upper wing skin.”
All Nippon Airways (ANA) requested that we add the reference “Condition 2D” to paragraph (i) of the NPRM (75 FR 15357, March 29, 2010), which is reidentified as paragraph (h) of this supplemental NPRM, to clarify that only Condition 2D of Table 1, paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-57A0117, Original Issue, dated October 1, 2009, requires contacting Boeing for appropriate action. ANA added that “Condition 2D” specifies to “contact Boeing for additional instructions and do the repair,” but paragraph (i) of the NPRM refers to contacting Boeing for appropriate action. The commenter requested clarification.
We agree to provide clarification. We disagree with adding a reference to Condition 2D in paragraph (h) of this supplemental NPRM. Condition 2D of the Accomplishment Instructions of Boeing Alert Service Bulletin 767-57A0117, Revision 1, dated March 2, 2011 (this revised service bulletin is referenced in this supplemental NPRM as the appropriate source of service information), is the only condition that requires contacting Boeing for additional instructions and doing the repair. However, we have revised the language in paragraph (h) of this supplemental NPRM to match the language in Boeing Alert Service Bulletin 767-57A0117, Revision 1, dated March 2, 2011.
Boeing and ANA requested we clarify that any cracks found can be repaired using Figures 5 and 6 of Boeing Alert Service Bulletin 767-57A0117, Original Issue, dated October 1, 2009, provided such cracks are within the repair limits described in those figures. Boeing stated that while Figures 5 and 6 provide repairs for cracks removed up to a final hole diameter of 0.540 inch from the starting hole size of 0.375 inch, the NPRM (75 FR 15357, March 29, 2010) would require that all repairs be submitted for FAA approval. Boeing requested that we change paragraph (i) of the NPRM (paragraph (h) of this supplemental NPRM) to further limit the repair conditions that require FAA approval to include cracks that exceed the repair limits contained in Figures 5 and 6 of Boeing Alert Service Bulletin 767-57A-0117, Original Issue, dated October 1, 2009.
We disagree. Paragraph (h) of this supplemental NPRM does not require all cracks to be repaired in accordance with paragraph (j) of this supplemental NPRM. Only those cracks beyond the documented limits in Boeing Alert Service Bulletin 767-57A0117, Revision 1, dated March 2, 2011, for which that service bulletin states to “contact Boeing” are required to be repaired in accordance with paragraph (j) of this supplemental NPRM. Paragraph (h) of this supplemental NPRM refers to conditions specified in that service bulletin, which include the limitation noted by the commenter. No change has been made to this supplemental NPRM in this regard.
Continental Airlines requested changing the definition of Condition 2D of Boeing Alert Service Bulletin 767-57A0117, Original Issue, dated October 1, 2009. Continental Airlines stated that the definition is, “Any crack found in one or more of the affected fastener hole locations that can not be removed with a final hole diameter of less than or equal to 0.540 inches.” Continental Airlines noted that the condition of “less than or equal to 0.540 inches” is already covered under Condition 2C and suggested changing the wording to “Any crack found in one or more of the affected fastener hole locations that can not be removed with a final hole diameter of 0.540 inches.”
We disagree with changing the definition of Condition 2D. Condition 2C specifies cracks that can be removed with a repaired hole diameter greater than 0.453 inch and less than or equal to 0.540 inch. Condition 2D specifies cracks that cannot be removed with a repaired hole diameter of less than or equal to 0.540 inch. No change has been made to this supplemental NPRM in this regard.
ANA requested that the compliance time specified in Boeing Alert Service Bulletin 767-57A0117, Original Issue, dated October 1, 2009, be retained as proposed in the NPRM (75 FR 15357, March 29, 2010) instead of reduced as specified in Boeing Alert Service Bulletin 767-57A0117, Revision 1, dated March 2, 2011. ANA stated that
We do not agree with the commenter's request to extend the compliance times. The intent of this supplemental NPRM, as stated in the preamble section, “Actions Since Previous NPRM Was Issued,” is to reduce the initial proposed compliance times based on failures found on airplanes below the proposed compliance times. In developing an appropriate compliance time for this action, we considered the safety implications, parts availability, and normal maintenance schedules for the timely accomplishment of the inspection. In consideration of these items, as well as the reports of cracking, we have determined that the revised compliance times specified in Boeing Alert Service Bulletin 767-57A0117, Revision 1, dated March 2, 2011, will ensure an acceptable level of safety.
Since maintenance schedules vary widely among operators, we tried to accommodate most affected operators by allowing the inspections to be done during scheduled maintenance intervals. However, under the provisions of paragraph (j) of this supplemental NPRM, we will consider requests for approval of an extension of the compliance time if sufficient data are submitted to substantiate that the extension would provide an acceptable level of safety.
Continental Airlines stated that the “More Data” column of Step 2, Figure 5, of Boeing Alert Service Bulletin 767-57A0117, Original Issue, dated October 1, 2009, references “Table 1 or Table 2 below.” Continental noted that there are no tables “below” on that particular page, but are on the following page.
We infer that the commenter is requesting that we revise this supplemental NPRM to clarify the location of the tables. We disagree. Although those tables are not physically “below” on the same page, those tables can be easily located and can still be considered “below” as they follow the discussion items. No change has been made to this supplemental NPRM in this regard.
Continental Airlines requested clarification of the wording in the “More Data” column of Step 4, Figure 5, of Boeing Alert Service Bulletin 767-57A0117, Original Issue, dated October 1, 2009. The commenter stated that the reference to “SRM 51-40-09,” in the “More Data” section of this service bulletin is for aluminum structure. Continental believed the intent is to cold work the skin hole only for airplanes with titanium pitch load fittings. Continental requested that we clarify this definition.
We agree that the cold working was meant for the wing skin holes for airplanes having titanium pitch load fittings. However, we have determined that the titanium fitting maintains an adequate level of safety if the cold working process is carried out through the entire stack-up. The other option would be to cold work only the aluminum skin, but that would be cost prohibitive and impractical to remove the titanium fitting, cold work the aluminum skin, and re-install the titanium fitting on the airplane. No change has been made to the supplemental NPRM in this regard.
Continental Airlines stated that it may be beneficial to reference Appendix A in Figure 6 of Boeing Alert Service Bulletin 767-57A0117, Original Issue, dated October 1, 2009.
We partially agree. Although it could be beneficial to reference Appendix A in Figure 6, Appendix A already is referenced in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-57A0117, Revision 1, dated March 2, 2011 (this revised service bulletin is referenced in this supplemental NPRM). No change has been made to the supplemental NPRM in this regard.
We are proposing this supplemental NPRM because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs. Certain changes described above expand the scope of the original NPRM (75 FR 15357, March 29, 2010). As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this supplemental NPRM.
This supplemental NPRM would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Supplemental NPRM and the Service Information.”
Boeing Alert Service Bulletin 767-57A0117, Revision 1, dated March 2, 2011, specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways:
• Using a method that we approve; or
• Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization that we have authorized to make those findings.
We estimate that this proposed AD affects 417 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do any necessary repairs that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these repairs:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD):
We must receive comments by November 25, 2011.
None
This AD applies to The Boeing Company Model 767-200, -300, -300F, and -400ER series airplanes; certificated in any category; as identified in Boeing Alert Service Bulletin 767-57A0117, Revision 1, dated March 2, 2011.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by reports of cracking in the upper wing skin at the fastener holes common to the inboard and outboard front spar pitch load fittings. We are issuing this AD to detect and correct fatigue cracking in the upper surface of the upper wing skin at the fastener holes common to the inboard and outboard pitch load fittings of the front spar, which could result in the loss of the strut-to-wing upper link load path and possible separation of a strut and engine from the airplane during flight.
Comply with this AD within the compliance times specified, unless already done.
Except as provided by paragraph (i) of this AD, at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-57A0117, Revision 1, dated March 2, 2011: Do detailed and ultrasonic inspections, or do an open-hole high-frequency eddy current inspection, to detect cracking in the upper surface of the upper wing skin at the fastener holes common to the inboard and outboard pitch load fittings of the front spar; and do all applicable corrective actions; in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 767-57A0117, Revision 1, dated March 2, 2011, except as required by paragraph (h) of this AD. Do all applicable corrective actions before further flight. Repeat the applicable inspections thereafter at intervals not to exceed the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-57A0117, Revision 1, dated March 2, 2011.
(1) If any cracking is found during any inspection required by this AD, and Boeing Alert Service Bulletin 767-57A0117, Revision 1, dated March 2, 2011, specifies to contact Boeing for additional instructions: Before further flight, repair the cracking using a method approved in accordance with the procedures specified in paragraph (j) of this AD.
(2) Where Boeing Alert Service Bulletin 767-57A0117, Revision 1, dated March 2, 2011, specifies a compliance time after the date on Boeing Alert Service Bulletin 767-57A0117, Original Issue, dated October 1, 2009, this AD requires compliance within the specified compliance time after the effective date of this AD.
Actions done before the effective date of this AD in accordance with Boeing Alert Service Bulletin 767-57A0117, dated October 1, 2009, are acceptable for compliance with the corresponding requirements of paragraph (g) of this AD.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Berhane Alazar, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue, SW., Renton, Washington 98057-3356; phone: 425-917-6577; fax: 425-917-6590; e-mail:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; e-mail
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Boeing Model 747-400 series airplanes. This proposed AD was prompted by reports of water leaking into electrical and electronic equipment in the main equipment center, which could result in an electrical short and potential loss of several functions essential for safe flight. This proposed AD would require modifying the floor panels, removing drains; installing floor supports, floor drain trough doublers, drain troughs, and drains; and sealing and taping the floor panels. We are proposing this AD to correct the unsafe condition on these products.
We must receive comments on this proposed AD by November 25, 2011.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Boeing Commercial Airplanes,
You may examine the AD docket on the Internet at
Francis Smith, Aerospace Engineer, Cabin Safety & Environmental Systems Branch, ANM-150S, Seattle Aircraft Certification Office (ACO), FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356;
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We have received reports of water leaking into electrical and electronic equipment in the main equipment center on Model 747-400 Boeing Converted Freighter (BCF) airplanes. The water leaked through the main deck floor panels, fasteners, and floor fittings. The source of the water includes rain and snow coming in through the main deck doors, as well as wet cargo. This condition, if not corrected, could result in an electrical short and potential loss of several functions essential for safe flight.
We reviewed Boeing Special Attention Service Bulletin 747-25-3586, dated November 12, 2010. This service information describes procedures for the following actions at stations 210 and 530.
• Modifying by removing and reworking floor panels
• Removing drains
• Installing new floor supports
• Installing floor drain trough doublers, and drain troughs
• Installing new drains
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information described previously.
We estimate that this proposed AD affects 12 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD):
Directorate Identifier 2011-NM-007-AD.
We must receive comments by November 25, 2011.
None.
This AD applies to The Boeing Company Model 747-400 series airplanes, certificated in any category, as identified in Boeing Special Attention Service Bulletin 747-25-3586, dated November 12, 2010.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 25, Equipment and Furnishings.
This AD was prompted by reports of water leaking into electrical and electronic equipment in the main equipment center. We are issuing this AD to prevent water from entering the main equipment center, which could result in an electrical short and potential loss of several functions essential for safe flight.
Comply with this AD within the compliance times specified, unless already done.
Within 24 months after the effective date of this AD: Modify the floor panels; remove drains; install floor supports, floor drain trough doublers, drain troughs, and drains; and seal and tape the floor panels; at the applicable locations; in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 747-25-3586, dated November 12, 2010.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be e-mailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Francis Smith, Aerospace Engineer, Cabin Safety & Environmental Systems Branch, ANM-150S, Seattle Aircraft Certification Office (ACO), FAA, 1601 Lind Avenue SW., Renton, Washington 98057-3356;
(2) For service information identified in this AD, contact Boeing Commercial Airplanes,
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
It was discovered that the Horizontal Stabilizer Trim Actuator (HSTA) No Back and the Number 1 Motor Brake Assembly (MBA) can both fail dormant. A failure of the HSTA No Back and the Brake System along with additional component failure could result in an uncontrollable horizontal stabilizer surface runaway without the ability to retrim. This condition, if not corrected, could lead to the loss of the aeroplane.
We must receive comments on this proposed AD by November 25, 2011.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-5000; fax 514-855-7401; e-mail
You may examine the AD docket on the Internet at
Cesar Gomez, Aerospace Engineer, Airframe and Mechanical Systems Branch, ANE-171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone (516) 228-7318; fax (516) 794-5531.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2011-05, dated March 24, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
It was discovered that the Horizontal Stabilizer Trim Actuator (HSTA) No Back and the Number 1 Motor Brake Assembly (MBA) can both fail dormant. A failure of the HSTA No Back and the Brake System along with additional component failure could result in an uncontrollable horizontal stabilizer surface runaway without the ability to retrim. This condition, if not corrected, could lead to the loss of the aeroplane.
As a result, new Airworthiness Limitation Tasks, consisting of a functional test of the HSTA No Back and a functional test of the HSTA Brake System, have been introduced to ensure that a dormant failure of either component is detected and corrected.
This [TCCA] directive mandates the revision of the approved maintenance schedule to include these new tasks, including phase-in schedules.
Bombardier, Inc. has issued Temporary Revision 5-2-59, dated November 25, 2010, to Section 5-10-40, “Certification Maintenance Requirements,” of Part 2, “Airworthiness Limitations,” of the Bombardier Challenger 300 BD-100 Time Limits/Maintenance Checks Manual. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 76 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $6,460, or $85 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by November 25, 2011.
(b) None.
(c) This AD applies to all Bombardier, Inc. Model BD-100-1A10 (Challenger 300) airplanes, certificated in any category.
This AD requires revisions to certain operator maintenance documents to include new inspections. Compliance with these tasks is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these inspections, the operator may not be able to accomplish the inspections described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (j) of this AD. The request should include a description of changes to the required inspections that will ensure the continued operational safety of the airplane.
(d) Air Transport Association (ATA) of America Code 55: Stabilizers.
(e) The mandatory continuing airworthiness information (MCAI) states:
It was discovered that the Horizontal Stabilizer Trim Actuator (HSTA) No Back and the Number 1 Motor Brake Assembly (MBA) can both fail dormant. A failure of the HSTA No Back and the Brake System along with additional component failure could result in an uncontrollable horizontal stabilizer surface runaway without the ability to retrim. This condition, if not corrected, could lead to the loss of the aeroplane.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) Within 30 days the effective date of this AD: Revise the maintenance program by incorporating Task 27-40-00-107, “Horizontal Stabilizer Trim Actuator (HSTA) No Back,” in accordance with Bombardier Temporary Revision 5-2-59, dated November 25, 2010, to Section 5-10-40, “Certification Maintenance Requirements,” of Part 2, “Airworthiness Limitations,” of the Bombardier Challenger 300 BD-100 Time Limits/Maintenance Checks Manual. For this task, the initial compliance time starts at the applicable time specified in paragraph (g)(1) or (g)(2) of this AD.
(1) For HSTAs with 2,600 or fewer total flight hours on the HSTA as of the effective date of this AD: Prior to the accumulation of 3,000 total flight hours on the HSTA.
(2) For HSTAs with more than 2,600 total flight hours on the HSTA as of the effective date of this AD: Within 400 flight hours or 6 months after the effective date of this AD, whichever occurs first.
(h) Within 30 days after the effective date of this AD, whichever occurs later: Revise the maintenance program by incorporating Task 27-41-05-105, “Functional Test of the Horizontal Stabilizer Trim Actuator (HSTA) Brake System,” in accordance with Bombardier Temporary Revision 5-2-59, dated November 25, 2010, to Section 5-10-40, “Certification Maintenance Requirements,” of Part 2, “Airworthiness Limitations,” of the Bombardier Challenger 300 BD-100 Time Limits/Maintenance Checks Manual. For this task, the initial compliance time starts at the applicable time specified in paragraph (h)(1) or (h)(2) of this AD.
(1) For airplanes with 400 or fewer total flight hours as of the effective date of this AD: Prior to the accumulation of 800 total flight hours.
(2) For airplanes with more than 400 total flight hours as of the effective date of this AD: Within 400 flight hours or 12 months after the effective date of this AD, whichever occurs first.
The maintenance program revision required by paragraphs (g) and (h) of this AD may be done by inserting a copy of Bombardier TR 5-2-59, dated November 25, 2010, into Section 5-10-40, “Certification Maintenance Requirements,” of Part 2,
(i) After accomplishing the revision required by paragraphs (g) and (h) of this AD, no alternative actions (
This AD differs from the MCAI and/or service information as follows:
No differences.
(j) The following provisions also apply to this AD:
(1)
(2)
(k) Refer to MCAI Transport Canada Civil Aviation (TCCA) Airworthiness Directive CF-2011-05, dated March 24, 2011; and Bombardier Temporary Revision 5-2-59, dated November 25, 2010, to Section 5-10-40, “Certification Maintenance Requirements,” of Part 2, “Airworthiness Limitations,” of the Bombardier Challenger 300 BD-100 Time Limits/Maintenance Checks Manual; for related information.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
The manufacturer of the Transformer Rectifier Unit (TRU) part of the Ram Air Turbine (RAT) system has identified an incorrect design of the part.
This condition, if not corrected, and if occurring while the RAT is deployed, could result in a degraded direct current power which is distributed to essential aeroplane systems and therefore aeroplane operations might be impaired.
We must receive comments on this proposed AD by November 25, 2011.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Dassault Falcon Jet, P.O. Box 2000, South Hackensack, New Jersey 07606; telephone 201-440-6700; Internet
You may examine the AD docket on the Internet at
Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-1137; fax (425) 227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2011-0008, dated January 18, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
The manufacturer of the Transformer Rectifier Unit (TRU) part of the Ram Air Turbine (RAT) system has identified an incorrect design of the part.
The internal wiring that conducts the high voltage alternative current from the RAT generator may become loose due to insufficient crimping of the wire and contacts.
This condition, if not corrected, and if occurring while the RAT is deployed, could result in a degraded direct current power which is distributed to essential aeroplane systems and therefore aeroplane operations might be impaired.
To address this unsafe condition, the manufacturer of the RAT TRU has developed an improved RAT TRU with a new Part Number (P/N).
This [EASA] AD requires replacement of the affected RAT TRU by a modified RAT TRU.
Dassault Aviation has issued Mandatory Service Bulletin 7X-163, dated December 1, 2010. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 27 products of U.S. registry. We also estimate that it would take about 13 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $16,310 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $470,205, or $17,415 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by November 25, 2011.
(b) None.
(c) This AD applies to Dassault Aviation Model FALCON 7X airplanes, all serial numbers, certificated in any category; equipped with any Ram Air Turbine (RAT) Transformer Rectifier Unit (TRU) having part number (P/N) 5913703.
(d) Air Transport Association (ATA) of America Code 24: Electrical Power.
(e) The mandatory continuing airworthiness information (MCAI) states:
The manufacturer of the Transformer Rectifier Unit (TRU) part of the Ram Air Turbine (RAT) system has identified an incorrect design of the part.
This condition, if not corrected, and if occurring while the RAT is deployed, could result in a degraded direct current power which is distributed to essential aeroplane systems and therefore aeroplane operations might be impaired.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) Within 28 months after the effective date of this AD, replace any RAT TRU having P/N 5913703 with a RAT TRU having P/N 5915825, in accordance with the Accomplishment Instructions of Dassault Mandatory Service Bulletin 7X-163, dated December 1, 2010.
(h) As of the effective date of this AD, no person may install any RAT TRU having P/N 5913703, on any airplane.
This AD differs from the MCAI and/or service information as follows: No differences.
(i) The following provisions also apply to this AD:
(1)
(2)
(j) Refer to MCAI European Aviation Safety Agency Airworthiness Directive 2011-0008, dated January 18, 2011; and Dassault Mandatory Service Bulletin 7X-163, dated December 1, 2010; for related information.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD), for certain Airbus Model A300 B2-1C, B2K-3C, B2-203, B4-2C, B4-103, and B4-203 airplanes and Model A300 B4-601, B4-603, B4-620, B4-622, B4-605R, B4-622R, and F4-605R airplanes, that would supersede an existing AD. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
Following the occurrence of cracks on the MLG [main landing gear] Rib 5 RH [right-hand] and LH [left-hand] attachment fitting lower flanges, DGAC [Direction Générale de l'Aviation Civile] France AD 2003-318(B) was issued to require repetitive inspections and, as terminating action * * * [.]
Subsequently, new cases of cracks were discovered during scheduled maintenance checks by operators of A300B4 and A300-600 type aeroplanes on which the terminating action * * * [was] embodied. This condition, if not corrected, could affect the structural integrity of those aeroplanes.
We must receive comments on this proposed AD by November 25, 2011.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Airbus SAS—EAW (Airworthiness Office), 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; e-mail
You may examine the AD docket on the Internet at
Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2125; fax (425) 227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On November 3, 2010, we issued AD 2010-23-26, Amendment 39-16516 (75 FR 74610, December 1, 2010). That AD required actions intended to address an unsafe condition on the products listed above.
Since we issued AD 2010-23-26, Amendment 39-16516 (75 FR 74610, December 1, 2010), we have determined that it is necessary to mandate the optional spot-facing modification specified in paragraph (q) of the existing AD: The European Aviation Safety Agency (EASA), which is the aviation authority for the Member States of the European Community, has issued EASA Airworthiness Directive 2011-0029, dated February 24, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Following the occurrence of cracks on the MLG [main landing gear] Rib 5 RH [right-hand] and LH [left-hand] attachment fitting lower flanges, DGAC [Direction Générale de l'Aviation Civile] France AD 2003-318(B) was issued to require repetitive inspections and, as terminating action, the embodiment of Airbus Service Bulletins (SB) A300-57-0235 and A300-57-6088 * * *.
Subsequently, new cases of cracks were discovered during scheduled maintenance checks by operators of A300B4 and A300-600 type aeroplanes on which the terminating action SB's were embodied. This condition, if not corrected, could affect the structural integrity of those aeroplanes.
To address and correct this condition, Airbus developed an inspection programme for aeroplanes modified in accordance with SB A300-57-0235 or A300-57-6088. This inspection programme was required to be implemented by DGAC France AD F-2005-113, original issue and later revision 1 [parallel to part of FAA AD 2006-12-13, Amendment 39-14639 (71 FR 33994, June 13, 2006)].
A new EASA [European Aviation Safety Agency] AD 2008-0111, superseding DGAC France AD F-2005-113R1, was issued to reduce the applicability. For aeroplanes already compliant with DGAC France AD F-2005-113R1, no further action was required.
Since EASA AD 2008-0111 issuance, Airbus reviewed the inspection programmes of SB A300-57A0246 and SB A300-57A6101 to introduce repetitive inspections including a new inspection technique for holes 47 and 54 and to reduce inspections threshold and intervals from 700 Flight Cycles (FC) to 400 FC until a revised terminating action is made available.
For the reasons stated above, EASA AD 2009-0081 superseded EASA AD 2008-0111 and required operators to comply with the new inspection programme introduced in Revisions 3 of Airbus SB A300-57A0246 and Airbus SB A300-57A6101.
EASA AD 2009-0081 R1 [which corresponds to FAA AD 2010-23-26, Amendment 39-16516 (75 FR 74610, December 1, 2010)] has been published to introduce an optional terminating action which consisted of spot-facing the sensitive holes of the MLG Rib 5 (LH and RH) bottom flanges.
Later discussions with Airbus have demonstrated the necessity to require the spot-facing modification as a final solution (no longer optional). This new [EASA] AD retains the inspection requirements of EASA AD 2009-0081 R1, which is superseded, and requires the spot-facing of sensitive holes of the MLG Rib 5 (LH and RH) bottom flanges as terminating action.
Airbus has issued Mandatory Service Bulletins A300-57-0254, Revision 01, including Appendix 1, dated June 14, 2011; and A300-57-6110, Revision 01, including Appendix 1, dated June 6, 2011. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 155 products of U.S. registry.
The actions that are required by AD 2010-23-26, Amendment 39-16516 (75 FR 74610, December 1, 2010), and retained in this AD take about 79 work-hours per product, at an average labor rate of $85 per work hour. Required parts cost about $10,270 per product. Based on these figures, the estimated cost of the currently required actions is $16,985 per product.
We estimate that it would take about 100 work-hours per product to comply with the new basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $1,317,500, or $8,500 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing Amendment 39-16516 (75 FR 74610, December 1, 2010) and adding the following new AD:
(a) We must receive comments by November 25, 2011.
(b) This AD supersedes AD 2010-23-26, Amendment 39-16516 (75 FR 74610, December 1, 2010).
(c) This AD applies to the airplanes, certificated in any category, identified in paragraphs (c)(1) and (c)(2) of this AD; except airplanes on which Airbus Modification 11912 or 11932 has been installed.
(1) Airbus Model A300 B2-1C, B2K-3C, B2-203, B4-2C, B4-103, and B4-203 airplanes.
(2) Airbus Model A300 B4-601, B4-603, B4-620, B4-622, B4-605R, B4-622R, and F4-605R airplanes.
(d) Air Transport Association (ATA) of America Code 57: Wings.
(e) The mandatory continuing airworthiness information (MCAI) states:
Following the occurrence of cracks on the MLG [main landing gear] Rib 5 RH [right-hand] and LH [left-hand] attachment fitting lower flanges, DGAC [Direction Générale de l'Aviation Civile] France AD 2003-318(B) was issued to require repetitive inspections and, as terminating action, the embodiment of Airbus Service Bulletins (SB) A300-57-0235 and A300-57-6088 * * *.
Subsequently, new cases of cracks were discovered during scheduled maintenance checks by operators of A300B4 and A300-600 type aeroplanes on which the terminating action SB's were embodied. This condition, if not corrected, could affect the structural integrity of those aeroplanes.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) Perform a detailed inspection and a high-frequency eddy current (HFEC) inspection to detect cracks in Gear Rib 5 of the main landing gear (MLG) attachment fittings at the lower flange, in accordance with the Accomplishment Instructions of any applicable service bulletin listed in Table 1 and Table 2 of this AD, at the time specified in paragraph (g)(1) or (g)(2) of this AD. After April 12, 2000 (the effective date of AD 2000-05-07, Amendment 39-11616 (65 FR 12077, March 8, 2000)), only the service bulletins listed in Table 2 of this AD may be used. Repeat the inspections thereafter at intervals not to exceed 1,500 flight cycles, until the actions specified in paragraph (i), (j), or (l) of this AD are accomplished.
(1) For airplanes that have accumulated 20,000 or more total flight cycles as of March 9, 1998 (the effective date of AD 98-03-06, Amendment 39-10298 (63 FR 5224, February 2, 1998)): Inspect within 500 flight cycles after March 9, 1998.
(2) For airplanes that have accumulated less than 20,000 total flight cycles as of March 9, 1998: Inspect prior to the accumulation of 18,000 total flight cycles, or within 1,500 flight cycles after March 9, 1998, whichever occurs later.
For the purposes of this AD, a detailed inspection is defined as: “An intensive visual examination of a specific structural area, system, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good
Accomplishment of the initial detailed and HFEC inspections prior to April 12, 2000, in accordance with Airbus Service Bulletin A300-57A0234 or A300-57A6087, both dated August 5, 1997, as applicable, is considered acceptable for compliance with the initial inspections required by paragraph (g) of this AD.
(h) If any crack is detected during any inspection required by paragraph (g) of this AD, prior to further flight, accomplish the requirements of paragraph (h)(1) or (h)(2) of this AD, as applicable.
(1) If a crack is detected at one hole only, and the crack does not extend out of the spotface of the hole, repair in accordance with the Accomplishment Instructions of the applicable service bulletin in Table 2 of this AD.
(2) If a crack is detected at more than one hole, or if any crack at any hole extends out of the spotface of the hole, repair in accordance with a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, or the European Aviation Safety Agency (EASA) (or its delegated agent).
(i) Except as required by paragraph (l) of this AD, prior to the accumulation of 21,000 total flight cycles, or within 2 years after October 20, 1999 (the effective date of AD 99-19-26, Amendment 39-11313 (64 FR 49966, September 15, 1999)), whichever occurs later: Modify Gear Rib 5 of the MLG attachment fittings at the lower flange in accordance with the Accomplishment Instructions of the applicable service bulletin in Table 3 of this AD. After July 18, 2006 (the effective date of AD 2006-12-13, Amendment 39-14639 (71 FR 33994, June 13, 2006)), only Revision 04 of Airbus Service Bulletin A300-57-6088, and Revisions 04 and 05 of Airbus Service Bulletin A300-57-0235 may be used. Accomplishment of this modification constitutes terminating action for the repetitive inspection requirements of paragraphs (g) and (j) of this AD.
Accomplishment of the modification required by paragraph (i) of this AD prior to April 12, 2000, in accordance with Airbus Service Bulletin A300-57-6088 or A300-57-0235, both dated August 5, 1998; as applicable; is acceptable for compliance with the requirements of that paragraph.
(j) For airplanes on which the modification specified in paragraph (i) or (l) of this AD has not been done before July 18, 2006 (the effective date of AD 2006-12-13, Amendment 39-14639 (69 FR 54063, September 7, 2004)), perform a detailed and an HFEC inspection to detect cracks of the lower flange of Gear Rib 5 of the MLG at holes 43, 47, 48, 49, 50, 52, and 54, in accordance with the applicable service bulletin listed in Table 4 of this AD. Perform the inspections at the applicable time specified in paragraph (j)(1), (j)(2), (j)(3), or (j)(4) of this AD. Repeat the inspections thereafter at intervals not to exceed 700 flight cycles until the terminating modification required by paragraph (l) of this AD is accomplished. Accomplishment of the inspections per paragraph (j) of this AD terminates the inspection requirements of paragraph (g) of this AD.
(1) For Model A300 B2-1C, B2K-3C, B2-203, B4-2C, B4-103, and B4-203 airplanes; and Model A300 B4-601, B4-603, B4-620, B4-622, B4-605R, B4-622R, and F4-605R airplanes that have accumulated 18,000 or more total flight cycles as of July 18, 2006: Within 700 flight cycles after July 18, 2006.
(2) For Model A300 B2-1C, B2K-3C, and B2-203 airplanes that have accumulated less than 18,000 total flight cycles as of July 18, 2006: Prior to the accumulation of 18,000 total flight cycles, or within 700 flight cycles after July 18, 2006, whichever occurs later.
(3) For Model A300 B4-2C, B4-103, and B4-203 airplanes that have accumulated less than 18,000 total flight cycles as of July 18, 2006: Prior to the accumulation of 14,500 total flight cycles, or within 700 flight cycles after July 18, 2006, whichever occurs later.
(4) For Model A300 B4-601, B4-603, B4-620, B4-622, B4-605R, B4-622R, and F4-605R airplanes that have accumulated less than 18,000 total flight cycles as of July 18, 2006: Prior to the accumulation of 11,600 total flight cycles, or within 700 flight cycles after July 18, 2006, whichever occurs later.
(k) If any crack is detected during any inspection required by paragraph (j) of this AD, prior to further flight, accomplish the requirements of paragraphs (k)(1) and (k)(2) of this AD, as applicable.
(1) If a crack is detected at only one hole, and the crack does not extend out of the spotface of the hole, repair in accordance with Airbus Service Bulletin A300-57A0234, Revision 05, including Appendix 01, dated February 19, 2002 (for Model A300 B2-1C, B2K-3C, B2-203, B4-2C, B4-103, and B4-203 airplanes); or A300-57A6087, Revision 04, including Appendix 01, dated February 19, 2002; or A300-57A6087, Revision 05, dated March 10, 2008 (for Model A300 B4-601, B4-603, B4-620, B4-622, B4-605R, B4-622R, and F4-605R airplanes); as applicable.
(2) If a crack is detected at more than one hole, or if any crack at any hole extends out of the spotface of the hole, repair in accordance with a method approved by the Manager, International Branch, ANM-116, or the EASA (or its delegated agent).
(l) For airplanes on which the terminating modification in paragraph (i) of this AD has not been accomplished before July 18, 2006: At the earlier of the times specified in paragraphs (l)(1) and (l)(2) of this AD, modify Gear Rib 5 of the MLG attachment fittings at the lower flange. Except as provided by paragraph (m) of this AD, do the modification in accordance with the applicable service bulletin in Table 5 of this AD. This action terminates the repetitive inspections requirements of paragraphs (g) and (j) of this AD.
(1) Prior to the accumulation of 21,000 total flight cycles, or within 2 years after October 20, 1999, whichever is later.
(2) Within 16 months after July 18, 2006.
(m) Where the applicable service bulletin specified in paragraph (l) of this AD specifies to contact Airbus for modification instructions; or if there is a previously installed repair at any of the affected fastener holes; or if a crack is found when accomplishing the modification: Prior to further flight, modify in accordance with a method approved by the Manager, International Branch, ANM-116, or the EASA (or its delegated agent).
(n) Actions accomplished before July 18, 2006, in accordance with the service bulletins listed in Table 6 of this AD, are considered acceptable for compliance with the corresponding action specified in paragraphs (g) through (m) of this AD.
(o) Although the service bulletins identified in Tables 1, 2, 3, 4, 5, and 6 of this AD specify to submit certain information to the manufacturer, this AD does not include such a requirement.
Restatement of Requirements of AD 2010-23-26, Amendment 39-16516 (75 FR 74610, December 1, 2010), with Certain Service Information Required after the Effective Date of This AD:
(p) Unless already done, do the following actions.
(1) At the applicable time specified in paragraph (p)(2) of this AD, perform a detailed inspection for cracking at the locations specified in paragraphs (p)(1)(i), (p)(1)(ii), and (p)(1)(iii) of this AD, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A300-57A0246, Revision 03, dated March 11, 2009, or Revision 04, dated September 9, 2009; or Airbus Mandatory Service Bulletin A300-57A6101, Revision 03, dated March 11, 2009, or Revision 04, dated September 9, 2009; as applicable. As of the effective date of this AD only Revision 04 of these service bulletins may be used.
(i) The bottom flange and vertical web in the area between the wing rear spar/gear Rib 5 attachment and the forward reaction-rod pick-up lug.
(ii) On the inboard side, around the fastener holes at locations 43, 47 to 50, 52, and 54.
(iii) On the outboard side, the lower flange, the vertical web and around the fastener holes at locations 43, 47 to 50, 52 and 54.
(2) Do the inspection required by paragraph (p)(1) of this AD at the later of the times in paragraphs (p)(2)(i) and (p)(2)(ii) of this AD.
(i) Within 400 flight cycles after the accomplishment of the actions required by paragraph (i) or (l) of this AD, as applicable.
(ii) Within 400 flight cycles or 4 months after January 5, 2011 (the effective date of AD 2010-23-26, Amendment 39-16516 (75 FR 74610, December 1, 2010)), whichever occurs first.
(3) If no cracking is detected during the inspection required by paragraph (p)(1) of this AD, before further flight, perform a fluorescent penetrant inspection (FPI) at holes location 47 and 54, in the right-hand and left-hand MLG Rib 5 attachment fitting lower flange, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A300-57A0246, Revision 03, dated March 11, 2009, or Revision 04, dated September 9, 2009; or Airbus Mandatory Service Bulletin A300-57A6101, Revision 03, dated March 11, 2009, or Revision 04, dated September 9, 2009; as applicable. As of the effective date of this AD, only Revision 04 of these service bulletins may be used.
(4) Thereafter, at intervals not to exceed 400 flight cycles, repeat the detailed and FPI inspections, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A300-57A0246, Revision 03, dated March 11, 2009, or Revision 04, dated September 9, 2009; or Airbus Mandatory Service Bulletin A300-57A6101, Revision 03, dated March 11, 2009, or Revision 04, dated September 9, 2009; as applicable; until the terminating action required by paragraph (q) of this AD has been
(5) If any crack is detected during any of the inspections required by paragraphs (p)(1), (p)(3), and (p)(4) of this AD, and Airbus Mandatory Service Bulletin A300-57A0246, Revision 03, dated March 11, 2009, or Revision 04, dated September 9, 2009; or Airbus Mandatory Service Bulletin A300-57A6101, Revision 03, dated March 11, 2009, or Revision 04, dated September 9, 2009; recommends contacting Airbus for appropriate action: Before further flight, contact Airbus for a repair solution, and do the repair; or repair the cracking using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, or EASA or its delegated agent. As of the effective date of this AD, only Revision 04 of these service bulletins may be used.
New Requirements of This AD:
(q) Within 30 months after the effective date of this AD: Modify the spot-faces around all the fastener holes at locations 43, 47 to 50, 52, and 54 (except for spot-faces of holes which have been previously repaired) on the bottom flange MLG ribs, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A300-57-0254, Revision 01, including Appendix 1, dated June 14, 2011; or Airbus Mandatory Service Bulletin A300-57-6110, Revision 01, including Appendix 1, dated June 6, 2011; as applicable. Accomplishing this modification terminates the repetitive inspection requirements of paragraph (p)(4) of this AD.
(r) Modifying the spot-faces before the effective date of this AD, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A300-57-0254, dated June 4, 2010; or Airbus Mandatory Service Bulletin A300-57-6110, dated June 7, 2010; as applicable; is considered acceptable for compliance with the requirements of paragraph (q) of this AD.
This AD differs from the MCAI and/or service information as follows: No differences.
(s) The following provisions also apply to this AD:
(1)
(2)
(t) Refer to MCAI EASA Airworthiness Directive 2011-0029, dated February 24, 2011; and the service information specified in Table 7 of this AD, for related information.
Consumer Product Safety Commission.
Advance notice of proposed rulemaking.
The Consumer Product Safety Commission (“CPSC” or “Commission” or “we”) is considering whether a new performance safety standard is needed to address an unreasonable risk of injury associated with table saws. We are conducting this proceeding under the authority of the Consumer Product Safety Act (“CPSA”), 15 U.S.C. 2051-2084. This advance notice of proposed rulemaking (“ANPR”) invites written comments from interested persons
Written comments and submissions in response to this notice must be received by December 12, 2011.
You may submit comments, identified by Docket No. CPSC-2011-0074, by any of the following methods:
Submit electronic comments in the following way:
To ensure timely processing of comments, the Commission is no longer accepting comments submitted by electronic mail (e-mail) except through
Submit written submissions in the following way:
Caroleene Paul, Directorate for Engineering Sciences, U.S. Consumer Product Safety Commission, 5 Research Place, Rockville, Maryland 20850; telephone (301) 987-2225; fax (301) 869-0294; e-mail
On April 15, 2003, Stephen Gass, David Fanning, and James Fulmer,
In the
We are conducting this proceeding under authority of the Consumer Product Safety Act (“CPSA”). 15 U.S.C. 2051-2084. The Commission believes it has the statutory authority to move forward with this ANPR because table saws that are used by consumers present risks that may not be eliminated or reduced to a sufficient extent by actions undertaken under the Occupational Safety and Health Act. 15 U.S.C. § 2080(a).
Before adopting a CPSA standard, the Commission may issue an ANPR, as provided in section 9(a) of the CPSA. 15 U.S.C. 2058(a). If the Commission decides to continue the rulemaking proceeding after considering responses to the ANPR, the Commission must then publish the text of the proposed rule, along with a preliminary regulatory analysis, in accordance with section 9(c) of the CPSA. 15 U.S.C. 2058(c). If the Commission thereafter moves forward to issue a final rule, in addition to the text of the final rule, it must publish a final regulatory analysis that includes: (1) A description of the potential benefits and costs of the rule; (2) a summary of any alternatives that were considered, their potential costs and benefits, and the reasons for their rejection; and (3) a summary and assessment of any significant issues raised on the preliminary regulatory analysis that accompanied the proposed rule. 15 U.S.C. 2058(f)(2). In addition, the Commission, among other things, must make findings that an existing or proposed voluntary standard would not be adequate, that the benefits of the rule bear a reasonable relationship to its costs, and that the rule is the least burdensome requirement that prevents or adequately reduces the risk of injury. 15 U.S.C. 2058(f)(3).
Table saws are stationary power tools used for the straight sawing of various materials—but primarily wood. In essence, a table saw consists of a table that sits on a base and through which a spinning blade protrudes. To make a cut, the table saw operator places the workpiece on the table, and, typically guided by a rip fence or miter gauge, slides the workpiece into the blade.
There are three basic table saw categories that comprise the population of table saws used for both consumer and professional use: bench saws, contractor saws, and cabinet saws. Generally, the range of quality and accuracy of a table saw is commensurate with its size, motor horsepower, weight, and, indirectly, price.
Bench saws are lightweight, inexpensive saws, designed to be moved around easily and placed temporarily on a work bench or stand. Prices for bench saws range from $100 to $600. Contractor saws are characterized by a set of light-duty legs and a bigger table and motor than a bench saw. Prices for a contractor saw range from about $500 to $1,800, or more. These saws are generally quieter, more accurate, and able to cut materials up to 2 inches
Standard safety devices on table saws are designed to prevent the saw blade from making contact with the operator and to prevent the saw blade from imparting its kinetic energy to the workpiece and throwing the workpiece back toward the operator, a phenomenon known as kickback. The configuration and specific design of safety devices vary from manufacturer to manufacturer, but the safety devices generally fall into two basic categories: blade guards and kickback prevention devices.
Traditionally, table saws sold in the United States have employed a blade guard system that combines a hood-type blade guard, splitter (also known as spreader), and anti-kickback pawls as a single unit that is bolted to the saw's carriage assembly. The hood is a single, rectangular piece of transparent plastic that surrounds the exposed blade with a sloped front to allow the guard to rise and ride over the workpiece as the piece is fed toward the blade during a cut. The splitter generally serves as the main support and connection point for the blade guard and the anti-kickback pawls. Thus, removing the splitter for any reason, necessarily removes the rest of the blade guard system and the protections those devices might offer.
Splitters, riving knives, and anti-kickback pawls are the primary safety devices on table saws that are intended to prevent kickback of the workpiece. Splitters ride within the cut, or kerf, to prevent the workpiece from closing up and pinching the blade, which can cause the workpiece to be thrown back toward the operator. Because the height of the splitter is often taller than the blade, splitters must be removed when making non-through cuts because the top portion of the blade must be exposed to cut into the workpiece. If other safety devices are attached to the splitter, removal of the splitter removes these safety devices as well.
Riving knives are curved steel plates that are similar to, and perform the same function as, splitters, but sit very close to the blade and rise no higher than the top of the saw blade. The riving knife attaches to the arbor assembly so that it moves up and down with the blade. These characteristics allow riving knives to be used while making non-through cuts because the top of the blade is exposed. A properly installed riving knife may be the most effective way to prevent kickback because it limits workpiece access to the rear teeth of the saw blade. Anti-kickback pawls consist of two hinged and barbed pieces of metal that allow passage of the workpiece but will dig into the workpiece if it begins to move back toward the operator.
CPSC staff has identified several characteristics of traditional blade guard systems that are likely to hinder table saw use and motivate consumers to remove them to make performing a cut simpler or easier. These characteristics include:
(1) Potential jamming of the workpiece on the guard: Some blade guards may jam on the leading edge of the workpiece, requiring the consumer to push the workpiece forcefully or to raise the guard manually;
(2) Poor visibility caused by the guard: Hood guards can limit visibility when lining up cuts and during a cut, especially with sawdust accumulation in the guard;
(3) Poor splitter alignment with the blade: A splitter can bend over time with use of the table saw. A blade guard system with a splitter that is not aligned properly with the blade can make feeding the workpiece through the blade increasingly difficult and can actually increase the likelihood of kickback; and
(4) Mandatory removal of the blade guard for certain cuts: The splitter and blade guard must be removed for certain oversized cuts, very narrow cuts, and any type of non-through cut. To switch back to typical through cuts, the splitter and guard must be reinstalled in keeping with manufacturers' recommendations that blade guard systems be used whenever performing a through cut.
CPSC staff has identified at least 15 manufacturers and importers of table saws. According to the Power Tool Institute (“PTI”), its members account for approximately 85 percent of all table saws sold in the United States. Most manufacturers are large, diversified, international corporations with billions of dollars in sales, of which table saws generally make up a relatively small part of their revenue. Several other U.S. corporations manufacture or import smaller numbers of table saws for the U.S. market. According to PTI, estimated annual shipments of table saws have fluctuated widely in recent years. In 2006 and 2007, estimated shipments were 800,000 to 850,000 units. However, estimated shipments declined to 650,000 in 2008, 589,000 in 2009, and 429,000 in 2010.
CPSC staff also obtained information from PTI regarding the expected useful life estimates for different categories of table saws, ranging from 6 years for an inexpensive bench saw, to 17 years for a contractor saw, to 24 years for an expensive cabinet saw. Based on these expected product lives and sales data for the different types of saws, PTI estimated the number of table saws in use at 8.0 million in 2001/2002, and 9.5 million in 2007/2008. CPSC staff believes that this estimate is generally consistent with independent estimates of table saws in use, based upon product population estimates using the CPSC's Product Population Model (“PPM”). The PPM is used by CPSC staff to estimate the number of products in use, given sales estimates and information on expected product life. Assuming an average retail price of $500 per table saw, and average annual shipments of about 700,000 units, CPSC staff believes that annual retail sales may be in the range of $300 to $400 million.
CPSC staff also reviewed tariff and trade data from the U.S. Department of Commerce and the U.S. International Trade Commission, which showed that China and Taiwan together account for more than $150 million dollars in annual imports. Allowing for markups of table saws at the manufacturer/private labeler level and the retail level, CPSC staff found that imports may account for a majority of the estimated $300 million to $400 million in shipments estimated. According to CPSC staff, exports from the United States appear to be minimal, less than $1 million annually.
CPSC staff first reviewed the National Electric Injury Surveillance System (“NEISS”) data in 2001 and 2002. The data indicated that there were 38,000 total emergency room-treated injuries associated with table saws in 2001, and 38,980 injuries in 2002. In 2001, CPSC staff conducted follow-up investigations on stationary saw-related injuries for NEISS cases treated between October 1, 2001 and December 31, 2001. As a result of the investigations, CPSC staff was able to identify injuries that resulted from previously unspecified saw categories, resulting in more precise injury estimates for 2001 and 2002. Of the 28,300 emergency room-treated injuries in 2001 and 2002 involving table saw operator blade contact, most of the injuries were sustained to the finger(s), and the majority of the injuries were lacerations. Fewer injuries resulted in amputations. The remaining injuries
Since its initial review of table saw blade contact injuries, based on data from NEISS, CPSC staff found that the estimated number of emergency department-treated injuries associated with table saws averaged 36,400 per year from 2001 to 2008. The trend analysis conducted by CPSC staff of the annual estimates for 2001 to 2008, indicated that the number of all saw-related injuries (including table saws, band and radial saws, handheld saws, and saws not specified) was steady during this time.
CPSC staff conducted a follow-up special study on stationary saw-related injuries between January 2007 to December 2008, to gather more accurate estimates on table saw injuries and hazard patterns related to table saw injuries. The special study conducted follow-up interviews on emergency room-treated table saw incidents that were reported through NEISS. The special study allowed more precise table saw injury estimates to be computed for 2007 (38,300 injuries), and 2008 (41,200 injuries). Of the 79,500 total emergency department-treated injuries associated with table saws in 2007 and 2008, an estimated 76,100 injuries were sustained by operators of the table saws. Of the injuries to table saw operators, an estimated 66,900 injuries (88%) involved blade contact, which is the pattern of addressable hazards that this ANPR seeks to address.
CPSC staff estimates that there were approximately 66,900 emergency room-treated injuries involving table saw operator blade contact in 2007 and 2008. Of the 66,900 emergency room-treated injuries involving table saw operator blade contact in 2007 and 2008, the majority (68.5%) of the victims were between the ages of 15 to 64 years old, and 31 percent were 65 years old or older. Among the operator blade contact injuries, laceration was the most frequent (65.9%) form of injury, followed by fractures (12.4%), amputation (12.0%), and avulsion (8.5%). The rate of hospitalization was 7.1 percent, compared to an average 4 percent rate of hospitalization for all consumer products reported through the NEISS system. Because CPSC staff determined that the injury trend associated with all saws has been relatively stable from 2001 and 2008, and they concluded that the results of the special study represented the most accurate estimates available, CPSC staff relied on the data from the special study for 2007 and 2008 to summarize blade contact injuries and their associated hazard patterns.
Of the 66,900 emergency room-treated injuries involving table saw operator blade contact in 2007 and 2008, approximately 20,700 (30.9%) of the injuries occurred on table saws where a blade guard was in use. Approximately 44,500 (66.5%) of the injuries occurred on table saws that did not have a blade guard attached. The most common reason for absence of the blade guard was removal by the consumer (75.0%). An estimated 23,800 injuries (35.5%) occurred as a result of kickback of the material, including scenarios where kickback of the material caused the operator's hand to be pulled into the blade, resulting in a laceration injury or amputation. Of the 23,800 blade contact injuries that occurred as a result of kickback, lacerations were the most frequent (61.2%) form of injury followed by amputations (15.6%), fractures (14.2%), and avulsions (6.5%). The rate of hospitalization was 9.0 percent.
Of the 66,900 emergency room-treated injuries involving table saw operator blade contact in 2007 and 2008, an estimated 39,600 injuries (59.2%) did not occur as a result of kickback of the material. Non-kickback injury scenarios included situations caused by a lapse in attention of the operator, such as reaching over the blade to retrieve a cut piece or otherwise not being aware of the blade during a cut. Of the 39,600 blade contact injuries that did not occur as a result of kickback, lacerations were the most frequent (69.4%) form of injury, followed by fractures (11.0%), amputations (9.5%), and avulsions (9.5%). The rate of hospitalization was 5.0 percent. CPSC staff did not find sufficient information regarding whether kickback caused operator contact with the blade in approximately 3,500 of the 66,900 operator blade contact injuries.
The Commission's Injury Cost Model (“ICM”) uses empirically derived relationships between emergency department injuries estimated through NEISS and injuries treated in other settings (
CPSC staff's preliminary review showed that societal costs per blade contact injury amount to approximately $35,000. This includes costs for medical treatment, lost time from work, product liability litigation, and pain and suffering. The relatively high societal costs, compared to the $22,000 average cost for all medically treated consumer product related injuries, reflect the high costs associated with amputations and the relatively high hospitalization rate associated with these injuries.
CPSC staff's preliminary review also showed that the expected present value of the societal costs of blade contact injuries over the life of a table saw is substantial. Therefore, an effective performance-based table saw standard potentially could result in significant reductions in the injury costs associated with blade contact. However, current systems designed to address blade contact injuries on table saws appear to be costly and could substantially increase the retail cost of table saws, especially among the least expensive bench saws.
The current U.S. voluntary consensus standard for table saws is the seventh edition of UL 987,
The sixth edition of UL 987, published in January 2005, added design and performance requirements for a riving knife and performance requirements for anti-kickback devices. This revision essentially required new table saws to employ a permanent riving knife that was adjustable for all table saw operations. The requirement also allowed for riving knife/spreader combination units, where the riving
The current edition, the seventh edition of UL 987, published in November 2007, expanded the table saw guarding requirements to include descriptions of a new modular blade guard design developed by a joint venture of the leading table saw manufacturers. The revised standard specified that the blade guard shall consist not of a hood, but of a top-barrier guarding element and two side-barrier guarding elements. The new modular guard design was intended to be an improvement over traditional hood guard designs by providing better visibility, being easier to remove and install, and incorporating a permanent riving knife design. The revised standard also specified detailed design and performance requirements for the modular blade guard, riving knife, and anti-kickback device(s). The effective date for the new requirements was January 31, 2010.
The Occupational Safety and Health Administration (“OSHA”) currently has regulations on table saws used in the workplace, which are codified at 29 CFR 1910.213, Woodworking Machinery Requirements. The OSHA regulations require that table saws in the workplace include a blade guard, a spreader, and an anti-kickback device. 29 CFR 1910.213(c)(1)-(3). The OSHA regulations require the saw be guarded by a hood with certain performance standards including, among other things, requirements that the hood be strong enough to withstand certain pressures, be adjustable to the thickness of the material being cut, and be constructed in a way to protect the operator from flying splinters and broken saw teeth. 29 CFR 1910.213(c)(1). The OSHA regulations also require inspection and maintenance of woodworking machinery. For example, unsafe saws must be removed from service immediately, push sticks or push blocks must be provided at the workplace for guiding or pushing material past the blade, and emphasis must be placed on the cleanliness around woodworking machinery and, in particular, the effective functioning of guards and prevention of fire hazards. 29 CFR 1910.213(s).
CPSC staff found that the primary differences between consumer and professional users of table saws are environment and training/experience. In many work production environments where a specific cut is performed continuously, guards and safety cut-off switches are custom designed for that set up. The area is specifically designed to be as safe as possible and safety is a continuous focus through warning/instruction signs and posters that are often displayed throughout the work area. The workplace is also subject to spontaneous inspection by OSHA inspectors; therefore, the prospect of being fined for safety violations increases the likelihood that workers or supervisors will help ensure safety codes are followed. In addition, professional woodworkers are in an industrial setting where employees often receive training on safety practices and in the proper use of the tool. Professional woodworkers are more likely to have had training and to be experienced in performing any special or complex operations with the saw and are more likely to recognize situations and set-ups that may be dangerous or require extra care and caution.
Amateur woodworkers generally have little or no safety training, nor training in the proper use of the table saw. They may take woodworking classes or watch a training video, but the home users typically have far less experience than professional woodworkers and may discover dangerous or difficult operations only by actually experiencing near accidents or problems. The home woodworker also does not have the same OSHA-regulated protections in the home-based woodshop. The focus on a safe environment in a consumer setting is dependent upon the knowledge and initiative of the home woodworker, but there is no oversight to educate and motivate the consumer to prepare as safe an environment as possible.
CPSC staff also reviewed the 2007-2008 special study of table saw-related injury estimates to assess whether they were work-related. Narratives and responses in the 862 cases in the table saw study were reviewed to identify cases that might be work-related. Four of the cases appeared to be work-related, and another 12 cases appeared to be potentially work-related. Combined, these cases comprised less than 2 percent of the sample data and less than 2 percent of the estimated 79,500 total table or bench saw injuries over the two years 2007-2008. The remaining 846 cases in the special study represented an estimated 78,000 non-work-related injuries.
We believe that OSHA regulations may not adequately reduce the risk of operator blade contact injuries to consumers because these regulations are primarily intended to ensure a safer work environment in the professional workplace setting, rather than the home woodworking environment. OSHA regulations rely on a comprehensive approach to promote safe practices in the workplace. These strategies include training and outreach, as well as mandatory safety standards and enforcement. This approach would not be available to consumers operating table saws in a home woodworking environment. CPSC staff's review showed that less than 2 percent of the estimated 79,500 total table or bench saw injuries over the 2007-2008 period appear to be work-related. Moreover, we note that the OSHA regulations for guarding are essentially identical to the requirements in the now superseded fifth edition of the voluntary standard for table saws, UL 987,
One or more of the following alternatives could be used to reduce the identified risks associated with table saw blade contact injuries:
CPSC staff evaluated two new technologies that have been introduced to the table saw market since 2007 to address blade contact injury. Technologies that address blade contact injuries on table saws can be categorized by their main purpose: (1) Prevention of the event, and (2) mitigation of the event.
In 2007, a joint venture of the leading table saw manufacturers introduced a new modular blade guard design to the market. The new modular guard, like traditional blade guard systems, is aimed at preventing the event of blade contact. In general, traditional blade guards and the new modular blade guards can effectively prevent most physical side, rear, and downward contact with the table saw blade but will primarily act as a tactile warning for front approach contact with the blade. The new modular blade guard system appears to be a significant improvement over most traditional blade guard systems because it uses a permanent, adjustable riving knife, rather than a removable splitter, as the primary kickback prevention device and support for the guard. However, the new blade guard system still would not prevent blade contact injuries resulting from the hand approaching the front, or leading portion, of the blade. Furthermore, the new blade guard system still can hinder certain table saw tasks, thereby encouraging its removal, and it can prevent certain sawing tasks from being performed unless it is removed. CPSC staff's review showed that removing the blade guard system is easy but installation can be tricky and, if the process is repeated, it can also be time-consuming and burdensome. These characteristics may motivate some consumers—especially experienced or expert woodworkers—not to bother reinstalling the system once it is removed.
In 2008, the petitioners developed a contractor saw with a blade contact detection and reaction system that was introduced to the table saw market as the SawStop system. Blade contact detection and reaction systems function as a secondary safety system to mitigate the event of blade contact. The system is not intended to prevent table saw blade contact incidents, but rather, to lessen the consequences of blade contact when it occurs. The SawStop system includes two components: An electronic detection unit, and a brake. The system induces a small electrical signal onto the saw blade that is partially absorbed by the human body if contact is made. When this reduction in signal is detected, the system applies a brake to the blade that stops and retracts the blade below the table surface within milliseconds. In principle, the only injury likely to be sustained by direct contact with the saw blade when the system functions as intended is a small cut.
The SawStop system reviewed by CPSC staff did not seem to interfere with most sawing operations, and, once installed, the system is essentially invisible to the consumer until it is needed. If the system is activated or the standard 10-inch blade needs to be replaced with a smaller dado blade (a type of saw blade used to cut grooves), the brake cartridge underneath the table surface must be replaced. Removing and reinstalling the brake cartridge when switching to and from dado sets, or once the system has been activated, can be difficult. However, in all likelihood, system activation would occur only after contact with the skin, a situation in which the consumer might have sustained serious injury had the system not been in place.
We are concerned that the requirements in the voluntary standard for table saws, UL 987, Stationary and Fixed Electric Tools, which mandate a permanent riving knife and the new modular blade guard system, may not adequately address the operator blade contact injuries associated with table saw use. While we support the recent progress UL has made in improving the voluntary standard to address blade contact injuries by focusing solely on prevention of skin-to-blade contact, the standard requirements do not appear to address adequately the number or severity of blade contact injuries that occur on table saws, nor do they address the associated societal costs. In addition, while we believe that the new modular guard design is a significant improvement over the old guard design, the effectiveness of any blade guard system depends upon an operator's willingness to use it. Safety equipment that hinders the ability to operate the product likely will result in consumers bypassing, avoiding, or discarding the safety equipment. In addition, of the 66,900 table saw operator blade contact injuries in 2007 and 2008, approximately 20,700 (30.9%) of the injuries occurred on table saws where the blade guard was in use. The current voluntary standard for table saws does not appear to address those types of injuries. Accordingly, we are particularly interested in obtaining information regarding current or developing voluntary standards that would address table saw blade contact injuries.
This ANPR is the first step in a proceeding that could result in a mandatory safety standard for table saws to address the risk of injury associated with blade contact from table saws. We invite interested persons to submit their comments on any aspect of the alternatives discussed above in part H of this document. In particular, we request the following additional information:
1. Written comments with respect to the risk of injury identified by the Commission, the regulatory alternatives being considered, and other possible alternatives for addressing the risk;
2. Any existing standard or portion of a standard that could be issued as a proposed regulation;
3. A statement of intention to modify or develop a voluntary standard to address the risk of injury discussed in this notice, along with a description of a plan (including a schedule) to do so;
4. Studies, tests, or surveys that have been performed to analyze table saw blade contact injuries, severity of injuries, and costs associated with the injuries;
5. Studies, tests, or surveys that analyze table saw use in relation to approach/feed rates, kickback, and blade guard use and effectiveness;
6. Studies, tests, or descriptions of new technologies, or new applications of existing technologies that can address blade contact injuries, and estimates of costs associated with incorporation of new technologies or applications;
7. Estimated manufacturing cost, per table saw, of new technologies or applications that can address blade contact injuries;
8. Expected impact of technologies that can address blade contact injuries on wholesale and retail prices of table saws;
9. Expected impact of technologies that can address blade contact injuries on utility and convenience of use;
10. Information on effectiveness or user acceptance of new blade guard designs;
11. Information on manufacturing costs of new blade guard designs;
12. Information on usage rates of new blade guard designs;
13. Information on U.S shipments of table saws prior to 2002, and between 2003 and 2005;
14. Information on differences between portable bench saws, contractor saws, and cabinet saws in frequency and duration of use;
15. Information on differences between saws used by consumers, saws
16. Studies, research, or data on entry information of materials being cut at blade contact (
17. Information that supports or disputes preliminary economic analyses on the cost of employing technologies that reduce blade contact injuries on table saws;
18. Studies, research, or data on appropriate indicators of performance for blade-to-skin requirements that mitigate injury;
19. Studies, research, or data that validates human finger proxies for skin-to-blade tests;
20. Studies, research, or data on detection/reaction systems that have been employed to mitigate blade contact injuries;
21. Studies, research, or data on the technical challenges associated with developing new systems that could be employed to mitigate blade contact injuries;
22. Studies, research, or data on guarding systems that have been employed to prevent or mitigate blade contact injuries;
23. Studies, research, or data on kickback of a workpiece during table saw use;
24. The costs and benefits of mandating a labeling or instructions requirement; and
25. Other relevant information regarding the addressability of blade contact injuries.
Comments and other submissions should be identified by identified by Docket No. CPSC-2011-0074 and submitted in accordance with the instructions provided above. All comments and other submissions must be received by December 12, 2011.
National Indian Gaming Commission, Interior.
Proposed rule.
The National Indian Gaming Commission (NIGC) proposes to amend its fee regulations by requiring tribes to submit their fees and fee statements on a quarterly basis, basing the fee calculation on the gaming operation's fiscal year, establishing an assessment for fees submitted one to 90 days late, and establishing a fingerprinting fee payment process.
The agency must receive comments on or before December 12, 2011.
You may submit comments by any one of the following methods, however, please note that comments sent by electronic mail are strongly encouraged.
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National Indian Gaming Commission, 1441 L Street, NW., Suite 9100 Washington, DC 20005. Telephone: 202-632-7009; e-mail:
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal.
The Indian Gaming Regulatory Act (IGRA or Act), Public Law 100-497, 25 U.S.C. 2701
The IGRA established an agency funding framework whereby gaming operations licensed by tribes pay a fee to the Commission for each gaming operation that conducts Class II or Class III gaming activity that is regulated by IGRA. 25 U.S.C. 2717(a)(1). These fees are used to fund the Commission in carrying out its regulatory authority. Fees are based on the gaming operation's gross revenues which are defined as the annual total amount of money wagered, less any amounts paid out as prizes or paid for prizes awarded and less allowance for amortization of capital expenditures for structures. 25 U.S.C. 2717(a)(6). The rate of fees is established annually by the Commission and shall be payable on a quarterly basis. 25 U.S.C. 2717(a)(3). IGRA limits the total amount of fees imposed during any fiscal year to .08 percent of the gross gaming revenues of all gaming operations subject to regulation under IGRA. Failure of a gaming operation to pay the fees imposed by the Commission's fee schedule can be grounds for a civil enforcement action. 25 U.S.C. 2713(a)(1). The purpose of Part 514 is to establish how the NIGC sets and collects those fees, to establish a basic formula for tribes to utilize in calculating the amount of fees to pay, and to advise of the consequences for failure to pay the fees.
On November 18, 2010, the National Indian Gaming Commission (NIGC) issued a Notice of Inquiry and Notice of Consultation advising the public that the NIGC was conducting a comprehensive review of its regulations and requesting public comment on which of its regulations were most in need of revision, in what order the Commission should review its regulations, and the process NIGC should utilize to make revisions. 75 FR 70680. On April 4, 2011, after holding eight consultations and reviewing all comments, NIGC published a Notice of Regulatory Review Schedule (NRR) setting out a consultation schedule and process for review. 76 FR 18457. Part 514 was included in the first regulatory group reviewed pursuant to the NRR.
The Commission conducted a total of 11 tribal consultations as part of its review of Part 514. Tribal consultations were held in every region of the country
Currently, each gaming operation regulated by IGRA must submit fee statements showing the calculation of assessable gross revenues for the previous calendar year. The Preliminary Draft of amendments to Part 514 proposed changing the timeframe of the fee calculation from the calendar year to the gaming operation's fiscal year. It is important to note that fees set by the Commission continue to be based on the gross gaming revenues of tribes, subject to the .08 percent limit established by 25 U.S.C. 2717. Comments received on the Preliminary Draft of Part 514 generally supported basing annual fees on a gaming operation's fiscal year rather than a calendar year. One commenter objected to the use of a fiscal year for calculating annual fees. The commenter expressed concern created by a conversion from a calendar year to a fiscal year and the inevitable overlap period that conversion would create.
In this proposed rule, Section 514.7 addresses the overlap period by requiring the tribe to notify the Commission of the “stub period” and submit the financial statements and fees for that period within 90 days of the tribe's request. Further, this proposed rule does not mandate a tribe change their fiscal year. While many tribes utilize a fiscal year that is not based on the calendar year, other tribes do utilize a fiscal year based on a calendar year. The Commission believes that the use of a fiscal year for calculating annual fees and completing fee statements will result in fewer inaccuracies in the calculation. The Commission notes that errors in calculating the fees have occurred as a result of a gaming operation's fiscal year being different than the calendar year. This proposed amendment changes the annual timeframe for calculating the fees; the formula contained in the regulation for calculating the assessable gross gaming revenue remains the same. The Commission believes that this proposed amendment will result in greater efficiencies for both NIGC and tribes by reducing the likelihood of errors in the fee calculation.
Part 514 currently requires each gaming operation regulated by IGRA to submit bi-annual fee statements showing its assessable gross revenues and to submit fee payment with those statements. The statements must show the amounts derived from each class of game, the amounts deducted for prizes, and amounts deducted for amortization of structures. The statements must also include the computation of the fees payable, showing all the amounts used in the calculation. The statements are due on or before June 30th and December 31st of each year.
The Preliminary Draft of Part 514 proposed changing from a bi-annual submission requirement to a quarterly submission requirement. Comments support this proposed amendment, noting however, that there should be no prohibition on pre-paying the fees for an entire year. The Commission is not proposing a revision that would prohibit pre-payment. However, quarterly fee statements are still required, even if the fee has been prepaid. Based on a review of the comments received, the Commission proposes to amend Part 514 to require the submission of quarterly fee statements and payments.
The discussion draft Part 514 proposed amendments which would utilize standard industry language. The discussion draft proposed changing “admission fees” to “entry fees”. “Entry fee” is a term commonly used in the gaming industry and the Commission believes the clarification will eliminate concern that an “admission fee” includes admission to concerts or other non-gaming activity. The Commission did not receive any comments on the Preliminary Draft that opposed the changes. Accordingly, the Commission proposes amending Part 514 to incorporate these revisions.
IGRA and NIGC regulations provide that a failure to pay fees may result in closure or revocation of approval of any license, ordinance, or resolution required under IGRA. The NIGC has issued Notices of Violation (NOV) and civil fine assessments to tribes submitting their fees late. The Commission notes that because the NIGC does not receive federal appropriations to fund its operations, it is vital that fees are submitted in a timely manner to ensure the continued funding of NIGC operations. Tribes have commented that a NOV for the late payment of fees can be an unnecessarily punitive response. In response to this concern, the Commission circulated in the Preliminary Draft a fine system that would address fees paid less than and upto 90 days after they are due.
Comments received on the Preliminary Draft supported the development of a system that addresses a late payment in a tiered approach. Comments acknowledged the need for submission of fees in a timely manner, but also noted that the circumstances of minor delays should be considered before issuance of a NOV and civil fine assessment.
The Commission proposes amending Part 514 to add a “ticket” system which assesses a fine for a late fee payment. The proposed Rule distinguishes between “late payments” and “failure to pay annual fees.” A payment received between 1 and 90 days late is a “late payment” and would be subject to an increasing percentage based late payment fine. A payment received after 90 days constitutes a “failure to pay annual fees” and subjects the tribe to a potential NOV and civil fine assessment. The proposed rule also includes a mechanism whereby the Chair may consider any mitigating circumstances surrounding the late payments and reduce the fine due. Per federal law, any fines are payable to U.S. Treasury, not the NIGC.
The NOI asked whether the Part should include a section on fingerprint processing fees. Comments received in response to the NOI supported this revision.
The Commission included in the Preliminary Draft provisions for the collection of fees for processing fingerprints. The section requires the Commission to adopt preliminary rates for processing fingerprints at the same time as the annual fee schedule is set and modified (March 1 and June 1 of each year). If a tribe fails to pay its bill for fingerprint fees, the Chair may suspend further fingerprint card processing for that tribe.
Comments received supported this revision. Some comments expressed concern about fluctuating costs and the need to adjust costs as needed. In order to address this issue, the proposed rule provides for the Commission to review the fee rate annually and establish a preliminary rate in March and adopt a final rate in July of each year. Another comment recommended the fingerprinting fees being included in the calculation of net revenues as a statutorily required operating expense. The proposed draft does not include this language as
The proposed amendment includes the provisions circulated in the Preliminary Draft. The Commission believes formalizing the procedures for assessing fingerprint card processing fees in a regulation provides transparency and clarity.
In the Notice of Inquiry, the Commission asked whether the definition of
The proposed rule will not have a significant impact on a substantial number of small entities as defined under the Regulatory Flexibility Act, 5 U.S.C. 601,
The proposed rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. The rule does not have an effect on the economy of $100 million or more. The rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, local government agencies or geographic regions. Nor will the proposed rule have a significant adverse effect on competition, employment, investment, productivity, innovation, or the ability of the enterprises, to compete with foreign based enterprises.
The Commission, as an independent regulatory agency, is exempt from compliance with the Unfunded Mandates Reform Act, 2 U.S.C. 1502(1); 2 U.S.C. 658(1).
In accordance with Executive Order 12630, the Commission has determined that the proposed rule does not have significant takings implications. A takings implication assessment is not required.
In accordance with Executive Order 12988, the Commission has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.
The Commission has determined that the rule does not constitute a major federal action significantly affecting the quality of the human environment and that no detailed statement is required pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 4321,
The information collection requirements contained in this rule were previously approved by the Office of Management and Budget (OMB) as required by 44 U.S.C. 3501
25 U.S.C. 2706(b)(10); E.O. 13175.
For the reasons discussed in the Preamble, the Commission proposes to revise 25 CFR part 514 to read as follows:
25 U.S.C. 2706, 2710, 2710, 2717, 2717a
Each gaming operation under the jurisdiction of the Commission, including a tribe with a certificate of self-regulation, shall pay to the Commission annual fees as established by the Commission. The Commission, by a vote of not less than two of its members, shall adopt the rates of fees to be paid.
(a) The Commission shall adopt preliminary rates for each calendar year no later than March 1st of each year, and, if considered necessary, shall modify those rates no later than June 1st of that year.
(b) The Commission shall publish the rates of fees in a notice in the
(a) The rates of fees imposed shall be—
(1) No more than 2.5 percent of the first $1,500,000 (1st tier), and
(2) No more than 5 percent of amounts in excess of the first $1,500,000 (2nd tier) of the assessable gross revenues from each gaming operation subject to the jurisdiction of the Commission.
(b) If a tribe has a certificate of self-regulation, the rate of fees imposed shall be no more than .25 percent of assessable gross revenues from self-regulated class II gaming operations.
(a) For purposes of computing fees, assessable gross revenues for each gaming operation are the annual total amount of money wagered on class II and III games, entry fees (including table or card fees), less any amounts paid out as prizes or paid for prizes awarded, and less an allowance for amortization of capital expenditures for structures as reflected in the gaming operation's audited financial statements.
(b) Each gaming operation subject to these regulations shall calculate the annual fee based on the gaming operation's fiscal year.
(c) Unless otherwise provided by the regulations, generally accepted accounting principles shall be used.
(d) The allowance for amortization of capital expenditures for structures shall be either:
(1) An amount not to exceed 5% of the cost of structures in use throughout the year and 2.5% (two and one-half percent) of the cost of structures in use during only a part of the year; or
(2) An amount not to exceed 10% of the total amount of depreciation expenses for the year.
(e) Examples of computations follow:
(1) For paragraph (d)(1) of this section:
(2) For paragraph (d)(2) of this section:
(f) All class II and III revenues from gaming operations are to be included.
Each gaming operation shall calculate the amount of fees to be paid and remit them with the quarterly statement required in § 514.6. The fees payable shall be computed using:
(a) The most recent rates of fees adopted by the Commission pursuant to paragraph (a) of § 514.1,
(b) The assessable gross revenues for the previous fiscal year as calculated using § 514.4, and
(c) The amounts paid and credits received during the fiscal year, if applicable.
(a) Each gaming operation subject to the jurisdiction of the Commission shall file with the Commission quarterly statements showing its assessable gross revenues for the previous fiscal year.
(b) These statements shall show the amounts derived from each type of game, the amounts deducted for prizes, and the amounts deducted for the amortization of structures.
(c) The quarterly statements shall be sent to the Commission within three (3) months, six (6) months, nine (9) months, and twelve (12) months of the end of the gaming operation's fiscal year.
(d) The quarterly statements shall identify an individual or individuals to be contacted should the Commission need to communicate further with the gaming operation. The telephone numbers of the individual(s) shall be included.
(e) Each quarterly statement shall include the computation of the fees payable, showing all amounts used in the calculations. The required calculations are as follows:
(1) Multiply the 1st tier assessable gross revenues, as calculated using § 514.4, by the rate for those revenues adopted by the Commission.
(2) Multiply the 2nd tier assessable gross revenues, as calculated using § 514.4, by the rate for those revenues adopted by the Commission.
(3) Add (total) the results (products) obtained in paragraphs (e)(1) and (2) of this section.
(4) Multiply the total obtained in paragraph (e)(3) of this section by
(5) The amount computed in paragraph (e)(4) of this section is the amount to be remitted.
(f) Examples of fee computations follow:
(1) Where a filing is made for the first quarter of the fiscal year, the previous year's assessable gross revenues as calculated using section 514.4 of this Part are $2,000,000, the fee rates adopted by the Commission are 0.0% on the first $1,500,000 and .08% on the remainder, the amounts to be used and the computations to be made are as follows:
(2) [Reserved]
(g) As required by part 571 of this chapter, quarterly statements must be reconciled with a tribe's audited or reviewed financial statements for each gaming location. These reconciliations must be made available upon the request of any authorized representative of the NIGC.
If a gaming operation changes its fiscal year, it shall notify the Commission of the change within thirty (30) days. The Commission may request that the tribe prepare and submit to the Commission the fees and statements required by this subsection for the stub period from the end of the previous fiscal year to the beginning of the new fiscal year. The submission must be sent to the Commission within ninety (90) days of its request.
The statements, remittances and communications about fees shall be transmitted to the Commission at the following address: Comptroller, National Indian Gaming Commission, 1441 L Street, NW., Suite 9100, Washington, DC 20005. Checks should be made payable to the National Indian Gaming Commission (do not remit cash).
(a) In the event that a gaming operation fails to submit a fee payment or quarterly statement in a timely manner, the Chair of the Commission may issue a notice specifying:
(1) The date the statement and/or payment was due;
(2) The number of calendar days late the statement and/or payment was submitted;
(3) A citation to the federal or tribal requirement that has been or is being violated;
(4) The action being considered by the Chair; and
(5) Notice of rights of appeal pursuant to part 577 of this chapter.
(b) Within fifteen (15) days of service of the notice, a respondent may submit written information about the notice to the Chair. The Chair shall consider any information submitted by the respondent as well as the respondent's history of untimely submissions or failure to file statements and/or fee payments over the preceding five (5) years in determining the amount of the late fee, if any.
(c) When practicable, within thirty (30) days of issuing the notice described in paragraph (a) of this section to a respondent, the Chair of the Commission may assess a proposed late fee against a respondent for each failure to file a timely quarterly statement and/or fee payment:
(1) For statements and/or fee payments one (1) to thirty (30) calendar days late, the Chair may propose a late fee of up to, but not more than ten percent (10%) of the fee amount for that quarter, as calculated in § 514.6(e);
(2) For statements and/or fee payments thirty-one (31) to sixty (60) calendar days late, the Chair may propose a late fee of up to, but not more than fifteen percent (15%) of the fee amount for that quarter, as calculated in § 514.6(e);
(3) For statements and/or fee payments sixty-one (61) to ninety (90) calendar days late, the Chair may propose a late fee of up to, but not more than twenty percent (20%) of the fee amount for that quarter, as calculated in § 514.6(e).
(a) Statements and/or fee payments over ninety (90) calendar days late constitute a failure to pay the annual fee, as set forth in IGRA, 25 U.S.C. 2717(a)(3), and NIGC regulations, 25 CFR 573.6(a)(2). In accordance with 25 U.S.C. 2717(a)(3), failure to pay fees shall be grounds for revocation of the approval of the Chair of any license, ordinance or resolution required under IGRA for the operation of gaming.
(b) In accordance with § 573.6(a)(2) of this chapter, if a tribe, management contractor, or individually owned gaming operation fails to pay the annual fee, the Chair may issue a notice of violation and, simultaneously with or subsequently to the notice of violation, a temporary closure order.
(a) Proposed late fees assessed by the Chair may be appealed under part 577 of this chapter.
(b) At any time prior to the filing of a notice of appeal under part 577 of this chapter, the Chair and the respondent may agree to settle the notice of late submission, including the amount of the proposed late fee. In the event a settlement is reached, a settlement agreement shall be prepared and executed by the Chair and the respondent. If a settlement agreement is executed, the respondent shall be deemed to have waived all rights to further review of the notice or late fee in question, except as otherwise provided expressly in the settlement agreement. In the absence of a settlement of the issues under this paragraph, the respondent may contest the proposed late fee before the Commission in accordance with part 577 of this chapter.
If the respondent fails to appeal under part 577 of this chapter, the notice and the proposed late fee shall become a final order of the Commission and final agency action.
(a) Late fees assessed under this part shall be paid by the person or entity assessed and shall not be treated as an operating expense of the operation.
(b) The Commission shall transfer the late fee paid under this subchapter to the U.S. Treasury.
(c) Interest shall be assessed at rates established from time to time by the Secretary of the Treasury on amounts remaining unpaid after their due date.
(a) The total amount of all fees imposed during any fiscal year shall not exceed the statutory maximum imposed by Congress. The Commission shall credit pro-rata any fees collected in excess of this amount against amounts otherwise due according to § 514.4.
(b) To the extent that revenue derived from fees imposed under the schedule
Tribes may submit fingerprint cards to the Commission for processing by the Federal Bureau of Investigation (FBI) and the Commission may charge a fee to process fingerprint cards on behalf of the tribes.
(a) The Commission shall review annually the costs involved in processing fingerprint cards and, by a vote of not less than two of its members, shall adopt preliminary rates for each calendar year no later than March 1st of that year, and, if considered necessary, shall modify those rates no later than June 1st of that year.
(b) The fingerprint fee charge shall be based on fees charged by the Federal Bureau of Investigation and costs incurred by the Commission. Commission costs include Commission personnel, supplies, equipment costs, and postage to submit the results to the requesting tribe.
(a) Fees for processing fingerprint cards will be billed monthly to each Tribe for cards processed during the prior month. Tribes shall pay the amount billed within forty-five (45) days of the date of the bill.
(b) The Chair may suspend fingerprint card processing for a tribe that has a bill remaining unpaid for more than forty-five (45) days.
(c) Fingerprint fees shall be sent to the following address: Comptroller, National Indian Gaming Commission, 1441 L Street, NW., Suite 9100, Washington, DC 20005. Checks should be made payable to the National Indian Gaming Commission (do not remit cash).
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking and notice of public hearing.
This document contains proposed regulations that would modify existing regulations related to the tax return preparer penalties under section 6695 of the Internal Revenue Code (Code). These proposed regulations are necessary to monitor and to improve compliance with the tax return preparer due diligence requirements of section 6695(g). The proposed regulations affect tax return preparers. This document also provides notice of a public hearing on these proposed regulations.
Written or electronic comments must be received by November 10, 2011. Outlines of topics to be discussed at the public hearing scheduled for November 7, 2011, must be received by November 1, 2011.
Send submissions to: CC:PA:LPD:PR (REG-140280-09), room 5205, Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-140280-09), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC, or sent electronically via the Federal eRulemaking Portal at
Concerning the proposed regulations, Spence Hanemann, (202) 622-4940; concerning submissions of comments, the hearing, or to be placed on the building access list to attend the hearing, Richard Hurst, (202) 622-7180 (not toll-free numbers) or
The collection of information contained in these proposed regulations was previously reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-1570. Comments on the collection of information should be sent to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, SE:W:CAR:MP:T:T:SP, Washington, DC 20224. Comments on the collection of information should be received by November 10, 2011. Comments are specifically requested concerning:
Whether the proposed collection of information is necessary for the proper performance of the IRS, including whether the information will have practical utility;
The accuracy of the estimated burden associated with the proper collection of information;
How the quality, utility, and clarity of the information to be collected may be enhanced; and
How the burden of complying with the proposed collection of information may be minimized, including through the application of automated collection techniques or other forms of information technology.
The collection of information is in § 1.6695-2(b)(1) and (b)(4) of these proposed regulations, and is an increase in the total annual burden from the burden in the current regulations. The collection of this information will improve the IRS' ability to enforce compliance with the due diligence requirements under section 6695(g) with respect to determining eligibility for, or the amount of, the earned income credit (EIC) under section 32.
Currently, the IRS estimates that there are 550,000 persons who are tax return preparers with respect to determining the eligibility for, or the amount of, EIC.
This collection of information is mandatory. The likely respondents are individuals and businesses.
Estimated total annual recordkeeping and reporting burden is 3,025,000 hours.
Estimated annual burden per tax return preparer varies from 30 minutes to 10 hours, depending on individual circumstances, with an estimated average of 5 hours and 30 minutes.
Estimated number of affected practitioners is 550,000.
Estimated annual frequency of responses is one time per tax return or claim for refund on which EIC is reported.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law.
This document contains proposed amendments to the Income Tax Regulations (26 CFR part 1) under section 6695 of the Code.
The Treasury Department and the IRS published final regulations in the
The following is a summary of the proposed changes to the existing regulations affecting tax return preparers.
Section 301.7701-15(a) of the Procedure and Administration regulations defines a “tax return preparer” as “any person who prepares for compensation, or who employs one or more persons to prepare for compensation, all or a substantial portion of any return of tax or any claim for refund of tax * * *.” Proposed § 1.6695-2(a) changes “signing tax return preparer” to “tax return preparer.” Consequently, under the proposed regulations, all tax return preparers (whether an individual or firm) who determine eligibility for, or amount of, EIC under section 32 of the Code and who fail to satisfy the due diligence requirements of paragraph (b) of these proposed regulations are subject to the penalty under section 6695(g). Under the proposed regulations, a firm that employs a person to prepare for compensation a tax return or claim for refund may be subject to the penalty for its employee's failure to comply with the due diligence requirements.
Because a firm might not have direct knowledge of an employee's failure to comply with the due diligence requirements, however, proposed § 1.6695-2(c) provides additional requirements that must be met before the penalty will be imposed on a firm. Proposed § 1.6695-2(c)(1) provides that a firm will be subject to the penalty if a member of its principal management or the principal management of a branch office participated in or knew of the failure to comply with the due diligence requirements. Proposed § 1.6695-2(c)(2) also provides that a firm will be subject to the penalty if it failed to establish reasonable and appropriate procedures to ensure compliance with the due diligence requirements. Finally, proposed § 1.6695-2(c)(2) provides that, even if a firm has established reasonable and appropriate compliance procedures, it will be subject to the penalty if it disregarded its compliance procedures through willfulness, recklessness, or gross indifference in the preparation of the tax return or claim for refund for which the penalty is imposed. A firm has demonstrated gross indifference if it ignores facts that would lead a person of reasonable prudence and competence to investigate or ascertain whether an employee is complying with the due diligence requirements.
Current § 1.6695-2(b)(1) requires a tax return preparer to complete Form 8867, “Paid Preparer's Earned Income Credit Checklist,” or otherwise record the information required by Form 8867 in the tax return preparer's files. In response to concerns over improper payments of EIC determined by tax return preparers, the Department of the Treasury and the IRS are proposing to require tax return preparers to submit the Form 8867 with the tax return or claim for refund claiming the EIC.
Proposed § 1.6695-2(b)(1)(i), therefore, requires that the Form 8867 be submitted to the IRS in the manner required by forms, instructions, or other appropriate guidance. Comments are specifically requested regarding the best way for the Department of Treasury and the IRS to implement this submission requirement. Comments are also requested regarding how Form 8867 and Schedule EIC might be revised to reduce payments of improper EIC claims and to improve the IRS' ability to detect these claims.
A tax return preparer has satisfied the due diligence requirements of current § 1.6695-2(b)(1) if the tax return preparer records, in paper or electronic files, the information necessary to complete Form 8867. Under proposed § 1.6695-2(b)(1), the due diligence requirements of paragraph (b)(1) can only be satisfied by completion and submission of the Form 8867 (or its successor form) and, therefore, cannot be satisfied by submission of any other form or document.
The amendments in proposed § 1.6695-2(b)(2) are not substantive. The term “tax return preparer” has been substituted for the term “preparer.” Under the proposed regulations, tax return preparers would continue to complete the EIC Worksheet in the Form 1040 Instructions or any other form prescribed by the IRS, or otherwise record in paper or electronic files their EIC computation, including the method and information used to make the computation. To improve clarity, however, the defined terms “Computation Worksheet” and “Alternative Computation Record” have been replaced throughout the proposed regulation with descriptive language.
Under proposed § 1.6695-2(b)(4)(i)(C), tax return preparers must still retain a record of how and when the information used to complete Form 8867 and the EIC Worksheet (or other record of the tax return preparer's EIC computation permitted under § 1.6695-2(b)(2)(i)(B)) was obtained. Additionally, a tax return preparer must also retain a copy of any document that was provided by the taxpayer and on which the tax return preparer relied to complete Form 8867 or the EIC Worksheet (or other record of the tax return preparer's EIC computation permitted under § 1.6695-2(b)(2)(i)(B)).
Proposed § 1.6695-2(b)(4)(ii) makes two changes. It substitutes “paragraph (b)(4)(i)” for “paragraph (b)(4)” in order to account for prior restructuring of paragraph (b)(4). It also changes the date through which tax return preparers must retain the records required by this section. The current retention date is three years after the June 30th following the date the return or claim for refund was presented to the taxpayer for signature. The proposed retention date is three years from the later of the due date of the return (determined without regard to any extension of time for filing) or the date the return or claim for refund was filed. This revision to the retention date will simplify the determination of the retention date for both the IRS and tax return preparers.
Proposed § 1.6695-2(d) retains the existing exception to the penalty, but excludes from the exception a firm that is subject to the penalty under the
Proposed § 1.6695-2(e) provides that the rules in this notice of proposed rulemaking will apply to tax returns and claims for refund for tax years ending on or after December 31, 2011 that are filed after the date the final regulations are published in the
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations.
When an agency issues a rulemaking proposal, the Regulatory Flexibility Act (RFA) (5 U.S.C. chapter 6), requires the agency to “prepare and make available for public comment an initial regulatory flexibility analysis” that will “describe the impact of the proposed rule on small entities.” (5 U.S.C. 603(a)). Section 605 of the RFA provides an exception to this requirement if the agency certifies that the proposed rulemaking will not have a significant economic impact on a substantial number of small entities.
The proposed rules affect tax return preparers who determine the eligibility for, or the amount of, EIC. The NAICS code that relates to tax preparation services (NAICS code 541213) is the appropriate code for tax return preparers subject to this notice of proposed rulemaking. Entities identified as tax preparation services are considered small under the Small Business Administration size standards (13 CFR 121.201) if their annual revenue is less than $7 million. The IRS estimates that approximately 75 to 85 percent of the 550,000 persons who work at firms or are self-employed tax return preparers are operating as or employed by small entities. The IRS has determined that these proposed rules will have an impact on a substantial number of small entities.
The IRS has determined, however, that the impact on entities affected by the proposed rule will not be significant. The current regulations under section 6695(g) already require tax return preparers to complete the Form 8867 or otherwise record in their files the information necessary to complete the form. Tax return preparers also must currently maintain records of the checklists and EIC computations, as well as a record of how and when the information used to compute the EIC was obtained by the tax return preparer. The amount of time necessary to submit, record, and retain the additional information required in these proposed regulations, therefore, should be minimal for these tax return preparers.
Based on these facts, the IRS hereby certifies that the collection of information contained in this notice of proposed rulemaking will not have a significant economic impact on a substantial number of small entities. Accordingly, a Regulatory Flexibility Analysis is not required.
Pursuant to section 7805(f) of the Internal Revenue Code, this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on the impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The Treasury Department and the IRS request comments on the clarity of the proposed regulations and how they can be made easier to understand. All comments will be available for public inspection and copying at
A public hearing has been scheduled for November 7, 2011, at 10 a.m. in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit written or electronic comments and an outline of the topics to be discussed and the time to be devoted to each topic (a signed original and eight (8) copies) by November 1, 2011. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.
The principal author of these proposed regulations is Spence Hanemann, Office of the Associate Chief Counsel (Procedure and Administration).
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
Section 1.6695-2 also issued under 26 U.S.C. 6695(g). * * *
(a)
(b) * * *
(1)
(ii) The tax return preparer's completion of Form 8867 (or successor form) must be based on information provided by the taxpayer to the tax return preparer or otherwise reasonably obtained by the tax return preparer.
(2)
(A) Complete the Earned Income Credit Worksheet in the Form 1040 instructions or such other form and such other information as may be prescribed by the IRS; or
(B) Otherwise record in one or more documents in the tax return preparer's paper or electronic files the tax return preparer's EIC computation, including the method and information used to make the computation.
(ii) The tax return preparer's completion of the Earned Income Credit Worksheet (or other record of the tax return preparer's EIC computation permitted under paragraph (b)(2)(i)(B) of this section) must be based on information provided by the taxpayer to the tax return preparer or otherwise reasonably obtained by the tax return preparer.
(4)
(A) A copy of the completed Form 8867 (or successor form);
(B) A copy of the completed Earned Income Credit Worksheet (or other record of the tax return preparer's EIC computation permitted under paragraph (b)(2)(i)(B) of this section); and
(C) A record of how and when the information used to complete Form 8867 (or successor form) and the Earned Income Credit Worksheet (or other record of the tax return preparer's EIC computation permitted under paragraph (b)(2)(i)(B) of this section) was obtained by the tax return preparer, including the identity of any person furnishing the information, as well as a copy of any document that was provided by the taxpayer and on which the tax return preparer relied to complete Form 8867 (or successor form) or the Earned Income Credit Worksheet (or other record of the tax return preparer's EIC computation permitted under paragraph (b)(2)(i)(B) of this section).
(ii) The items in paragraph (b)(4)(i) of this section must be retained for three years from the due date of the return (determined without regard to any extension of time for filing) or the date the return or claim for refund was filed, whichever date is later, and may be retained on paper or electronically in the manner prescribed in applicable regulations, revenue rulings, revenue procedures, or other appropriate guidance (see § 601.601(d)(2) of this chapter).
(c)
(1) One or more members of the principal management (or principal officers) of the firm or a branch office participated in or knew of the failure to comply with the due diligence requirements of this section;
(2) The firm failed to establish reasonable and appropriate procedures to ensure compliance with the due diligence requirements of this section; or
(3) The firm disregarded its reasonable and appropriate compliance procedures through willfulness, recklessness, or gross indifference (including ignoring facts that would lead a person of reasonable prudence and competence to investigate or ascertain) in the preparation of the tax return or claim for refund with respect to which the penalty is imposed.
(d)
(e)
United States Army Corps of Engineers, Department of Defense.
Notice of proposed rulemaking and request for comments.
The Corps of Engineers is proposing to amend an existing permanent danger zone in the waters of the Atlantic Ocean off Wallops Island and Chincoteague Inlet, Virginia. The National Aeronautics and Space Administration, Goddard Space Flight Center, Wallops Flight Facility conducts rocket-launching operations. The proposed amendment is necessary to protect the public from hazards associated with the rocket-launching operations. The proposed amendment would increase the danger zone to a 30 nautical mile sector.
Written comments must be submitted on or before November 10, 2011.
You may submit comments, identified by docket number COE-2011-0019, by any of the following methods:
Federal eRulemaking Portal:
Mr. David Olson, Headquarters, Operations and Regulatory Community of Practice, Washington, DC at 202-761-4922, or Nancy Hankins, Corps of Engineers, Norfolk District, Regulatory Branch, at 757-201-6048.
Pursuant to its authorities in Section 7 of the Rivers and Harbors Act of 1917 (40 Stat. 266; 33 U.S.C. 1) and Chapter XIX of the Army Appropriations Act of 1919 (40 Stat. 892; 33 U.S.C. 3), the Corps of Engineers is proposing amendments to regulations in 33 CFR Part 334 for a permanent danger zone in the waters of the Atlantic Ocean off Wallops Island and Chincoteague Inlet, Virginia. The proposed modification of the existing permanent danger zone is necessary to protect the public from hazards associated with rocket-launching operations. The proposed modification expands the danger zone to a 30 nautical mile sector.
This proposed rule is issued with respect to a military function of the Department of Defense and the provisions of Executive Order 12866 do not apply.
This proposed rule has been reviewed under the Regulatory Flexibility Act (Pub. L. 96-354) which requires the preparation of a regulatory flexibility analysis for any regulation that will have a significant economic impact on a substantial number of small entities (i.e., small businesses and small governments). Unless information is obtained to the contrary during the public notice comment period, the Corps expects that the amendment of this danger zone would have practically no economic impact on the public, no anticipated navigational hazard, or interference with existing waterway traffic. This proposed rule if adopted, will have no significant economic impact on small entities.
Due to the administrative nature of this action and because there is no intended change in the use of the area, the Corps expects that this regulation, if adopted, will not have a significant impact to the quality of the human environment and, therefore, preparation of an environmental impact statement will not be required. An environmental assessment will be prepared after the public notice period is closed and all comments have been received and considered. It may be reviewed at the District office listed at the end of
This proposed rule does not impose an enforceable duty among the private sector and, therefore, it is not a Federal private sector mandate and it is not subject to the requirements of either Section 202 or Section 205 of the Unfunded Mandates Act. We have also found under Section 203 of the Act, that small governments will not be significantly and uniquely affected by this rulemaking.
Danger zones, Marine safety, Navigation (water), Restricted areas, Waterways.
For the reasons set out in the preamble, the Corps proposes to amend 33 CFR part 334 as follows:
1. The authority citation for 33 CFR part 334 continues to read as follows:
40 Stat. 266 (33 U.S.C. 1) and 40 Stat. 892 (33 U.S.C. 3).
2. Revise § 334.130 to read as follows:
(a)
(b)
(2) In advance of scheduled launch operations which, in the opinion of the enforcing agency, may be dangerous to persons and watercraft, appropriate warnings will be issued to navigation interests through official government and civilian channels or in such other manner as the District Engineer, U.S. Army Corps of Engineers, may direct. Such warnings will specify the location, time, and duration of operations, and give other pertinent information as may be required in the interest of safety. Announcement of area of closure will appear in the weekly “Notice to Mariners.”
(3) The intent to conduct rocket-launching operations in the area shall also be indicated by visual signals consisting of a large orange-colored “blimp-shaped” balloon by day and a rotating alternately red and white beacon by night. The balloon shall be flown at latitude 37°50′38″ N, longitude 75°28′47″ W and the beacon shall be displayed about 200 feet above mean high water at latitude 37°50′16″ N, longitude 75°29′07″ W. The appropriate signals shall be displayed 30 minutes prior to rocket-launching time and shall remain displayed until the danger no longer exists.
(4) In addition to visual signals and prior to conducting launch operations, the area will be patrolled by aircraft or surface vessels and monitored by radars and cameras to ensure no persons or watercraft are within the danger zone or designated area of interest within the danger zone. Patrol aircraft and surface vessels are equipped with marine band radios and may attempt to hail watercraft and request that they leave
(5) Any watercraft being so warned shall immediately leave designated area until the conclusion of launch operations, and shall remain at a distance that it will be safe from falling debris.
(6) Nothing in this regulation shall be intended to prevent commercial fishing or the lawful use of approved waterfowl hunting blinds along the shorelines of the Wallops Flight Facility at Wallops Island, Virginia, provided that all necessary licenses and permits have been obtained from the Virginia Marine Resources Commission, Virginia Department of Game and Inland Fisheries, and U.S. Fish and Wildlife Service. Commercial fishermen and waterfowl hunters must observe all warnings and range clearances during hazardous range operations.
(c)
USDA, Forest Service.
Proposed rule; request for comment.
The Forest Service, United States Department of Agriculture (USDA), is proposing to update, rename, and relocate the administrative appeal regulations governing occupancy or use of National Forest System (NFS) lands and resources. The appeal process for decisions related to occupancy or use of NFS lands and resources has remained substantially unchanged since 1989. The proposed rule simplifies the appeal process, shortens the appeal period, and reduces the cost of appeal while still providing a fair and deliberate procedure by which eligible individuals and entities may obtain administrative review of certain types of Forest Service decisions affecting their occupancy or use of NFS lands or resources. The proposed rule also relocates the provision entitled “Mediation of Term Grazing Permit Disputes” to a more appropriate location in the range management regulations. Finally, conforming technical revisions to other parts of the Code of Federal Regulations (CFR) affected by this proposed rule are being made.
Comments must be received in writing by December 12, 2011.
Submit comments through the Web site
Comments concerning the information collection requirements contained in this proposed rule should reference OMB No. 0596-New and the docket number, date, and page number of this issue of the
Deb Beighley, Assistant Director, Appeals and Litigation, Ecosystem Management Coordination staff, 202-205-1277, or Mike McGee, Appeals Specialist, Ecosystem Management Coordination staff, 202-205-1323.
On January 23, 1989, the Forest Service, USDA adopted a new administrative appeal rule at 36 CFR part 251, subpart C (54 FR 3362) (the 251 Appeal Rule). The 251 Appeal Rule set procedures for holders of or, in some cases, applicants for a written authorization to occupy and use NFS lands and resources to appeal certain Forest Service decisions with regard to the issuance, approval, or administration of the written instrument. The rule established who may appeal, the kinds of decisions that can and cannot be appealed, the responsibilities of parties to the appeal, and the various timeframes that govern the conduct of an appeal. The appeal procedures vary depending on whether the decision subject to appeal was made by a District Ranger, Forest or Grassland Supervisor, Regional Forester, or the Chief. Except for the addition of a section governing mediation of term grazing permit disputes in 1999, the 251 Appeal Rule has changed little since its adoption in 1989.
As a result of technological advances, communications improvements, and the Agency's experience administering the 251 Appeal Rule for the past 20 years, the Forest Service has identified several modifications that will simplify the appeal process, shorten the appeal time period, and achieve cost savings.
The proposed rule relocates the 251 Appeal Rule to a new part 214, entitled “Appeal of Decisions Relating to Occupancy or Use of National Forest System Lands and Resources.” Current provisions in the 251 Appeal Rule will be rewritten or replaced with new provisions, and part 251, subpart C, will be removed. The proposed rule also moves the provision governing mediation of term grazing permit disputes to a new subpart D under the range management regulations found at 36 CFR part 222, since mediation is unique to the range management program and is not part of the administrative review process under the 251 Appeal Rule.
The following table provides a crosswalk between the 251 Appeal Rule and the proposed rule.
Section 214.1(a) corresponds with § 251.80(b) and explains that the purpose of this regulation is to establish a fair and deliberate process by which certain individuals and entities may obtain administrative review of specific written decisions issued by Forest Service officers that affect written authorizations for the occupancy or use of NFS lands and resources.
Section 214.1(b) corresponds with § 251.80(a) and identifies who is eligible to appeal, the decisions that are appealable and not appealable, the responsibilities of the parties to an appeal, and the time periods and procedures that govern the conduct of appeals.
The proposed rule removes the following seven terms from the definitions and terminology section in the 251 Appeal Rule because they are not used in the proposed rule: “Deciding Officer,” “Decisions regarding a written instrument or authorization to occupy and use National Forest System lands,” “Forest Service line officer,” “Issuance of a written instrument or authorization,” “Notice of appeal,” “Parties to an appeal,” and “Reviewing Officer.”
The proposed rule adds the following 12 terms to the definitions section: “Appeal Deciding Officer,” “Responsible Official,” “Cancellation,” “Discretionary Reviewing Officer,” “Holder,” “Modification,” “Operator,” “Prospectus,” “Revocation,” “Solicited applicant,” “Suspension,” and “Termination.”
“Deciding Officer” and “Reviewing Officer” in the 251 Appeal Rule are replaced by “Responsible Official” and “Appeal Deciding Officer,” respectively, in the proposed rule. “Responsible Official” refers to the Forest Service employee (generally a line officer) who has issued an appealable decision under the proposed rule, and “Appeal Deciding Officer” refers to the Forest Service employee (also generally a line officer) one organizational level above the Responsible Official who issues the appeal decision. “Responsible Official” is used in Forest Service appeal regulations at 36 CFR part 215 for projects and activities implementing land and resource management plans and in Forest Service regulations at 36 CFR part 218, which provide a predecisional administrative review process for decisions or activities authorized under the Healthy Forests Restoration Act, to denote the individual authorized to issue a decision that is subject to the objection process. For consistency, the Agency is proposing to use the same definition for “Responsible Official” in parts 214, 215, and 218. “Appeal Deciding Officer” is used in Forest Service appeal regulations at 36 CFR part 215 to refer to the individual responsible for issuing an appeal decision. For consistency, the Agency is proposing to use the same definition for “Appeal Deciding Officer” in parts 214 and 215. Additionally, the Agency is proposing to use the same definitions for “Appeal,” “Appeal record,” and “Appellant” in parts 214 and 215.
Another term from the 251 Appeal Rule, “Notice of appeal,” is replaced by the term “Appeal” in the proposed rule and refers to the document filed by a holder, operator, or solicited applicant in which relief is sought from an appealable decision. This term minimizes the potential for confusion that parties to an appeal experienced with the term “notice of appeal,” which could be interpreted either as the Forest Service's notification that an appealable decision had been issued or the holder's request for an appeal of a Forest Service decision.
The term “written instrument or authorization” in the 251 Appeal Rule
Several definitions are adopted from other Forest Service regulations, including “cancellation” from § 222.1; “revocation” from § 251.51, and “termination” from § 251.51.
Seven terms are retained from the 251 Appeal Rule, including “Appeal,” “Appeal decision,” “Appeal record,” “Appellant,” “Intervenor,” “Oral presentation,” and “Responsive statement.” The Agency has revised some of the definitions for these terms, but has retained their overall meaning in the proposed rule.
The following terms are defined in the proposed rule:
When § 214.4 is read together with § 214.5, the structure of the proposed rule states that a decision is not appealable unless it is expressly set forth in § 214.4. As a result, the list of appealable decisions in § 214.4 is considerably more extensive than the list of appealable decisions in § 251.82. Enumerating all types of appealable decisions will minimize potential confusion regarding whether a decision is appealable.
Section 214.4 is subdivided based on the type of written authorization. Paragraph (a) lists appealable decisions involving the administration of livestock grazing; paragraph (b) lists appealable decisions involving the administration of mineral exploration and development activities; paragraph (c) lists appealable decisions involving the administration of special uses; and paragraph (d) lists appealable decisions associated with other land uses.
Paragraph (a) enumerates the following four types of appealable decisions involving the administration of livestock grazing activities:
(1) Modification of term grazing permits issued under 36 CFR part 222, subpart A. Issuance of annual operating instructions does not constitute a permit modification and is not an appealable decision;
(2) Suspension or cancellation, other than cancellation resulting from the permittee's waiver to the United States, of term grazing permits issued under 36 CFR part 222, subpart A;
(3) Denial of reauthorization of livestock grazing under a term grazing permit if the holder files an application for a new permit before the existing permit expires; and
(4) Denial of a term grazing permit issued under 36 CFR part 222, subpart C, to a solicited applicant.
Paragraph (b) enumerates the following 9 types of appealable decisions involving the administration of mineral exploration and development activities:
(1) Approval or denial of an initial, modified, or supplemental plan of operations or operating plan; requirement of an increase in bond coverage; requirement of measures to avoid irreparable injury, loss, or damage to surface resources pending modification of a plan of operations or operating plan; or issuance of a notice of noncompliance pursuant to 36 CFR part 228, subpart A or D, or part 292, subpart D, F, or G;
(2) Approval or denial of an operating plan, issuance of a notice of noncompliance, extension, suspension, or cancellation, other than cancellation by mutual agreement, for contracts, permits, or prospecting permits for mineral materials issued under 36 CFR part 228, subpart C;
(3) Approval or denial of a surface use plan of operations, request to supplement a surface use plan of operations, suspension of oil and gas operations, or issuance of a notice of noncompliance pursuant to 36 CFR part 228, subpart E;
(4) Consent or denial of consent to the U.S. Department of the Interior's administration of previously issued leases or permits for leasable minerals other than oil and gas resources;
(5) Suspension, or revocation of an operating plan for Federal lands within the Sawtooth National Recreation Area pursuant to 36 CFR part 292, subpart D;
(6) Suspension of locatable mineral operations on NFS lands within the Hells Canyon National Recreation Area pursuant to 36 CFR part 292, subpart F;
(7) Suspension of locatable mineral operations on NFS lands within the Smith River National Recreation Area or approval of an initial or amended operating plan for exercise of outstanding mineral rights on NFS lands within the Smith River National Recreation Area pursuant to 36 CFR part 292, subpart G;
(8) Except as provided in paragraph (7), determinations of the acceptability of an initial or amended operating plan for exercise of outstanding mineral rights on NFS lands; and
(9) Determinations of the acceptability of an initial or amended operating plan for exercise of reserved mineral rights located on NFS lands.
Paragraph (c) enumerates the following 5 types of appealable special uses decisions:
(1) Modification, suspension, or revocation of a special use authorization, other than acceptance of an operating plan, including:
(i) A special use authorization issued under 36 CFR part 251, subpart B or D, other than modification, suspension, or revocation of a noncommercial group use permit, suspension or revocation of an easement issued pursuant to 36 CFR 251.53(e) or 251.53(l), or revocation with the consent of the holder;
(ii) A special use authorization for ingress and egress to intermingled and adjacent private lands across NFS lands issued under 36 CFR part 212, subpart A;
(iii) A special use authorization issued under 36 CFR part 251, subpart A, that authorizes the exercise of rights reserved in conveyances to the United States;
(iv) A permit and occupancy agreement issued under 36 CFR 213.3 for national grasslands and other lands administered under Title III of the Bankhead-Jones Farm Tenant Act;
(v) A permit issued under 36 CFR 293.13 for access to valid occupancies entirely within a wilderness in the NFS;
(vi) A permit issued under the Archaeological Resources Protection Act of 1979 and 36 CFR part 296 for excavation or removal of archaeological resources; and
(vii) A special use authorization governing surface use associated with the exercise of outstanding mineral rights;
(2) Denial of a special use authorization to a solicited applicant;
(3) Implementation of new land use fees for a special use authorization, other than:
(i) Revision or replacement of a land use fee system or schedule that is implemented through public notice and comment; and
(ii) Annual land use fee adjustments based on an inflation factor that are calculated under an established fee system or schedule in accordance with the terms and conditions of a written authorization;
(4) Assignment of a performance rating to holders of outfitting and guiding or campground concession permits that affects reissuance or extension of a special use authorization; or
(5) Denial of renewal of a special use authorization if it specifically provides for renewal and if the holder requests renewal of the authorization before it expires.
Paragraph (d) enumerates one additional type of appealable decision associated with other land uses: denial or revocation of a certification of compliance issued under 36 CFR part 292, subpart C, related to the use, subdivision, and development of privately owned property within the boundaries of the Sawtooth National Recreation Area.
Section 214.7(a) generally corresponds with § 251.84(a) and requires the Responsible Official to include language in a written decision which informs the affected holder, operator, or solicited applicants whether an opportunity to appeal exists. Unlike the 251 Appeal Rule, which contains a provision requiring the Responsible Official to notify “holders of like instruments” of the decision if these holders had previously made a written request for that information, the proposed rule limits the Responsible Official's notice obligation to the party or parties directly affected by the decision. As a result, under § 214.11, it is the responsibility of individuals or entities who are not directly affected by the appealable decision to obtain a copy of the decision and to evaluate whether to request participation as an intervenor.
Section 214.7(b) generally corresponds with § 251.84(a) and (b) and specifies what items must be addressed in the notice. For example, the proposed rule requires the notice to the affected holder, operator, or solicited applicant to include:
• The rule or rules under which an appeal may be filed;
• The contents of an appeal;
• The name and mailing address of the Appeal Deciding Officer;
• The filing deadline;
• An expression of the Responsible Official's willingness to meet to discuss the decision; and
• Where applicable, the opportunity to request mediation of certain term grazing permit disputes.
The first two bulleted items above are new and provide the affected holder, operator, or solicited applicant with a better understanding of appeal options and what must be included in an appeal for further review by the Appeal Deciding Officer. The inclusion of this information in the notice of an appealable decision will expedite the appeal process and may reduce the number of appeals that are dismissed based on the filing of an inadequate appeal.
Section 214.7(c) does not have a counterpart in the 251 Appeal Rule and simply requires the Responsible Official to notify the affected holder, operator, or solicited applicant if the decision is not appealable. As the proposed rule provides for notice of appealable decisions, the Forest Service considers it appropriate to inform affected holders, operators, and solicited applicants of decisions that are not appealable. This approach should lead to greater understanding of the administrative review process and reduce the number of appeals that will be dismissed because the decisions are not appealable.
Specifically, § 251.87(b) and (c) provides for two levels of appeal for appealable decisions made by District Rangers, but only one level of appeal and discretionary review for appealable decisions made by Forest Supervisors and Regional Foresters. Proposed § 214.8(a)(1) would provide for one level of appeal and discretionary review for appealable decisions made by District Rangers, Forest or Grassland Supervisors, and Regional Foresters. Substituting discretionary review for the second level of appeal for appealable decisions made by District Rangers simplifies and expedites the appeals process for the Agency and the public.
Similar to § 251.87(a) of the 251 Appeal Rule, proposed § 214.8(a)(2) and (b)(2) states that decisions made by the Chief are not appealable, but are eligible for discretionary review by the Under Secretary for Natural Resources and Environment if they fall into one of the categories of decisions listed in § 214.4.
There is no counterpart in the proposed rule to § 251.87(d), which provides for discretionary review of certain dismissal decisions because the Agency does not believe that further administrative review of dismissal decisions, which are based primarily on procedural grounds, is an efficient use of limited agency resources.
While many of the general requirements in § 214.9(a) are identical to the items that must be included in a notice of appeal under § 251.90(b), this section additionally requires an appellant to include an e-mail address, if any; any documents and other information upon which the appeal relies; and a signature and date. This section also requires submission of a copy of the decision being appealed, rather than a “brief description” and date of the decision as in the 251 Appeal Rule. Further, like the 251 Appeal Rule, the proposed rule requires an appeal to include a reference to the title or type of written authorization that is the subject of the appealable decision and the date of application for or issuance of the authorization. However, unlike the 251 Appeal Rule, the proposed rule does not require an appeal to include the name of the “responsible Forest Service officer.”
Section 214.9(b) generally corresponds with § 251.90(c) and identifies additional items that may be included in an appeal depending on the nature of the dispute and the relief being sought by the appellant. In contrast to § 251.90(c), this section requires appellants to include in an appeal a request for an oral presentation, a request for a stay, and, where applicable, a request for
Section 214.9(c) replaces § 251.88(a) and establishes the time frame for filing an appeal. Unlike the 251 Appeal Rule, which establishes 45 days from the date of the notice of the appealable decision as the time within which an appeal must be filed, the proposed rule shortens the timeframe to 30 days with one exception. The exception is the National Forest Roads and Trails Act of 1964, 16 U.S.C. 532
Section 214.10(b) corresponds with § 251.92(b) and requires the Appeal Deciding Officer to give written notice of and explain a decision to dismiss an appeal.
Unlike § 251.92(c), which allows for discretionary review of certain dismissal decisions, the proposed rule does not allow discretionary review of any dismissal decisions because discretionary review of these decisions presents an unnecessary administrative burden.
Section 214.11(a)(2) generally corresponds with § 251.96(a) and requires those wishing to intervene to file a written request with the Appeal Deciding Officer. However, unlike the 251 Appeal Rule, which allows intervention requests to be filed at any time before the appeal record is closed, the proposed rule requires the intervention request to be filed within 15 days of the filing of an appeal. Setting a deadline early in the appeal process for filing intervention requests facilitates the orderly and expeditious handling of appeals.
Section 214.11(b) generally corresponds with § 251.96(b)(1) and (b)(3) and describes the process for requesting intervention in an appeal. In contrast to § 251.96(b)(3), which merely requires the requesting party to show how the decision being appealed would directly affect that party's interests, § 214.11(b) requires the party requesting intervention to include, at a minimum, a description of the requester's interest in the appeal; how disposition of the appeal may impair that interest; the factual and legal allegations in the appeal with which the requester agrees or disagrees; additional facts and issues that are not raised in the appeal that the requester believes are relevant and should be considered; the relief sought by the requester, particularly as it differs from the relief sought by the appellant; a response, where applicable, to the appellant's request for a stay, an oral presentation, or mediation of a term grazing permit dispute; and the requester's signature and date.
Section 214.11(c) is new and allows the appellant and the Responsible Official to submit a written response within 5 days of the filing of the intervention request. Section 214.11(d) generally corresponds with § 251.96(c) with respect to issuance of a decision on an intervention request. Unlike the 251 Appeal Rule, which does not include a timeframe for issuing a decision, the proposed rule requires the Appeal Deciding Officer to decide whether to grant an intervention request within 5 days after a response is due.
Section 214.11 does not include language similar to § 251.96(d), which states that intervention decisions are not appealable, because this statement is unnecessary and duplicative given that the complete list of appealable decisions is specified in § 214.4. Section 214.11 also does not include language similar to § 251.96(e), which requires service of intervention documents on all parties to the appeal, because § 214.15(h) of the proposed rule establishes broad service requirements for all documents filed in an appeal, including those related to a proposed intervention.
Section 214.12(b) generally corresponds with § 251.94(c) with respect to filing a reply to a responsive statement, but gives an appellant (and intervenors where appropriate) 10 days instead of 20 days to file a reply. This approach will provide the appellant (and intervenors) with an opportunity to address contentions in the responsive statement, not to restate the entire appeal (or intervention). This change will shorten the appeal process, yet still provide the appellant (and intervenors) with sufficient time to file a meaningful reply.
Section 214.13(a) generally corresponds with § 251.91(a) and provides that decisions under appeal shall be implemented during the administrative review process unless a stay has been granted or an automatic stay has gone into effect.
Section 214.13(b) generally corresponds with § 251.91(b) through (g) and addresses authorized stays, which are granted at the discretion of the Appeal Deciding Officer. Unlike § 251.91(b), which allows for a stay request to be filed at any time during the appeal period, § 214.13(b)(1) requires an appellant to include a request for stay in the appeal. In contrast to § 251.91(d), which allows a response to a stay request to be filed by the Deciding Officer and other parties but does not specify when or how the response must be filed, § 214.13(b)(2) provides for the Responsible Official to include a response to a stay request in the responsive statement and for a
Section 214.13(c) is new and enumerates three types of decisions that are automatically stayed. The first category includes decisions to issue a written authorization pursuant to a prospectus. In this circumstance, a concession permit is being issued through a competitive process. Issuance of the permit needs to be stayed pending appeal, so as to avoid revocation of the permit if the Appeal Deciding Officer determines that the selection decision is improper. The second category includes decisions to recalculate revenue-based land use fees for a special use authorization pursuant to an audit. In this circumstance, delaying implementation of the revised fee would obviate the need to make a refund if the fee calculation is erroneous. The third category includes decisions to cancel or suspend a term grazing permit for which mediation is available and has been requested.
Section 214.13(d) specifies that authorized and automatic stays remain in effect until a final administrative decision is issued in the appeal, unless they have been modified or lifted pursuant to § 214.13(e), or in the case of mediation, for the duration of that process. This provision simplifies and clarifies the current regulation governing duration of stays at § 251.91(h), which provides that stays remain in effect “for the 15-day period for determining discretionary review,” but fails to address the status of the stay beyond that time.
Section 214.13(e) generally corresponds with § 251.91(j). In contrast to § 251.91(j), which allows an Appeal Deciding Officer to change a stay in accordance with its terms or changed circumstances, this section authorizes an Appeal Deciding Officer or Discretionary Reviewing Officer to modify or lift an authorized stay based upon a written request by a party (parties other than the appellant may seek to modify a stay) who demonstrates that the circumstances have changed since the stay was granted and that it is unduly burdensome or unfair to maintain the stay. Section 214.13(e) obviates the need for a separate section similar to § 251.100(e), which allows for a stay to be extended by a reviewing officer during discretionary review. This provision is unnecessary under the proposed rule because stays will remain in effect, unless modified or lifted, until the final administrative decision is made, including issuance of a discretionary review decision.
Section 214.13 does not include language similar to § 251.91(k), which provides that most decisions to grant, deny, lift, or modify a stay are not subject to appeal or discretionary review. This provision is unnecessary given the omission of this type of decision from the list of appealable decisions proposed in § 214.4. As a result, decisions on stay requests are not appealable under § 214.5.
Section 214.14(a), which is new, provides that appeals may be filed in person or by courier, by mail or private delivery service, by facsimile, or by electronic mail.
Section 214.14(b) corresponds generally with § 251.88(b) and states that it is the appellant's responsibility to file an appeal within the relevant time period and that questions regarding timeliness will be determined by the Appeal Deciding Officer based on specific criteria that vary depending on the filing method used. For example, for appeal documents sent via the U.S. Postal Service (USPS), timeliness will be determined by the postmark. Timeliness determinations for appeal documents sent via a private carrier like Federal Express or the United Parcel Service will be determined by the date of receipt by the private carrier. This section clarifies that timeliness determinations will be based on the date when a document is received for shipment regardless of whether the carrier is public,
As in § 251.88(c)(2), § 214.14(c) provides that time periods begin on the day after the event or action triggering the time period and that all time periods are computed using calendar days (including Saturdays, Sundays, and Federal holidays). However, if a time period expires on a Saturday, Sunday, or Federal holiday, the expiration date is extended to the end of the next Federal business day.
Section 214.14(d) replaces § 251.89 and specifies which time periods in the proposed rule may be extended by the Appeal Deciding Officer. Section 214.14(d)(1) corresponds to § 251.89(b) and states that the parties to an appeal are responsible for meeting the time periods specified, unless an extension of time has been granted by the Appeal Deciding Officer. Contrary to the 251 Appeal Rule, which is silent on this matter, § 214.14(d)(1) also specifies that extension requests by an appellant, intervenor, or Responsible Official must be in writing and must explain the rationale for the request. These requirements improve accountability and prevent unreasonable and unexplained delays in the processing of appeal decisions.
Section 214.14(d)(2) corresponds with § 251.89(a) and enumerates the filing deadlines that may not be extended. Unlike the 251 Appeal Rule, which prohibits extending only the time period for filing an appeal, the proposed rule also would prohibit extending the time period for deciding whether to conduct discretionary review and for issuing a discretionary review decision.
Section 214.14(d)(3) corresponds with § 251.89(b) and provides that all other time periods may be extended upon a finding of good cause for the extension by the Appeal Deciding Officer. An example of good cause might include the occurrence of severe and unanticipated natural events or other extenuating circumstances that make compliance with the filing deadline extremely burdensome. This section also states that extensions will automatically be granted if the parties jointly represent that they are working together in good faith to resolve the dispute and need additional time to reach a mutually agreeable resolution.
Section 214.14(d)(4) corresponds with § 251.89(b) and requires the Appeal Deciding Officer to issue a decision granting or denying the extension within 10 days after a request has been filed.
Section 214.14(d)(5) is new and states that the Appeal Deciding Officer should avoid granting extensions which add more than 60 days to the appeal process.
Taken as a whole, § 214.14(d) reflects the Agency's understanding that some extensions of filing deadlines may be necessary and perhaps even
Section 214.14(e) corresponds with § 251.95(a) and authorizes the Appeal Deciding Officer to issue procedural orders governing the appeal process.
Section 214.14(f) corresponds with § 251.95(b) and authorizes the Appeal Deciding Officer to consolidate appeals of the same or similar decisions involving common issues of fact and law. This section of the proposed rule also authorizes the Appeal Deciding Officer to issue one decision for multiple appeals that involve common issues of fact and law. There is no counterpart in the proposed rule to § 251.95(a)(3) and § 251.95(b)(1), which state, respectively, that decisions involving procedural orders or consolidation decisions are not subject to appeal and further review. These provisions are unnecessary in light of § 214.4, which does not include these decisions in the list of appealable decisions. Consequently, decisions involving procedural orders and consolidation decisions are not appealable under the proposed rule.
Section 214.14(g) corresponds with § 251.95(c) and authorizes the Appeal Deciding Officer to request additional information from the parties to clarify appeal issues and to extend appeal time periods as necessary to allow for submission of the requested information and to give the other parties an opportunity to review and comment on these submissions.
Section 214.14(h) requires all parties to send each other copies of all appeal documents when they are filed with the Appeal Deciding Officer. This section consolidates several sections of the 251 Appeal Rule that use slightly different terminology but essentially require one party to serve documents related to an appeal on all other parties involved in the appeal. Relocating and consolidating these sections into a single provision simplifies procedures, minimizes the potential for confusion, and enhances consistency of administration. This section also makes each party responsible for identifying other parties to the appeal and allows each party to contact the Appeal Deciding Officer for other parties' names and addresses.
Section 214.14(i) is new and requires the Forest Service to post electronic versions of all appeal decisions and discretionary review decisions on the Web site of the national forest or national grassland or region that issued the appealable decision or on the Web site of the Washington Office for Chief's decisions. These postings are required under the Electronic Freedom of Information Act of 1996 and a 1999 settlement agreement in
Section 214.14(j) is new and promulgates the Agency's current practice to require each party to bear its own expenses in an appeal, including costs associated with preparing the appeal, participating in and obtaining a transcript of the oral presentation, obtaining information regarding the appeal, and retaining professional consultants or counsel.
Section 214.15(b) corresponds to § 251.93(c) and allows the Responsible Official to withdraw an appealable decision, in whole or in part, during an appeal to facilitate informal resolution of a dispute. The Responsible Official is required to notify the Appeal Deciding Officer and the other parties of the withdrawal. The Appeal Deciding Officer will dismiss the appeal under § 214.10 if withdrawal of the decision eliminates all the issues in dispute in the appeal. The proposed rule does not adopt the provision in § 251.93(a), which provides for consultation with holders of written instruments prior to issuing a written decision. This activity takes place prior to initiation of an appeal and is therefore beyond the scope of the proposed rule.
Section 214.16(b) describes the scope of information and argument that may be raised in an oral presentation, which generally reflects the purpose statement of § 251.97(a). Section 214.16(b) also includes a statement allowing new information to be presented in an oral presentation only in those cases where it could not have been raised earlier in the appeal and where it would be unfair and prejudicial to exclude it.
Contrary to § 251.97(b), which allows an appellant to make a request for an oral presentation at any time prior to the closing of the appeal record, § 214.9(b)(1) requires appellants to request an oral presentation in the appeal. If an appellant requests an oral presentation in the appeal, § 214.16(c) requires the Appeal Deciding Officer to grant the request, unless the appeal has been dismissed under § 214.10. Requiring appellants to request an oral presentation in the appeal will facilitate orderly conduct of appeals, including scheduling of the oral presentation.
Section 214.16(d) corresponds with § 251.97(d), which authorizes oral presentations only during appeal of a decision, not during discretionary review. Section 214.16(e) is new and requires the Appeal Deciding Officer to schedule an oral presentation within 10 days of the filing of the reply to the responsive statement. This provision is intended to promote a more thoughtful discussion of the appeal issues in the oral presentation since it will be held shortly after the filing of the appeal, responsive statement, and reply. In addition, this section expedites the appeal process by eliminating the potential for a lengthy delay between the filing of the reply and the oral presentation. The second sentence of § 214.16(e) corresponds to § 251.97(c) and requires the Appeal Deciding Officer to notify the parties of the date, time, and location of and procedures for the oral presentation.
Section 214.16(f) corresponds to the first sentence of § 251.97(c) and provides that only parties to the appeal may participate in the oral presentation and that the oral presentation will be open to the public at the discretion of the Appeal Deciding Officer.
Section 214.16(g) is new and allows for a summary or transcript of an oral presentation to be included in the appeal record if it is submitted to the Appeal Deciding Officer by a party at the end of the oral presentation. A transcript prepared by a certified court reporter may be included in the appeal record if it is filed with the Appeal Deciding Officer within 10 days after the oral presentation and is paid for by those who requested it.
Section 214.17(c) addresses closure of the appeal record and generally corresponds with § 251.98(d), but takes into account that a transcript of an oral presentation may be submitted 10 days after the oral presentation and still be included as part of the appeal record under § 214.16(g). Therefore, § 214.17(c) states that the appeal record closes the day after a reply is due if no oral presentation is held; the day after an oral presentation is held if no transcript is being prepared; or the day after a transcript of the oral presentation is due if one is being prepared.
In contrast to § 251.98(e), § 214.17(d) clarifies that the appeal record is open for public inspection only to the extent authorized by the Freedom of Information Act, the Privacy Act, and associated regulations at 7 CFR part 1. The inclusion of the qualifying language clarifies that the appeal record may be made available to the public for inspection and disclosure only to the extent allowed by law.
Section 214.18(b) corresponds with § 251.99(a) and states that the appeal decision must be based solely on the appeal record and the oral presentation, if one is conducted.
Section 214.18(c) corresponds to § 251.99(a) and states that the appeal decision must conform to applicable laws, regulations, policies, and procedures.
Section 214.18(d) corresponds with § 251.99(b) and states that appeal decisions may affirm or reverse, in whole or in part, the appealable decision under review; must specify the basis for affirmation or reversal; and may also include instructions for further action by the Responsible Official.
Section 214.18(e) corresponds with § 251.99(f) and states that except where a decision to conduct discretionary review has been made and a discretionary review decision is pending or has been issued, the appeal decision is USDA's final administrative decision on the matter, and that no further administrative review will take place. If a decision to conduct discretionary review has been made but a discretionary review decision is not issued by the Discretionary Reviewing Officer within 30 days, the appeal decision is the final administrative decision. The Agency is not adopting the provision in § 251.99(d) regarding issuance of a second-level appeal decision within 30 days of receipt of the appeal record from the first level reviewing officer, since the proposed rule does not provide for two levels of appeal.
Section 214.19 differs from § 251.100 in several ways. First, § 214.19(a)(1) requires the Appeal Deciding Officer to transmit the appeal decision, appeal, and appealable decision to the Discretionary Reviewing Officer one day after the issuance of the appeal decision, while § 251.100(b) requires transmission of only the appeal decision and appealable decision. By including a copy of the appeal in the transmitted documents, it will be easier for the Discretionary Reviewing Officer to identify the issues in dispute and determine whether discretionary review is warranted. This approach will simplify, expedite, and reduce the expense of the appeal process. Under § 214.19(a)(2), one day after a Chief's decision that is eligible for discretionary review under § 214.8(b)(2), the Chief will have to submit the decision to the Discretionary Reviewing Officer. Since Chief's decisions are not appealable, there will not be an appeal decision or appeal of a Chief's decision to transmit to the Discretionary Reviewing Officer.
Like § 251.100(a), § 214.19(b) requires the Discretionary Reviewing Officer to decide whether to conduct discretionary review based, at a minimum, on the degree of controversy surrounding the decision, the potential for litigation, and the extent to which the decision establishes precedent or new policy. However, unlike § 251.100(a), which acknowledges the potential that petitions or requests for discretionary review may be submitted by an appellant or intervenor, the proposed rule is silent on this issue. A petition or request is not necessary to trigger discretionary review. The decision as to whether to conduct discretionary review is entirely within the purview of the Discretionary Reviewing Officer, based on evaluation of specific criteria.
Section 214.19(c) states that the time frame for determining whether to exercise discretionary review starts to run upon the Discretionary Reviewing Officer's receipt of the appeal decision, appeal, and appealable decision or Chief's decision. Section 214.19(c) also simplifies and in some cases shortens the time periods in § 251.100(c). Section 251.100(c) gives the Discretionary Reviewing Officer 15 days from receipt of the appeal decision and the appealable decision to decide whether to conduct discretionary review. However, the 251 Appeal Rule provides that the Discretionary Reviewing Officer may request the appeal record within that 15-day period to assist in deciding whether to conduct discretionary review. Once that request is made, the Appeal Deciding Officer has 5 days to transmit the appeal record to the Discretionary Reviewing Officer, who then has 15 days from receipt of the appeal record to decide whether to conduct discretionary review.
In contrast, § 214.19(c) gives the Discretionary Reviewing Officer 30 days from receipt of an appeal decision, appeal, and appealable decision or Chief's decision to decide whether to conduct discretionary review. The Discretionary Reviewing Officer may request the appeal record at any time during this 30-day period to assist in deciding whether to conduct discretionary review. If that request is made, the appeal record must be transmitted to the Discretionary Reviewing Officer within 5 days. However, no additional time is added to the 30-day period if a request for the appeal record is made. Consequently, the proposed rule encourages a Discretionary Reviewing Officer to request the appeal record promptly if there is any uncertainty as to whether discretionary review may be warranted based upon evaluation of the appeal decision, appeal, and appealable decision or Chief's decision. Prompt requests for the appeal record will expedite the process of determining whether to conduct discretionary review.
Section 214.19(d) requires the Discretionary Reviewing Officer to notify the parties in writing of a decision to conduct discretionary review and gives the Discretionary Reviewing Officer the option to notify the parties of a decision not to conduct discretionary review prior to the end of the 30-day period. This approach makes it clear when the administrative review process has concluded for exhaustion purposes.
In addition, § 214.19(d) replaces the provisions in § 251.100(c) regarding the
Section 214.19(e) consolidates provisions from § 251.100(c), (d), (f), and (g) regarding issuance of discretionary review decisions. Specifically, like § 251.100(f), § 214.19(e) requires the Discretionary Reviewing Officer to issue a discretionary review decision within 30 days after deciding to conduct discretionary review; like § 251.100(d), § 214.19(e) requires discretionary review to be conducted exclusively on the appeal record; and like § 251.100(c) and (g), § 214.19(e) provides that if the Discretionary Reviewing Officer fails to issue a discretionary review decision within 30 days after notification of the decision to conduct discretionary review, the appeal decision or Chief's decision will constitute USDA's final administrative decision. Section 214.19(e) also provides that the Discretionary Reviewing Officer's decision will constitute USDA's final administrative decision.
There is no counterpart in this section of the proposed rule to § 251.100(e), which allows for extension of stays during the discretionary review process. As discussed earlier, these extensions are unnecessary under the proposed rule, because stays will remain in effect under § 214.13(d) until a final administrative decision is made.
The following nonsubstantive, technical changes will be made to other parts of Title 36 of the CFR for consistency with the proposed rule:
1. Part 251, subpart C, will be removed in its entirety and will be reserved for additional special uses regulations.
2. Any references in other parts of Title 36 to 36 CFR part 251, subpart C, will be changed to 36 CFR part 214. These references appear at 36 CFR §§ 212.8(d)(5)(iii), 215.11(d), 215.14(b)(5), 228.14, 228.107(c), 241.22(f), 251.60(a)(2)(ii) and (h)(2), 251.126, 254.4(g), 254.13(b), 254.14(b)(6), and 292.15(l).
3. Section 212.8(d)(5) will be reorganized and reworded slightly to match the corresponding provision at § 251.60(h)(1) governing revocation of easements granted under the act of October 13, 1964 (16 U.S.C. § 534).
4. The last two sentences of § 215.1(b) will be removed. Section 215.1 governs the purpose and scope of part 215. The last two sentences of § 215.1(b) duplicate what is contained in § 215.11(d) regarding election of an appeal process.
5. The definitions of “appeal,” “appeal deciding officer,” “appeal record,” “appellant,” and “responsible official” in § 215.2 will be revised to conform, to the extent possible, with the definitions of those terms in § 214.2.
6. Section 215.11(d), governing election of an appeal process under part 215, will be revised to match § 214.6, the provision governing election of an appeal process under part 214.
7. Section 215.14(b)(5), governing contents of an appeal under part 215, will be revised to match § 214.9(a)(3), governing contents of an appeal under part 214.
8. Section 215.15(c), governing timeliness determinations of appeal documents under part 215, will be revised to match § 214.14(b), governing timeliness determinations for appeal documents under part 214.
9. The definitions of “objection,” “objector,” “responsible official,” and “reviewing officer” in § 218.2 will be revised slightly to conform, to the extent possible, with the definitions of the same or analogous terms in § 214.2. For example, the term “objection” in § 218.2 is analogous to the term “appeal” in § 214.2, and the term “objector” in
10. Section 218.10(c), governing timeliness determinations of objection documents under part 218, will be revised to match § 214.14(b), governing timeliness determinations for appeal documents under part 214.
11. Under part 214, revocation and cancellation, where the Responsible Official takes action to end a written authorization, are appealable, but termination, where a written authorization ends by operation of law or in accordance with its terms, is not appealable. In several parts of Title 36 that authorize decisions that will be appealable under part 214, “terminate” or “termination” is used in the context that “revoke” or “cancel” or “revocation” or “cancellation” are used in part 214. Changes in terminology will be made in these other parts for consistency with part 214.
Specifically, in § 212.8(d)(5), governing revocation of easements granted under the act of October 13, 1964 (16 U.S.C. 534), “terminate” will be changed to “revoke,” and “terminated” will be changed to “revoked.”
With regard to contracts for mineral materials, in § 228.65(b)(4), “terminate” will be changed to “cancel.” In the heading and text of § 228.66(c), “termination” will be changed to “cancellation,” and “terminated” will be changed to “cancelled.” “Cancellation” and “cancel,” rather than “revocation” and “revoke,” will be used in these provisions because they involve contracts, and the former terms are more appropriate in that context. In addition, “cancellation” and “cancel” are used in corresponding § 228.55.
In § 241.22(e), which governs determinations that proposed activities are consistent with the conservation of fish, wildlife, and their habitat in the Chugach National Forest, “terminate” will be changed to “revoke.”
In § 251.15(a)(2)(iv) and (a)(3), which govern exercise of mineral rights reserved in conveyances to the United States, “termination” will be changed to “revocation,” and minor, nonsubstantive revisions for clarity will be made. When permits governing the exercise of reserved mineral rights are issued, a copy of the regulations at 36 CFR part 251, subpart A, is attached to the permit. For any of these permits issued before the effective date of the final rule, the Agency will interpret “termination” in the regulations attached to the permit to mean “revocation” under 36 CFR part 214, which will be appealable under that part.
In § 254.15(c)(2), which governs land exchanges, “terminating” will be changed to “revoking,” and minor changes will be made for consistency with the corresponding revocation authority in § 251.60(a)(2)(i)(D).
In § 292.18(f), which governs operating plans for mineral activities on Federal lands in the Sawtooth National Recreation Area, “terminate” will be changed to “revoke,” and minor, nonsubstantive revisions will be made.
This proposed rule has been reviewed under USDA procedures and Executive Order 12866, Regulatory Planning and Review. It has been determined that this is not a significant rule. This proposed rule will not have an annual effect of $100 million or more on the economy, nor will the proposed rule adversely affect productivity, competition, jobs, the environment, public health or safety, or State and local governments. This proposed rule will not interfere with any action taken or planned by another agency or raise new legal or policy issues. Finally, this proposed rule will not alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of beneficiaries of those programs.
Moreover, this proposed rule has been considered in light of the Regulatory Flexibility Act (5 U.S.C. 601
This proposed rule will revise the procedures and requirements for the administrative appeal of certain decisions related to written authorizations for the occupancy or use of NFS lands and resources. Forest Service regulations at 36 CFR 220.6(d)(2) exclude from documentation in an environmental assessment or environmental impact statement “rules, regulations, or policies to establish servicewide administrative procedures, program processes, or instruction.” The Agency's preliminary determination is that this proposed rule falls within this category of actions and that no extraordinary circumstances exist which would require preparation of an environmental assessment or environmental impact statement.
This proposed rule has been reviewed under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agency has determined that this proposed rule will not constitute a significant energy action as defined in the Executive Order.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), the Forest Service is requesting approval of the new information collection requirement associated with this proposed rule.
These appeal procedures are limited to holders, operators, and solicited applicants as defined in the proposed rule, who therefore are the only individuals or entities subject to the information collection requirement.
The information collection required for the administrative appeal process in 36 CFR part 214 is approved and assigned OMB Control No. 0596-New.
The Agency has considered this proposed rule under Executive Order 13132 on federalism. The Agency has determined that the proposed rule conforms with the federalism principles set out in this executive order; will not impose any compliance costs on the States; and will not have substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, the Agency has concluded that this proposed rule does not have federalism implications.
Pursuant to Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, the Forest Service is committed to government-to-government consultation on Agency policy that could have an impact on tribes. In that spirit, information about the proposed rule was sent to the Regional Offices, with guidance to distribute the information to tribes in their region and to follow up with visits to tribes if requests for consultation were received. A total of 120 days was provided for this process.
No requests for government-to-government consultation were made, and a small number of comments was received. A few respondents asked for early notification and consultation on actions affecting tribal treaty or other legal rights. No changes were made to the proposed rule as a result of the comments received.
This proposed rule does not have substantial direct or unique effects on Indian tribes. This proposed rule is revising administrative appeal regulations for decisions relating to occupancy or use of NFS lands and resources. Tribal governments may participate in the administrative appeal process by requesting to intervene in an appeal of a decision that may adversely affect tribal rights.
The Agency has analyzed this proposed rule in accordance with the principles and criteria contained in Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. The Agency has determined that this proposed rule will not pose the risk of a taking of private property.
This proposed rule has been reviewed under Executive Order 12988 on civil justice reform. Upon adoption of this proposed rule, (1) All State and local laws and regulations that conflict with this rule or that impede full implementation of the rule will be preempted; (2) no retroactive effect will be given to this proposed rule; and (3) this proposed rule will not require the use of administrative proceedings before parties could file suit in court challenging its provisions.
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), the Agency has assessed the effects of this proposed rule on State, local, and tribal governments and the private sector. This proposed rule will not compel the expenditure of $100 million or more by any State, local, or tribal government or anyone in the private sector. Therefore, a statement under section 202 of the act is not required.
Highways and roads, National forests, Public lands—rights-of-way, and Transportation.
Administrative practice and procedure, National forests.
Administrative practice and procedure, National forests.
Administrative practice and procedure, National forests.
Range management, National forests, National grassland.
Environmental protection, Mines, National forests, Oil and gas exploration, Public lands—mineral resources, Public lands—rights-of-way, Reporting and recordkeeping requirements, Surety bonds, Wilderness areas.
Fish, Intergovernmental relations, National forests, Wildlife, Wildlife refuges.
Administrative practice and procedure, Electric power, National forests, Public lands—rights-of-way, Reporting and recordkeeping requirements, Water resources.
Community facilities, National forests.
Mineral resources, Recreation and recreation areas.
Therefore, for the reasons set forth in the preamble, the Forest Service proposes to amend Title 36 Chapter II of the CFR to read as follows:
1. The authority citation for Part 212 continues to read as follows:
16 U.S.C. 551, 23 U.S.C. 205.
2. In § 212.8, revise paragraph (d)(5) to read as follows:
(d) * * *
(5)(i) The Chief may revoke any easement granted under the provisions of the Act of October 13, 1964 (78 Stat. 1089, 16 U.S.C. 534):
(A) By consent of the owner of the easement;
(B) By condemnation; or
(C) Upon abandonment after a 5-year period of nonuse by the owner of the easement.
(ii) Before any easement is revoked upon abandonment, the owner of the easement shall be given notice and, upon the owner's request made within 60 days after receipt of the notice, shall be given an appeal in accordance with the provisions of 36 CFR part 214.
3. Add a new part 214 to read as follows:
7 U.S.C. 1011(f); 16 U.S.C. 472, 551.
(a)
(b)
Parties to an appeal under this part are limited to holders, operators, solicited applicants, intervenors, and the Responsible Official.
To be appealable under this part, a decision must be issued by a Responsible Official in writing and must fall into one of the following categories:
(a)
(1) Modification of a term grazing permit issued under 36 CFR part 222, subpart A. Issuance of annual operating instructions does not constitute a permit modification and is not an appealable decision;
(2) Suspension or cancellation, other than cancellation resulting from the permittee's waiver to the United States, of a term grazing permit issued under 36 CFR part 222, subpart A;
(3) Denial of reauthorization of livestock grazing under a term grazing permit if the holder files an application for a new permit before the existing permit expires; or
(4) Denial of a term grazing permit to a solicited applicant under 36 CFR part 222, subpart C.
(b)
(2) Approval or denial of an operating plan, issuance of a notice of noncompliance, extension, suspension, or cancellation, other than cancellation by mutual agreement, for contracts, permits, or prospecting permits for mineral materials issued under 36 CFR part 228, subpart C;
(3) Approval or denial of a surface use plan of operations, request to supplement a surface use plan of operations, suspension of oil and gas operations, or issuance of a notice of noncompliance pursuant to 36 CFR part 228, subpart E;
(4) Consent or denial of consent to the U.S. Department of the Interior's administration of previously issued leases or permits for leasable minerals other than oil and gas resources;
(5) Suspension or revocation of an operating plan for Federal lands within the Sawtooth National Recreation Area pursuant to 36 CFR part 292, subpart D;
(6) Suspension of locatable mineral operations on National Forest System lands within the Hells Canyon National Recreation Area pursuant to 36 CFR part 292, subpart F;
(7) Suspension of locatable mineral operations on National Forest System lands within the Smith River National Recreation Area or approval of an initial or amended operating plan for exercise of outstanding mineral rights on National Forest System lands within the Smith River National Recreation Area pursuant to 36 CFR part 292, subpart G;
(8) Except as provided in paragraph (7), determinations of the acceptability of an initial or amended operating plan for exercise of outstanding mineral rights on National Forest System lands; or
(9) Determinations of the acceptability of an initial or amended operating plan for exercise of reserved mineral rights located on National Forest System lands.
(c)
(i) A special use authorization issued under 36 CFR part 251, subpart B or D, other than modification, suspension, or revocation of a noncommercial group use permit, suspension or revocation of an easement issued pursuant to 36 CFR 251.53(e) or 251.53(l), or revocation with the consent of the holder;
(ii) A special use authorization for ingress and egress to intermingled and adjacent private lands across National Forest System lands issued under 36 CFR part 212, subpart A;
(iii) A special use authorization issued under 36 CFR part 251, subpart A, that authorizes the exercise of rights reserved in conveyances to the United States;
(iv) A permit and occupancy agreement issued under 36 CFR 213.3 for national grasslands and other lands administered under Title III of the Bankhead-Jones Farm Tenant Act;
(v) A permit issued under 36 CFR 293.13 for access to valid occupancies entirely within a wilderness in the National Forest System.
(vi) A permit issued under the Archaeological Resources Protection Act of 1979 and 36 CFR part 296 for excavation or removal of archaeological resources; and
(vii) A special use authorization governing surface use associated with the exercise of outstanding mineral rights;
(2) Denial of a special use authorization to a solicited applicant based on the process used to select a successful applicant;
(3) Implementation of new land use fees for a special use authorization, other than:
(i) Revision or replacement of a land use fee system or schedule that is implemented through public notice and comment; and
(ii) Annual land use fee adjustments based on an inflation factor that are calculated under an established fee system or schedule in accordance with the terms and conditions of a written authorization;
(4) Assignment of a performance rating that affects reissuance or extension of a special use authorization; or
(5) Denial of renewal of a special use authorization if it specifically provides for renewal and if the holder requests renewal of the authorization before it expires.
(d)
Holders, operators, and solicited applicants may not appeal any decisions issued by a Responsible Official that are not expressly set forth in § 214.4.
Decisions may not be appealed by an appellant under more than one part of this chapter. Parties eligible to appeal a decision under more than one part in this chapter must elect the part under which they will pursue their appeal. Once an election is made, parties may not appeal the decision under the parts they did not elect.
(a) The Responsible Official shall include language in each written decision which notifies the affected holder, operator, or solicited applicant whether an opportunity to appeal the decision exists.
(b) If the decision is appealable, the notice must specify the regulations under which an appeal may be filed, the contents of an appeal, the name and mailing address of the Appeal Deciding Officer, and the filing deadline. The notice shall also include a statement indicating the Responsible Official's willingness to meet with the affected holder, operator, or solicited applicant to discuss the decision and, where applicable, informing term grazing permit holders of the opportunity to request mediation in accordance with 36 CFR 222.60-222.66.
(c) If the decision is not appealable, the Responsible Official must include a statement in the written decision informing the affected holder, operator, or solicited applicant that further administrative review of the decision is not available.
(a)
(2) No appeal is available for decisions made by the Chief.
(b)
(2) Decisions made by the Chief that fall into one of the categories enumerated in 36 CFR 214.4 are eligible for discretionary review by the Under Secretary for Natural Resources and Environment.
(a)
(1) The appellant's name, mailing address, daytime telephone number, and e-mail address, if any;
(2) A copy of the decision being appealed;
(3) The title or type of written authorization and the date of application for or issuance of the written authorization, if applicable;
(4) A statement of how the appellant is adversely affected by the decision being appealed;
(5) A statement of the relevant facts underlying the decision being appealed;
(6) A discussion of issues raised by the decision being appealed, including identification of any laws, regulations, or policies that were allegedly violated in reaching the decision being appealed;
(7) A statement as to whether and how the appellant has attempted to resolve the issues under appeal with the Responsible Official and the date and outcome of those efforts;
(8) A statement of the relief sought;
(9) Any documents and other information upon which the appellant relies; and
(10) The signature of the appellant and the date.
(b)
(1) A request for an oral presentation under § 214.16;
(2) A request for a stay under § 214.13;
(3) A request to participate in a state mediation program regarding certain term grazing permit disputes under 36 CFR part 222, subpart D; and
(4) The regulation under which the appeal is being filed if there is an option to file under more than one.
(c)
(a) The Appeal Deciding Officer shall dismiss an appeal without review when one or more of the following applies:
(1) The appeal is not filed within the required time period.
(2) The person or entity that filed the appeal is not a holder, an operator, or a solicited applicant of a written authorization that is the subject of the appealable decision.
(3) The decision is not appealable under this part.
(4) The appeal does not meet the content requirements specified in § 214.9(a), provided that an appeal may not be dismissed for failure to include an appraisal report which has not been completed by the filing deadline.
(5) The appellant withdraws the appeal.
(6) The Responsible Official withdraws the written decision that was appealed.
(7) An informal resolution of the dispute is reached pursuant to § 214.15 or a mediated agreement of a term grazing dispute is achieved pursuant to 36 CFR part 222, subpart D.
(8) The requested relief cannot be granted under applicable facts, laws, regulations, or policies.
(b) The Appeal Deciding Officer shall give written notice of the dismissal of an appeal and shall set forth the reasons for dismissal.
(a)
(1) Be a holder, a solicited applicant, or an operator who claims an interest relating to the subject matter of the decision being appealed and is so situated that disposition of the appeal may impair that interest; and
(2) File a written request to intervene with the Appeal Deciding Officer within 15 days after an appeal has been filed.
(b)
(1) A description of the requester's interest in the appeal and how disposition of the appeal may impair that interest;
(2) A discussion of the factual and legal allegations in the appeal with which the requester agrees or disagrees;
(3) A description of additional facts and issues that are not raised in the appeal that the requester believes are relevant and should be considered;
(4) A description of the relief sought, particularly as it differs from the relief sought by the appellant;
(5) Where applicable, a response to the appellant's request for a stay of the decision being appealed;
(6) Where applicable, a response to the appellant's request for an oral presentation;
(7) Where applicable, a response to the appellant's request for mediation of a term grazing permit dispute under 36 CFR part 222, subpart D; and
(8) The requester's signature and the date.
(c)
(d)
(a)
(b)
(a) An appealable decision shall be implemented unless an authorized stay is granted under § 214.13(b) or an automatic stay goes into effect under § 214.13(c).
(b)
(1)
(i) A description of the adverse impact to the appellant if a stay is not granted;
(ii) A description of the adverse impact to National Forest System lands and resources if a stay is not granted; or
(iii) An explanation as to how a meaningful decision on the merits of the appeal could not be achieved if a stay is not granted.
(2)
(3)
(c)
(1) Decisions to issue a written authorization pursuant to a prospectus;
(2) Decisions to recalculate revenue-based land use fees for a special use
(3) Decisions to cancel or suspend a term grazing permit subject to mediation under 36 CFR 222.60 and for which mediation is requested in accordance with that provision.
(d)
(e)
(a)
(b)
(1) The date of the U.S. Postal Service postmark for an appeal received before the close of the fifth business day after the appeal filing date;
(2) The electronically generated posted date and time for e-mail and facsimiles;
(3) The shipping date for delivery by private carrier for an appeal received before the close of the fifth business day after the appeal filing date; or
(4) The official agency date stamp showing receipt of hand delivery.
(c)
(2) All time periods shall be computed using calendar days, including Saturdays, Sundays, and Federal holidays. However, if a time period ends on a Saturday, Sunday, or Federal holiday, the time period is extended to the end of the next Federal business day.
(d)
(2)
(i) The time period for filing an appeal;
(ii) The time period to decide whether to conduct discretionary review of an appeal decision or a Chief's decision; and
(iii) The time period to issue a discretionary review decision.
(3)
(4)
(5)
(e)
(f)
(2) The Appeal Deciding Officer may issue one decision for appeals filed under this part and other parts of this chapter that involve common issues of fact and law.
(3) The Responsible Official may prepare one responsive statement for consolidated appeals.
(g)
(h)
(2) All decisions and orders issued by the Appeal Deciding Officer and the Discretionary Reviewing Officer related to the appeal shall be sent to all parties to the appeal.
(i)
(j)
(a) The Responsible Official may discuss an appeal with a party or parties to narrow issues, agree on facts, and explore opportunities to resolve one or more of the issues in dispute by means other than issuance of an appeal decision.
(b) The Responsible Official who issued a decision under appeal may withdraw the decision, in whole or in part, during an appeal to resolve one or more issues in dispute. The Responsible Official shall notify the parties to the appeal and the Appeal Deciding Officer of the withdrawal. If the withdrawal of the decision eliminates all the issues in dispute in the appeal, the Appeal Deciding Officer shall dismiss the appeal under § 214.10.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(a)
(b)
(c)
(1) The Appeal Deciding Officer shall close the appeal record on:
(i) The day after the date the reply to the responsive statement is due if no oral presentation is conducted;
(ii) The day after the oral presentation is conducted if no transcript of the oral presentation is being prepared; or
(iii) The day after a transcript of the oral presentation is due if one is being prepared.
(2) The Appeal Deciding Officer shall notify all parties to the appeal of closing of the record.
(d)
(a) Appeal decisions made by the Appeal Deciding Officer shall be issued within 30 days of the date the appeal record is closed.
(b) The appeal decision shall be based solely on the appeal record and oral presentation, if one is conducted.
(c) The appeal decision shall conform to all applicable laws, regulations, policies, and procedures.
(d) The appeal decision may affirm or reverse the appealable decision, in whole or in part. The appeal decision must specify the basis for affirmation or reversal and may include instructions for further action by the Responsible Official.
(e) Except where a decision to conduct discretionary review has been made and a discretionary review decision has been issued, the appeal decision shall constitute USDA's final administrative decision.
(a)
(2) One day after issuance of a Chief's decision that is eligible for discretionary review under § 214.8(b)(2), the Chief shall send the decision to the Discretionary Reviewing Officer to determine whether discretionary review should be conducted.
(b)
(c)
(d)
(e)
Judicial review of a decision that is appealable under this part is premature unless the plaintiff has exhausted the administrative remedies under this part.
The rules of this part governing appeal of decisions relating to occupancy or use of National Forest System lands and resources specify the information that an appellant must provide in an appeal. Therefore, these rules contain information collection requirements as defined in 5 CFR part 1320. These information collection requirements are assigned Office of Management and Budget Control Number 0596-New.
This part prescribes the procedure for administrative review of appealable
4. The authority citation for part 215 continues to read as follows:
16 U.S.C. 472, 551; sec. 322, Pub. L. 102-381 (Appeals Reform Act), 106 Stat. 1419 (16 U.S.C. 1612 note).
5. In § 215.1, revise paragraph (b) to read as follows:
(b)
6. In § 215.2, revise the definitions for “Appeal,”
7. In § 215.11, revise paragraph (d) to read as follows:
(d) Decisions may not be appealed by an appellant under more than one part of this chapter. Parties eligible to appeal a decision under more than one part in this chapter must elect the part under which they will pursue their appeal. Once an election is made, parties may not appeal the decision under the parts they did not elect.
8. In § 215.14, revise paragraph (b)(5) to read as follows:
(b) * * *
(5) The regulation under which the appeal is being filed if there is an option to file under more than one;
9. In § 215.15, revise paragraph (c) to read as follows:
(c)
(1) The date of the U.S. Postal Service postmark for an appeal received before the close of the fifth business day after the appeal filing date;
(2) The electronically generated posted date and time for e-mail and facsimiles;
(3) The shipping date for delivery by private carrier for an appeal received before the close of the fifth business day after the appeal filing date; or
(4) The official agency date stamp showing receipt of hand delivery.
10. The authority citation for part 218 continues to read as follows:
Pub. L. 108-148; 117 Stat. 1887 (Healthy Forests Restoration Act of 2003).
11. In § 218.2, revise the definitions for
12. In § 218.10, revise paragraph (c) to read as follows:
(c)
(1) The date of the U.S. Postal Service postmark for an objection received before the close of the fifth business day after the objection filing date;
(2) The electronically generated posted date and time for e-mail and facsimiles;
(3) The shipping date for delivery by private carrier for an objection received before the close of the fifth business day after the objection filing date; or
(4) The official agency date stamp showing receipt of hand delivery.
13. The authority citation for part 222 is revised to read as follows:
7 U.S.C. 1010-1012; 7 U.S.C. 5101-5106; 16 U.S.C. 551, 572, 580l; 31 U.S.C. 9701; 43 U.S.C. 1751, 1752, 1901; E.O. 12548 (51 FR 5985).
14. The authority citation for subpart C of part 222 is revised to read as follows:
16 U.S.C. 551; 31 U.S.C. 9701; 43 U.S.C. 1751, 1752, 1901; E.O. 12548 (51 FR 5985).
15. Add a new subpart D to Part 222 to read as follows:
7 U.S.C. 5101-5106; 16 U.S.C. 472,551.
The holder of a term grazing permit issued in a State with a mediation program certified by the U.S. Department of Agriculture may request mediation of a dispute relating to a decision to suspend or cancel the permit as authorized by 36 CFR 222.4(a)(2)(i), (ii), (iv), and (v) and (a)(3) through (a)(6). Any request for mediation must be included in an appeal of the decision to suspend or cancel the permit filed in accordance with 36 CFR part 214.
Only the following may be parties to mediation of a term grazing permit dispute:
(a) A mediator authorized to mediate under a State mediation program certified by the U.S. Department of Agriculture;
(b) The Chief, Forest Service, or other Forest Service employee who made the decision being mediated or his or her designee;
(c) The holder whose term grazing permit is the subject of the decision and who has requested mediation in an appeal filed in accordance with the procedures at 36 CFR part 214;
(d) That holder's creditors, if applicable; and
(e) Legal counsel, if retained. The Forest Service will have legal representation in the mediation only if the holder has legal representation in the mediation.
If an appellant requests mediation of a decision subject to mediation under § 222.60 in an appeal filed under 36 CFR part 214, the Appeal Deciding Officer shall immediately notify all parties to the appeal that all appeal deadlines are automatically stayed for 45 days to allow for mediation. If a mediated agreement is not reached in 45 days, the Appeal Deciding Officer may extend the automatic stay for another 15 days if there is a reasonable possibility that a mediated agreement can be achieved within that timeframe. If an agreement is not achieved at the end of the 45- or 60-day mediation process, the Appeal Deciding Officer shall immediately notify all parties to the appeal that mediation was unsuccessful, that the stay has expired, and that the time periods and procedures applicable to an appeal under 36 CFR part 214 are reinstated.
Mediation sessions and dispute resolution communications as defined in 5 U.S.C. 571(5) shall be confidential. Any mediation agreement signed by a Forest Service official and the holder of a term grazing permit is subject to public disclosure.
Notes taken or factual material shared during mediation sessions shall not be included in the appeal record prepared in accordance with the procedures at 36 CFR part 214.
The Forest Service shall cover only those costs incurred by its own employees in mediation sessions.
The Chief, Forest Service, or other Forest Service employee who made the decision being mediated or his or her designee shall not discuss mediation with the Appeal Deciding Officer, except to request an extension of time or to communicate the results of mediation.
16. The authority citation for part 228 is revised to read as follows:
16 U.S.C. 478, 551; 30 U.S.C. 226, 352, 601, 611; 94 Stat. 2400.
17. Revise § 228.14 to read as follows:
Appeal of decisions of an authorized officer made pursuant to this subpart is governed by 36 CFR part 214 or 215.
18. In § 228.65, revise paragraph (b)(4) to read as follows:
(b) * * *
(4) If the purchaser fails to make payments when due, the contract will be considered breached, the authorized officer will cancel the contract, and all previous payments will be forfeited without prejudice to any other rights and remedies of the United States.
19. In § 228.66 revise paragraph (c) to read as follows:
(c)
(2) If the contract is cancelled by mutual agreement. This refund provision is not a warranty that a specific quantity of material exists in the sale area.
20. In § 228.107, revise paragraph (c) to read as follows:
(c)
21. The authority citation for Part 241 continues to read as follows:
16 U.S.C. 472, 539, 551, 683.
22. In § 241.22, revise paragraphs (e) and (f) to read as follows:
(e) Subject to valid existing rights, the responsible Forest Officer may revoke, suspend, restrict, or require modification of any activity if it is determined that such measures are required to conserve wildlife, fish, or their habitat within areas of the Chugach National Forest subject to this subpart. Prior to taking action to revoke, suspend, restrict, or require modification of an activity under this section, the responsible Forest Officer shall give affected parties reasonable prior notice and an opportunity to comment, unless it is determined that
(f) Decisions made pursuant to this section are subject to appeal only as provided in 36 CFR part 214.
23. The authority citation for part 251 continues to read as follows:
16 U.S.C. 472, 479b, 551, 1134, 3210, 6201-13; 30 U.S.C. 1740, 1761-1771.
24. The authority citation for part 251, subpart A, continues to read as follows:
7 U.S.C. 1011; 16 U.S.C. 518, 551, 678a; Pub. L. 76-867, 54 Stat. 1197.
25. Amend § 251.15 to revise paragraphs (a)(2)(iv) and (a)(3) to read as follows:
(a) * * *
(2) * * *
(iv) Failure to comply with the terms and conditions of the permit shall be cause for revocation of all rights to use, occupy, or disturb the surface of the lands covered by the permit, but in the event of revocation, a new permit shall be issued upon application when the causes for revocation of the preceding permit have been satisfactorily remedied and the United States has been reimbursed for any damages it has incurred from the noncompliance.
(3) All structures, other improvements, and materials shall be removed from the lands within one year after the date of revocation of the permit.
26. The authority citation for part 251, subpart B, continues to read as follows:
16 U.S.C. 460l-6a, 460l-6d, 472, 497b, 497c, 551, 580d, 1134, 3210; 30 U.S.C. 185; 43 U.S.C. 1740, 1761-1771.
27. In § 251.51, revise the definitions for “Holder,” “Revocation,”
28. In § 251.54, revise the last sentence of paragraph (g)(3)(iii) to read as follows:
(g) * * *
(3) * * *
(iii) * * * A denial of an application in paragraphs (g)(3)(ii)(A) through (g)(3)(ii)(H) of this section constitutes final agency action, is not subject to administrative appeal, and is immediately subject to judicial review.
29. In § 251.60, revise paragraphs (a)(1)(ii), (a)(2)(ii), and (h)(2) to read as follows:
(a) * * *
(1) * * *
(ii)
(2) * * *
(ii)
(h) * * *
(2) Before any such easement is revoked upon abandonment, the owner of the easement shall be given notice and, upon the owner's request made within 60 days after receipt of the notice, shall be given an appeal in accordance with the provisions of 36 CFR part 214.
30. Remove and reserve subpart C of part 251.
31. The authority citation for part 251, subpart E, continues to read as follows:
16 U.S.C. 3197.
32. Revise § 251.126 to read as follows:
Decisions related to the issuance of special use authorizations in response to written solicitations by the Forest Service under this subpart or related to the modification of special use authorizations to reflect historical use are subject to administrative appeal under 36 CFR part 214.
33. The authority citation for part 254, subpart A, is revised to read as follows:
7 U.S.C. 428a(a) and 1011; 16 U.S.C. 484a, 485, 486, 516, 551, 555a; 43 U.S.C. 1701, 1715, 1716, 1740.
34. In § 254.4, revise paragraph (g) to read as follows:
(g) The withdrawal from an exchange proposal by the authorized officer at any time prior to the notice of decision pursuant to § 254.13 of this subpart is not appealable under 36 CFR part 214 or 215.
35. In § 254.13, revise paragraph (b) to read as follows:
(b) The decision to approve or disapprove an exchange proposal shall be subject to appeal as provided under 36 CFR part 214 or 215 for 45 days after the date of publication of a notice of availability of the decision.
36. In § 254.14, revise paragraph (b)(6) to read as follows:
(b) * * *
(6) In the event of an appeal under 36 CFR part 214 or 215, a decision to approve an exchange proposal pursuant to § 254.13 of this subpart is upheld; and
37. In § 254.15, revise the last sentence of paragraph (c)(2) to read as follows:
(c) * * *
(2) * * * If an agreement cannot be reached, the authorized officer shall consider other alternatives to accommodate the authorized use or shall determine whether there are specific and compelling reasons in the public interest for revoking the authorization for that use pursuant to 36 CFR 251.60.
38. The authority citation for part 292, subpart C, continues to read as follows:
Sec. 4(a), Act of Aug. 22, 1972 (86 Stat. 613).
39. In § 292.15, revise paragraph (l) to read as follows:
(l) Denial or revocation of a certification of compliance under this subpart is subject to appeal under 36 CFR part 214.
40. The authority citation for part 292, subpart D, is revised to read as follows:
16 U.S.C. 460aa-10, 478, 551.
41. In § 292.18, revise paragraph (f) to read as follows:
(f)
Coast Guard, DHS.
Supplemental notice of proposed rulemaking.
The Coast Guard proposes to amend the interim rule addressing lifesaving equipment published in this same issue of the
Comments and related material must either be submitted to our online docket via
You may submit comments identified by docket number USCG-2010-0048 using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call Mr. Kurt Heinz, Commercial Regulations and Standards Directorate, Office of Design and Engineering Standards, Lifesaving and Fire Safety Division (CG-5214), Coast Guard, telephone 202-372-1395, or e-mail
The Coast Guard encourages you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to
If you submit a comment, please include the docket number for this rulemaking (USCG-2010-0048), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online, or by fax, mail, or hand delivery, but please use only one of these means. The Coast Guard recommends that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that the Coast Guard can contact you if the Coast Guard has questions regarding your submission.
To submit your comment online, go to
The Coast Guard will consider all comments and material received during the comment period and may change this proposed rule in view of your comments.
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008 issue of the
The Coast Guard does not currently plan to hold a public meeting. But you may submit a request for one to the Docket Management Facility at the address under
On August 31, 2010, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Lifesaving Equipment: Production Testing and Harmonization With International Standards” in the
The Coast Guard is issuing this supplemental notice of proposed rulemaking (SNPRM) to address amendments to international standards affecting capacity requirements for inflatable liferaft and inflatable buoyant apparatuses that were recently adopted by the International Maritime Organization (IMO) and will enter into force on January 1, 2012. The IMO amendments to the international standards affect the Interim Rule, published elsewhere in this issue of the
As discussed in the “Background” section of the Interim Rule, the Coast Guard is charged with ensuring that lifesaving equipment used on vessels subject to inspection by the United States meets specific design, construction, and performance standards, including those found in the International Convention for the Safety of Life at Sea, 1974, as amended, (SOLAS), Chapter III “Life-saving appliances and arrangements.”
The Coast Guard's specific standards for inflatable liferafts are found in 46 CFR part 160, subparts 160.151 (Inflatable Liferafts (SOLAS)) and 160.051 (Inflatable Liferafts for Domestic Service). The Coast Guard's specific standards for inflatable buoyant apparatuses are found in 46 CFR part 160, subpart 160.010 (Buoyant Apparatus for Merchant Vessels). Current subpart 160.151 satisfies SOLAS requirements, and current subparts 160.051 and 160.010 require compliance with the standards in subpart 160.151, with some specifically listed exceptions.
Subpart 160.151 implements SOLAS requirements by incorporating by reference the IMO standards referenced by Chapter III of SOLAS. The primary IMO standards referenced by Chapter III of SOLAS are the “Revised recommendation on testing of life-saving appliances” (Recommendation on Testing), IMO Resolution MSC.81(70), and the “International Life-saving Appliance Code” (LSA Code), IMO Resolution MSC.48(66). IMO updates these standards by adopting
In the Interim Rule published elsewhere in this issue of the
IMO recently adopted two new MSC resolutions further amending the LSA Code and the Recommendation on testing: “Adoption of Amendments to the International Life-Saving Appliance (LSA) Code” (MSC.293(87)) and “Adoption of Amendments to the Revised Recommendation on Testing of Life-Saving Appliances” (MSC.295(87)).
Resolution MSC.293(87) amends the LSA Code, and enters into force on January 1, 2012. This resolution increases the assumed average mass of liferaft occupants from 75 kg to 82.5 kg for inflatable liferaft design and approval testing purposes.
Resolution MSC.295(87) amends the Recommendation on Testing and enters into force on January 1, 2012. This resolution specifies revisions necessary to account for this assumed average mass increase with respect to certain existing tests. The tests required by the Recommendation on Testing, Part 1 (Prototype Tests), affected by Resolution MSC.295(87) are: the jump test, loading and seating test, davit-launched liferaft boarding test, damage test, righting test, and davit-launched inflatable liferaft strength tests.
The Coast Guard proposes to revise the Interim Rule to include the increased average mass of liferaft occupants and to require liferaft performance under subpart 160.151 to comply with the revisions to tests necessitated by the occupant weight increase. This proposed revision to subpart 160.151 would also, by extension, affect liferaft performance under subpart 160.051 and inflatable buoyant apparatus performance under subpart 160.010.
The Coast Guard proposes to revise interim § 160.151-5(d)(5) to incorporate by reference the LSA Code “as amended by resolutions MSC.207(81), MSC.218(82), MSC.272(85), and MSC.293(87),” and the Recommendation on Testing “as amended by IMO Resolutions MSC.226(82), MSC.274(85), and MSC.295(87).” Revising these incorporations by references would affect the tests in interim §§ 160.151-27, 160.151-29, 160.151-31, and 160.151-57, which refer to the Recommendation on Testing. This proposal would require manufacturers to conduct those tests on prototype and production liferafts for Coast Guard approval under subpart 160.151 (SOLAS liferafts) using the new 82.5 kg assumed average mass of liferaft occupants instead of the current 75 kg assumed average mass. This rule would not impact liferafts currently in service. As stated in the NPRM, liferafts in service that were approved under the regulations revised by the interim rule would not have to be replaced, provided that they remain in serviceable condition. However, when they become non-serviceable, and thus must be replaced, they would have to be replaced with a liferaft that conforms to the revised regulations in effect at the time of replacement (i.e. the interim rule, as amended by any final rule resulting from this SNPRM).
The Coast Guard proposes to make this proposed rule effective on January 1, 2012, the same date MSC.293(87) and MSC.295(87) enter into force.
Under this proposed rule, any manufacturer of SOLAS liferafts wanting to continue manufacturing such liferafts under a Certificate of Approval issued under subpart 160.151, or seeking Coast Guard approval under subpart 160.151, would have to provide the Coast Guard, prior to January 1, 2012, documentation that the applicable tests in subpart 160.151 have been successfully conducted taking into account the new 82.5 kg standard. This requirement can be met by submitting records of new tests based on the increased weight to maintain the current occupancy rating, or by submitting calculations to support a reduced occupancy rating based on the total weight used in the tests performed during initial approval. The Coast Guard would document compliance with Resolutions MSC.293(87) and MSC.295(87) by means of either amended Certificates of Approval under subpart 160.151 or by letter where large numbers of such Certificates of Approval are involved. The Coast Guard seeks comments on this proposal.
The proposal to incorporate by reference Resolutions MSC.293(87) and MSC.295(87) in interim § 160.151-5(d)(5) would also affect interim subparts 160.051 and 160.010. As discussed above, liferafts for Coast Guard approval under subpart 160.051 (domestic service liferafts) and inflatable buoyant apparatuses for Coast Guard approval under subpart 160.010 must meet the requirements in subpart 160.151 with some exceptions specifically listed in subparts 160.051 and 160.010.
Although incorporating by reference Resolutions MSC.293(87) and MSC.295(87) in interim § 160.151-5(d)(5) would affect interim subparts 160.051 and 160.010, the proposed rule would only affect any new approval sought under subparts 160.051 or 160.010, if this proposal is made final. The language in subparts 160.051 and 160.010 that requires compliance with subpart 160.151 only addresses obtaining Coast Guard approval, and a manufacturer obtains Coast Guard approval when seeking a new approval. Coast Guard approval is evidenced by a Certificate of Approval (COA), which is valid for a period of 5 years. After receiving a COA, the manufacturer must renew the COA before it expires, but renewal of a COA is not considered obtaining Coast Guard approval.
Therefore, under this proposed rule, manufacturers of domestic service liferafts and manufacturers of inflatable buoyant apparatuses seeking a new approval under subpart 160.051 or subpart 160.010 on or after January 1, 2012 would have to conduct the applicable tests taking into account the new 82.5 kg standard. Manufacturers that already have a COA issued under subpart 160.051 or subpart 160.010 prior to January 1, 2012, however, would not have to comply with the new tests required by the Recommendation on Testing, as amended by Resolution MSC.295(87) for those approved products. Those manufacturers of domestic service liferafts approved under subpart 160.051 prior to January 1, 2012, and manufacturers of inflatable buoyant apparatuses approved under subpart 160.010 prior to January 1, 2012, could continue production of such lifesaving equipment using the 75 kg assumed average mass for occupants.
The Coast Guard proposes to permit manufacturers of domestic service liferafts and manufacturers of inflatable buoyant apparatuses with COA issued under subpart 160.051 or subpart 160.010 prior to January 1, 2012, to continue production of such lifesaving equipment using the 75 kg assumed average mass because of the differences between SOLAS liferafts and domestic service liferafts and inflatable buoyant apparatuses. SOLAS liferafts are carried on international voyages and as such must comply with IMO requirements. Domestic service liferafts and inflatable buoyant apparatuses are carried only on coastwise and other non-ocean or non-international routes and are not subject to SOLAS requirements. While the Coast Guard considers the IMO standards for this lifesaving equipment, as discussed above and in the Interim Rule, to be appropriate for all U.S. flag vessels regardless of voyage, the Coast Guard is aware of the burden of re-testing domestic service liferafts and inflatable buoyant apparatuses to address the SOLAS increased assumed average mass for occupants. However, the Coast Guard still desires a consistent standard across lifesaving appliances in keeping with the harmonization goal of the Interim Rule, as reflected in the current requirement that liferafts and inflatable buoyant apparatuses for approval under subparts 160.051 and 160.010 comply with subpart 160.151. To balance the burden of re-testing domestic service liferafts and inflatable buoyant apparatuses with the Coast Guard's determination that IMO standards for lifesaving equipment are appropriate for all U.S. flag vessels regardless of voyage, the Coast Guard proposes to not affect current production of domestic service liferafts and inflatable buoyant apparatuses already approved under subparts 160.051 or 160.010. Therefore, the proposed rule would retain the current regulatory text in subparts 160.051 and 160.010 to require manufacturers of domestic service liferafts or inflatable buoyant apparatuses to comply with subpart 160.151 when seeking new Coast Guard approval only.
Manufacturers who wish to standardize across their product lines may opt to re-test domestic service liferafts and buoyant apparatuses approved under subparts 160.051 or 160.010 prior to January 1, 2012, to demonstrate compliance with Resolutions MSC.293(87) and MSC.295(87). The Coast Guard would document compliance with Resolutions MSC.293(87) and MSC.295(87) by means of either amended Certificates of Approval under subpart 160.015 or subpart 160.010, as applicable, or by letter where large numbers of such Certificates of Approval are involved.
Material proposed for incorporation by reference appears in proposed 46 CFR 160.151-5. You may inspect this material at U.S. Coast Guard Headquarters where indicated under
Before publishing a binding rule, the Coast Guard will submit this material to the Director of the Federal Register for approval of the incorporation by reference.
The Coast Guard developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below, the Coast Guard summarizes these analyses based on 14 of these statutes or executive orders.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget (OMB) has not reviewed it under that Order.
As mentioned previously within this preamble, the Coast Guard is issuing this SNPRM regarding inflatable liferafts and inflatable buoyant apparatuses concurrently with an Interim Rule published elsewhere in this issue of the
This SNPRM addresses the change in the international standard for occupant weight used in testing equipment in order to establish the rated capacity of inflatable liferafts and inflatable buoyant apparatuses. The occupant weight or `assumed average occupant mass' would be revised from the current 75 kg to the new weight standard of 82.5 kg and would, if the Coast Guard finalizes this proposed rule, become effective on January 1, 2012.
The Coast Guard issues a Certificate of Approval for inflatable liferafts and inflatable buoyant apparatuses under the applicable subpart in 46 CFR part 160 after successful testing of those appliances by their manufacturers. A Certificate of Approval specifies the number of occupants (or rated capacity) for which the inflatable liferaft or inflatable buoyant apparatus is designed and has been successfully tested, and the Certificate must be renewed every 5 years. New testing is not required to renew a current Certificate but new approval requests require testing before a Certificate can be issued.
While this proposed rule would require manufacturers to conduct prototype and production tests for inflatable liferafts and inflatable buoyant apparatuses manufactured on or after January 1, 2012 using the new weight standard, it would limit re-testing of currently approved equipment, thus limiting the cost impact of the proposed rule on manufacturers. And, as discussed in
As shown in Table 1, manufacturers of SOLAS inflatable liferafts approved under subpart 160.151 (SOLAS liferafts) manufactured on or after January 1, 2012 would be allowed the option of either re-testing using the new occupant weight standard or requesting certification for a lower rated occupancy (adjusted for the new occupant weight standard) based on the certification testing submitted for their current approval.
The principal cost impact for manufacturers of SOLAS liferafts will be for currently manufactured inflatable liferafts whose rated capacity is six using the current 75 kg occupant weight standard. Since SOLAS requires that inflatable liferafts have a minimum capacity of six, any SOLAS liferaft currently rated for six occupants would have to be re-tested under the new weight standard and any of these liferafts that did not meet the requirements for six occupants at the new weight standard could no longer be used on SOLAS vessels.
Currently, there are 10 manufacturers that produce 109 models of SOLAS liferafts. Of these, there are 11 liferaft models (from eight manufacturers) whose rated capacity is six (Table 2). These 11 models would be required to re-test to maintain their SOLAS certification. Three of these eight manufacturers are U.S. firms and they each produce one model of inflatable liferaft with a rated occupancy of six occupants. Of those three models, one model is designed primarily for use in aircraft under a Federal Aviation Administration approval number. The three models produced by U.S. firms and the eight models manufactured by foreign firms would have to be re-tested in order to verify a minimum occupancy rating under the new weight standard to be used on SOLAS vessels. From estimates obtained from industry, we estimate the costs of re-testing for compliance with the new weight standard at approximately $1,800 for each model.
We estimate the total cost to industry to re-test all current SOLAS liferaft models as $19,800—$14,400 for foreign manufacturers and $5,400 for U.S.-owned manufacturers.
As shown in Table 1, manufacturers of domestic service inflatable liferafts under subpart 160.051 (domestic service liferafts) and inflatable buoyant apparatuses under subpart 160.010 manufactured on or after January 1, 2012, under current Certificates of Approval, would have the option of using either the old 75 kg or the new 82.5 kg occupant weight standard. If a manufacturer of domestic service liferafts or a manufacturer of inflatable buoyant apparatuses with current Certificates of Approval chooses to use the new weight standard, it would also have the option of either re-testing using the new occupant weight standard or requesting re-certification for a lower number of occupants (adjusted for the new occupant weight standard). Manufacturers of domestic inflatable liferafts under subpart 160.051 or buoyant apparatuses under 160.010 would be required to use the new occupant weight standard only when testing domestic inflatable liferafts or buoyant apparatuses approved after January 1, 2012.
In terms of the cost of the regulation:
1. While prototype testing for all SOLAS liferafts on or after January 1, 2012, would have to employ the new weight standard, there is no additional cost in performing the required tests due to the change in the testing weight because the nature of the test remains the same.
2. Production testing of all SOLAS liferafts on or after January 1, 2012 would require testing using the new weight standard. As with prototype testing, there is no additional cost in performing the required tests due to the change in the testing weight because the nature of the test remains the same.
3. For production testing of SOLAS liferafts, the manufacturer may either request a certification with a lower maximum occupancy based on the new weight standard or re-test the equipment for certification of its current rated capacity using the new weight standard.
4. The 11 models (three models made by U.S. manufacturers) of SOLAS inflatable liferafts whose current rated capacity is six occupants, would have to verify that they meet the minimum SOLAS requirements for a capacity of six occupants at the new weight standard if they wish to continue their current SOLAS approval status.
5. For both prototype and production testing of domestic service inflatable liferafts and inflatable buoyant apparatuses approved by the Coast Guard prior to January 1, 2012, the manufacturer may test under either the 75 kg or the 82.5 kg occupant weight standard with no change to testing based on the new weight standard.
6. For prototype and production testing of domestic service inflatable liferafts and inflatable buoyant apparatuses approved on or after January 1, 2012, the manufacturer must test under the 82.5 kg occupant weight standard.
For inflatable liferafts approved under subpart 160.051 prior to January 1, 2012 and inflatable buoyant apparatuses approved under subpart 160.010 prior to January 1, 2012, the costs of testing equipment at the higher weight standard would be voluntary, as domestic liferafts and inflatable buoyant apparatuses may be certified using either weight standard. Likewise, equipment manufactured under a current Certificate of Approval would only be required to be re-tested if the manufacturer elected to retain their current rated capacity for their equipment under the higher weight standard. However, manufacturers have the option to reduce the current rated capacities of their equipment to comply with the new weight standard, provided that the resulting capacity does not conflict with the minimum required capacity applicable to that equipment.
Prototype and production testing of all SOLAS liferafts approved under subpart 160.151 would be required using the higher 82.5 kg occupant weight standard. The Coast Guard has no evidence to suggest that testing at the higher weight standard would involve additional testing costs for manufacturers because the nature of the test remains the same.
The principal benefit of the proposed rule is the protection of life at sea by establishing capacity standards for inflatable liferafts and inflatable buoyant apparatuses reflecting a global increase in mariner weights. Additionally, the proposed rule ensures compliance with internationally applicable standards for SOLAS adopted by IMO where non-compliance would exclude the use of inflatable liferafts manufactured under part 160.151 aboard SOLAS vessels.
The Coast Guard urges interested parties to submit comments that specifically address the economic impacts of this supplemental rulemaking. Comments can be made as indicated in the
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard has considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
We have identified three U.S.-owned entities involved in the manufacture of SOLAS liferafts manufactured under subpart 160.151. All are business entities, and all are small entities. For these three small entities, the testing requirements using the new weight standard would apply to: prototypes (new designs) submitted after January 1, 2012; production testing of designs submitted after January 1, 2012; and for currently manufactured equipment that manufacturers wish to have certified at their current rated occupancy using the new weight standards (as opposed to certification with a lower occupant capacity based on the higher testing weight). For new prototypes and production of products approved after
For manufacturers of equipment for domestic service only, we have identified three entities involved in the manufacture of domestic service liferafts and inflatable buoyant apparatus manufactured under subparts 160.051 and 160.010, respectively. All are business entities, and all are small entities. These entities would not be required to re-test equipment to retain Coast Guard approval, and could manufacture equipment under either weight standard with no affect to the rated capacities of their equipment.
Based on this information, the Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment to the Docket Management Facility at the address under
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard wants to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult Mr. Kurt Heinz, Commercial Regulations and Standards Directorate, Office of Design and Engineering Standards, Lifesaving and Fire Safety Division (CG-5214), Coast Guard, telephone 202-372-1395, or e-mail
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).
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them.
The U.S. Supreme Court has long recognized the field preemptive impact of the Federal regulatory regime for inspected vessels.
While it is well settled that States may not regulate in categories in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, as these categories are within a field foreclosed from regulation by the States (see
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. This proposed rule would not result in such an expenditure.
This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
The Coast Guard has analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Coast Guard has analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Coast Guard has 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 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 OMB, 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 proposed rule uses the following voluntary consensus standards:
• International Life-Saving Appliance Code, (IMO Resolution MSC.48(66)), as amended by IMO Resolutions MSC.207(81), MSC.218(82), MSC.272(85), and MSC.293(87);
• IMO Resolution MSC.81(70), Revised recommendation on testing of life-saving appliances, as amended by IMO Resolutions MSC.226(82), MSC.274(85), and MSC.295(87).
The proposed sections that reference these standards and the locations where these standards are available are listed in 46 CFR 160.151-5.
If you disagree with our analysis of the voluntary consensus standards listed above or are aware of voluntary consensus standards that might apply but are not listed, please send a comment to the docket using one of the methods under
Section 608 of the Coast Guard Authorization Act of 2010 (Pub. L. 111-281) adds new section 2118 to 46 U.S.C. Subtitle II (Vessels and Seamen), Chapter 21 (General). New section 2118(a) sets forth requirements for standards established for approved equipment required on vessels subject to 46 U.S.C. Subtitle II (Vessels and Seamen), Part B (Inspection and Regulation of Vessels). Those standards must be “(1) based on performance using the best available technology that is economically achievable; and (2) operationally practical.”
We have analyzed this proposed rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under the “Public Participation and Request for Comments” section of this preamble. This proposed rule involves regulations which are editorial, regulations concerning equipping of vessels, and regulations concerning vessel operation safety standards. This proposed rule is categorically excluded under Section 2.B.2, Figure 2-1, paragraphs (34)(a) and (d) of the Instruction and under paragraph 6(a) of the “Appendix to National Environmental Policy Act: Coast Guard Procedures for Categorical Exclusions, Notice of Final Agency Policy” (67 FR 48243, July 23, 2002). We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
Marine safety, Incorporation by reference, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 46 CFR part 160 as follows:
1. The authority citation for part 160 continues to read as follows:
46 U.S.C. 2103, 3306, 3703 and 4302; E.O. 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. 277; 49 CFR 1.46.
2. Amend § 160.151-5 by adding paragraphs (d)(5) and (d)(6) to read as follows:
(d) * * *
(5) Resolution MSC.293(87), Adoption of Amendments to the International Life-Saving Appliance (LSA) Code, (May 21, 2010), IBR approved for §§ 160.151-7, 160.151-15, 160.151-17, 160.151-21, 160.151-29, and 160.151-33 (“Resolution MSC.293(87)”).
(6) Resolution MSC.295(87), Adoption of Amendments to the Revised Recommendation on Testing of Life-Saving Appliances (Resolution MSC.81(70)), (May 21, 2010), IBR approved for §§ 160.151-21, 160.151-27, 160.151-29, 160.151-31, and 160.151-57 (“Resolution MSC.295(87)”).
3. Amend § 160.151-7 by removing the words “IMO LSA Code” wherever they appear and adding, in their place, the words “IMO LSA Code, as amended by Resolution MSC.293(87),”.
4. Amend § 160.151-15 by removing the words “IMO LSA Code” wherever they appear and adding, in their place, the words “IMO LSA Code, as amended by Resolution MSC.293(87),”.
5. Amend § 160.151-17 by removing the words “IMO LSA Code” wherever they appear and adding, in their place, the words “IMO LSA Code, as amended by Resolution MSC.293(87),”.
6. Amend § 160.151-21 as follows:
a. Remove the words “IMO LSA Code” wherever they appear and add, in their place, the words “IMO LSA Code, as amended by Resolution MSC.293(87),”; and
b. In paragraph (f), remove the words “IMO Revised recommendation on testing” and add, in their place, the words “IMO Revised recommendation on testing, as amended by Resolution MSC.295(87),”.
7. Amend § 160.151-27 by removing the words “IMO Revised recommendation on testing” wherever they appear and adding, in their place, the words “IMO Revised recommendation on testing, as amended by Resolution MSC.295(87),”.
8. Amend § 160.151-29 as follows:
a. In the introductory text, remove the words “IMO LSA Code” and add, in their place, the words “IMO LSA Code, as amended by Resolution MSC.293(87),”; and
b. In the introductory text, remove the words “IMO Revised recommendation on testing” and add, in their place, the words “IMO Revised recommendation on testing, as amended by Resolution MSC.295(87),”.
9. Amend § 160.151-31 by removing the words “IMO Revised recommendation on testing” wherever they appear and adding, in their place, the words “IMO Revised recommendation on testing, as amended by Resolution MSC.295(87),”.
10. Amend § 160.151-33 by removing the words “IMO LSA Code” wherever they appear and adding, in their place, the words “IMO LSA Code, as amended by Resolution MSC.293(87),”.
11. Amend § 160.151-57 by removing the words “IMO Revised recommendation on testing” wherever they appear and adding, in their place, the words “IMO Revised recommendation on testing, as amended by Resolution MSC.295(87),”.
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 finding announced in this document was made on October 11, 2011.
This finding is available on the Internet at
Steve Spangle, Field Supervisor, U.S. Fish and Wildlife Service, Arizona Ecological Services Field Office, 2321 W. Royal Palm Road, Suite 103, Phoenix, AZ 85021; telephone (602) 242-0210; facsimile (602) 242-2513. If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at (800) 877-8339.
Section 4(b)(3)(B) of the Act (16 U.S.C. 1531
On June 25, 2007, we received a formal petition dated June 18, 2007, from Forest Guardians (now WildEarth Guardians), requesting that we do the following: (1) Consider for listing all full species in our Southwest Region ranked as G1 or G1G2 by the organization NatureServe, except those that are currently listed, proposed for listing, or candidates; and (2) list each species under the Act as either endangered or threatened and designate critical habitat. The petitioners presented two tables that collectively listed 475 species for consideration and requested that the Service incorporate all analyses, references, and documentation provided by NatureServe in its online database
On December 16, 2009, we made a 90-day finding (74 FR 66866) that the petition presented substantial scientific information indicating that listing 67 of the 475 species may be warranted;
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 these findings, information pertaining to each species in relation to the five factors provided in section 4(a)(1) of the Act is discussed below. In considering what factors might constitute threats to a species, we must look beyond the exposure of the species to a particular factor to evaluate whether the species may respond to the factor in a way that causes actual impacts to the species. If there is exposure to a factor and the species responds negatively, the factor may be a threat, and during the status review, we attempt to determine how significant a threat it is. The threat is significant if it drives, or contributes to, the risk of extinction of the species such that the species warrants listing as endangered or threatened as those terms are defined by the Act. However, the identification of factors that could impact a species negatively may not be sufficient to compel a finding that the species warrants listing. The information must include evidence sufficient to suggest that the potential threat has the capacity (
For each of the three species, we provide a description of the species and its life-history and habitat, an evaluation of threats for that species, and our finding that the petitioned action is warranted or not for that species.
In the United States,
Very little is known about the biology of this species.
In 1987 and 1988, staff from the Desert Botanical Garden (Garden) collected 142 seeds from the Devil's Cashbox area as part of the Center for Plant Conservation National Collection program for conserving rare plants and their seeds. The Garden's purpose was to determine viability of stored seed and increase the number of plants in their living collection (Desert Botanical Garden 1991, p. 1). An additional 72 seeds were collected by Garden staff from one population in Sonora, Mexico at an unknown date prior to 1991. In greenhouse trials, the Garden had variable low rates of success, from 0 to 43 percent, in germinating 4-year-old seed stored both at room temperature and in a freezer facility. Viability of the seed bank and germination success in the wild is unknown, though Hodgson did report finding 10 seedlings in 1991 in the Devil's Cashbox area (Southwest Environmental Information Network 2011). In a greenhouse experiment, 4 plants produced 7 fruits with a total of 232 seeds (Hodgson 1994, p. 7). Assuming this may be optimum fruiting potential given ample water and greenhouse care, the small population sizes from known populations (4to 24 individuals) may produce few seeds in typical years. There are no monitoring plots or current research in any of the populations in Arizona and Mexico.
There are virtually no population estimates for any locations in Mexico, although Hodgson (1994, p. 7) reported that one population in Mexico in 1988 had “well over two dozen” individuals. The information is not much better for the Arizona populations. Population estimates for the Santa Rita population ranged from 14 individuals in 1988 (Southwest Environmental Information Network, 2011), to 4 individuals in 1989 (Hodgson 1989, p. 2), and 25 individuals in 1991 (Southwest Environmental Information Network, 2011). Hodgson (1994, p. 7) reports fewer than 24 individuals from 2 micro-populations in the Santa Rita Mountains. There were an estimated six to eight individuals in the Thomas Canyon population (Toolin 2011, pers. comm.) in the 1990s. Thomas Canyon was surveyed in 2011 and 30 plants were found (M. Baker 2011, pers. comm.).
In summary, there is very little ecological information available regarding
In making this finding, information pertaining to
Potential factors that may affect the habitat or range of
Throughout the Sonoran Desert ecosystem, invasions of the introduced
Although exotic grasses are reported to threaten
There has been no scientific study on the impacts of fire on
The Santa Rita
NatureServe (2010) reports mining as a threat to this species, perhaps due to the proximity of two active mining claims to the south of the Devil's Cashbox plants (Ahern 2011, pers. comm.). There are currently no known direct impacts of active or proposed mines on any known population of
Improper livestock grazing can lead to habitat degradation and watershed degradation. Overgrazing removes the vegetative cover which can lead to erosion. The Santa Rita population is located within the Agua Caliente grazing allotment on the Nogales Ranger District. Degradation of habitat due to livestock grazing was noted as a threat by NatureServe (2010) to
The climate pattern in the vicinity of Álamos at the southern end of the
It is not known whether
“Climate” refers to an area's long-term average weather statistics (typically for at least 20- or 30-year periods), including the mean and variation of surface variables such as temperature,
The IPCC used Atmosphere-Ocean General Circulation Models and various greenhouse gas emissions scenarios to make projections of climate change globally and for broad regions through the 21st century (Meehl
All models (not just those involving climate change) have some uncertainty associated with projections due to assumptions used, data available, and features of the models; with regard to climate change this includes factors such as assumptions related to emissions scenarios, internal climate variability and differences among models. Despite this, however, under all global models and emissions scenarios, the overall projected trajectory of surface air temperature is one of increased warming compared to current conditions (Meehl
Changes in climate can have a variety of direct and indirect impacts on species, and can exacerbate the effects of other threats. Rather than assessing “climate change” as a single threat in and of itself, we examine the potential consequences to species and their habitats that arise from changes in environmental conditions associated with various aspects of climate change. For example, climate-related changes to habitats, predator-prey relationships, disease and disease vectors, or conditions that exceed the physiological tolerances of a species, occurring individually or in combination, may affect the status of a species. Vulnerability to climate change impacts is a function of sensitivity to those changes, exposure to those changes, and adaptive capacity (IPCC 2007, p. 89; Glick
While projections from global climate model simulations are informative and in some cases are the only or the best scientific information available, various downscaling methods are being used to provide higher-resolution projections that are more relevant to the spatial scales used to assess impacts to a given species (see Glick
Regional landscapes can be examined by analyzing climate models that operate at small spatial scales; however, this approach involves some uncertainty. The uncertainty arises due to various factors related to difficulty in applying climate modeling to a smaller scale or unknown information, including regional weather patterns, local physiographic conditions, and fine-scale weather factors. Also, climate models do not model biological responses, such as life stages of individual species, generation time of species, and species' reactions to changing carbon dioxide levels not being included in the models. Most climate models do not incorporate a variety of plant-related factors that could be informative in determining how climate change could affect plant species (
For southern Arizona, the most current downscaled climate projections are available with
Climate change is likely to affect the long-term survival and distribution of native species, such as
Annual mean precipitation levels are expected to decrease in western North America and especially the southwestern States by midcentury (IPCC 2007, p. 8; Seager
Atmospheric levels of carbon dioxide are expected to double before the end of the 21st century, which may increase the dominance of invasive grasses leading to increased fire frequency and severity across western North America (Brooks and Pyke 2002, p. 3; IPCC 2002, p. 32; Walther
In summary, climate change is affecting and will affect temperature and precipitation events in the future. We expect that
In conclusion, based on our review of the best available scientific and commercial information, we have determined that nonnative invasive species, fire, development, mining, and watershed degradation are not threats to
Hodgson (2001, p. 91) notes that roots, young leaves, fruits, and seeds of
There is no information indicating that disease affects
It has been suggested that javelinas (hoofed mammals in the peccary family) dig up the roots of
Based on the best available information, we have determined that disease and predation are not threats to the continued existence of
In addition, the Forest Service has to consider the effects of their actions on the viability of sensitive species through the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
In summary,
Information on a species' rarity is relevant to the conservation status of a species. Generally speaking, a species that has a geographically restricted range is likely to be more susceptible to environmental threats (
A species that has always been rare, yet continues to survive, could be well-equipped to continue to exist into the future. Many naturally rare species have persisted for long periods within small geographic areas, and many naturally rare species exhibit traits that allow them to persist despite their small population sizes. Consequently, the fact that a species is rare does not necessarily indicate that it may be in danger of extinction in the foreseeable future.
The best available information provides no evidence that effects often associated with small populations that were not naturally rare, such as inbreeding depression or genetic drift, may be occurring in
As required by the Act, we evaluated the five factors in assessing whether
There are no obvious threats to
Based on our review of the best available scientific and commercial information pertaining to the five factors, we find that the potential threats are not of sufficient imminence, intensity, or magnitude to indicate that
Having determined that
The Act defines an endangered species as one “in danger of extinction throughout all or a significant portion of its range,” and a threatened species as one “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The term “significant portion of its range” is not defined by the statute. For the purposes of this finding, a portion of a species' range is “significant” if it is part of the current range of the species, and it provides a crucial contribution to the representation, resiliency, or redundancy of the species. For the contribution to be crucial, it must be at a level such that, without that portion, the species would be in danger of extinction. We also considered the historical range of the species, and have determined that the current range is no different from the historical range. Therefore, there has been no loss of the historical range, and no further analysis of the historical range is required.
In determining whether
We request that you submit any new information concerning the distribution and status of, or threats to,
Barneby (1964, pp. 1028-1029) and Warren
The inflorescence is very compact and ball-shaped, approximately 1 cm (0.4 in) in diameter and 1 to 1.5 cm (0.4 to 0.6 in) long and looks somewhat like clover flowers. The flowers are approximately 6 mm (0.2 in) long with petals that are whitish, with light purple tips. The flower stalks are erect above the vegetative mat. Fruits are small, oval pods 7 to 9 mm (0.3 to 0.35 in) long and 2 to 2.5 mm (0.1 to 0.16 in) diameter. The pods are yellowish at the base and purplish towards the tip when ripe. The pods do not split open, but drop whole from the plant (Warren
Levin (1987, pp. 170-171) described the habitat that supports
The pods of
Germination studies of
In 1993, plants produced from collected seed were initiating floral buds in the greenhouse by February 20. These were plants that were produced from previous seedling experiments. On March 16, the plants were placed outside on the grounds of the Garden, underneath native trees. The plants began flowering profusely by early April. Open pollination (plants were left in the open and pollination occurred naturally) was successful, and the plants were producing numerous fruits by April 20. There was no indication of pollinators in the area. Plants that had been previously left in the greenhouse had not produced seed, probably due to a lack of pollinators in the greenhouse. Controlled cross-pollination of two plants (two flowers per plant) was conducted on April 13, which resulted in two fruits per plant (Pritchett-Kozak 1993, p. 20). Earlier attempts at self-pollination failed, but the technique (use of a small paintbrush to transfer the pollen) may not have been optimal (Pritchett-Kozak and Ecker 1992, p. 21). The results of the open pollination and the controlled cross-pollination experiment likely indicate that
In conclusion, there is not a great deal of information on the biology and ecology of this species. The pollinators of the species are unknown; it is surmised that the plants are obligate outcrossers, and that pollination takes place in the field because fruit and seeds are produced. It is not known how seed is dispersed. Based on the germination experiments conducted by the Desert Botanical Garden, the best available information suggests that plants germinate in response to summer rainfall. Also, there is some anecdotal information that these plants occupy disturbed areas and may be tolerant of moderate disturbance.
In addition, many surveys were undertaken by staff at the Nature Conservancy and other botanical contractors to the Coronado National Forest, and populations of
The Nature Conservancy established monitoring plots for
Based on the surveys and monitoring data, there have been some declines in the numbers of individuals found in the monitoring plots and in additional occupied locations. The Harshaw population appeared relatively stable throughout the monitoring period, with some fluctuations in the overall numbers. For the period 1991-1993, survivorship was 40 percent, with 64 recruits in 1993, which represented 56 percent of the population in the plot. It is unfortunate that the Harshaw site as not visited again until May 2011 (Service 2011b, pp. 1-4). During this visit, 5 healthy plants, which had flowered, were found in the cutbank of the road, and 14 additional plants were found nearby, slightly north of the road. The area where the original Harshaw monitoring plot was thought to have been was searched thoroughly and only three plants were found. These plants were very small compared to those near and in the cutbank of the road. The entire site was described as very dry, and the native grasses “crunched beneath our feet” (Service 2011b, p. 2). It is possible that the plants near the road were getting additional moisture due to their downslope location and their proximity to the road. Additional searches were conducted near the described locations for the Harshaw2 populations, but no plants were found. Given the 18-year gap in monitoring or visiting this site, we are unable to determine the long-term trend for this population.
The situation is similar for the Bear Canyon monitoring plot. Overall numbers fluctuated, but as of 1995,
Additional surveys were conducted that day (Service 2010, p. 1) along Forest Service Road 61, near Sycamore Canyon. Plants were scattered in several different locations adjacent to the road, including some areas that had been recently disturbed by vehicle traffic. The majority of the plants observed were healthy. Many of these plants looked like juveniles produced during the summer of 2010. The last site visited was Scotia Canyon (Service 2010, p. 1). Many plants were observed below the uppermost pond on the former Peterson ranch property (now part of the Coronado National Forest) and immediately downslope of that. Some of the largest plants were in the roadbed, associated with eroded portions of the road. The observations of these plants growing in disturbed areas (road cuts and eroded banks) may indicate that this species is adapted to and may tolerate moderate disturbance. We were unable to determine long-term trends for these populations based on inconsistent monitoring efforts.
Another type of disturbance to the plant's habitat is fire. There is no information on the plant's adaptation to fire, but the habitat where the species grows is subject to fire on a periodic basis (Kaib
Some of the fluctuation in population size may be attributable to variation in climate. During dry years, there was increased mortality of plants, and larger plants died in association with consecutive dry years (Johnson
There are some observations from the monitoring efforts that may shed light on the ecology of this species. Population size and flower production appear to fluctuate greatly from year to year. There seems to be a correlation with winter rainfall. That is, when winter precipitation is good, the plants are larger and they produce more flowers and fruit (Warren
In making this finding, information pertaining to
Potential factors that may affect the habitat or range of
All known populations of this species occur on the Sierra Vista Ranger District, on the Coronado National Forest. There is no special management for the populations on Forest Service lands. The populations at Harshaw do not appear to be affected by any recreational activities (Johnson
The only population that has been identified as being impacted by recreational activity has been the upper Bear Canyon population. This population has been impacted by an informal parking lot near the turnoff to Wakefield Camp, which allows for access to Bear Creek, and is a very popular area for dispersed camping and hiking (Warren
All of the
The Coronado National Forest has a drought policy which directs grazing permittees to work with the Forest when rainfall for the water year (beginning October 1) is less than 75 percent of normal by March 1 and the long-range forecast is for less than normal precipitation. In addition, critical habitat for
There were a few observations of trampling on
Livestock have not been observed to eat
In summary, all populations of
Nonnative species can have negative effects on the ecology of native plant communities, as well as individual species (Brooks
The Coronado National Forest did allow fuel wood harvesting in the past near the known populations. It is unknown if these past activities affected
As mentioned under
Portions of a few of the
Disturbed areas often afford the plants which grow on them reduced competition for physical resources, such as water, and reduced competition from other plants. However, these potential positive effects of disturbance on
Data collected from the monitoring plots indicates that there is a likely correlation between rainfall and the population dynamics of
It is difficult to predict how
No further specific information is available regarding the effects of climate change on
As discussed in the previous sections above,
In summary, climate change is affecting and will affect temperature and precipitation events. We expect that
In conclusion, based on the best available information, we have determined that recreation; livestock grazing; nonnative, invasive species; fuel wood harvesting; fire; road maintenance; or drought do not threaten the continued existence of
There is no information indicating that disease affects
The Act requires us to examine the adequacy of existing regulatory mechanisms with respect to threats that may place
We examined the existing regulatory mechanisms that protect
A threat identified by the petition was indirect effects to pollinators, mainly bees. Johnson
We are not aware of any other potential threats related to this factor, such as small population size and overall rarity. Therefore, we find that
As required by the Act, we evaluated the five factors in assessing whether
Based on our review of the best available scientific and commercial information pertaining to the five factors, we find that the threats are not of sufficient imminence, intensity, or magnitude to indicate that
Having determined that
The Act defines an endangered species as one “in danger of extinction throughout all or a significant portion of its range,” and a threatened species as one “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The term “significant portion of its range” is not defined by the statute. For the purposes of this finding, a portion of a species' range is “significant” if it is part of the current range of the species, and it provides a crucial contribution to the representation, resiliency, or redundancy of the species. For the contribution to be crucial it must be at a level such that, without that portion, the species would be in danger of extinction.
In determining whether
We request that you submit any new information concerning the distribution and status of, or threats to,
Oak Grove Canyon, where the plant has been most recently located, is a narrow slot canyon with intermittent stream flow and a riparian gallery forest of sycamore, alder, and black walnut (Gori 1992, p. 2). Occurring at 1,000-m (3,300-ft) elevation, its steep (91 to 122 m) (300 to 400 ft)) canyon walls and northeast aspect provide for significantly cooler temperatures than the semidesert grasslands in the adjacent uplands (Haberstich 2011, pers. comm.). The plants are found on sandy terraces just above the floodplain and are subject to larger flood events; there is little associated understory (Gori 1992, p. 2). A single collection from Turkey Creek refers to a “riparian woodland” habitat, while the specimen from Fish Creek has no habitat information recorded. The collection from near Tucson refers to the plant being found “in rock adjacent to stream.” (Southwest Environmental Information Network 2011)
Soil moisture is necessary for most annual plants to germinate and flower; therefore, seed production in most annuals is equally limited by soil moisture. Following this theory, Gori (1992, p. 3) suggested that
The species was first collected on the Tonto National Forest in Fish Creek Canyon in October 1929 by Eastwood, then again in 1931 by Peebles and Eaton (Nesom 1989, p. 305).
Attempts were made in 1990 to locate the populations in both Fish Creek and Turkey Creek again, but none were found (Gori and Malusa 1991, p. 2). The Arizona Game and Fish Department reports 11 plants were located in Turkey Creek in 1992, although no other records indicate the plant has been found in Turkey Creek since its first collection in 1976. A letter in the files from Dave Gori to Dan Godec of the Arizona Game and Fish Department dated June 12, 1998 stated that
To summarize, there is very little biological and ecological information known about this species. There are three known locations, but plants have not been seen in the original location, Fish Creek, since the 1930s. Today, plants are known from two locations, Oak Creek Canyon and Turkey Creek on the Aravaipa Canyon Preserve. There may be another location in the Santa Catalina Mountains, near Tucson, but it has not been verified. The species seem to be associated with floodplain terraces in riparian areas, but that is based on their current locations in the Aravaipa Canyon Preserve. The species may respond to rainfall, or germination may be triggered by flooding, or the apt combination of rainfall and flooding.
In making this finding, information pertaining to
Potential factors that may affect the habitat or range of
Many annual and short-lived perennial plant species have a high rate of seed production and the ability to thrive following disturbance. Annual plants in the southwestern United States often increase in richness and cover following the disturbance of large flood events (Bagstad
Census data for this species were collected on a nearly annual basis between 1992 and 2008, in one of two locations within the Aravaipa Canyon Preserve, in southeastern Arizona. Plant census data were compared against regional precipitation data during this time period, and no correlation was observed. In other words, population peaks varied between wet (1991 through 1995) and dry (2004 and 2008) years (NOAA 2011; Haberstich and Walker 2008, p. 1; Haberstich 2005, p. 1; Haberstich and Killeen 2004, p. 1; 2003, p. 1; 2002, p. 1; Haberstich 2011, pers. comm.). Aravaipa Creek has experienced significant flooding on four occasions (1979, 1984, 1993, and 2006) since stream flow gage records were first kept in 1932 (USGS, 2011).
Although periodic flooding events remove individual plants and seeds, total
The Aravaipa Canyon watershed has a history of intense grazing by cattle, horses, and goats. This grazing occurred from the 1850s until the 1980s when grazing was removed from portions of the area and a pasture rotation system was initiated in other areas (Gori 1992, p. 4). By 1997, the entire area, including Oak Grove and Turkey Creek Canyons, was free of domestic grazing activity (Haberstich 2011, pers. comm.). The years of intense grazing, coupled with fire suppression, significantly altered plant species composition and abundance, and led to a degraded condition of the upland vegetation of the area (Gori 1992, pp. 3-4). By the 1980s, this upland semidesert grassland was described as being largely comprised of shrubs and annual grasses, an unnatural condition that reduces water infiltration and can cause more intense sheet flow during storm events (Gori 1999, pp. 41-42). Great strides have been made in recent decades to correct this problem. Preserve Manager Mark Haberstich reports that the uplands are fairly healthy with increases in native perennial grasses, thus reducing runoff and erosion (Haberstich 2011, pers. comm.). There is no evidence that watershed degradation is affecting
For general background information on climate change, please refer to the first paragraphs of “Climate Change” under Factor A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range in the Five-Factor Evaluation for
It has been suggested that this species may be a relict of the last ice age due to its very restricted habitat of cool, shady, narrow, and steep slot canyons in perennial stream bottoms (Haberstich 2011, pers. comm.). If this is the case, recent and projected increases in regional daily temperatures and decreases in winter precipitation could negatively impact
The information related to the effects of climate change on
Based on the best available information, we have determined that flooding, recreation, watershed degradation, and climate change do not threaten
There is no indication that any disease affects
The Act requires us to examine the adequacy of existing regulatory mechanisms with respect to threats that may place
We examined the existing regulatory mechanisms that protect
Small populations can be especially vulnerable to environmental disturbances such as habitat loss, nonnative species, grazing, and climate change (Barrett and Kohn 1991, p. 7; Oostermeijer 2003, p. 21; O'Grady 2004, pp. 513-514). However, plants that are historically rare may have certain adaptations to rarity (
There is no indication that
Small population size can decrease genetic diversity due to genetic drift (the random change in genetic variation each generation), and inbreeding (mating of related individuals) (Antonovics 1976, p. 238; Ellstrand and Elam 1993, pp. 218-219). Genetic drift can decrease genetic variation within a population by favoring certain characteristics and, thereby, increasing differences between populations (Ellstrand and Elam 1993, pp. 218-219). Self-fertilization and low dispersal rates can cause low genetic diversity due to inbreeding (Antonovics 1976, p. 238; Barrett and Kohn 1991, p. 21). This decreased genetic diversity diminishes a species' ability to adapt to the selective pressures of a changing environment (Newman and Pilson 1997, p. 360; Ellstrand 1992, p. 77).
Limited information is available regarding the genetic diversity of the
As required by the Act, we considered the five factors in assessing whether
Other factors potentially affecting
Based on our review of the best available scientific and commercial information pertaining to the five factors, we find that the threats are not of sufficient imminence, intensity, or magnitude to indicate that
Having determined that
The Act defines an endangered species as one “in danger of extinction throughout all or a significant portion of its range,” and a threatened species as one “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The term “significant portion of its range” is not defined by the statute. For the purposes of this finding, a portion of a species' range is “significant” if it is part of the current range of the species, and it provides a crucial contribution to the representation, resiliency, or redundancy of the species. For the contribution to be crucial it must be at a level such that, without that portion, the species would be in danger of extinction.
In determining whether
We find that
We request that you submit any new information concerning the distribution and status of, or threats to,
A complete list of references cited is available on the Internet at
The primary authors of this finding are the staff members of the Arizona Ecological Services Field Office.
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; 12-month finding.
We, the U.S. Fish and Wildlife Service, propose to list as threatened the yellow-billed parrot
We will consider comments and information received or postmarked on or before December 12, 2011.
You may submit comments by one of the following methods:
•
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We will not accept comments by e-mail or fax. We will post all comments on
Janine Van Norman, Chief, Branch of Foreign Species, Endangered Species Program, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 420, Arlington, VA 22203; telephone 703-358-2171. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
Section 4(b)(3)(B) of the Endangered Species Act (Act) (16 U.S.C. 1531
The U.S. Fish and Wildlife Service (Service) publishes an annual notice of resubmitted petition findings (annual notice) for all foreign species for which listings were previously found to be warranted but precluded.
In this document, we announce that listing the yellow-billed parrot as threatened is warranted, and we are issuing a proposed rule to add that species as threatened under the Federal Lists of Endangered and Threatened Wildlife and Plants.
Prior to issuing a final rule on this proposed action, we will take into consideration all comments and any additional information we receive. Such information may lead to a final rule that differs from this proposal. All comments and recommendations, including names and addresses of commenters, will become part of the administrative record.
On January 31, 2008, the Service received a petition dated January 29, 2008, from Friends of Animals, as represented by the Environmental Law Clinic, University of Denver, Sturm College of Law, requesting that we list 14 parrot species under the Act. The petition clearly identified itself as a petition and included the requisite information required in the Code of Federal Regulations (50 CFR 424.14(a)). On July 14, 2009 (74 FR 33957), we published a 90-day finding in which we determined that the petition presented substantial scientific and commercial information to indicate that listing may be warranted for 12 of the 14 parrot species. In our 90-day finding on this petition, we announced the initiation of a status review to list as threatened or endangered under the Endangered Species Act of 1973, as amended (Act), the following 12 parrot species: blue-headed macaw
On October 24, 2009, and December 2, 2009, the Service received a 60-day notice of intent to sue from Friends of Animals and WildEarth Guardians, for failure to issue 12-month findings on the petition. On March 2, 2010, Friends of Animals and WildEarth Guardians filed suit against the Service for failure to make timely 12-month findings within the statutory deadline of the Act on the petition to list the 14 species
On July 21, 2010, a settlement agreement was approved by the Court (CV-10-357, D. D.C.), in which the Service agreed to submit to the
In this status review we make a determination whether the petitioned action is warranted, not warranted, or warranted but precluded by other listing actions for one of the remaining species, the yellow-billed parrot. This
We intend that any final actions resulting from this proposed rule will be based on the best scientific and commercial data available. Therefore, we request comments or information from other concerned governmental agencies, the scientific community, or any other interested parties concerning this proposed rule. We particularly seek clarifying information concerning:
(1) Information on taxonomy, distribution, habitat selection and trends (especially breeding and foraging habitats), diet, and population abundance and trends (especially current recruitment data) of this species.
(2) Information on the effects of habitat loss and changing land uses on the distribution and abundance of this species.
(3) Information on the effects of other potential threat factors, including live capture and hunting, domestic and international trade, predation by other animals, and any diseases that are known to affect this species or its principal food sources.
(4) Information on management programs for parrot conservation, including mitigation measures related to conservation programs, and any other private, nongovernmental, or governmental conservation programs that benefit this species.
(5) The potential effects of climate change on this species and its habitat.
Please include sufficient information with your submission (such as full references) to allow us to verify any scientific or commercial information you include. 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. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”
At this time, we do not have a public hearing scheduled for this proposed rule. The main purpose of most public hearings is to obtain public testimony or comment. In most cases, it is sufficient to submit comments through the Federal eRulemaking Portal, described above in the
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 considering whether a species may warrant listing under any of the five factors, we look beyond the species' exposure to a potential threat or aggregation of threats under any of the factors, and evaluate whether the species responds to those potential threats in a way that causes actual impact to the species. The identification of threats that might impact a species negatively may not be sufficient to compel a finding that the species warrants listing. The information must include evidence indicating that the threats are operative and, either singly or in aggregation, affect the status of the species. Threats are significant if they drive, or contribute to, the risk of extinction of the species, such that the species warrants listing as endangered or threatened, as those terms are defined in the Act.
The yellow-billed parrot belongs to the family Psittacidae and is one of only two
This species occurs in mid-level (up to 1,200 meters (m) (3,937 feet (ft)), wet limestone and lower montane, mature forests of Jamaica. The late successional forest canopy height ranges from 15-20 m (49-66 ft), with occasional emergence of
In the latter part of the 20th Century, the overall range and population of the yellow-billed parrot decreased (Juniper and Parr 1998 in BLI 2011a, unpaginated). The range of the yellow-billed parrot is estimated to be 5,400 square kilometers (km
Like most parrot species, the yellow-billed parrot is a frugivore, and feeds on catkins, nuts, berries, fruits, blossoms, figs, and seeds (Jamaica Observer 2010, unpaginated; World Parrot Trust, 2009, unpaginated). Parrots, including this species, generally fly considerable distances in search of food (BLI 2011a, unpaginated; Lee 2010, p. 8) and disperse seeds over large areas, contributing to forest regeneration (NEPA 2010b, unpaginated). Because parrots feed primarily on fruits and flowers, they are linked to the fruiting and flowering patterns of trees; fluctuations in abundance and availability of these food sources may change diets, result in movements to areas with greater food availability, and influence local seasonal patterns of bird abundance (BLI 2011a, unpaginated; Lee 2010, p. 7; Tobias and Brightsmith 2007, p. 132; Brightsmith 2006, p. 2; Renton 2002, p. 17; Cowen n.d., pp. 5, 23).
The breeding season begins in March with yellow-billed parrots looking for and defending nest sites and ends in late July, the end of the fledgling period (BLI 2011a, unpaginated; Koenig 2001, p. 208). Mated pairs of yellow-billed parrots appear to be monogamous (Koenig 1998, unpaginated). Nesting areas, including the distance from the nest tree where pairs perch and engage in territorial vocalizations, the location
The yellow-billed parrot is currently classified as “vulnerable,” which means this species is facing a high risk of extinction in the wild, by the International Union for the Conservation of Nature due to the small, fragmented and declining range of this species, a decline in extent, area, and quality of suitable habitat due to logging and mining, and trapping (BLI 2011a, unpaginated; Snyder
Historically, 97 percent of Jamaica was a closed-forest ecosystem. After centuries of improper land use and a high rate of deforestation, the island has lost much of its original forest (Berglund and Johansson 2004, pp. 2, 5; Evelyn and Camirand 2003, p. 354; Koenig 2001, p. 206; Koenig 1999, p. 9). Some of the most important parrot habitat was protected from human activities by its inaccessibility, but today, even these areas are being encroached upon and degraded. Natural forests are being replaced with pine plantations and other fast-growing species (Wiley 1991, p. 201). Conversion of forest land to agriculture and pasture has accounted for a majority of deforested land and has resulted in the removal of valuable timber species as a byproduct, with natural regrowth removed as soon as it approaches marketable size (Eyre 1987, p. 342).
Today, Jamaica's forested area is estimated at 337,000 hectares (ha) (832,745 acres (ac)), or 31 percent (FAO 2011, p. 116). Of this remaining forested area, only 8 percent is classified as minimally disturbed or closed broadleaf forest, and these only occur on the steepest or most remote, inaccessible parts of the island (WWF 2001, unpaginated; Levy and Koenig 2009, p. 262; Koenig 1991, p. 9). This loss in forested habitat has resulted in a small and fragmented range for the yellow-billed parrot; a decline in the extent, area, and quality of suitable habitat; and a decline in the yellow-billed parrot population (BLI 2011a, unpaginated; World Parrot Trust 2009, unpaginated; Koenig 1999, p. 9). The greatest long-term threats to Jamaica's remaining population of yellow-billed parrot is deforestation via logging, agriculture, mining, road construction, and encroachment of nonnative species (BLI 2011a, unpaginated; NEPA 2010b, unpaginated; Levy and Koenig 2009, pp. 263-264; World Parrot Trust 2009, unpaginated; JEAN 2007, p. 4; John and Newman 2006, pp. 7, 15; Tole 2006, p. 799; Snyder
Cockpit Country is characterized by yellow and white limestone karst topography with rounded peaks and steep-sided, bowl-shaped depressions, known as cockpits (John and Newman 2006, p. 3; Tole 2006, p. 789). Historically, the edge forests of Cockpit Country experienced extensive clear-cutting for timber, but the rugged terrain and inaccessibility of Cockpit Country have prevented extensive resource exploitation in its interior forests (Koenig 2001, pp. 206-207; Wiley 1991, p. 201). This area has retained nearly all of its primary forest and is an important remaining tract of extensive primary forest in Jamaica; 81 percent of the region is under forest (John and Newman 2006, p. 3; Tole 2006, pp. 790, 795, 798). However, gaps indicate the beginning of a decline in contiguity and connectivity and the periphery and surrounding plains are already badly degraded (Tole 2006, pp. 790, 797; Koenig 2001, pp. 201-207). The greatest threat to the wet limestone forest habitat of Cockpit Country is deforestation due to bauxite mining. Additional threats include deforestation from road construction, conversion of forests for agriculture, poor agricultural practices, and logging, (BLI 2011b, unpaginated; Levy and Koenig 2009, p. 267; JEAN 2007, p. 4; BLI 2006, unpaginated; John and Newman 2006, p. 15; Wiley 1991, p. 201; Windsor Research Centre n.d., unpaginated).
The Blue Mountains and John Crow Mountains are located on the eastern side of Jamaica and are separated by the Rio Grande. Almost all of the two ranges were designated forest reserves and contain important remaining tracts of closed-canopy, broadleaf forest (TNC 2008b, unpaginated). In 1989, 78,200 ha (193,236 ac) were designated as the Blue and John Crow Mountains National Park (BLI 2011d, unpaginated; BLI 2011e, unpaginated; Dunkley and Barrett 2001, p. 1). The most significant threat to the Blue and John Crow Mountains is deforestation due to subsistence farming, commercial farming, and illegal logging and encroachment of invasive species (BLI 2011e, unpaginated; IUCN 2011, unpaginated; Chai
Mount Diablo is located in the center of Jamaica and makes up part of the “spinal forest,” the forests along the main mountain ridges that extend along the center of the island. Conversion of forest for agriculture land, forestry plantations, expanding settlements, and bauxite mining has left the spinal forest severely fragmented (BLI 2011c, unpaginated).
In the Cockpit Country Conservation Action Plan, threats to the limestone forests from conversion of forest, incompatible agriculture practices, and timber extraction are ranked high (John and Newman 2006, p. 15). The immediate vicinity of Cockpit Country has a population of around 10,000 people who exploit the area (Day 2004, p. 34). Illegal logging and farming have extended into the forest reserve within Cockpit Country (Day 2004, p. 34; Chenoweth
One of the greatest causes of deforestation and fragmentation in Cockpit Country is the illegal removal of wood for yam crops and yam sticks (JEAN 2007, p. 4; Tole 2006, p. 790; Chenoweth
Adjacent to the Blue and John Crow Mountains National Park are isolated communities that rely on the park's resources for various economic activities; with almost unchecked access to the park, encroachment of these communities across the park boundary is cause for concern (IUCN 2011, unpaginated; Dunkley and Barrett 2001, pp. 2-3). Much of the area has been altered from its natural state and is used for forestry, coffee production, or subsistence farming (BLI 2011d, unpaginated). The adjacent communities have a tradition of small farming and, despite the steep slopes, hillsides are cleared and used by small subsistence farmers for carrots, peas, bananas, plantains, coconuts, pineapples, apples, cabbages, and tomatoes; coffee is also grown by small and large farmers for the well-known brand Blue Mountain Coffee (Dunkley and Barrett 2001, pp. 1, 3). Farmers use slash-and-burn techniques to clear forests for agricultural land; however, because of poor agricultural practices, the soil quality begins to deteriorate after one or two seasons, and farmers abandon their plots and clear additional land for new crops (Chai
The human population surrounding Mount Diablo is steadily growing. Native vegetation is removed for housing, crop cultivation, and lumber. In this area, farming is the main livelihood after bauxite mining. Slash-and-burn practices are used on hillsides to clear land for cash crops, such as banana, plantain, yams, cabbage, okra, peppers, and tomatoes. Various tree species are cut for lumber and add to the deforestation and poor condition of the soils (Global Environmental Facility, Small Grants Programme (GEF SGP) 2006, unpaginated). Native forests are also removed for forestry plantations, including Pine
Bauxite is the raw material used to make aluminum and is Jamaica's principle export, accounting for over half of Jamaica's annual exports. Bauxite deposits occur in pockets of limestone and can be found under 25 percent of the island's surface (BLI 2006, unpaginated). It is removed through open pit mining (soil is removed, stored, and then replaced following completion of the mine) and is considered the most significant cause of deforestation in Jamaica (Berglund and Johansson 2004, p. 2). Bauxite mining is driving habitat destruction across the center of the island, including Mount Diablo, and has the potential to permanently destroy forests, including the wet limestone habitat found in Cockpit Country, resulting in irreversible effects on the yellow-billed parrot (Levy and Koenig 2009, p. 267; BLI 2006, unpaginated; John and Newman 2006, p. 7; Berglund and Johansson 2004, p. 6; Wiley 1991, p. 201; Windsor Research Centre n.d., unpaginated).
Within the past 50 years, bauxite mining has severely fragmented the spinal forests of Jamaica (BLI 2011c, unpaginated). In the past 40 years, Mount Diablo has been subjected to bauxite mining, which has destroyed much of the area beyond repair and is presumed to have contributed to the decline of populations of forest-dependent species, such as the yellow-billed parrot (BLI 2008, unpaginated; Koenig 2008, p. 145; Varty 2007, pp. 34, 93). In 2009, several bauxite/alumina mining companies closed their refineries due to a drop in demand; however, in July 2010 an alumina plant in Ewarton, a town located at the foot of Mount Diablo, reopened due to a return in demand, and two other plants are expected to reopen as well (RJR News 2010, unpaginated; Jamaica Observer 2010, unpaginated). One of these plants was expected to reopen in July 2011 (The Gleaner 2011, unpaginated). Where mining has occurred, it has resulted in severe impacts to the environment. For example, mining sites within Mount Diablo that were completed 10-15 years ago typically have only herbaceous groundcover, including nonnative ferns, and no regeneration of native woody tree species (BLI 2011c, unpaginated).
Bauxite mining is currently the most significant threat to Cockpit Country. It is ranked high in threats to the limestone forests in Cockpit Country (John and Newman 2006, p. 15). Bauxite deposits can be found throughout 70 percent of Cockpit Country and mining companies have already drilled for bauxite samples (BLI 2006, unpaginated; John and Newman 2006, p. 7; Walker 2006, unpaginated; Windsor Research Centre, n.d., unpaginated). In 2006, ALCOA Minerals of Jamaica and Clarendon Alumina Production were granted a renewal on two bauxite prospecting licenses, which encompassed more than 60 percent of the Cockpit Country Conservation Area and more than 42,000 ha (103,784 ac) of near-contiguous primary forest. After public outcry these licenses were suspended. The Jamaican Government has stated that it does not intend to allow mining in the Cockpit Country; however, the area remains open to future prospecting and mining interests are granted over other land uses, such as timber, agriculture, and conservation (Koenig 2008, pp. 135-137; TNC 2008a, unpaginated; JEAN 2007, p. 4; Walker 2006, unpaginated).
Few lands are excluded from mining or prospecting under the Mining Act, including 22,000 ha (54,363 ac) of Cockpit Country designated as forest reserves, which could be subject to prospecting or mining if a license or lease is obtained (JEAN 2007, p. 6). Additionally, in some, if not all, mining agreements, the Jamaican Government provides mining companies with entitlements to specific amounts of bauxite and guarantees them additional land for mining if the original land does not contain sufficient levels, further contributing to deforestation (JEAN 2007, p. 8). Although bauxite extraction is not currently occurring in Cockpit Country, mining remains a significant impending threat to the area. The amount of deposits found throughout the area, and the facts that the area remains open to future prospecting and bauxite is Jamaica's principle export, leaves open the possibility that mining may occur in the future (JEAN 2007, p. 4; Windsor Research Centre n.d., unpaginated).
If mining were to occur in Cockpit Country, the impacts to the wet limestone forest habitat and wildlife
Bauxite mining has been shown to significantly impact native species and habitat. The forests of Mount Diablo have already suffered significant damage from bauxite mining, leading to the conclusion that mining cannot be allowed in Cockpit Country or it would destroy the area beyond repair (Varty 2007, p. 93). Because of the potential damage to the nesting environment, bauxite mining could drive the yellow-billed parrot population to the level of barely surviving (Koenig 2008, p. 147).
Access roads associated with bauxite mining is another significant cause of deforestation and a serious threat to the forest cover of Jamaica. Once established, either in the prospecting or mining phase, loggers use mining roads to gain access to additional forests and illegally remove trees in and around the mining area (BLI 2011a, unpaginated; JEAN 2007, pp. 4-5; Berglund and Johansson 2004, p. 6). If mining were to occur in Cockpit Country, roads established to access the cockpit bottoms would fragment the habitat, isolate forested hillsides, and increase the amount of edge habitat (Koenig 2008, pp. 141, 144). Improved human access via mining roads and the subsequent alteration in habitat and predator-prey dynamics (See Factor C) are predicted to hasten the decline of the yellow-billed parrot.
In addition to mining access roads, road construction and extensive trail systems have the potential to contribute to further deforestation or alter environmental conditions. Roads provide access to previously undisturbed forests. In Cockpit Country, forest clearance has occurred along the edge where roads have provided easy access (JEAN 2007, p. 4). Interior forests were once inaccessible; however, continued road construction into these areas will lead to increased deforestation and logging (WWF 2001, unpaginated). Construction of Highway 2000 along the southern boundary of Cockpit Country may threaten the area through subsequent logging and the need for limestone fill, which could be quarried from Cockpit Country (Day 2004, p. 35; Windsor Research Centre no date, unpaginated). Roads and trails are ranked high in threats to the limestone forest of Cockpit Country (John and Newman 2006, p. 15). Additionally, roads and trails create openings in the forest, exposing it to new environmental conditions that alter the high-humidity conditions in which species of wet limestone habitat are adapted and facilitate the spread of invasive species (JEAN 2007, p. 4; Windsor Research Centre no date, unpaginated).
Forest clearance, whether through mining, road/trail development, logging, or agriculture, not only reduces the size of continuous forests and opens them up to further deforestation, it also alters the natural environment and facilitates the spread of harmful nonnative plants and animals (JEAN 2007, p. 4; Windsor Research Centre n.d., unpaginated). Nonnative invasive plant species have the ability to outcompete and dominate native plant communities and are ranked high in threats to the limestone forests of Cockpit Country (John and Newman, 2006, p. 15). The many years of land clearance experienced by the Blue and John Crow Mountains National Park has led to the expansion of invasive species, including wild coffee
Deforestation through mining, road construction, logging, and agriculture contributes to the loss of Jamaica's remaining primary forest, habitat for the yellow-billed parrot, and essential resources for the life functions of the yellow-billed parrot. The removal of trees reduces food sources, shelter from inclement weather, and most importantly, nesting sites, which are reported to be limited (NEPA 2010b, unpaginated; Tole 2006, pp. 790-791; Koenig 2001, p. 206; Koenig 1999, p. 10; Wiley 1991, p. 190). The removal of saplings for yam sticks eliminates the source of regeneration for mature trees in which nesting cavities will form. Deforestation also changes the quality of remaining resources (Koenig 2001, p. 206; Koenig 1999, p. 10) and prevents the regeneration of native forests. The agricultural practices of farmers leave the land unfertile and unstable, especially on hillsides. Cash crops do not have a sufficient root system to hold soil, and the loss of the forest canopy leaves the soil vulnerable to impacts from rainfall, resulting in massive soil erosion (GEF SGP 2006, unpaginated). This decrease in the quality of the land prevents native forests from regenerating (Dunkley and Barrett 2001, p. 2; WWF 2001, unpaginated). Furthermore, deforestation also allows human disturbance to extend further into the interior of the forest, contributing to further deforestation, altering the habitat, and affecting the predator/prey balance (See Factor C) (Tole 2006, pp. 790-791; Koenig 1999, pp. 11-12). Threats to the limestone forest of Cockpit Country overall are considered very high (John and Newman 2006, p. 15).
Deforestation can also change the species composition and structure of a forest, rendering it unsuitable for the yellow-billed parrot. Openings in the forest expose the forest edge to new environmental conditions, such as increased sunlight and airflow, altering
Conservation International, South Trelawny Environmental Agency, the Windsor Research Centre, and Jamaica's Forestry Department are working together to produce a long-term protection strategy for Cockpit Country. Part of the strategy involves the use of plastic yam sticks, incentive programs to encourage farmers to set aside 40 ha (99 ac) of forest as a reserve, training members of the community as enforcement officers, and restoring abandoned land with native species (Tole 2006, p. 800). We do not know the status of this program or what goals have been achieved.
Within the Blue and John Crow Mountains National Park, there are programs aimed at controlling nonnative species. Parks in Peril and the Jamaica Conservation and Development Trust established a nursery as a forest restoration project; timber and fruit trees are distributed to adjacent communities for planting (TNC 2008b, unpaginated). The success of this program is unknown.
The yellow-billed parrot is restricted to the island of Jamaica. Past deforestation has resulted in a small and fragmented range on the island, a decline in the extent and quality of suitable habitat, and a declining yellow-billed parrot population. Deforestation remains a significant threat to Jamaica's forests. Mining, road and trail construction, logging, agriculture, and encroachment of nonnative species continue to threaten the remaining primary forests where this species exists. Removal of these forests without adequate regeneration permanently eliminates trees vital for foraging and nesting activities. Without these essential resources, the population of the yellow-billed parrot will likely continue to decline. Therefore, based on the best available scientific and commercial information, we find that the present or threatened destruction, modification, or curtailment of habitat or range is a threat to the yellow-billed parrot throughout its range now and in the foreseeable future.
Harvesting of parrot chicks for pets has seriously affected most of the parrot species in the West Indies (Wiley 1991, p. 191). In Jamaica, illegal poaching for the pet trade and farmers who shoot them to protect their crops have contributed to the decline of the yellow-billed parrot (BLI 2011a, unpaginated; Sylvester 2011, unpaginated; Jamaica Observer 2010, unpaginated; Koenig 2008, p. 145; JEAN 2007, p. 4; Snyder
In 1981, the yellow-billed parrot was listed in Appendix II of CITES. CITES is an international agreement between governments to ensure that the international trade of CITES-listed plant and animal species does not threaten species' survival in the wild. There are currently 175 CITES Parties (member countries or signatories to the Convention). Under this treaty, CITES Parties regulate the import, export, and reexport of specimens, parts, and products of CITES-listed plants and animal species (also see Factor D). Trade must be authorized through a system of permits and certificates that are provided by the designated CITES Scientific and Management Authorities of each CITES Party (CITES 2010a, unpaginated).
For species listed in Appendix II of CITES, commercial trade is allowed. However, CITES requires that before an export of Appendix-II specimens can occur, a determination must be made that the specimens were legally obtained (in accordance with national laws) and that the export will not be detrimental to the survival of the species in the wild, and a CITES export document must be issued by the designated CITES Management Authority of the country of export and must accompany the export of the specimens.
According to worldwide trade data obtained from UNEP-WCMC CITES Trade Database, from 1981, when the species was listed in CITES, through 2009, 210 yellow-billed parrot specimens were reported in international trade, including 208 live birds, 1 scientific specimen, and 1 body. In analyzing these reported data, several records appear to be overcounts due to slight differences in the manner in which the importing and exporting countries reported their trade, and it is likely that the actual number of specimens of yellow-billed parrots reported to UNEP-WCMC in international trade from 1981 through 2009 was 195; including 193 live birds, 1 scientific specimen, and 1 body. Of these specimens, 11 (5.6 percent) were reportedly exported from Jamaica (UNEP-WCMC 2011, unpaginated). With the information given in the UNEP-WCMC database, from 1981 through 2009 only 1 wild specimen of yellow-billed parrot was reported in trade, and this was a nonliving body traded for scientific purposes. One live specimen with the source recorded as unknown was also reported in trade. All other specimens reported in trade were captive-bred or captive-born specimens.
Because the majority of the specimens of this species reported in international trade (99 percent) are captive-bred or captive-born, and the one wild specimen reported in trade was a scientific specimen traded for scientific purposes, we believe that international trade controlled via valid CITES permits is not a threat to the species.
Most yellow-billed parrot nestlings are poached for the local market and are not highly desirable in the international pet trade (Koenig 2001, p. 206). They are popular on Jamaica as pets because of their colorful plumage and ability to mimic human sounds; the yellow-billed parrot appears to be in higher demand than black-billed parrot because of their brighter coloration (Snyder
Poaching for use as a cage-bird places a strong pressure on the population of yellow-billed parrots and is the primary cause of nest failures and reduces the number of parrots in the wild
As described under Factor A, parrot habitat is threatened by the conversion of forests to agriculture. As agriculture spreads into parrot habitat, farmers and birds came into conflict over crops (Wiley 1991, p. 191). Some persecution for crop and garden damage, especially citrus, has been reported for the yellow-billed parrot (Snyder
Since the CITES Appendix-II listing, legal international commercial trade has been very limited. However, the yellow-billed parrot appears to be popular in Jamaica's domestic market and has contributed to the decline of the species. In addition to removing individuals from the wild population, poachers cut trees to trap nestlings, removing limited essential nesting cavities and reducing the availability of nesting cavities for future generations. Ongoing deforestation in Jamaica may increase the likelihood of birds and farmers coming into conflict and yellow-billed parrots being killed to protect crops. Combined with the ongoing deforestation in Jamaica, poaching and further loss of nesting trees is a significant threat to the survival of this species. Therefore, we find that overutilization for commercial, recreational, scientific, or educational purposes is a threat to the yellow-billed parrot throughout its range now and in the foreseeable future.
Nonnative psittacines imported for the pet trade pose a high threat to the yellow-billed parrot through the introduction of disease, the potential for hybridization, and competitive exclusion of nesting activities (See also Factor E) (Levy and Koenig 2009, p. 264; Wiley 1991, p. 191). However, in Cockpit Country, threats from introduced diseases are ranked low (John and Newman 2006, p. 15). A temporary ban on importation of nonnative parrot species was put in place based on concerns for the introduction of highly pathogenic strains of avian influenza (Levy and Koenig 2009, p. 264).
Avian influenza is an infection caused by flu viruses, which occur in birds worldwide, especially waterfowl and shorebirds. Most strains of the avian influenza virus have low pathogenicity and cause few clinical signs in infected birds, but it is highly contagious among birds (CDC 2010, 2005, unpaginated). Pathogenicity is the ability of a pathogen to produce an infectious disease in an organism. However, strains can mutate into highly pathogenic forms, which is what happened in 1997, when the highly pathogenic avian influenza virus (called H5N1) first appeared in Hong Kong (USDA
Jamaica's ban on importation of nonnative psittacines is still in effect and efforts have been made to make the ban permanent (Levy and Koenig 2009, p. 264). Additionally, importation of caged birds from Trinidad and Tobago or any country of South America is prohibited under the Animal Disease and Importation Act (The Animal Diseases (Importation) Control Regulations 1948, p. 76). Most of the information regarding avian influenza is on domesticated bird species, especially poultry. We do not have information on the extent that introduced parrot species and the spread of avian influenza has impacted the yellow-billed parrot.
The Jamaican boa, or yellow boa
Red-tailed hawks
Although imported nonnative psittacines were identified as a high threat to the yellow-billed parrot, in part, due to concerns for the introduction of highly pathogenic
There is direct evidence of boas preying on yellow-billed parrot nestlings. Edge habitat provides an optimal habitat for the yellow boa. As primary forests diminish and edge habitat increases, predation by boas on parrots may also increase. We do not have any information on actual predation by red-tailed hawks on the yellow-billed parrot. However, if mining occurs in Cockpit Country, habitat may be altered to conditions suitable for the hawk and increase the risk of predation. Based on the direct evidence of predation by boas and the continuing threat of deforestation and conversion of primary forests to edge habitat, and the associated increased risk of predation, we find that predation is a threat to the yellow-billed parrot throughout its range now and in the foreseeable future.
The yellow-billed parrot is listed under the Second Schedule of Jamaica's Endangered Species (Protection, Conservation and Regulation of Trade) Act (JESA). The Second Schedule includes those species that could become extinct or which have to be effectively controlled (JESA 2000, pp. 72, 80). It is illegal to buy and/or sell Jamaican parrots locally or trade them internationally (NEPA 2010b, unpaginated; JESA 2000, p. 14; Snyder
Parrots have full protection under section six of the Jamaican Wildlife Protection Act (1974) (WPA) (Wiley 1991, p. 202). The WPA was originally passed in 1945 to regulate sport hunting and fishing, but since that time has undergone changes to address protection of animals. It does not, however, address habitat protection or the conservation of flora (Levy and Koenig 2009, p. 263). Possession is regulated by the WPA (Koenig 1999, p. 10). Under this Act it is illegal for any person to hunt or possess a protected bird, including the yellow-billed parrot, take, or have in possession the nest or egg of any protected bird (WPA 1945, pp. 4-5). Under section 20 of the legislation, anyone found in possession of a live Jamaican parrot or any of its parts can face a maximum fine of 100,000 Jamaican dollars (1,200 U.S. dollars) or 12 months in prison (WPA 1945, p. 11). However, fines levied are often much less. For example, one offender was charged a fine of only 5,000 Jamaican dollars (55 U.S. dollars) (Sylvester 2011, unpaginated).
As described under Factor B, the poaching of adult and nestling yellow-billed parrots for the local pet bird trade has contributed to the decline of the species and remains a threat; therefore, the JESA and WPA do not appear to adequately protect this species.
Forestry Acts of 1937 and 1973 provide certain protections to some habitat (e.g., Cockpit Country Forestry Reserve) and other areas have been established as sanctuaries (Snyder
Under the Natural Resources Conservation Authority Act, an environmental permit is required for the first-time introduction of species of flora and fauna and genetic material (Williams-Raynor 2010, unpaginated). Mining is also regulated by this Act. Before any physical development or construction can take place, a permit must be obtained from the Natural Resources Conservation Authority (NRCA). If the activity is likely to be harmful to public health or natural resources, NRCA can refuse a permit or order the immediate cessation of the activity or even closure of the plant (Berglund and Johansson 2004, p. 8). This Act also addresses habitat protection by providing a framework for a system of protected areas, such as the Blue and John Crow Mountains National Park (Levy and Koenig 2009, p. 263). We do not have information to completely analyze the adequacy of this regulation; however, one of the problems with conservation in Jamaica is incomplete and improper environmental impact assessments which are required to obtain an environmental permit (Levy and Koenig 2009, p. 263). Therefore, it appears that this regulation may not be adequate to ameliorate threats to the forest resources of Jamaica.
Under the Mining Act (1947), bauxite deposits are owned by the government, not by the owner of the land. The government may issue licenses to anyone to explore the land or mining leases to exploit it; therefore, in order to prospect and search for minerals, companies do not need to purchase the land. The Act gives the lessee or the license holder the right to enter government land or privately owned land to search for minerals or to mine minerals. Compensation is payable to the landowner for damages to land and property. The Act also stipulates that the mining companies must restore every mined area of land to the level of productivity that existed prior to the mining. Restoration must take place within 6 months following the end of mining activity. Failure to do so results in a penalty of 4,500 U.S. dollars per
An import permit is also required from the Veterinary Services Division under the Animal Disease and Importation Act (Williams-Raynor 2010, unpaginated). Additionally, no caged bird shall be imported into Jamaica from Trinidad and Tobago or any country of South America. Based on an increase in illegal importation of animals into Jamaica (See Factor E), it appears that this law may not adequately protect the yellow-billed parrots from potential disease, hybridization, or competition with non-native species.
There are at least 34 pieces of Jamaican legislation that refer to the environment. However, there are problems with conservation in Jamaica that stem from poor communication between various government institutions, regulations insufficient at recognizing the value of biodiversity, insufficient funding, poor enforcement, and incomplete and improper environmental impact assessments (Levy and Koenig 2009, p. 263). In fact, due to the limitations of the Forestry Department and NRCA, management of the first national park was delegated to an NGO, Jamaica Conservation and Development Trust (JCDT) (Levy and Koenig 2009, p. 263). The Forestry Department currently manages the entire Cockpit Country region as a forest reserve; however, they lack adequate technical and enforcement staff to respond to the increasing deforestation problem (Tole 2006, p. 799).
Policies have led to a greater awareness of the legal status of parrots; however, they continue to be illegally harvested for local and, perhaps, some international trade (Snyder
Habitat in the Blue and John Crow Mountains was declared a national park in 1989 and is managed by the Jamaica Conservation and Development Trust, a local nongovernmental organization (NGO) (BLI 2011d, unpaginated; BLI 2011e, unpaginated; Dunkley and Barrett 2001, p. 1; Snyder
Enforcement and management of the national park are weak. Laws that prohibit forest clearance inside National Parks are largely not enforced as park rangers fear reprisals from farmers (Chai
Fifteen important bird areas (IBAs) cover approximately 3,113 km
The yellow-billed parrot is listed in Appendix II of CITES. CITES is an international treaty among 175 nations, including Jamaica and the United States, entered into force in 1975. In the United States, CITES is implemented through the U.S. Endangered Species Act of 1973, as amended. The Act designates the Secretary of the Interior as lead responsibility to implement CITES on behalf of the United States, with the functions of the Management and Scientific Authorities to be carried out by the Service. Under this treaty, member countries work together to ensure that international trade in animal and plant species is not detrimental to the survival of wild populations by regulating the import, export, and reexport of CITES-listed animal and plant species.
Through Resolution Conf. 8.4 (Rev. CoP15), the Parties to CITES adopted a process, termed the National Legislation Project, to evaluate whether Parties have adequate domestic legislation to successfully implement the Treaty (CITES 2010b, pp. 1-5). In reviewing a country's national legislation, the CITES Secretariat evaluates factors such as whether a Party's domestic laws designate the responsible Scientific and Management Authorities, prohibit trade contrary to the requirements of the Convention, have penalty provisions in place for illegal trade, and provide for seizure of specimens that are illegally traded or possessed. The Government of Jamaica was determined to be in Category 1, which means they meet all the requirements to implement CITES (
As discussed under Factor B, we do not consider international trade to be a threat impacting this species. Therefore, protection under this Treaty against unsustainable international trade is an adequate regulatory mechanism.
The import of yellow-billed parrots into the United States is also regulated by the Wild Bird Conservation Act (WBCA) (16 U.S.C. 4901
International trade of parrots was significantly reduced during the 1990s as a result of tighter enforcement of CITES regulations, stricter measures under EU legislation, and adoption of the WBCA, along with adoption of national legislation in various countries (Snyder
Although there are laws intended to protect the forests of Jamaica and the yellow-billed parrot, deforestation from mining, logging, and agriculture continues to be a threat, even within protected areas such as the Blue and John Crow Mountains National Park; predation increased by habitat alteration continues to be a threat, and yellow-billed parrots continue to be poached for the local pet bird market. Therefore, we find that inadequate regulatory mechanisms are a threat to the yellow-billed parrot throughout its range now and in the foreseeable future.
Hurricanes are a constant threat to island populations of wildlife and are a frequent occurrence in the Caribbean (Wiley and Wunderle 1993, p. 320). In 1988, Hurricane Gilbert hit Jamaica causing widespread damage to the island's mid-level and montane forests; Cockpit Country, Blue Mountains, and John Crow Mountains all suffered severe and very extensive damage (Varty 1991, pp. 135, 138). Since 2004, Jamaica has been hit by 5 major storms, including 2 hurricanes and 3 tropical storms (Thompson 2011, unpaginated). The most vulnerable birds are frugivorous and birds that require large trees for foraging or nesting; require a closed canopy forest; have special microclimate requirements; or live in a habitat in which vegetation is slow to recover, like the yellow-billed parrot (Wiley and Wunderle 1992, pp. 319, 337). Survival of small populations within a fragmented habitat becomes more uncertain if the destructive potential of catastrophic events increases, as predicted for hurricanes with increased climate change (Wiley and Wunderle 1993, p. 319).
Frequent hurricanes can have direct and indirect effects on bird populations. Direct effects include mortality from winds, rain, and storm surges, and geographic displacement of individuals by the wind. Wet plumage may cause hypothermia and death in birds, with chicks being at greater risk than adults. Additionally, birds may be killed by falling trees or flying debris, thrown against objects, or high winds may blow them out to sea where they die from exhaustion and drowning (Wiley and Wunderle 1993, pp. 319, 321-322). However, the greatest impacts to birds are the indirect effects that come after the storm has passed and stem from the destruction of vegetation. These effects include loss of food sources, loss of nests and nesting sites, increased vulnerability to predation, microclimate changes, and increased conflict with humans (Wiley and Wunderle 1993, pp. 319, 321, 326, 337; Varty 1991, p. 148).
Defoliation is the most common type of damage caused by hurricanes. High winds remove flowers, fruit, and seeds, impacting frugivores like the yellow-billed parrot, the greatest. Larger trees, which are typically the best producers, are the ones most affected by hurricanes. Certain sections of Jamaica following Hurricane Gilbert regenerated quickly, while the destruction in some areas was so complete it was estimated to take many years to be reestablished. The majority of trees and shrubs were reported to have been mostly or totally defoliated; trees in flower or fruit lost their blooms and crops (Varty 1991, pp. 139, 148). In some cases, the production of flowers and fruits are less than 50 percent of pre-hurricane levels after 1 year (Wiley and Wunderle 1993, pp. 324-325). Seven months after Hurricane Gilbert, some areas had little or no apparent regrowth; although most trees showed signs of refoliation, and after 10 months some trees began to show signs of growth (Varty 1991, pp. 140-141). For frugivores, food supplies are likely to be reduced for several years following a destructive hurricane, and with limited resources birds may experience greater competition for food, leading to a decline in populations (Wiley and Wunderle 1993, p. 332; Varty 1991, pp. 144, 148).
Nesting sites can also be damaged by high winds, rain, or flooding. The larger, taller trees, like those needed by the yellow-billed parrot for nesting activities, are the most susceptible to snapping or uprooting (Wiley and Wunderle 1993, p. 327). During Hurricane Gilbert, many trees were toppled or had crowns or major limbs broken or snapped off. Others were damaged or knocked over by other windfall trees. In some places, landslides totally destroyed the forests (Varty 1991, p. 139). The loss of these nesting trees further reduces the already-limited nesting cavities available. Damaged trees that remain standing are more likely to be lost in future storms, increasing the risk to yellow-billed parrots using them. However, trees that suffer limb breakage but remain standing may create additional cavities for nesting (Wiley and Wunderle 1993, pp. 326-328). With the loss of suitable nesting sites, reproductive responses may vary following a storm. Hurricane Gilbert severely damaged or blew over 50 percent and 44 percent of the larger trees in John Crow Mountains and Cockpit Country, respectively; however, some yellow-billed parrots were observed successfully breeding in Cockpit Country within 10 months of the storm (Wiley and Wunderle 1993, p. 335; Varty 1991, pp. 143, 149).
Defoliated habitat may increase the risk of yellow-billed parrots to predators, including humans. For example, because of competition for limited food resources, forest dwellers may be forced to forage closer to the ground or wander more widely, exposing them to predators. Birds may be weakened after a storm and serve as an easy source of protein for predators and humans in need of food. Additionally, while in search of food and cover, birds may come into conflict with humans in agricultural regions, making them more vulnerable to poaching; farmers may shoot birds to protect any remaining crops (Wiley and Wunderle 1993, pp. 330-332). Hurricanes also create additional edge habitat by increasing the number and size of forest openings; this may enable predators to invade forest tracts they would otherwise avoid (Wiley and Wunderle 1993, p. 336).
Furthermore, where trees have been blown down, subsistence farmers may move in to exploit the land. Governments may also make subsidies available for timber removal and development of the land, including the use of chainsaws and heavy equipment to clear away debris and dead trees. The equipment may not be recalled following cleanup and may be used to clear healthy forests (Wiley and Wunderle 1993, p. 331). Following Hurricane Gilbert, chainsaws brought in for cleanup were later used to clear forests for timber (Varty 1991, p. 146). Additionally, farmers lost most or all of their cultivated land, increasing the demand for new land and, therefore, deforestation (Varty 1991, p. 145).
Hurricanes are a natural occurrence in the Caribbean, and birds have adapted to periodic storms. Parrots should be able to adapt to changes following hurricanes and healthy, wide-ranging populations should be able to, in the long term, survive hurricanes. However, hurricanes play a more important role in extinction when a species already has a restricted and fragmented range due to habitat loss and is reduced to fewer individuals (Wiley and Wunderle 1993, pp. 340-341; Varty 1991, p. 149; Wiley 1991, p. 191). After a population has declined due to deforestation activities, they may not be able to recover from the additional loss of forests from hurricanes (Varty 1991, p. 149). The yellow-billed parrot population has survived through hurricanes, but long-term survival is a concern given the impact of hurricanes on food and nesting sources, combined with the continuing habitat destruction by humans (Wiley 1991, p. 203).
NEPA has noticed an increase in the illegal importation of monkeys, birds, and snakes into the country. Jamaica is now believed to be a trans-shipment point for illegal trade in animals from Central and South America (NEPA 2010a, p. 1). Nonnative species not only introduce diseases to native wildlife (See Factor C), but escaped individuals also pose a threat through hybridization and competition for food and nesting sources (Levy and Koenig 2009, p. 264; Wiley 1991, p. 191). A temporary ban was placed on the importation of nonnative psittacines due to potential introduction of disease, hybridization, and competition with the two native parrot species. Other nonnative species known to have played a role in the decline and extinction of parrots include honeybees
We have no information on the extent of non-native species being introduced to Jamaica or the extent of hybridization and competition. Therefore, we do not find that competition with non-native species is a threat to the yellow-billed parrot.
We do not have any information on the actual impacts of nonnative species on the yellow-billed parrot on which to base an analysis of potential threats; therefore, we do not find that nonnative species pose a threat to the yellow-billed parrot.
Hurricanes frequently occur in the Caribbean. Healthy, widespread populations of birds should be able to adapt to changes following a hurricane. However, species like the yellow-billed parrot that are frugivores and rely on cavities in old growth trees, are particularly vulnerable to the impacts of hurricanes on forests. Food sources may be reduced for years following a storm and already-limited nesting cavities are further reduced; declines in these vital resources could result in competition with other species and a decline in the population. These impacts are further exacerbated due to deforestation activities that have caused a decline in the extent and quality of yellow-billed parrot habitat and declines in the yellow-billed parrot population. Because of the ongoing loss of habitat, yellow-billed parrots may not be able to recover from the impacts of a destructive hurricane; therefore, we find that hurricanes are a threat to the yellow-billed parrot now and in the foreseeable future.
As required by the Act, we conducted a review of the status of the species and considered the five factors in assessing whether the yellow-billed parrot is endangered or threatened throughout all or a significant portion of its range. We examined the best scientific and commercial information available regarding the past, present, and future threats faced by the yellow-billed parrot. We reviewed the petition, information available in our files, and other available published and unpublished information.
The yellow-billed parrot is only found on the island of Jamaica and occurs in fragments across its range; at least 80 percent of the yellow-billed parrot population occurs in one area of the island. The entire population of this species is reported as declining, and the extent and quality of habitat is also declining. This species faces immediate and significant threats, primarily from deforestation through logging, conversion of land to agriculture, road construction, and mining and the subsequent encroachment of nonnative species. Ongoing deforestation activities threaten to remove more of the limited mature trees the yellow-billed parrot needs for nesting. Cockpit Country is also threatened by potential future mining. If mining were to occur, the damage would be irreversible. Additionally, habitat alteration creates an optimal habitat for the yellow boa, which has already been reported to prey on yellow-billed parrot nestlings; continuing deforestation increases this risk of predation. Adults and nestling yellow-billed parrots are captured for the local pet bird trade. Poaching of birds for the pet bird trade removes vital individuals from the population and essential nesting cavities. There are regulatory mechanisms in place to protect the yellow-billed parrot and its habitat, but enforcement appears to be inadequate given the threats this species is currently facing. Hurricanes also pose a threat to the yellow-billed parrot because of the already ongoing deforestation and population decline. This species, in the long term, may not be able to recover from the additional impacts of hurricanes on foraging and nesting resources given the continuing loss of food and nesting resources by logging, agriculture, road development, and mining.
Section 3 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 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.” The magnitude of the threats the yellow-billed parrot is facing is high. Nesting success is reported to be low for this species. Given the declining population, limited habitat and range, the ongoing and future threats to the remaining habitat, the associated increased risk of predation, and the loss of individuals from poaching, long-term survival of this species is a concern. Impacts from hurricanes are likely to be exacerbated by the ongoing deforestation and declining population. Any loss of individuals from the population or loss of vital nesting cavities from current or future threats further reduces the population and loss of already limited habitat and is likely to affect the reproductive success of this species. Because the population of this species is estimated at 10,000-20,000 individuals and mining is not currently occurring in
Having determined that the yellow-billed parrot meets the definition of threatened throughout its range, we must next consider whether the yellow-billed parrot is in danger of extinction within a significant portion of its range.
The Act defines an endangered species as one “in danger of extinction throughout all or a significant portion of its range,” and a threatened species as one “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The term “significant portion of its range” is not defined by the statute. For the purposes of this finding, a portion of a species' range is “significant” if it is part of the current range of the species and it provides a crucial contribution to the representation, resiliency, or redundancy of the species. For the contribution to be crucial it must be at a level such that, without that portion, the species would be in danger of extinction.
In determining whether a species is threatened or endangered in a significant portion of its range, we first identify any portions of the range of the species that warrant further consideration. 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 are not reasonably likely to be significant and threatened or endangered. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that: (1) The portions may be significant, and (2) the species may be in danger of extinction there or likely to become so within the foreseeable future. In practice, a key part of this analysis is whether the threats are geographically concentrated in some way. If the threats to the species are essentially uniform throughout its range, no portion is likely to warrant further consideration. Moreover, if any concentration of threats applies only to portions of the species' range that clearly would not meet the biologically based definition of “significant” (
If we identify portions that warrant further consideration, we then determine their status (
Applying the process described above for determining whether this species is endangered in a significant portion of its range, we considered status first to determine if any threats or future threats acting individually or collectively endanger the species in a portion of its range. We have analyzed the threats to the degree possible, and determined they are essentially uniform throughout the species' range and no portion is being impacted to a significant degree more than any other.
Conservation measures provided to species listed as endangered or threatened under the Act include recognition, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and encourages and results in conservation actions by Federal and State governments, private agencies and interest groups, and individuals.
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered and threatened wildlife. These prohibitions, at 50 CFR 17.21 and 17.31, in part, 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 to attempt any of these) within the United States or upon the high seas; import or export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any endangered wildlife species. It also is illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken in violation of the Act. Certain exceptions apply to agents of the Service and State conservation agencies.
Permits may be issued 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 17.32 for threatened species. With regard to endangered wildlife, a permit may 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. For threatened species, a permit may be issued for the same activities, as well as zoological exhibition, education, and special purposes consistent with the Act.
Section 4(d) of the Act states that the Secretary of the Interior (Secretary) may, by regulation, extend to threatened species prohibitions provided for endangered species under section 9 of the Act. Our implementing regulations for threatened wildlife (50 CFR 17.31) incorporate the section 9 prohibitions for endangered wildlife, except when a special rule is promulgated. For threatened species, section 4(d) of the Act gives the Secretary discretion to specify the prohibitions and any exceptions to those prohibitions that are appropriate for the species, and provisions that are necessary and advisable to provide for the conservation of the species. A special rule allows us to include provisions that are tailored to the specific conservation needs of the threatened species and which may be more or less restrictive than the general provisions at 50 CFR 17.31.
If the proposed special rule is adopted, all prohibitions and provisions of 50 CFR 17.31 and 17.32 will apply to the yellow-billed parrot, except that import and export of certain yellow-billed parrots into and from the United States and certain acts in interstate commerce will be allowed without a permit under the Act, as explained below.
The proposed special rule will apply to all commercial and noncommercial international shipments of live and dead yellow-billed parrots and parts and products, including the import and export of personal pets and research samples. In most instances, the special rule will adopt the existing conservation regulatory requirements of CITES and the WBCA as the appropriate regulatory provisions for the import and export of certain yellow-billed parrots. The import and export of birds into and from the United States, taken from the wild after the date this species is listed under the Act; conducting an activity that could take or incidentally take yellow-billed parrots; and foreign commerce will need to meet the requirements of 50 CFR 17.31 and 17.32, including obtaining a permit under the Act. However, the special rule proposes to allow a person to import or export either: (1) A specimen held in captivity prior to the date this species is listed under the Act; or (2) a captive-bred specimen, without a permit issued under the Act, provided the export is authorized under CITES and the import is authorized under CITES and the WBCA. If a specimen was taken from the wild and held in captivity prior to the date this species is listed under the Act, the importer or exporter will need to provide documentation to support that status, such as a copy of the original CITES permit indicating when the bird was removed from the wild or museum specimen reports. For captive-bred birds, the importer would need to provide either a valid CITES export/reexport document issued by a foreign Management Authority that indicates that the specimen was captive-bred by using a source code on the face of the permit of either “C,” “D,” or “F.” For exporters of captive-bred birds, a signed and dated statement from the breeder of the bird, along with documentation on the source of their breeding stock, would document the captive-bred status of U.S. birds.
The proposed special rule will apply to birds captive-bred in the United States and abroad. The terms “captive-bred” and “captivity” used in the proposed special rule are defined in the regulations at 50 CFR 17.3 and refer to wildlife produced in a controlled environment that is intensively manipulated by man from parents that mated or otherwise transferred gametes in captivity. Although the proposed special rule requires a permit under the Act to “take” (including harm and harass) a yellow-billed parrot, “take” does not include generally accepted animal husbandry practices, breeding procedures, or provisions of veterinary care for confining, tranquilizing, or anesthetizing, when such practices, procedures, or provisions are not likely to result in injury to the wildlife when applied to captive wildlife.
We assessed the conservation needs of the yellow-billed parrot in light of the broad protections provided to the species under CITES and the WBCA. The yellow-billed parrot is listed in Appendix II under CITES, a treaty which contributes to the conservation of the species by monitoring international trade and ensuring that trade in Appendix II species is not detrimental to the survival of the species (see
Under the proposed special rule, a person may deliver, receive, carry, transport, or ship a yellow-billed parrot in interstate commerce in the course of a commercial activity, or sell or offer to sell in interstate commerce a yellow-billed parrot without a permit under the Act. At the same time, the prohibitions on take under 50 CFR 17.31 would apply under this special rule, and any interstate commerce activities that could incidentally take yellow-billed parrots or otherwise prohibited acts in foreign commerce would require a permit under 50 CFR 17.32.
Although we do not have current data, we believe there are few yellow-billed parrots in the United States. Current ISIS (International Species Information System) information shows no yellow-billed parrots held in U.S. zoos (ISIS 2011, p. 1). However, some zoos do not enter data into the ISIS database. Persons in the United States have imported and exported captive-bred yellow-billed parrots for commercial purposes and one body for scientific purposes, but trade has been very limited (UNEP-WCMC 2011, unpaginated). We have no information to suggest that interstate commerce activities are associated with threats to the yellow-billed parrot or would negatively affect any efforts aimed at the recovery of wild populations of the species. Therefore, because acts in interstate commerce within the United States has not been found to threaten the yellow-billed parrot, the species is otherwise protected in the course of interstate commercial activities under the incidental take provisions and foreign commerce provisions contained in 50 CFR 17.31, and international trade of this species is regulated under CITES, we find this special rule contains all the prohibitions and authorizations necessary and advisable for the conservation of the yellow-billed parrot.
In accordance with our policy, “Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities,” that was published on July 1, 1994 (59 FR 34270), we will seek the expert opinion of at least three appropriate independent specialists regarding this proposed rule. The purpose of such review is to ensure listing decisions are based on scientifically sound data, assumptions, and analysis. We will send copies of this proposed rule to the peer reviewers immediately following publication in the
We will consider all comments and information we receive during the comment period on this proposed rule during preparation of a final rulemaking. Accordingly, our final decision may differ from this proposal.
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
We have determined that we do not need to prepare an environmental assessment, as defined under the authority of the National Environmental Policy Act of 1969, in connection with regulations adopted under section 4(a) of the Act. We published a notice outlining our reasons for this determination in the
A list of all references cited in this document is available at
The primary authors of this notice are staff members of the Branch of Foreign Species, Endangered Species Program, U.S. Fish and Wildlife Service.
We are issuing this proposed rule under the authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
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 § 17.11(h) by adding an entry for “Parrot, yellow-billed” in alphabetical order under BIRDS to the List of Endangered and Threatened Wildlife to read as follows:
(h) * * *
3. Amend § 17.41 by revising paragraph (c) to read as follows:
(c) The following species in the parrot family: Salmon-crested cockatoo
(1) Except as noted in paragraphs (c)(2) and (c)(3) of this section, all prohibitions and provisions of §§ 17.31 and 17.32 of this part apply to these species.
(2)
(i)
(ii)
(A)
(B)
(3)
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104—13. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques and other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Washington, DC,
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Research, Education, and Economics, United States Department of Agriculture (USDA).
Notice of meeting.
In accordance with the Federal Advisory Committee Act, 5 U.S.C. App 2, the USDA announces a meeting of the National Agricultural Research, Extension, Education, and Economics Advisory Board.
The National Agricultural Research, Extension, Education, and Economics Advisory Board will meet November 7-9, 2011. The public may file written comments before or up to two weeks after the meeting with the contact person.
The meeting will take place at the Mandarin Oriental, 1330 Maryland Avenue, SW., Washington, DC 20024. Written comments from the public may be sent to the Contact Person identified in this notice at: The National Agricultural Research, Extension, Education, and Economics Advisory Board Office, Room 3901 South Building, United States Department of Agriculture, STOP 0321, 1400 Independence Avenue, SW., Washington, DC 20250-0321.
J. Robert Burk, Executive Director or Shirley Morgan-Jordan, Program Support Coordinator, National Agricultural Research, Extension, Education, and Economics Advisory Board;
The Honorable Secretary of Agriculture Tom Vilsack, and the Under Secretary for Research, Education, and Economics Dr. Catherine Woteki have been invited to
On Monday, November 7, 2011, an orientation session for new members and interested incumbent members will be held from 1 p.m.-5:30 p.m. Specific topics of discussion will include an introduction to the leadership and structure of the Agricultural Research Service, Economic Research Service, National Agricultural Statistics Service, and the National Institute of Food and Agriculture, and information on the core functions of those agencies as it relates to the impending budgets proposed by Congress.
On Tuesday, November 8, 2011 the full Advisory Board will convene at 8 a.m. with introductory remarks by the Chair of the Advisory Board. The morning session will include: brief introductions of new Board members, incumbents, and guests; comments from a variety of distinguished leaders, experts, and departmental personnel; and items of board business. Specific items on the agenda will include a discussion related to the Farm Bill and the relevant Research, Education, and Economics components of the Bill. The afternoon session will also include a discussion on the impact of National Agricultural Statistic Service reports on grain market volatility in 2011. The meeting will conclude with an evening reception that will be held from 6 p.m.-8 p.m.
On Wednesday November 9, 2011, the Board will reconvene at 8 a.m. to: elect the Executive Committee of the Advisory Board; discuss initial recommendations resulting from the meeting and future planning for the Board; to organize the memberships of the committees, sub-committees, and working groups of the Advisory Board; and to finalize Board business for the meeting. The Board Meeting will adjourn by 12 p.m. (noon).
Opportunity for public comment will be offered each day of the meeting. Written comments by attendees or other interested stakeholders will be welcomed for the public record before and up to two weeks following the Board meeting (by close of business Wednesday, November 23, 2011). All statements will become a part of the official record of the National Agricultural Research, Extension, Education, and Economics Advisory Board and will be kept on file for public review in the Research, Education, and Economics Advisory Board Office.
Food and Nutrition Service, USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on proposed information collections. This is a new information for the “Healthy Gardens, Healthy Youth Study,” part of the USDA's People's Garden program. This study will use the network of Cooperative Extension Educators to collect information from children in schools that have agreed to participate in the study in four states: Arkansas, Iowa, New York, and Washington. The information collected will build on existing knowledge by examining how school gardens affect children's fruit and vegetable consumption and other outcomes.
Written comments on this notice must be received on or before December 12, 2011.
Comments are invited on: (1) 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; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were used; (3) 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 those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments may be sent to: Duke Storen, Director, Office of Strategic, Initiatives, Partnership and Outreach, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 1441, Alexandria, VA 22302. Comments may also be submitted via e-mail to
All written comments will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m., Monday through Friday) at 3101 Park Center Drive, Alexandria, Virginia 22302, Room 1441.
All responses to this Notice will be summarized and included in the request for OMB approval, and will become a matter of public record.
Requests for additional information or copies of the information collection form and instructions should be directed to: Duke Storen, (703) 305-1431.
See Table 1 below for the estimated total burden for each type of respondent by instrument type.
Food and Nutrition Service (FNS), USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection related to State administrative expense funds expended in the operation of the Child Nutrition Programs administered under the Child Nutrition Act of 1966. This collection is a revision of a currently approved collection.
Written comments must be received on or before December 12, 2011.
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, including the validity of the methodology and assumptions that were 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 collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments may be sent to Lynn Rodgers-Kuperman, Branch Chief,
All written comments will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m. Monday through Friday) at 3101 Park Center Drive, Room 640, Alexandria, Virginia 22302.
All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.
Requests for additional information or copies of this information collection should be directed to Ms. Lynn Rodgers-Kuperman at (703) 305-2590.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The USDA, Forest Service will prepare an environmental impact statement to authorize the approval of mining Plans of Operation in the Granite Creek Watershed Mining Plans analysis area on the Whitman Ranger District of the Wallowa-Whitman National Forest, and the North Fork John Day Ranger District of the Umatilla National Forest.
Both forests had previously initiated environmental analyses for proposed mining Plans in the portions of the Granite Creek Watershed under their administration. As issues identified by each forest were similar, it became clear that combining the analysis into one EIS would be the most efficient way to complete the task.
Written comments concerning the scope of the analysis must be received by November 10, 2011. The draft environmental impact statement is expected July 2012 and the final environmental impact statement is expected November 2012.
Send written comments and suggestions to Jeff Tomac, Whitman District Ranger, Wallowa-Whitman National Forest, PO Box 947, Baker City, OR 97814. Comments may also be sent via e-mail to
Sophia Millar, Interdisciplinary Team Leader, Wallowa-Whitman National Forest, Wallowa Mountains Office, PO Box 905, Joseph, OR 97846, Phone: (541) 426-5540.
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.
The purpose of and need for this action is to authorize the approval of proposed Plans of Operations (Plans) submitted by the operations, as specified in 36 CFR 228.4(a), pending receipt of 401 certifications as deemed necessary by the Oregon Department of Environmental Quality.
The Granite Creek Watershed Mining Plans analysis area is located on the Whitman Ranger District of the Wallowa-Whitman National Forest, approximately 45 miles west of Baker City, Oregon, and on the North Fork John Day Ranger District of the Umatilla National Forest, approximately 45 miles south of Ukiah, Oregon. The decision area will cover 30 proposed mining Plans of Operation within the Granite Creek Watershed, an area of approximately 94,479 acres of National Forest System lands, in Baker and Grant Counties. Typically, each project will disturb and reclaim an area of approximately 1-2 acres annually.
This EIS will analyze and authorize the approval of 30 proposed mining Plans (17 on the Wallowa-Whitman National Forest, 11 on the Umatilla National Forest, and 2 overlapping both forests), and evaluate and propose additional operational requirements for some or all of these Plans. Authorization of Plan approvals will occur after receipt of 401 certification, as deemed necessary by the Oregon Department of Environmental Quality.
The Whitman District Ranger, Jeff Tomac, will be the responsible official for making the decision and providing direction for the analysis.
The responsible official will decide whether or not to authorize the approval
The interdisciplinary team has conducted field surveys and data research to identify preliminary issues of concern with this proposal. The primary concern is the potential for sediment or heavy metal discharges into streams from mining operations, potentially impacting water quality, fish and fish habitat (pools and temperature).
Within the Granite Creek Watershed, under section 303(d) of the Clean Water Act, the Oregon Department of Environmental Quality (DEQ) has listed Beaver Creek and Clear Creek as water quality limited for temperature, and Bull Run Creek and Granite Creek as water quality limited for temperature and sediment. Fish species listed as threatened under the Endangered Species Act occurring within the watershed include bull trout and middle Columbia River steelhead trout. Based on these preliminary issues and the level of activity proposed at some sites, there is the potential for significant impacts to some resources, therefore an EIS fits the scope of this analysis rather than an Environmental Assessment (EA).
This notice of intent initiates the scoping process, which guides the development of the environmental impact statement. Public participation is especially important at several points during the development of the EIS. The Forest Service is seeking information, comments, and coordination with Federal, State, and local agencies, and tribal governments, individuals or organizations who may be interested in or affected by the proposed action. The most useful comments to developing or refining the proposed action would be site-specific concerns and those that pertain to authorizing mining activities within the Granite Creek Watershed Mining Plans analysis area that meets the Purpose of and Need for Action.
It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the environmental impact statement. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.
Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action and will be available for public inspection.
40 CFR 1501.7 and 1508.22; Forest Service Handbook 1909.15, Section 21. Comments submitted anonymously will be accepted and considered, however those who only submit anonymous comments will not have standing to appeal the subsequent decision under 36 CFR part 215.
Thursday, October 13, 2011, 3 p.m.
Cohen Building, Room 3321, 330 Independence Ave., SW., Washington, DC 20237.
Notice of Meeting of the Broadcasting Board of Governors.
The Broadcasting Board of Governors (BBG) will be meeting at the time and location listed above. The BBG will receive and consider recommendations regarding the conclusion of the year-long strategic review and the BBG committee membership. The BBG will also consider revising its BBG meeting schedule for the remaining calendar year. The BBG will receive reports from: the International Broadcasting Bureau Director, the Voice of America Director, the Office of Cuba Broadcasting Director, the Technology, Services and Innovation Director, the Office of New Media, and the Presidents of Radio Free Europe/Radio Liberty, Radio Free Asia, and the Middle East Broadcasting Networks. The meeting is open to public observation via streamed webcast, both live and on-demand, on the BBG's public Web site at
Persons interested in obtaining more information should contact Paul Kollmer-Dorsey at (202) 203-4545.
Bureau of the Census, Commerce.
Notice of determination.
The Bureau of the Census (Census Bureau) is conducting the 2011 Company Organization Survey. The survey's data are needed, in part, to update the multilocation companies in the Business Register. The survey, which has been conducted annually since 1974, is designed to collect information on the number of employees, payroll, geographic location, current operational status, and kind of business for each establishment of companies with more than one location. We have determined that annual data collected from this survey are needed to aid the efficient performance of essential governmental functions, and that these data have significant application to the needs of the public and industry. The data derived from this survey are not available from any other source.
The Census Bureau will furnish report forms to organizations included in the survey, and additional copies are available by written request to the Director, U.S. Census Bureau, Washington, DC 20233-0101.
Joy P. Pierson, Economic Planning and Coordination Division, U.S. Census Bureau, Room 8K319, Washington, DC 20233-6100 or by e-mail at
Sections 182, 195, 224, and 225 of Title 13, United States Code (U.S.C.), authorize the Census Bureau to undertake surveys necessary to furnish current data on the subjects covered by the major censuses. Years that end in 2 and 7 are considered “census years.” In non-census years, companies report only on basic company affiliation and operations of establishments not within the scope of the economic censuses. In these non-census years, all multi-establishment companies with 250 or more employees report survey information. Also, groups of smaller companies that are divided into panels may be selected to report information for one of the non-census years. Smaller companies may be selected if an organizational change within the company is indicated, or if they have been selected through the probability sampling procedure. The
Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid Office of Management and Budget (OMB) control number. In accordance with the Paperwork Reduction Act, 44 U.S.C., Chapter 35, the OMB approved Forms NC-99001 and NC-99007 under OMB Control Number 0607-0444. We will furnish report forms to organizations included in the survey, and additional copies are available upon written request to the Director, U.S. Census Bureau, Washington, DC 20233-0101.
I have, therefore, directed that the 2011 Company Organization Survey be conducted for the purpose of collecting these data.
An application has been submitted to the Executive Secretary of the Foreign-Trade Zones Board (the Board) by the Greater Maricopa County Foreign Trade Zone, Inc., grantee of FTZ 277, requesting temporary/interim manufacturing (T/IM) authority within FTZ 277 at the Sub-Zero, Inc. (Sub-Zero), facility, located in Goodyear, Arizona. The application was filed on October 3, 2011.
The Sub-Zero facility (260 employees, 10 acres, 150,000 units/year) is located at 4295 N. Cotton Lane within the Palm Valley 303 Industrial Park in Goodyear, Arizona (Site 3). Under T/IM procedures, Sub-Zero has requested authority to produce refrigerators (HTSUS 8418.10 and 8418.21, duty rate: free). Foreign components that would be used in production (representing 45% of the value of the finished refrigerators) include: ABS resin (HTSUS 3903.30), fittings (3917.40), rubber gaskets (4016.93), articles of rubber (4016.99), fasteners (7318.14, 7318.15, 7318.29), hinges (8302.10), brackets (8302.50), plates (8310.00), compressors (8414.30, 8414.90), parts of refrigerators (8418.99), filters (8421.21), filter/dryer (8421.29), valves (8481.80), motors (8501.10, 8501.40), inverters (8504.40), wiring harnesses (8516.80), switches (8536.50), plugs and sockets (8536.61), controllers (8537.10), lamps (8539.22), and conductors (8544.42) (duty rate range: free-8.6%). T/IM authority could be granted for a period of up to two years.
FTZ procedures could exempt Sub-Zero from customs duty payments on the foreign components used in export production. The company anticipates that some 10 percent of the plant's shipments will be exported. On its domestic sales, Sub-Zero would be able to choose the duty rate during customs entry procedures that applies to refrigerators (duty rate: free) for the foreign inputs noted above.
In accordance with the Board's regulations, Pierre Duy of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations pursuant to Board Orders 1347 and 1480.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the following address: Office of the Executive Secretary, Foreign-Trade Zones Board, U.S. Department of Commerce, Room 2111, 1401 Constitution Ave., NW., Washington, DC 20230. The closing period for their receipt is November 10, 2011.
Sub-Zero has also submitted a request to the FTZ Board for FTZ manufacturing authority beyond a two-year period, which may include additional products and components. It should be noted that the request for extended authority would be docketed separately and would be processed as a distinct proceeding. Any party wishing to submit comments for consideration regarding the request for extended authority would need to submit such comments pursuant to the separate notice that would be published for that request.
A copy of the application will be available for public inspection at the Office of the Foreign-Trade Zones Board's Executive Secretary at the address listed above, and in the “Reading Room” section of the Board's Web site, which is accessible via
Pierre Duy at
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
Import Administration, International Trade Administration, Department ofCommerce.
Joseph Shuler or Yasmin Nair, 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) 482-1293 and (202) 482-3813, respectively.
On March 31, 2011, the Department of Commerce (Department) published in the
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), requires the Department to issue its preliminary results in an administrative review of an antidumping duty order within 245 days after the last day of the anniversary month of the order for which the administrative review was requested. However, if the Department determines that it is not practicable to complete the review within the aforementioned specified time limits, section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(2) allow the Department to extend the time limit for the preliminary results to a maximum of 365 days after the last day of the anniversary month.
The Department has determined that it requires additional time to complete the preliminary results for this review. After publishing the
This notice is published pursuant to sections 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(2).
Import Administration, International Trade Administration, Department of Commerce.
Alan Ray, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-5403.
On June 30, 2011, the Department of Commerce (“Department”) published in the
The Department finds that it is not practicable to complete this review by the current deadline. The Department has determined that it requires additional time to analyze the case and rebuttal briefs submitted by interested parties. Consequently, in accordance with 19 CFR 351.302(b), the Department is extending the time period for issuing the final results in this review by an additional 15 days. Therefore, the final results will be due no later than October 19, 2011.
We are issuing and publishing this notice in accordance with sections 751(b) and 777(i) of the Tariff Act of 1930, as amended.
Import Administration, International Trade Administration, Department of Commerce.
As a result of the determinations by the Department of Commerce (“Department”) and the International Trade Commission (“ITC”) that revocation of the antidumping duty orders on certain large diameter carbon and alloy seamless standard, line and pressure pipe (“large diameter pipe”) from Japan and certain small diameter carbon and alloy seamless standard, line and pressure pipe (“small diameter pipe”) from Japan and Romania would likely lead to a continuation or recurrence of dumping and material injury to an industry in the United States, the Department is publishing a notice of continuation of the antidumping duty orders.
Mary Kolberg, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230;
On April 1, 2011, the Department published in the
As a result of its review, the Department determined that revocation of the antidumping duty orders on large diameter pipe from Japan and small diameter pipe from Japan and Romania would likely lead to a continuation or recurrence of dumping and, therefore, notified the ITC of the magnitude of the margins likely to prevail should the order be revoked.
On September 28, 2011, the ITC determined, pursuant to section 751(c)(1) of the Act, that revocation of the antidumping duty orders on large diameter pipe from Japan and small diameter pipe from Japan and Romania would likely lead to a continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time.
The products covered by this order are large diameter seamless carbon and alloy (other than stainless) steel standard, line, and pressure pipes produced, or equivalent, to the American Society for Testing and Materials (“ASTM”) A-53, ASTM A-106, ASTM A-333, ASTM A- 334, ASTM A-589, ASTM A-795, and the American Petroleum Institute (“API”) 5L specifications and meeting the physical parameters described below, regardless of application. The scope of this order also includes all other products used in standard, line, or pressure pipe applications and meeting the physical parameters described below, regardless of specification, with the exception of the exclusions discussed below. Specifically included within the scope of this order are seamless pipes greater than 4.5 inches (114.3 mm) up to and including 16 inches (406.4 mm) in outside diameter, regardless of wall-thickness, manufacturing process (hot finished or cold-drawn), end finish (plain end, beveled end, upset end, threaded, or threaded and coupled), or surface finish.
The seamless pipes subject to this order are currently classifiable under the subheadings 7304.10.10.30, 7304.10.10.45, 7304.10.10.60, 7304.10.50.50, 7304.19.10.30, 7304.19.10.45, 7304.19.10.60, 7304.19.50.50, 7304.31.60.10, 7304.31.60.50, 7304.39.00.04, 7304.39.00.06, 7304.39.00.08, 7304.39.00.36, 7304.39.00.40, 7304.39.00.44, 7304.39.00.48, 7304.39.00.52, 7304.39.00.56, 7304.39.00.62, 7304.39.00.68, 7304.39.00.72, 7304.51.50.15, 7304.51.50.45, 7304.51.50.60, 7304.59.20.30, 7304.59.20.55, 7304.59.20.60, 7304.59.20.70, 7304.59.60.00, 7304.59.80.30, 7304.59.80.35, 7304.59.80.40, 7304.59.80.45, 7304.59.80.50, 7304.59.80.55, 7304.59.80.60, 7304.59.80.65, and 7304.59.80.70 of the Harmonized Tariff Schedule of the United States (“HTSUS”).
Specifications, Characteristics, and Uses: Large diameter seamless pipe is used primarily for line applications such as oil, gas, or water pipeline, or utility distribution systems. Seamless pressure pipes are intended for the conveyance of water, steam, petrochemicals, chemicals, oil products, natural gas and other liquids and gasses in industrial piping systems. They may carry these substances at elevated pressures and temperatures and may be subject to the application of external heat. Seamless carbon steel pressure pipe meeting the ASTM A-106 standard may be used in temperatures of up to 1000 degrees Fahrenheit, at various American Society of Mechanical Engineers (“ASME”) code stress levels. Alloy pipes made to ASTM A-335 standard must be used if temperatures and stress levels exceed those allowed for ASTM A-106. Seamless pressure pipes sold in the United States are commonly produced to the ASTM A-
They are intended for the low temperature and pressure conveyance of water, steam, natural gas, air and other liquids and gasses in plumbing and heating systems, air conditioning units, automatic sprinkler systems, and other related uses. Standard pipes (depending on type and code) may carry liquids at elevated temperatures but must not exceed relevant ASME code requirements. If exceptionally low temperature uses or conditions are anticipated, standard pipe may be manufactured to ASTM A-333 or ASTM A-334 specifications.
Seamless line pipes are intended for the conveyance of oil and natural gas or other fluids in pipe lines. Seamless line pipes are produced to the API 5L specification. Seamless water well pipe (ASTM A-589) and seamless galvanized pipe for fire protection uses (ASTM A-795) are used for the conveyance of water.
Seamless pipes are commonly produced and certified to meet ASTM A-106, ASTM A-53, API 5L-B, and API 5L-X42 specifications. To avoid maintaining separate production runs and separate inventories, manufacturers typically triple or quadruple certify the pipes by meeting the metallurgical requirements and performing the required tests pursuant to the respective specifications. Since distributors sell the vast majority of this product, they can thereby maintain a single inventory to service all customers.
The primary application of ASTM A-106 pressure pipes and triple or quadruple certified pipes in large diameters is for use as oil and gas distribution lines for commercial applications. A more minor application for large diameter seamless pipes is for use in pressure piping systems by refineries, petrochemical plants, and chemical plants, as well as in power generation plants and in some oil field uses (on shore and off shore) such as for separator lines, gathering lines and metering runs. These applications constitute the majority of the market for the subject seamless pipes. However, ASTM A-106 pipes may be used in some boiler applications.
The scope of this order includes all seamless pipe meeting the physical parameters described above and produced to one of the specifications listed above, regardless of application, with the exception of the exclusions discussed below, whether or not also certified to a non-covered specification. Standard, line, and pressure applications and the above-listed specifications are defining characteristics of the scope of this review. Therefore, seamless pipes meeting the physical description above, but not produced to the ASTM A-53, ASTM A-106, ASTM A-333, ASTM A-334, ASTM A-589, ASTM A-795, and API 5L specifications shall be covered if used in a standard, line, or pressure application, with the exception of the specific exclusions discussed below.
For example, there are certain other ASTM specifications of pipe which, because of overlapping characteristics, could potentially be used in ASTM A-106 applications. These specifications generally include ASTM A-161, ASTM A-192, ASTM A-210, ASTM A-252, ASTM A-501, ASTM A-523, ASTM A-524, and ASTM A-618. When such pipes are used in a standard, line, or pressure pipe application, such products are covered by the scope of this order.
Specifically excluded from the scope of this order are: A. Boiler tubing and mechanical tubing, if such products are not produced to ASTM A-53, ASTM A-106, ASTM A-333, ASTM A-334, ASTM A-589, ASTM A-795, and API 5L specifications and are not used in standard, line, or pressure pipe applications. B. Finished and unfinished oil country tubular goods (“OCTG”), if covered by the scope of another antidumping duty order from the same country. If not covered by such an OCTG order, finished and unfinished OCTG are included in this scope when used in standard, line or pressure applications. C. Products produced to the A-335 specification unless they are used in an application that would normally utilize ASTM A-53, ASTM A-106, ASTM A-333, ASTM A-334, ASTM A-589, ASTM A-795, and API 5L specifications. D. Line and riser pipe for deepwater application,
With regard to the excluded products listed above, the Department will not instruct U.S. Customs and Border Protection (“CBP”) to require end-use certification until such time as Petitioner or other interested parties provide to the Department a reasonable basis to believe or suspect that the products are being utilized in a covered application. If such information is provided, we will require end-use certification only for the product(s) (or specification(s)) for which evidence is provided that such products are being used in a covered application as described above. For example, if, based on evidence provided by Petitioner, the Department finds a reasonable basis to believe or suspect that seamless pipe produced to the A-335 specification is being used in an A-106 application, we will require end-use certifications for imports of that specification. Normally we will require only the importer of record to certify to the end use of the imported merchandise. If it later proves necessary for adequate implementation, we may also require producers who export such products to the United States to provide such certification on invoices accompanying shipments to the United States.
Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the merchandise subject to this scope is dispositive.
The products covered by these orders include small diameter seamless carbon and alloy (other than stainless) steel standard, line, and pressure pipes and redraw hollows produced, or equivalent, to the ASTM A-53, ASTM A-106, ASTM A-333, ASTM A-334, ASTM A-335, ASTM A-589, ASTM A-795, and the API 5L specifications and meeting the physical parameters described below, regardless of application. The scope of these orders also includes all products used in standard, line, or pressure pipe applications and meeting the physical parameters described below, regardless of specification. Specifically included within the scope of these orders are seamless pipes and redraw hollows, less than or equal to 4.5 inches (114.3 mm) in outside diameter, regardless of wall-thickness, manufacturing process (hot finished or cold-drawn), end finish (plain end, beveled end, upset end, threaded, or threaded and coupled), or surface finish.
The seamless pipes subject to these orders are currently classifiable under the subheadings 7304.10.10.20, 7304.10.50.20, 7304.19.10.20, 7304.19.50.20, 7304.31.30.00, 7304.31.60.50, 7304.39.00.16, 7304.39.00.20, 7304.39.00.24, 7304.39.00.28, 7304.39.00.32, 7304.51.50.05, 7304.51.50.60, 7304.59.60.00, 7304.59.80.10,
Specifications, Characteristics, and Uses: Seamless pressure pipes are intended for the conveyance of water, steam, petrochemicals, chemicals, oil products, natural gas and other liquids and gasses in industrial piping systems. They may carry these substances at elevated pressures and temperatures and may be subject to the application of external heat. Seamless carbon steel pressure pipe meeting the ASTM A-106 standard may be used in temperatures of up to 1000 degrees Fahrenheit, at various ASME code stress levels. Alloy pipes made to ASTM A-335 standard must be used if temperatures and stress levels exceed those allowed for ASTM A-106. Seamless pressure pipes sold in the United States are commonly produced to the ASTM A-106 standard.
Seamless standard pipes are most commonly produced to the ASTM A-53 specification and generally are not intended for high temperature service. They are intended for the low temperature and pressure conveyance of water, steam, natural gas, air and other liquids and gasses in plumbing and heating systems, air conditioning units, automatic sprinkler systems, and other related uses. Standard pipes (depending on type and code) may carry liquids at elevated temperatures but must not exceed relevant ASME code requirements. If exceptionally low temperature uses or conditions are anticipated, standard pipe may be manufactured to ASTM A-333 or ASTM A-334 specifications.
Seamless line pipes are intended for the conveyance of oil and natural gas or other fluids in pipe lines. Seamless line pipes are produced to the API 5L specification.
Seamless water well pipe (ASTM A-589) and seamless galvanized pipe for fire protection uses (ASTM A-795) are used for the conveyance of water.
Seamless pipes are commonly produced and certified to meet ASTM A-106, ASTM A-53, API 5L-B, and API 5L-X42 specifications. To avoid maintaining separate production runs and separate inventories, manufacturers typically triple or quadruple certify the pipes by meeting the metallurgical requirements and performing the required tests pursuant to the respective specifications. Since distributors sell the vast majority of this product, they can thereby maintain a single inventory to service all customers.
The primary application of ASTM A-106 pressure pipes and triple or quadruple certified pipes is in pressure piping systems by refineries, petrochemical plants, and chemical plants. Other applications are in power generation plants (electrical-fossil fuel or nuclear), and in some oil field uses (on shore and off shore) such as for separator lines, gathering lines and metering runs. A minor application of this product is for use as oil and gas distribution lines for commercial applications. These applications constitute the majority of the market for the subject seamless pipes. However, ASTM A-106 pipes may be used in some boiler applications.
Redraw hollows are any unfinished pipe or “hollow profiles” of carbon or alloy steel transformed by hot rolling or cold drawing/hydrostatic testing or other methods to enable the material to be sold under ASTM A-53, ASTM A-106, ASTM A-333, ASTM A-334, ASTM A-335, ASTM A-589, ASTM A-795, and API 5L specifications.
The scope of these orders includes all seamless pipe meeting the physical parameters described above and produced to one of the specifications listed above, regardless of application, with the exception of the specific exclusions discussed below, and whether or not also certified to a non-covered specification. Standard, line, and pressure applications and the above-listed specifications are defining characteristics of the scope of the orders. Therefore, seamless pipes meeting the physical description above, but not produced to the ASTM A-53, ASTM A-106, ASTM A-333, ASTM A-334, ASTM A-335, ASTM A-589, ASTM A-795, and API 5L specifications shall be covered if used in a standard, line, or pressure application, with the exception of the specific exclusions discussed below.
For example, there are certain other ASTM specifications of pipe which, because of overlapping characteristics, could potentially be used in ASTM A-106 applications. These specifications generally include ASTM A-161, ASTM A-192, ASTM A-210, ASTM A-252, ASTM A-501, ASTM A-523, ASTM A-524, and ASTM A-618. When such pipes are used in a standard, line, or pressure pipe application, such products are covered by the scope of these orders.
Specifically excluded from the scope of these orders are boiler tubing and mechanical tubing, if such products are not produced to ASTM A-53, ASTM A-106, ASTM A-333, ASTM A-334, ASTM A-335, ASTM A-589, ASTM A-795, and API 5L specifications and are not used in standard, line, or pressure pipe applications. In addition, finished and unfinished OCTG are excluded from the scope of these orders, if covered by the scope of another antidumping duty order from the same country. If not covered by such an OCTG order, finished and unfinished OCTG are included in these scopes when used in standard, line or pressure applications.
With regard to the excluded products listed above, the Department will not instruct CBP to require end-use certification until such time as Petitioner or other interested parties provide to the Department a reasonable basis to believe or suspect that the products are being used in a covered application. If such information is provided, we will require end-use certification only for the product(s) (or specification(s)) for which evidence is provided that such products are being used in covered applications as described above. For example, if, based on evidence provided by Petitioner, the Department finds a reasonable basis to believe or suspect that seamless pipe produced to the A-161 specification is being used in a standard, line or pressure application, we will require end-use certifications for imports of that specification. Normally we will require only the importer of record to certify to the end use of the imported merchandise. If it later proves necessary for adequate implementation, we may also require producers who export such products to the United States to provide such certification on invoices accompanying shipments to the United States.
Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the merchandise under these orders is dispositive.
As a result of these determinations by the Department and the ITC that revocation of the antidumping duty orders would likely lead to a continuation or recurrence of dumping and material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act, the Department hereby orders the continuation of the antidumping orders on large diameter pipe from Japan and small diameter pipe from Japan and Romania. CBP will continue to collect antidumping duty cash deposits at the rates in effect at the time of entry for all imports of subject merchandise. The effective date of the continuation of these orders will be the date of publication in the
This five-year (sunset) review and this notice are in accordance with section 751(c) of the Act and published pursuant to section 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“Department”) is conducting an administrative review of the antidumping duty order on certain kitchen appliance shelving and racks from the People's Republic of China (“PRC”), covering the period of review (“POR”) of March 5, 2009, through August 31, 2010.
Katie Marksberry or Kabir Archuletta, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington DC 20230;
On October 28, 2010, the Department initiated an administrative review of certain kitchen appliance shelving and racks from the PRC for the period March 5, 2009, through August 31, 2010.
On December 1, 2010, the Department placed U.S. Customs and Border Protection (“CBP”) data for the Harmonized Tarrif Schedule (“HTS”) numbers listed in the scope of the
On January 20, 2011, the Department selected two mandatory respondents for this review, pursuant to section 777A(c)(2)(B) of the Tariff Act of 1930, as amended (“the Act”), Wireking and Weixi.
On February 2, 2011, eight days prior to the Department's February 10, 2011, deadline for Section A questionnaire responses, the Department received a request on behalf of NKS, a mandatory respondent in the
On February 23, 2011, the Department received a voluntary Section A questionnaire response from NKS.
On April 14, 2011, in accordance with section 751(a)(3)(A) of the Act, we extended the time period for issuing the preliminary results by 120 days, until September 30, 2011.
This review was intiated with a POR of March 5, 2009, through August 31, 2010. On February 2, 2011, the Department received a letter from NKS requesting clarification of the proper reporting periods for U.S. sales of subject merchandise.
The scope of the order consists of shelving and racks for refrigerators, freezers, combined refrigerator-freezers, other refrigerating or freezing equipment, cooking stoves, ranges, and ovens (“certain kitchen appliance shelving and racks” or “the merchandise under order”). Certain kitchen appliance shelving and racks are defined as shelving, baskets, racks (with or without extension slides, which are carbon or stainless steel hardware devices that are connected to shelving, baskets, or racks to enable sliding), side racks (which are welded wire support structures for oven racks that attach to the interior walls of an oven cavity that does not include support ribs as a design feature), and subframes (which are welded wire support structures that interface with formed support ribs inside an oven cavity to support oven rack assemblies utilizing extension slides) with the following dimensions:
The merchandise under the order is comprised of carbon or stainless steel wire ranging in thickness from 0.050 inch to 0.500 inch and may include sheet metal of either carbon or stainless steel ranging in thickness from 0.020 inch to 0.2 inch. The merchandise under this order may be coated or uncoated and may be formed and/or welded. Excluded from the scope of this order is shelving in which the support surface is glass.
The merchandise subject to the order is currently classifiable in the Harmonized Tariff Schedule of the United States (“HTSUS”) statistical reporting numbers 8418.99.8050, 8418.99.8060, 7321.90.5000, 7321.90.6090, 8516.90.8000 and 8419.90.9520. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the order is dispositive.
In its initial Section C Questionnaire Response, NKS provided information related to all of its POR production, including product codes of the subject merchandise it sold to the United States during the POR and also the product codes of certain products it claimed were out of the scope of this
In the
On December 21, 2010, the Department received a timely filed separate rate certification from Dunli. Subsequently, the Department determined that there are two separate PORs applicable to this review.
On February 25, 2011, Dunli withdrew its separate rate certification and filed a no shipments certification. In order to examine this claim, the Department sent two inquiries, one for each POR, to CBP asking if any CBP office had any information contrary to Dunli's no shipments claim and requesting CBP alert the Department of any such information within ten days of receiving our inquiry. CBP received our inquiry on March 7, 2011. On March 14, 2011 we received notice from CBP that Dunli appeared to have an entry of subject merchandise during the POR. On March 15, 2011, the Department requested the entry documents corresponding to the entry noted by CBP. The Department received the entry documents from CBP and placed them on the record of the review on August 18, 2011, and requested comments from interested parties.
On August 29, 2011, the Department received comments from Dunli stating that it had overlooked a small quantity of shipments and had, as a result, inadvertently withdrawn its separate rate certification and filed a no shipments certification.
As discussed in the “Background” section above, Hengtong Hardware filed a no shipment certification indicating that it did not export subject merchandise to the United States during the POR. In order to examine this claim, we reviewed the CBP data used for respondent selection and found no discrepancies with the statement made by Hengtong Hardware. Additionally, we sent an inquiry to CBP asking if any CBP office had any information contrary to the no shipments claim and requesting CBP alert the Department of any such information within ten days of receiving our inquiry. CBP received our inquiry on January 6, 2011. We have not received a response from CBP with regard to our inquiry which indicates that CBP did not have information that was contrary to the claim of Hengtong Hardware. Therefore, because the record indicates that Hengtong Hardware did not export subject merchandise to the United States during the POR, we are preliminarily rescinding this administrative review with respect to this company in accordance with 19 CFR 351.213(d)(3) and consistent with our practice.
In every case conducted by the Department involving the PRC, the PRC has been treated as an NME country.
Purusant to section 771(18)(C) of the Act, a designation of a country as an NME remains in effect until it is revoked by the Department. Accordingly, there is a rebuttable presumption that all companies within the PRC are subject to government control and, thus, should be assessed a single antidumping duty rate.
We have considered whether each PRC company that submitted a complete application, certification or complete Section A Response as a mandatory respondent is eligible for a separate rate. The Department's separate rate test is not concerned, in general, with macroeconomic/border-type controls,
To establish whether a firm is sufficiently independent from government control of its export activities to be entitled to a separate rate, the Department analyzes each entity exporting the merchandise under investigation under a test arising from
In its Section A response, NKS reported that it is wholly-owned by individuals or companies located in a ME country.
The Department considers the following
Typically the Department considers four factors in evaluating whether each respondent is subject to
We determine that, for Dunli and Wireking the evidence on the record supports a preliminary finding of
The evidence placed on the record of this investigation by Dunli and Wireking demonstrates an absence of
As discussed above, the Department initiated this administrative review with respect to seven companies. Additionally, we are preliminarily rescinding this review with respect to Hengtong Hardware because we have preliminarily determined that it had no shipments of subject merchandise during the POR. Thus, including Wireking and NKS, six companies remain subject to this review. While Wireking, NKS and Dunli provided documentation supporting their eligibility for a separate rate, the remaining companies under active review have not demonstrated their eligibility for a separate rate. Furthermore, Weixi, which responded to the Department's Q&V questionnaire and reported shipments during the POR, was chosen by the Department as a mandatory respondent, but did not respond to the Department's full antidumping duty questionnaire. Therefore, the Department preliminarily determines that there were exports of merchandise under review from three PRC exporters that did not demonstrate their eligibility for separate rate status: Weixi, Asia Pacific CIS (Wuxi) Co., Ltd., and Leader Metal Industry Co., Ltd. (aka Marmon Retail Services Asia). As a result, the Department is treating these three PRC exporters as part of the PRC-wide entity, subject to the PRC-wide rate.
In accordance with section 777A(c)(2)(B) of the Act, the Department employed a limited examination methodology, as it did not have the resources to examine all companies for which a review request was made. As stated above, the Department selected Wireking and NKS as the mandatory respondents in this review. In addition to the mandatory respondent, only Dunli submitted information as requested by the Department and remains subject to review as a cooperative separate rate respondent.
The statute and the Department's regulations do not address the establishment of a rate to be applied to individual companies not selected for examination where the Department limited its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally we have looked to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in an investigation, for guidance when calculating the rate for respondents we did not examine in an administrative review. Section 735(c)(5)(A) of the Act instructs that we are not to calculate an all-others rate using any zero or
Sections 776(a)(1) and (2) of the Act provide that the Department shall apply “facts otherwise available” if,
Where the Department determines that a response to a request for information does not comply with the request, section 782(d) of the Act provides that the Department will so inform the party submitting the response and will, to the extent practicable, provide that party the opportunity to remedy or explain the deficiency. If the party fails to remedy the deficiency within the applicable time limits, subject to section 782(e) of the Act, the Department may disregard all or part of the original and subsequent responses, as appropriate. Section 782(e) of the Act provides that the Department “shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all applicable requirements established by the administering authority” if the information is timely, can be verified, is not so incomplete that it cannot serve as a reliable basis, and if the interested party acted to the best of its ability in providing the information. Where all of these conditions are met, the statute requires the Department to use the information if it can do so without undue difficulties.
Section 776(b) of the Act further provides that the Department may use an adverse inference in applying the facts otherwise available when a party has failed to cooperate by not acting to the best of its ability to comply with a request for information. Section 776(b) of the Act also authorizes the Department to use as adverse facts available (“AFA”) information derived from the petition, the final
Section 776(c) of the Act provides that, when the Department relies on secondary information rather than on information obtained in the course of an investigation or review, it shall, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. Secondary information is defined as “information derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise.”
We have preliminarily determined that three companies did not demonstrate their eligibility for a separate rate and are properly considered part of the PRC-wide entity. As explained above in the “Separate Rates” section, all companies within the PRC are considered to be subject to government control unless they are able to demonstrate an absence of government control with respect to their export activities. Such companies are thus assigned a single antidumping duty rate distinct from the separate rate(s) determined for companies that are found to be independent of government control with respect to their export activities. We consider the influence that the government has been found to have over the economy to warrant determining a rate for the entity that is distinct from the rates found for companies that have provided sufficient evidence to establish that they operate freely with respect to their export activities.
Because we have determined that three companies are not entitled to separate rates and are now part of the PRC-wide entity, the PRC-wide entity—which includes Weixi, Asia Pacific CIS (Wuxi) Co., Ltd., and Leader Metal Industry Co., Ltd. (aka Marmon Retail Services Asia)—is now under review. The PRC-wide entity did not respond to our requests for information. Because the PRC-wide entity did not respond to our requests for information, we find it necessary under section 776(a)(2) of the Act to use facts available as the basis for these preliminary results. Because the PRC-wide entity provided no information, we determine that sections 782(d) and (e) of the Act are not relevant to our analysis. We further find that the PRC-wide entity (Weixi, Asia Pacific CIS (Wuxi) Co., Ltd., and Leader Metal Industry Co., Ltd. (aka Marmon Retail Services Asia)) failed to respond to the Department's requests for information and, therefore, did not cooperate to the best of its ability. Therefore, because the PRC-wide entity did not cooperate to the best of its ability in the proceeding, the Department finds it necessary to use an adverse inference in making its determination, pursuant to section 776(b) of the Act.
In deciding which facts to use as AFA, section 776(b) of the Act and 19 CFR 351.308(c)(1) authorize the Department to rely on information derived from (1) The petition, (2) a final determination in the investigation, (3) any previous review or determination, or (4) any other information placed on the record. Because of the PRC-wide entity's failure to cooperate in this administrative review, we have preliminarily assigned the PRC-wide entity an AFA rate of 95.99 percent, which is the PRC-wide rate determined in the
The Department preliminarily determines that this information is the most appropriate from the available sources to effectuate the purposes of AFA, which is to induce respondents to provide the Department with complete and accurate information in a timely manner.
Section 776(c) of the Act provides that, when the Department relies on secondary information rather than on information obtained in the course of an investigation or review, it shall to the extent practicable, corroborate that information from independent sources that are reasonably at the Department's disposal. Secondary information is described in the SAA as “information derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise.”
As stated above, we are applying as AFA the highest and only rate for the PRC-wide entity from any segment of this administrative proceeding, which is 95.99 percent from the
Section 351.401(i) of the Department's regulations states that, “in identifying the date of sale of the merchandise under consideration or foreign like product, the Secretary normally will use the date of invoice, as recorded in the exporter or producer's records kept in the normal course of business.” In
NKS reported that the date of sale was determined by the invoice issued by the affiliated importer to the unaffiliated United States customer. In this case, as the Department found no evidence contrary to NKS's claims that invoice date was the appropriate date of sale, the Department used invoice date as the date of sale for these preliminary results.
As it did in the
Section 776(a)(1) of the Act mandates that the Department use facts available if necessary information is not available on the record of an antidumping proceeding. Section 776(a)(2) of the Act also provides that the Department shall apply “facts otherwise available” if,
In this review, as in the
The Department afforded Wireking numerous opportunities to provide complete and accurate information for the calculation of its antidumping margin. This information is critical because it affects the Department's ability to ascertain whether Wireking has accurately reported its FOPs {factors of production}. Specifically, because Wireking failed to provide the BOMs {bills of materials} and actual production notes in timely manner prior to verification, the Department did not have the opportunity to fully investigate whether Wireking could have reported its FOPs on a more specific basis, nor did the Department have the opportunity to obtain and analyze this data.
In multiple submissions to the Department, Petitioners provided data gathered from Wireking's submitted packing lists and Petitioners' own production experience of certain products that allegedly demonstrated that Wireking's reported unit weights
Because Wireking reported that it multiplied its FOP ratios by the unit weight of the finished product to obtain the per-unit consumption ratio of finished product, we further find that Wireking has understated its FOP ratios. Therefore, pursuant to section 776(a)(2)(B) of the Act, we preliminarily determine that Wireking has not provided accurate information relevant to the Department's analysis. Thus, consistent with sections 776(a)(2)(B) and 782(d) of the Act, and consistent with the Department's determination in the
As explained above in the “Use of Facts Available for Wireking's Unit Weights” section, for these preliminary results, the Department is accepting Wireking's reported standard allocation methodology and applying FA to its reported unit weights. However, the Department now advises Wireking that it must, going forward and in all future segements of this proceeding, generate and maintain detailed production records sufficient to allow Wireking to report its FOP usage on an actual, CONNUM-specific basis.
In its U.S. Sales database, NKS has reported a variable that it argues should be accounted for in the Department's margin calculation. However, based on information placed on the record by NKS and its U.S. customer, the Department has determined not to include this variable in the margin calculation for these preliminary results. Due to the proprietary nature of the factual information concerning this discussion, a detailed explanation of this issue is provided in a separate business proprietary memorandum.
In the
In this review, NKS initially submitted an ISE calculation that only included certain expenses for one of its affiliates. The Department requested that NKS revise its reported ISEs to include additional line item expenses and to include expenses for its other affiliates. Subsequently, NKS submitted a revised calculation which included additional expenses as well as certain expenses related to a second affiliate. However, NKS argued that the Department should not include all reported expenses and should instead accept NKS's suggested calculation. We have determined, based on the information on the record of this review, to apply the second, more complete ISE calculation submitted by NKS which includes all additional requested expenses, because there is not sufficient information currently on the record of this review to determine whether NKS's requested line item exclusions are appropriate. Therefore, the Department has requested additional information from NKS regarding each line item expense included in its submitted ISE calculations.
Additionally, NKS declined to submit calculated ISEs for a third affiliate that it claims did not take title to the goods, did not arrange for shipping details, did not warehouse the goods, and did not sell the goods.
Therefore, the Department has requested additional information from NKS that specifically addresses the involvement of this affiliate in the sale of subject merchandise and the propriety of excluding certain expenses from the ISE calculations of its other affiliates.
On June 16, 2011, Petitioners submitted comments requesting that the Department resort to total AFA for NKS based on allegations that it concealed U.S. sales shipped through third countries.
When the Department investigates imports from an NME country, section 773(c)(1) of the Act directs it to base NV, in most circumstances, on the NME producer's FOPs, valued in a surrogate market economy country or countries considered to be appropriate by the Department. In accordance with section 773(c)(4) of the Act, in valuing the FOPs, the Department shall utilize, to the extent possible, the prices or costs of FOPs in one or more market economy countries that are at a level of economic development comparable to that of the NME country and significant producers of comparable merchandise.
On January 3, 2011, the Department sent interested parties a letter requesting comments on the surrogate country and information pertaining to the valuation of FOPs.
As discussed in the
Both Wireking and NKS reported that all of their POR sales were constructed export price (“CEP”) in accordance with section 772(b) of the Act. For these sales, we based CEP on prices to the first unaffiliated purchaser in the United States. Where appropriate, we made deductions from the starting price (gross unit price) for foreign movement expenses, international movement expenses, U.S. movement expenses, and appropriate selling expenses, in accordance with section 772(c)(2)(A) of the Act. Additionally, in accordance with section 772(c)(1)(C) of the Act, we adjusted CEP where appropriate to account for countervailing duties attributable to subject merchandise in order to offset export subsidies preliminarily found in the concurrent administrative review of the countervailing duty order on certain kitchen appliance shelving and racks from the PRC.
In accordance with section 772(d)(1) of the Act, we also deducted those selling expenses associated with economic activities occurring in the United States where appropriate. We deducted, where appropriate, commissions, inventory carrying costs, credit expenses, and indirect selling expenses. Where foreign movement expenses, international movement expenses, or U.S. movement expenses were provided by Chinese service providers or paid for in Chinese renminbi, we valued these services using surrogate values.
Section 773(c)(1)(B) of the Act provides that the Department shall determine the NV using an FOP methodology if the merchandise is exported from an NME and the information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act. The Department bases NV on the FOPs because the presence of government controls on various aspects of NMEs renders price comparisons and the calculation of production costs invalid under the Department's normal methodologies.
In accordance with section 773(c) of the Act, we calculated NV based on FOP data reported by the respondents for the POR. Because we had two effective PORs for this review, we used FOP data specific to the separate PORs, where possible. For more details,
In selecting the surrogate values, we considered the quality, specificity, and contemporaneity of the data. As appropriate, we adjusted input prices by including freight costs to make them delivered prices. We added to each Indian import surrogate value a surrogate freight cost calculated from the shorter of the reported distance from the domestic supplier to the factory or the distance from the nearest seaport to the factory, where appropriate.
The Department used Indian import statistics from Global Trade Atlas to value the raw material and packing material inputs that Wireking and NKS used to produce subject merchandise during the POR, except where listed below.
To value low carbon steel wire rod, we used price data from the Indian Join Plant Committee (“JPC”), which is a joint industry/government board that monitors Indian steel prices. These data are fully contemporaneous with the POR, and are specific to the reported inputs of the respondents. Further, in accordance with 19 CFR 351.408(c)(1), these data are publicly available, represent a broad market average, and we are able to calculate them on a tax-exclusive basis. For a detailed discussion of all surrogate values used for these preliminary results,
The Department valued electricity using the updated electricity price data for small, medium, and large industries, as published by the Central Electricity Authority, an administrative body of the Government of India, in its publication titled
The Department valued water using data from the Maharashtra Industrial Development Corporation (“MIDC”) as it includes a wide range of industrial water tariffs. To value water, we used the average rate for industrial use from MIDC water rates at
The Department valued truck freight expenses using a per-unit average rate calculated from data on the Infobanc
To value factory overhead, selling, general, and administrative (“SG&A”) expenses, and profit, the Department used the audited financial statements of Bansidhar Granites and Mekins Agro Products (“Mekins”). Although the Department notes that Wireking has argued that Mekins financial statement includes a packing credit which indicates that it receives countervailable subsidies, there is not enough information on the record to determine whether the packing credit has been found to be a countervailable subsidy by the Department.
Previously, the Department used regression-based wages that captured the worldwide relationship between per capita Gross National Income (“GNI”) and hourly manufacturing wages, pursuant to 19 CFR 351.408(c)(3), to value the respondent's cost of labor. However, on May 14, 2010, the Court of Appeals for the Federal Circuit (“CAFC”), in
On June 21, 2011, the Department revised its methodology for valuing the labor input in NME antidumping proceedings.
In these preliminary results, the Department calculated the labor input using the wage method described in
As stated above, the Department used India ILO data reported under Chapter 6A of Yearbook, which reflects all costs related to labor, including wages, benefits, housing, training,
We valued brokerage and handling using a price list of export procedures necessary to export a standardized cargo of goods in India. The price list is compiled based on a survey case study of the procedural requirements for trading a standard shipment of goods by ocean transport in India that is published in
Where appropriate, we made currency conversions into U.S. dollars, in accordance with section 773A(a) of the Act, based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank.
Section 772(c)(1)(C) of the Act unconditionally states that U.S. price “shall be increased by the amount of any countervailing duty imposed on the subject merchandise * * * to offset an export subsidy.”
As provided in section 782(i)(1) of the Act, we intend to verify the information upon which we will rely in making our final determination.
The Department has determined that the following preliminary dumping margins exist for the period March 5, 2009 through August 31, 2010:
As
The Department will disclose calculations performed for these preliminary results to the parties within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
In accordance with 19 CFR 351.301(c)(3)(ii), for the final results of this administrative review, interested parties may submit publicly available information to value FOPs within 20 days after the date of publication of these preliminary results. Interested parties must provide the Department with supporting documentation for the publicly available information to value each FOP. Additionally, in accordance with 19 CFR 351.301(c)(1), for the final results of this administrative review, interested parties may submit factual information to rebut, clarify, or correct factual information submitted by an interested party less than ten days before, on, or after, the applicable deadline for submission of such factual information. However, the Department notes that 19 CFR 351.301(c)(1) permits new information only insofar as it rebuts, clarifies, or corrects information recently placed on the record. The Department generally cannot accept the submission of additional, previously absent-from-the-record alternative surrogate value information pursuant to 19 CFR 351.301(c)(1).
Because, as discussed above, the Department intends to verify the information upon which we will rely in making our final determination, the Department will establish the briefing schedule at a later time, and will notify parties of the schedule in accordance with 19 CFR 351.309. Parties who submit case briefs or rebuttal briefs in this proceeding are requested to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is
Section 751(a)(3)(A) of the Act requires that the Department issue the final results of an administrative review within 120 days after the date on which the preliminary results are published. If it is not practicable to complete the review within that time period, section 751(a)(3)(A) of the Act allows the Department to extend the deadline for the final results to a maximum of 180 days after the date on which the preliminary results are published.
In this proceeding, the Department requires additional time to complete the final results of this administrative review to issue additional supplemental questionnaires, conduct verifications, generate the reports of the verification findings, and properly consider the issues raised in case briefs from interested parties. Thus, it is not practicable to complete this administrative review within the original time limit. Consequently, the Department is extending the time limit for completion of the final results of this review by 60 days, in accordance with section 751(a)(3)(A) of the Act. The final results are now due no later 180 days after the publication date of these preliminary results.
Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review. The Department intends to issue assessment instructions to CBP 15 days after the publication date of the final results of this review excluding any reported sales that entered during the gap period. In accordance with 19 CFR 351.212(b)(1), we are calculating importer- (or customer-) specific assessment rates for the merchandise subject to this review. Where the respondent has reported reliable entered values, we calculate importer- (or customer-) specific
Where we do not have entered values for all U.S. sales to a particular importer/customer, we calculate a per-unit assessment rate by aggregating the antidumping duties due for all U.S. sales to that importer (or customer) and dividing this amount by the total quantity sold to that importer (or customer).
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For the exporters listed above, the cash deposit rate will be the rate established in the final results of this review (except, if the rate is zero or
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
These preliminary results are issued and published in accordance with sections 751(a)(1), 751(a)(2)(B) and 777(i)(1) of the Act, 19 CFR 351.221(b)(4), and 19 CFR 351.214.
Import Administration, International Trade Administration, Department of Commerce.
On September 13, 2011, the United States Court of International Trade (“Court” or “CIT”) sustained the Department of Commerce's (“Department”) final results of redetermination pursuant to the Court's remand.
Bobby Wong, AD/CVD Operations, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-0409.
In
On July 13, 2009, pursuant to
However, after reviewing interested parties' comments with respect to the
On April 15, 2011, while affirming other aspects of the Department's remand redetermination in
On July 15, 2011, in the Department's final remand redetermination pursuant to
In its decision in
Because there is now a final court decision, we are amending the
In the event the CIT's ruling is not appealed or, if appealed, upheld by the CAFC, the Department will instruct U.S. Customs and Border Protection to assess antidumping duties on entries of the subject merchandise during the POR from Jiheng on the revised assessment rate calculated by the Department.
This notice is issued and published in accordance with sections 516A(c)(1), 516A(e), and 777(i)(1) of the Act.
National Environmental Satellite, Data, and Information Service (NESDIS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice of open public forum.
This notice sets forth the schedule and topics of an upcoming forum hosted by the NOAA National Climatic Data Center in Asheville, North Carolina on November 8-10, 2011. Invited participants will discuss topics as outlined below.
Members of the public are invited to attend the forum, and are required to RSVP to
Members of the public will be invited to offer their comments during a 30-minute period to be held from 9:30 to 10 a.m. on Tuesday, November 8, 2011. Each individual or group making a verbal presentation will be limited to a total time of five minutes. Please indicate your intention to participate in the public comment period when submitting the RSVP. Time for public comments will be allotted based on the order in which RSVPs are received. Written comments may be submitted via email or in hardcopy and must be received by October 25, 2011. Please see addresses below.
The forum will be held at the Veach-Baley Federal Complex, located at 151 Patton Avenue, Asheville, North Carolina 28801.
Written comments may be submitted to
For changes in the schedule, agenda, and updated information, please check the forum website at
Brooke Stewart, National Climatic Data Center, 151 Patton Avenue, Room 563, Asheville, North Carolina 28801. (Phone: 828-257-3020, E-mail:
This forum will provide an update to the climate science surrounding extreme events. The intent is to make key input available to the National Climate Assessment (NCA) for consideration. Further information regarding the NCA is available at
As materials for this forum become available, they may be found at
This forum will address observed changes and their causes with regard to specific types of extreme weather and climate events, including heat waves, cold waves, floods, and drought.
• Observed changes and degree of confidence in those changes for heat waves, cold waves, floods, and drought
• Current state of mechanistic understanding of the above-mentioned extreme events
• Potential causes of observed changes in extreme events
The forum will feature invited speakers and discussions. The forum is designed to produce a detailed draft outline of an article for submission to a peer-reviewed scientific journal.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of issuance of an incidental harassment authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an Incidental Harassment Authorization (IHA) to the Northeast Gateway® Energy Bridge
This authorization is effective from October 6, 2011, until October 5, 2012.
A copy of the application, IHA, and a list of references used in this document may be obtained by writing to P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. A copy of the application may be obtained by writing to this address or by telephoning the contact listed here and is also available at:
Shane Guan, Office of Protected Resources, NMFS, (301) 247-8401.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such taking are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as:
an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the U.S. can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny issuance of the authorization.
On April 8, 2011, NMFS received an application from Excelerate Energy, L.P. (Excelerate) and Tetra Tech EC, Inc., on behalf of Northeast Gateway for an authorization to take 13 species of marine mammals by Level B harassment incidental to operations of an LNG port facility in Massachusetts Bay. They are: North Atlantic right whale, humpback whale, fin whale, minke whale, long-finned pilot whale, Atlantic white-sided dolphin, bottlenose dolphin, common dolphin, killer whale, Risso's dolphin, harbor porpoise, harbor seal, and gray seal. Since LNG Port operation activities have the potential to take marine mammals, a marine mammal take authorization under the MMPA is warranted. On May 7, 2007, NMFS issued an IHA to Northeast Gateway and Algonquin Gas Transmission, L.L.C. (Algonquin) to allow for the incidental harassment of small numbers of marine mammals resulting from the construction and operation of the NEG Port and the Algonquin Pipeline Lateral (72 FR 27077; May 14, 2007). Subsequently, NMFS issued three one-year IHAs for the take of marine mammals incidental to the operation of the NEG Port activity pursuant to section 101(a)(5)(D) of the MMPA (73 FR 29485; May 21, 2008; 74 FR 45613; September 3, 2009, and 75 FR 53672; September 1, 2010). The company is seeking new IHA for the upcoming year, because it is believed that marine mammals could be affected by noise generated by operating the dynamic positioning system during the docking of LNG vessels at the NEG Port.
The Northeast Gateway Port is located in Massachusetts Bay and consists of a submerged buoy system to dock specially designed LNG carriers approximately 13 mi (21 km) offshore of Massachusetts in federal waters approximately 270 to 290 ft (82 to 88 m) in depth. This facility delivers regasified LNG to onshore markets via the Algonquin Pipeline Lateral (Pipeline Lateral). The Pipeline Lateral consists of a 16.1-mile (25.8-kilometer) long, 24-inch (61-centimeter) outside diameter natural gas pipeline which interconnects the Port to an offshore natural gas pipeline known as the HubLine.
The Northeast Gateway Port consists of two subsea Submerged Turret Loading
The proposed activity includes Northeast Gateway LNG Port operations. A detailed description of these activities is provided in the
A notice of receipt and request for public comment on the application and proposed authorization was published on July 21, 2011 (76 FR 43639). During the 30-day public comment period, NMFS received comments from the Marine Mammal Commission (Commission).
Marine mammal species that potentially occur in the vicinity of the Northeast Gateway facility include several species of cetaceans and pinnipeds:
Information on those species that may be affected by this activity is discussed in detail in the USCG Final EIS on the Northeast Gateway LNG proposal. Please refer to that document for more information on these species and potential impacts from operation of this LNG facility. In addition, general information on these marine mammal species can also be found in Würsig
When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Based on available behavioral data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data, Southall
• Low frequency cetaceans (13 species of mysticetes): functional hearing is estimated to occur between approximately 7 Hz and 22 kHz;
• Mid-frequency cetaceans (32 species of dolphins, six species of larger toothed whales, and 19 species of beaked and bottlenose whales): functional hearing is estimated to occur between approximately 150 Hz and 160 kHz;
• High frequency cetaceans (eight species of true porpoises, six species of river dolphins, Kogia, the franciscana, and four species of cephalorhynchids): functional hearing is estimated to occur between approximately 200 Hz and 180 kHz; and
• Pinnipeds in Water: functional hearing is estimated to occur between approximately 75 Hz and 75 kHz, with the greatest sensitivity between approximately 700 Hz and 20 kHz.
As mentioned previously in this document, 13 marine mammal species (11 cetacean and two pinniped species) are likely to occur in the NEG Port area. Of the 11 cetacean species likely to occur in NEG's project area, four are classified as low frequency cetaceans (
Potential effects of NEG's port operations would most likely be acoustic in nature. LNG port operations introduce sound into the marine environment. The effects of noise on marine mammals are highly variable, and can be categorized as follows (based on Richardson
There are three general categories of sounds recognized by NMFS: continuous (such as shipping sounds), intermittent (such as vibratory pile driving sounds), and impulse. No impulse noise activities, such as blasting or standard pile driving, are associated with this project. The noise sources of potential concern are regasification/offloading (which is a continuous sound) and dynamic positioning of vessels using thrusters (an intermittent sound) from EBRVs during docking at the NEG port facility. Noise generated from regasification/offloading is modeled to be under 120 dB, therefore, no take is expected from this activity. Based on research by Malme
Underwater noise generated at the NEG Port has the potential to result from two distinct actions, including closed-loop regasification of LNG and/or EBRV maneuvering during coupling and decoupling with STL buoys. To evaluate the potential for these activities to result in underwater noise that could harass marine mammals, Excelerate conducted field sound survey studies during periods of March 21 to 25, 2005, and August 6 to 9, 2006, while the EBRV
• Sound levels during closed-loop regasification ranged from 104 to 110 dB. Maximum levels during steady state operations were 108 dB.
• Sound levels during coupling operations were dominated by the periodic use of the bow and stern thrusters and ranged from 160 to 170 dBL.
Figures 1-1 and 1-2 of NEG's IHA application present the net acoustic impact of one EBRV operating at the NEG Port. Thrusters are operated intermittently and only for relatively short durations of time. The resulting area within the 120 dB isopleth is less than 1 km
The potential impacts to marine mammals associated with sound propagation from vessel movements, anchors, chains and LNG regasification/offloading could be the temporary and short-term displacement of seals and
Approximately 4.8 acres of seafloor has been converted from soft substrate to artificial hard substrate. The soft-bottom benthic community may be replaced with organisms associated with naturally occurring hard substrate, such as sponges, hydroids, bryozoans, and associated species. The benthic community in the up to 43 acres (worst case scenario based on severe 100-year storm with EBRVs occupying both STL buoys) of soft bottom that may be swept by the anchor chains while EBRVs are docked will have limited opportunity to recover, so this area will experience a long-term reduction in benthic productivity. In addition, disturbance from anchor chain movement would result in increased turbidity levels in the vicinity of the buoys that could affect prey species for marine mammals; however, as indicated in the final EIS/EIR, these impacts are expected to be short-term, indirect, and minor.
Daily removal of sea water from EBRV intakes will reduce the food resources available for planktivorous organisms. Water usage would be limited to the standard requirements of NEG's normal support vessel. As with all vessels operating in Massachusetts Bay, sea water uptake and discharge is required to support engine cooling, typically using a once-through system. The rate of seawater uptake varies with the ship's horsepower and activity and therefore will differ between vessels and activity type. For example, the GATEWAY ENDEAVOR is a 90-ft (27 m) vessel powered with a 1,200 horsepower diesel engine with a four-pump seawater cooling system. This system requires seawater intake of about 68 gallons per minute (gpm) while idling and up to about 150 gpm at full power. Use of full power is required generally for transit. A conservatively high estimate of vessel activity for the GATEWAY ENDEAVOR would be operation at idle for 75% of the time and full power for 25% of the time. During routine activities, this would equate to approximately 42,480 gallons of seawater per 8-hour work day. When compared to the engine cooling requirements of an EBRV over an 8-hour period (approximately 17.62 million gallons), the GATEWAY ENDEAVOUR uses about 0.2% of the EBRV requirement. To put this water use into context, the final EIS/EIR for the NEG Port concluded that the impacts to fish populations and to marine mammals that feed on fish or plankton resulting from water use by an EBRV during port operations (approximately 39,780,000 gallons over each 8-day regasification period) would be minor. Water use by support vessels during routine port activities would not materially add to the overall impacts evaluated in the final EIS/EIR. Additionally, discharges associated with the GATEWAY ENDEAVOR and/or other support/maintenance vessels that are 79 feet or greater in length, are now regulated under the Clean Water Act (CWA) and must receive and comply with the United States Environmental Protection Agency (EPA) Vessel General Permit (VGP). The permit incorporates the USCG mandatory ballast water management and exchange standards, and provides technology- and water quality-based effluent limits for other types of discharges, including deck runoff, bilge water, graywater, and other pollutants. It also establishes specific corrective actions, inspection, and monitoring requirements and recordkeeping and reporting requirements for each vessel. Massachusetts Bay circulation will not be altered, so plankton will be continuously transported into the NEG Port area. The removal of these species is minor and unlikely to affect in a measurable way the food sources available to marine mammals.
In conclusion, NMFS has determined that NEG's port operations are not expected to have any habitat-related effects that could cause significant or long-term consequences for individual marine mammals or on the food sources that they utilize.
In order to issue an incidental take authorization (ITA) under the MMPA, NMFS must, where applicable, set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (where relevant). In addition, NMFS must, where applicable, set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area.
During the construction and operations of the NEG LNG Port facility in prior years, Northeast Gateway submitted reports on marine mammal sightings in the area. While it is difficult to draw biological conclusions from these reports, NMFS can make some general conclusions. Data gathered by protected species observers (PSOs) are generally useful to indicate the presence or absence of marine mammals (often to a species level) within the exclusion zones (and sometimes without) and to document the implementation of mitigation measures. Though it is by no means conclusive, it is worth noting that no instances of obvious behavioral disturbance as a result of Northeast Gateway's activities were observed by the PSOs.
In addition, Northeast Gateway was required to maintain an array of Marine Autonomous Recording Units (MARUs) to monitor calling North Atlantic right whales (humpback, fin, and minke whale calls were also able to be detected).
For the issuance of the IHA to NEG for LNG port operations, NMFS requires the following monitoring and mitigation measures.
For activities related to the NEG LNG port operations, all individuals onboard the EBRVs responsible for the navigation and lookout duties on the vessel must receive training prior to assuming navigation and lookout duties, a component of which will be training on marine mammal sighting/reporting and vessel strike avoidance measures. Crew training of EBRV personnel will stress individual responsibility for marine mammal awareness and reporting.
If a marine mammal is sighted by a crew member, an immediate notification will be made to the Person-in-Charge on board the vessel and the Northeast Port Manager, who will ensure that the required vessel strike avoidance measures and reporting procedures are followed.
(1) All EBRVs approaching or departing the port will comply with the Mandatory Ship Reporting (MSR) system to keep apprised of right whale sightings in the vicinity. Vessel operators will also receive active detections from an existing passive acoustic array prior to and during transit through the northern leg of the Boston TSS where the buoys are installed.
(2) In response to active right whale sightings (detected acoustically or reported through other means such as the MSR or Sighting Advisory System (SAS)), and taking into account safety and weather conditions, EBRVs will take appropriate actions to minimize the risk of striking whales, including reducing speed to 10 knots or less and alerting personnel responsible for navigation and lookout duties to concentrate their efforts.
(3) EBRVs will maintain speeds of 12 knots or less while in the TSS until reaching the vicinity of the buoys (except during the seasons and areas defined below, when speed will be limited to 10 knots or less). At 1.86 mi (3 km) from the NEG port, speed will be reduced to 3 knots, and to less than 1 knot at 1,640 ft (500 m) from the buoy.
(4) EBRVs will reduce transit speed to 10 knots or less over ground from March 1-April 30 in all waters bounded by straight lines connecting the following points in the order stated below. This area is known as the Off Race Point SMA and tracks NMFS regulations at 50 CFR 224.105: 42°30′00.0″ N-069°45′00.0″ W; thence to 42°30′00.0″ N-070°30′00.0″ W; thence to 42°12′00.0″ N-070°30′00.0″ W; thence to 42°12′00.0″ N-070°12′00.0″ W; thence to 42°04′56.5″ N-070°12′00.0″ W; thence along charted mean high water line and inshore limits of COLREGS limit to a latitude of 41°40′00.0″ N; thence due east to 41°41′00.0″ N-069°45′00.0″ W; thence back to starting point.
(5) EBRVs will reduce transit speed to 10 knots or less over ground from April 1-July 31 in all waters bounded by straight lines connecting the following points in the order stated below. This area is also known as the Great South Channel SMA and tracks NMFS regulations at 50 CFR 224.105: 42°30′00.0″ N-69°45′00.0″ W, 41°40′00.0″ N- 69°45′00.0″ W, 41°00′00.0″ N- 69°05′00.0″ W, 42°09′00.0″ N- 67°08′24.0″ W, 42°30′00.0″ N- 67°27′00.0″ W, 42°30′00.0″ N- 69°45′00.0″ W.
(6) LNGRVs are not expected to transit Cape Cod Bay. However, in the event transit through Cape Cod Bay is required, LNGRVs will reduce transit speed to 10 knots or less over ground from January 1-May 15 in all waters in Cape Cod Bay, extending to all shorelines of Cape Cod Bay, with a northern boundary of 42°12′00.0″ N latitude.
(7) A vessel may operate at a speed necessary to maintain safe maneuvering speed instead of the required 10 knots only if justified because the vessel is in an area where oceanographic, hydrographic, and/or meteorological conditions severely restrict the maneuverability of the vessel and the need to operate at such speed is confirmed by the pilot on board or, when a vessel is not carrying a pilot, the master of the vessel. If a deviation from the 10-knot speed limit is necessary, the reasons for the deviation, the speed at which the vessel is operated, the latitude and longitude of the area, and the time and duration of such deviation shall be entered into the logbook of the vessel. The master of the vessel shall attest to the accuracy of the logbook entry by signing and dating it.
Northeast Gateway shall monitor the noise environment in Massachusetts Bay in the vicinity of the NEG Port using an array of 19 MARUs that were deployed initially in April 2007 to collect data during the preconstruction and active construction phases of the NEG Port and Algonquin Pipeline Lateral. A description of the MARUs can be found in Appendix A of the NEG and Algonquin application. These 19 MARUs will remain in the same configuration during full operation of the NEG Port. The MARUs collect archival noise data and are not designed to provide real-time or near-real-time information about vocalizing whales. Rather, the acoustic data collected by the MARUs shall be analyzed to document the seasonal occurrences and overall distributions of whales (primarily fin, humpback, and right whales) within approximately 10 nautical miles (18 km) of the NEG Port and shall measure and document the noise “footprint” of Massachusetts Bay so as to eventually assist in determining whether an overall increase in noise in the Bay associated with the NEG Port might be having a potentially negative impact on marine mammals. The overall intent of this system is to provide better information for both regulators and the general public regarding the acoustic footprint associated with long-term operation of the NEG Port in Massachusetts Bay and the distribution of vocalizing marine mammals during NEG Port activities.
In addition to the 19 MARUs, Northeast Gateway will deploy 10 auto-detection buoys (ABs) within the TSS for the operational life of the NEG Port. A description of the ABs is provided in Appendix A of NEG and Algonquin's application. The purpose of the ABs shall be to detect a calling North Atlantic right whale an average of 5 nm (9.26 km) from each AB (detection ranges will vary based on ambient underwater conditions). The AB system shall be the primary detection mechanism that alerts the EBRV captains to the occurrence of right whales, heightens EBRV awareness, and triggers necessary mitigation actions as described in the Marine Mammal Detection, Monitoring, and Response Plan included as Appendix A of the NEG application.
Northeast Gateway has engaged representatives from Cornell University's Bioacoustics Research Program and the Woods Hole Oceanographic Institution as the consultants for developing, implementing, collecting, and analyzing the acoustic data; reporting; and maintaining the acoustic monitoring system.
Further information detailing the deployment and operation of arrays of 19 passive seafloor acoustic recording units (MARUs) centered on the terminal site and the 10 ABs that are to be placed at approximately 5-m (8.0-km) intervals within the recently modified TSS can be found in the Marine Mammal Detection, Monitoring, and Response Plan included as Appendix A of the NEG and Algonquin application.
NMFS has carefully evaluated the mitigation measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
• The practicability of the measure for applicant implementation.
Based on our evaluation, NMFS has determined that the monitoring and mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
The Project area is within the Mandatory Ship Reporting Area (MSRA), so all vessels entering and exiting the MSRA will report their activities to WHALESNORTH. During all phases of the Northeast Gateway LNG Port operations, sightings of any injured or dead marine mammals will
An annual report on marine mammal monitoring and mitigation shall be submitted to NMFS Office of Protected Resources and NMFS Northeast Regional Office within 90 days after the expiration of the IHA. The annual report shall include data collected for each distinct marine mammal species observed in the project area in Massachusetts Bay during the period of LNG facility operation. Description of marine mammal behavior, overall numbers of individuals observed, frequency of observation, and any behavioral changes and the context of the changes relative to operation activities shall also be included in the annual report.
Based on monthly activity reports submitted to NMFS for the period between August 2010 and May 2011, there were no activities at the NEG Port during the period. Therefore, no take of marine mammals occurred or were reported during this period.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which (i) Has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment]. Only take by Level B harassment is anticipated as a result of NEG's operational activities. Anticipated take of marine mammals is associated with operation of dynamic positioning during the docking of the LNG vessels. The regasification process itself is an activity that does not rise to the level of taking, as the modeled source level for this activity is 108 dB. Certain species may have a behavioral reaction to the sound emitted during the activities. Hearing impairment is not anticipated. Additionally, vessel strikes are not anticipated, especially because of the speed restriction measures that were described earlier in this document.
Although Northeast Gateway stated that the ensonified area of 120-dB isopleths by EBRV's decoupling would be less than 1 km
The basis for Northeast Gateway and Algonquin's “take” estimate is the number of marine mammals that would be exposed to sound levels in excess of 120 dB, which is the threshold used by NMFS for continuous sounds. For the NEG port facility operations, the take estimates are determined by multiplying the area of the EBRV's ZOI (34 km
NMFS recognizes that baleen whale species other than North Atlantic right whales have been sighted in the project area from May to November. However, the occurrence and abundance of fin, humpback, and minke whales is not well documented within the project area. Nonetheless, NMFS uses the data on cetacean distribution within Massachusetts Bay, such as those published by the National Centers for Coastal Ocean Science (NCCOS, 2006), to estimate potential takes of marine mammals species in the vicinity of project area.
The NCCOS study used cetacean sightings from two sources: (1) The North Atlantic Right Whale Consortium (NARWC) sightings database held at the University of Rhode Island (Kenney, 2001); and (2) the Manomet Bird Observatory (MBO) database, held at NMFS Northeast Fisheries Science Center (NEFSC). The NARWC data contained survey efforts and sightings data from ship and aerial surveys and opportunistic sources between 1970 and 2005. The main data contributors included: Cetacean and Turtles Assessment Program (CETAP), Canadian Department of Fisheries and Oceans, PCCS, International Fund for Animal Welfare, NOAA's NEFSC, New England Aquarium, Woods Hole Oceanographic Institution, and the University of Rhode Island. A total of 653,725 km (406,293 mi) of survey track and 34,589 cetacean observations were provisionally selected for the NCCOS study in order to minimize bias from uneven allocation of survey effort in both time and space. The sightings-per-unit-effort (SPUE) was calculated for all cetacean species by month covering the southern Gulf of Maine study area, which also includes the project area (NCCOS, 2006).
The MBO's Cetacean and Seabird Assessment Program (CSAP) was contracted from 1980 to 1988 by NMFS NEFSC to provide an assessment of the relative abundance and distribution of cetaceans, seabirds, and marine turtles in the shelf waters of the northeastern United States (MBO, 1987). The CSAP program was designed to be completely compatible with NMFS NEFSC databases so that marine mammal data could be compared directly with fisheries data throughout the time series during which both types of information were gathered. A total of 5,210 km (8,383 mi) of survey distance and 636 cetacean observations from the MBO data were included in the NCCOS analysis. Combined valid survey effort for the NCCOS studies included 567,955 km (913,840 mi) of survey track for small cetaceans (dolphins and porpoises) and 658,935 km (1,060,226 mi) for large cetaceans (whales) in the southern Gulf of Maine. The NCCOS study then combined these two data sets by extracting cetacean sighting records, updating database field names to match the NARWC database, creating geometry to represent survey tracklines and applying a set of data selection criteria designed to minimize uncertainty and bias in the data used.
Owing to the comprehensiveness and total coverage of the NCCOS cetacean distribution and abundance study, NMFS calculated the estimated take number of marine mammals based on the most recent NCCOS report published in December 2006. For a detailed description and calculation of the cetacean abundance data and SPUE, please refer to the NCCOS study (NCCOS, 2006). These data show that the relative abundance of North Atlantic right, fin, humpback, minke, and pilot whales, and Atlantic white-sided dolphins for all seasons, as calculated by SPUE in number of animals per square kilometer, is 0.0082, 0.0097,
In calculating the area density of these species from these linear density data, NMFS used 1.15 mi (1.85 km) as the strip width (W). This strip width is based on the distance of visibility used in the NARWC data that was part of the NCCOS (2006) study. However, those surveys used a strip transect instead of a line transect methodology. Therefore, in order to obtain a strip width, one must divide the visibility or transect value in half. Since the visibility value used in the NARWC data was 2.3 mi (3.7 km), it thus gives a strip width of 1.15 mi (1.85 km). Based on this information, the area density (D) of these species in the project area can be obtained by the following formula:
Based on this calculation method, the estimated take numbers per year for North Atlantic right, fin, humpback, minke, and pilot whales, and Atlantic white-sided dolphins by the NEG Port facility operations, based on an average of 65 visits by LNG container ships to the project area per year (or approximately 1.25 visits per week), operating the vessels' thrusters for dynamic positioning before offloading natural gas, corrected for 50 percent underwater, are 5, 5, 15, 3, 23, and 73, respectively. These numbers represent maximum of 1.32, 0.24, 1.73, 0.10, 0.08, and 0.11 percent of the populations for these species, respectively. Since it is very likely that individual animals could be “taken” by harassment multiple times, these percentages are the upper boundary of the animal population that could be affected. Therefore, the actual number of individual animals being exposed or taken would be far less. There is no danger of injury, death, or hearing impairment from the exposure to these noise levels.
In addition, bottlenose dolphins, common dolphins, killer whales, Risso's dolphins, harbor porpoises, harbor seals, and gray seals could also be taken by Level B harassment as a result of deepwater LNG port operations. Since these species are less likely to occur in the area, and there are no density estimates specific to this particular area, NMFS based the take estimates on typical group size. Therefore, NMFS estimates that up to approximately 10 bottlenose dolphins, 20 common dolphins, 20 Risso's dolphins, 20 killer whales, 5 harbor porpoises, 15 harbor seals, and 15 gray seals could be exposed to continuous noise at or above 120 dB re 1 μPa rms incidental to operations during the one year period of the IHA, respectively.
Since Massachusetts Bay represents only a small fraction of the western North Atlantic basin where these animals occur NMFS has determined that only small numbers of the affected marine mammal species or stocks would be potentially affected by the Northeast Gateway LNG deepwater project. The take estimates presented in this section of the document do not take into consideration the mitigation and monitoring measures that are included in the IHA.
NMFS has defined “negligible impact” in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” In making a negligible impact determination, NMFS considers a variety of factors, including but not limited to: (1) The number of anticipated mortalities; (2) the number and nature of anticipated injuries; (3) the number, nature, intensity, and duration of Level B harassment; and (4) the context in which the takes occur.
No injuries or mortalities are anticipated to occur as a result of Northeast Gateway's proposed port operation activities, and none are authorized by NMFS. Additionally, animals in the area are not anticipated to incur any hearing impairment (
While some of the species occur in the proposed project area year-round, some species only occur in the area during certain seasons. Humpback and minke whales are not expected in the project area in the winter. During the winter, a large portion of the North Atlantic right whale population occurs in the southeastern U.S. calving grounds (
Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hr cycle). Behavioral reactions to noise exposure (such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall
Of the 13 marine mammal species likely to occur in the area, four are listed as endangered under the ESA: North Atlantic right, humpback, and fin whales. All of these species, as well as the northern coastal stock of bottlenose dolphin, are also considered depleted under the MMPA. There is currently no designated critical habitat or known reproductive areas for any of these species in or near the proposed project area. However, there are several well known North Atlantic right whale feeding grounds in the Cape Cod Bay and Great South Channel. No mortality or injury is expected to occur, and due to the nature, degree, and context of the Level B harassment anticipated, the activity is not expected to impact rates of recruitment or survival.
From the most conservative estimates of both marine mammal densities in the project area and the size of the 120-dB ZOI, the maximum calculated number of individual marine mammals for each species that could potentially be harassed annually is small relative to the overall population sizes (1.73 percent for humpback whales and 1.32 percent for North Atlantic right whales and no more than 1 percent of any other species).
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS finds that the operation activities of the Northeast Gateway LNG Port will result in the incidental take of small numbers of marine mammals, by Level B harassment only, and that the total taking from Northeast Gateway's proposed activities will have a negligible impact on the affected species or stocks.
There are no relevant subsistence uses of marine mammals implicated by this
On February 5, 2007, NMFS concluded consultation with MARAD and the USCG, under section 7 of the ESA, on the proposed construction and operation of the Northeast Gateway LNG facility and issued a biological opinion. The finding of that consultation was that the construction and operation of the Northeast Gateway LNG terminal may adversely affect, but is not likely to jeopardize, the continued existence of northern right, humpback, and fin whales, and is not likely to adversely affect sperm, sei, or blue whales and Kemp's ridley, loggerhead, green or leatherback sea turtles. An incidental take statement (ITS) was issued following NMFS' issuance of the 2007 IHA.
On November 15, 2007, Northeast Gateway and Algonquin submitted a letter to NMFS requesting an extension for the LNG Port construction into December 2007. Upon reviewing Northeast Gateway's weekly marine mammal monitoring reports submitted under the previous IHA, NMFS recognized that the potential take of some marine mammals resulting from the LNG Port and Pipeline Lateral by Level B behavioral harassment likely had exceeded the original take estimates. Therefore, NMFS Northeast Region (NER) reinitiated consultation with MARAD and USCG on the construction and operation of the Northeast Gateway LNG facility. On November 30, 2007, NMFS NER issued a revised biological opinion, reflecting the revised construction time period and including a revised ITS. This revised biological opinion concluded that the construction and operation of the Northeast Gateway LNG terminal may adversely affect, but is not likely to jeopardize, the continued existence of northern right, humpback, and fin whales, and is not likely to adversely affect sperm, sei, or blue whales.
NMFS' Permits, Conservation and Education division has determined that the activities described in here are the same as those analyzed in the revised 2007 biological opinion. Therefore, a new consultation is not required for issuance of this IHA.
MARAD and the USCG released a Final EIS/Environmental Impact Report (EIR) for the proposed Northeast Gateway Port and Pipeline Lateral. A notice of availability was published by MARAD on October 26, 2006 (71 FR 62657). The Final EIS/EIR provides detailed information on the proposed project facilities, construction methods and analysis of potential impacts on marine mammals.
NMFS was a cooperating agency (as defined by the Council on Environmental Quality (40 CFR 1501.6)) in the preparation of the Draft and Final EISs. NMFS reviewed the Final EIS and adopted it on May 4, 2007. NMFS issued a separate Record of Decision for issuance of authorizations pursuant to section 101(a)(5) of the MMPA for the construction and operation of the Northeast Gateway's LNG Port Facility in Massachusetts Bay.
NMFS has determined that the operation and maintenance activities of the Northeast Gateway Port facility may result, at worst, in a temporary modification in behavior of small numbers of certain species of marine mammals that may be in close proximity to the Northeast Gateway LNG facility. These activities are expected to result in some local short-term displacement only of the affected species or stocks of marine mammals. Taking these two factors together, NMFS concludes that the activity will have no more than a negligible impact on the affected species or stocks, as there will be no expected effects on annual rates of survival and reproduction of these species or stocks. This determination is further supported by the required mitigation, monitoring, and reporting measures described in this document.
As a result of implementation of the described mitigation and monitoring measures, no take by injury or death would be requested, anticipated or authorized, and the potential for temporary or permanent hearing impairment is very unlikely due to the relatively low noise levels (and consequently small zone of impact relative to the size of Massachusetts Bay).
While the number of marine mammals that may be harassed will depend on the distribution and abundance of marine mammals in the vicinity of the LNG Port facility, the estimated numbers of marine mammals to be harassed are small relative to the affected species or stock sizes.
NMFS has issued an IHA to Northeast Gateway for conducting LNG Port facility operations in Massachusetts Bay, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
Consumer Product Safety Commission.
Notice.
It is the policy of the Commission to publish settlements which it provisionally accepts under the Consumer Product Safety Act in the
Any interested person may ask the Commission not to accept this agreement or otherwise comment on its contents by filing a written request with the Office of the Secretary by October 26, 2011.
Persons wishing to comment on this Settlement Agreement should send written comments to the Comment 12-C0001, Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Room 820, Bethesda, Maryland 20814-4408.
Dennis C. Kacoyanis, General Attorney, Division of Enforcement and Information, Office of the General Counsel, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814-4408; telephone (301) 504-7587.
The text of the Agreement and Order appears below.
1. In accordance with 16 CFR 1118.20, Nordica USA (“Nordica”) and staff of the United States Consumer Product Safety Commission (“Commission”) enter into this Settlement Agreement
2. “Staff” is staff of the United States Consumer Product Safety Commission, an independent federal regulatory agency established pursuant to, and responsible for the enforcement of, the Consumer Product Safety Act, 15 U.S.C. 2051-2089 (“CPSA”).
3. Nordica is a corporation organized and existing under the laws of New Hampshire, with its principal corporate offices located in West Lebanon, New Hampshire. Nordica is a division of Tecnica Group USA.
4. From August 2006 through December 2008, Nordica imported and sold to ski retailers about 4,500 pairs of XBI ALU Skis (“Skis”). The binding plates on the skis could crack or break causing the skier to lose control or fall and suffer injuries.
5. The Skis are “consumer products,” and, at all relevant times, Nordica was a “manufacturer” of those consumer products, which were “distributed in commerce,” as those terms are defined or used in sections 3(a)(5), (8), and (11) of the CPSA, 15 U.S.C. 2052(a)(5), (8), and (11).
6. Beginning in December 2007, one of Nordica's retail customers advised Nordica that it had received calls with comments about the Skis' binding plates cracking and breaking. The retail customer requested replacement parts for the broken binding plates.
7. In March 2008, Nordica received a report from another retail customer about the Skis' binding plates breaking. Also in March 2008, Nordica employees identified numerous incidents of the Skis' binding plates cracking and breaking. Nordica advised the foreign manufacturer of the retail customers' claims of the Skis' binding plates cracking and breaking. Nordica asked the foreign manufacturer to provide Nordica with 25 pairs of replacement binding plates for the Skis.
8. Through April 2008, Nordica continued to receive reports of the Skis' binding plates breaking. By the end of April 2008, Nordica knew of at least 20 claims of broken Skis binding plates.
9. On or about Aug. 4, 2008, Nordica received an in-depth epidemiologic investigation report from the Commission about the Skis' binding plates breaking.
10. In September 2008, Nordica learned that the foreign manufacturer had redesigned the Ski's binding plate. Nordica did not ask the foreign manufacturer until December 2008, why it had redesigned the Ski's binding plate. At that time, Nordica learned that the foreign manufacturer had redesigned the Ski's binding plate because of the cracking and breakage problem.
11. Nordica continued to investigate the binding plate problem throughout the fall of 2008. Nordica discovered that it had about 200 reports of warranty claims related to the Skis' binding plates cracking and breaking.
12. Despite being aware of the information in paragraphs 7 through 12, Nordica did not report to the Commission until December 3, 2008. By that time, Nordica was aware of at least 200 reports of the Skis' binding plates cracking and breaking.
13. Nordica obtained information that reasonably supported the conclusion that the Skis' binding plates contained a defect that could create a substantial product hazard or that the Skis' binding plates created an unreasonable risk of serious injury or death. This knowledge required Nordica to immediately inform the Commission of the defect and risk associated with the Skis' binding plates, as required by section 15(b)(3) and (4) of the CPSA, 15 U.S.C. 2064(b)(3) and (4).
14. Nordica knowingly failed to inform the Commission immediately about the Skis' binding plates, as required by CPSA sections 15(b)(3) and (4), 15 U.S.C. 2064(b)(3) and (4), and as the term “knowingly” is defined in CPSA section 20(d), 15 U.S.C. 2069(d). This failure violated CPSA section 19(a)(4), 15 U.S.C. 2068(a)(4). Pursuant to CPSA section 20, 15 U.S.C. 2069, this failure subjected Nordica to civil penalties.
15. Nordica denies Staff's allegations that the Skis' binding plates contain defects that could create a substantial product hazard or create an unreasonable risk of serious injury or death, and further denies that it violated the reporting requirements of Section 15(b) of the CPSA, 15 U.S.C. 2064(b).
16. Nordica states that it is not aware of any reports of injury associated with cracking or breakage of the binding plates any time from the beginning of distribution (2006) up to and including the present date (2011).
17. On or about August 4, 2008, Nordica received a CPSC Incident Report that had been submitted by a consumer concerning breakage of an XBI Alu Ski. Nordica immediately began investigating whether cracking or breakage of the XBI Alu Ski presented a potential safety concern. Following extensive investigation, and based upon review of the available information—including, but not limited to, the absence of any reported injuries and test results provided by the manufacturer—Nordica did not and still does not believe that the XBI Alu binding plate ski contained a defect that could present a substantial product hazard or created an unreasonable risk of serious injury or death. Out of an abundance of caution, Nordica wished to replace any binding plates due to potential risk of cracking. Nordica therefore notified CPSC in December 2008 of its willingness to conduct a Fast Track recall in full cooperation with CPSC.
18. Under the CPSA, the Commission has jurisdiction over this matter and over Nordica.
19. The parties enter into the Agreement for settlement purposes only. The Agreement does not constitute an admission by Nordica, or a determination by the Commission, that Nordica knowingly violated the CPSA.
20. In settlement of Staff's allegations, Nordica must pay a civil penalty in the amount of two hundred-fourteen thousand dollars ($214,000.00). The civil penalty shall be paid within twenty (20) calendar days of receiving service of the Commission's final Order accepting the Agreement. The payment shall be made electronically to the CPSC via
21. The parties enter into this Agreement for settlement purposes. The Agreement does not constitute an admission by Nordica or a determination by the Commission that Nordica violated the CPSA's reporting requirements, or that the Skis' binding plates presented a substantial product hazard.
22. Upon provisional acceptance of the Agreement, the Agreement shall be placed on the public record and published in the
23. Upon the Commission's final acceptance of the Agreement and issuance of the final Order, Nordica knowingly, voluntarily, and completely waives any rights it may have in this matter to the following: (1) An
24. The Commission may publicize the terms of the Agreement and the Order.
25. The Agreement and the Order shall apply to, and be binding upon, Nordica and each of its successors and assigns.
26. The Commission issues the Order under the provisions of the CPSA, and a violation of the Order may subject Nordica and each of its successors and assigns to appropriate legal action.
27. The Agreement may be used in interpreting the Order. Understandings, agreements, representations, or interpretations apart from those contained in the Agreement and the Order may not be used to vary or contradict their terms. The Agreement cannot be waived, amended, modified, or otherwise altered without written agreement thereto, executed by the party against whom such waiver, amendment, modification, or alteration is sought to be enforced.
28. If any provision of the Agreement and the Order is held to be illegal, invalid, or unenforceable under present or future laws effective during the terms of the Agreement and the Order, such provision shall be fully severable. The balance of the provisions in the Agreement and the Order shall remain in full force and effect, unless the Commission and Nordica agree that the severed provision materially affects the purpose of the Agreement and the Order.
Upon consideration of the Settlement Agreement entered into between Nordica USA (“Nordica”) and U.S. Consumer Product Safety Commission (“Commission”) staff, and the Commission having jurisdiction over the subject matter and over Nordica, and it appearing that the Settlement Agreement and the Order are in the public interest, it is
By Order of the Commission.
Office of the Under Secretary of Defense for Personnel and Readiness, Department of Defense.
Notice.
Pursuant to Section 10 (a), Public Law 92-463, on September 26, 2011 (76 FR 59388-59389) the Department of Defense Military Family Readiness Council (MFRC) announced a meeting to be held on October 17, 2011. This notice announces that the meeting date and time has been changed to November 21, 2011, from 2 p.m. to 4 p.m. All other information in the original notice remains the same.
The meeting is open to the public, subject to the availability of space. Persons desiring to attend may contact Ms. Melody McDonald at 571-256-1738 or e-mail
Interested persons may submit a written statement for consideration by the Council. Persons desiring to submit a written statement to the Council must notify the point of contact listed below no later than 5 p.m., Wednesday, November 16, 2011.
Pentagon Conference Center M1 (escorts will be provided from the Pentagon Metro entrance).
Ms. Melody McDonald or Ms. Betsy Graham, Office of the Deputy Under Secretary (Military Community & Family Policy), 4000 Defense Pentagon, Room 2E319, Washington, DC 20301-4000. Telephones (571) 256-1738; (703) 697-9283 and/or
Notice of Meeting of the Air University Board of Visitors.
Under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150, the Department of Defense announces that the Air University Board of Visitors' meeting will take place on Monday, November 14th, 2011, from 1 p.m. to 5 p.m. and Tuesday, November 15th, 2011, from 8 a.m. to 5 p.m. The meeting will be held in the Air University Commander's Conference Room located in building 800. Please contact Mrs. Diana Bunch, 334-953-4547 for further details of the meeting location.
The purpose of this meeting is to provide independent advice and recommendations on matters pertaining to the educational, doctrinal, and research policies and activities of Air University. The agenda will include
Pursuant to 5 U.S.C. 552b, as amended, and 41 CFR 102-3.155 all sessions of the Air University Board of Visitors' meeting will be open to the public. Any member of the public wishing to provide input to the Air University Board of Visitors should submit a written statement in accordance with 41 CFR 102-3.140(c) and section 10(a)(3) of the Federal Advisory Committee Act and the procedures described in this paragraph. Written statements can be submitted to the Designated Federal Officer at the address detailed below at any time. Statements being submitted in response to the agenda mentioned in this notice must be received by the Designated Federal Officer at the address listed below at least five calendar days prior to the meeting which is the subject of this notice. Written statements received after this date may not be provided to or considered by the Air University Board of Visitors until its next meeting. The Designated Federal Officer will review all timely submissions with the Air University Board of Visitors' Board Chairperson and ensure they are provided to members of the Board before the meeting that is the subject of this notice. Additionally, any member of the public wishing to attend this meeting should contact either person listed below at least five calendar days prior to the meeting for information on base entry passes.
Mrs. Diana Bunch, Designated Federal Officer, Air University Headquarters, 55 LeMay Plaza South, Maxwell Air Force Base, Alabama 36112-6335, telephone (334) 953-4547.
Department of the Army, Department of Defense (DoD).
Notice to add a system of records; correction.
On October 5, 2011 (76 FR 61680-61682), DoD published a notice announcing its intent to add a new Privacy Act System of Records. The Contesting Records category was inadvertently omitted. This notice corrects that error.
Mr. Leroy Jones, Department of the Army, Privacy Office, U.S. Army Records Management and Declassification Agency, 7701 Telegraph Road, Casey Building, Suite 144, Alexandria, VA 22325-3905, or by phone at (703) 428-6185.
On October 5, 2011, DoD published a notice announcing its intent to add a new system to its inventory of Privacy Act System of Records: A0350-20a TRADOC, Standardized Student Records System. Subsequent to the publication of that notice, DoD discovered that the Contesting Records category was inadvertently omitted.
In the notice published on October 5, 2011 (76 FR 61680-61682) make the following correction: On page 61682, in the third column, before the RECORD SOURCE CATEGORIES paragraph, add “CONTESTING RECORDS PROCEDURES: The Army's rules for accessing records, and for contesting contents and appealing initial agency determinations are contained in Army Regulation 340-21; 32 CFR part 505; or may be obtained from the system manager.”
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 Acting Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, 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 12, 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 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 Acting Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, 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 12, 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.
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 the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities 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 received the following electric rate filings:
Take notice that the Commission received the following electric securities 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 received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities 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 received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities 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 received the following exempt wholesale generator filings:
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 received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
Take notice that the Commission received the following qualifying facility filings:
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 received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities 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
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's regulations, 18 CFR part 380, the Office of Energy Projects has reviewed the application for an original license for the proposed 14,000-kilowatt (kW) Jennings Randolph Hydroelectric Project located on the North Branch Potomac River in Garrett County, Maryland and Mineral County, West Virginia, at the U.S. Army Corps of Engineers' (Corps) Jennings Randolph Dam and has prepared an environmental assessment (EA). In the EA, Commission staff assess the potential environmental effects of licensing the project and conclude that issuing a license for the project, with appropriate environmental measures, would not constitute a major Federal action significantly affecting the quality of the human environment.
A copy of the EA is on file with the Commission and is available for public inspection. The final EA may also be viewed on the Commission's Web site at
You may also register online at
Comments on the EA should be filed within 30 days from the issuance date of this notice, and should be addressed to the Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Room 1-A, Washington, DC 20426. Please affix “Jennings Randolph Hydroelectric Project No. 12715-003” to all comments. Comments may be filed electronically via Internet in lieu of paper. The Commission strongly encourages electronic filings.
See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “eFiling” link. For further information contact Allyson Conner at (202) 502-6082.
Take notice that on September 30, 2011, the North American Electric Reliability Corporation (NERC) filed a petition requesting Federal Energy Regulatory Commission (Commission) approval of new enforcement mechanisms and submitted initial informational filing regarding NERC's efforts to refocus implementation of its compliance monitoring and enforcement program.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 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 comment date. On or before the comment date, it is not necessary to 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
This is a supplemental notice in the above-referenced proceeding of Griffiss Utility Services Corporation's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
This is a supplemental notice in the above-referenced proceeding of Viridity Energy, Inc.'s application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is October 24, 2011.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
This is a supplemental notice in the above-referenced proceeding of GSG 6, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is October 24, 2011.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
a.
b.
c.
d.
e.
g. All local, state, and federal agencies, Indian tribes, and other interested parties are invited to participate. Please e-mail Elana Kimbrell at ekimbrell@kearnswest.com to register to participate.
The Federal Energy Regulatory Commission hereby gives notice that members of its staff may attend the meeting noted below. Their attendance is part of the Commission's ongoing outreach efforts.
This meeting will be held at the Pan American Life Center, 601 Poydras Street, New Orleans, LA 70130.
The discussions may address matters at issue in the following proceedings:
These meetings are open to the public.
For more information, contact Patrick Clarey, Office of Energy Market Regulation, Federal Energy Regulatory Commission at (317) 249-5937 or
Take notice that on September 30, 2011, Public Service Company of Colorado (PSCo) filed a Rate Election pursuant to section 284.123(b)(1) of the Commission's regulations. PSCo proposes to utilize rates that are the same as those contained in PSCo's transportation rate schedules for comparable intrastate service on file with the Colorado Public Utilities Commission, as more fully detailed in the petition.
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 (44 U.S.C. 3501
Additional comments may be submitted on or before November 10, 2011.
Submit your comments, referencing docket ID number EPA-HQ-OECA-2011-0207, to: (1) EPA online using
Learia Williams, Monitoring, Assistance, and Media Programs Division, Office of Compliance, Mail Code 2223A, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460;
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On May 9, 2011 (76
EPA has established a public docket for this ICR under docket ID number EPA-HQ-OECA-2011-0207, which is available for public viewing online at
Use EPA's electronic docket and comment system at
Owners or operators of pesticide active ingredient (PAI) production facilities to which this regulation applies must choose one of the compliance options that are described in the rule or install and monitor a specific control system that reduces hazardous air pollutant (HAP) emissions to the compliance level. The respondents are subject to sections of subpart A of 40 CFR part 63 relating to NESHAP. These requirements include those associated with the applicability determination; the notification that the facility is subject to the rule; the notification of testing [control device performance test and continuous monitoring system (CMS) performance evaluation]; the results of performance testing and CMS performance evaluations; startup, shutdown, and malfunction reports; semiannual or quarterly summary reports, and/or excess emissions reports; and CMS performance reports. In addition to the requirements of subpart A, many respondents are required to submit pre-compliance plan and leak detection and repair (LDAR) reports; and plants that wish to implement emissions averaging provisions must submit an emission-averaging plan.
Respondents electing to comply with the emission limit or emission reduction requirements for process vents, storage tanks, or wastewater must record the values of equipment operating parameters as specified in 40 CFR 63.1367 of the rule.
Owners or operators of PAI production facilities subject to the rule must maintain a file of these measurements, and retain the file for at least five years following the date of such measurements, maintenance reports, and records. All reports are sent to the delegated state or local authority. In the event that there is no such delegated authority, the reports are sent directly to the EPA regional office. This information is being collected to assure compliance with 40 CFR part 63, subpart MMM, as authorized in section 112 and 114(a) of the Clean Air Act. The required information consists of emissions data and other information that have been determined to be private.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB Control Number. The OMB Control Number for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15, and are identified on the form and/or instrument, if applicable.
Because there are no new sources with reporting requirements, no capital/startup costs are incurred. The only cost that is incurred is for the operation and maintenance (O&M) of the monitoring equipment, which have decreased by $333,125 due to the decline in the number of sources, as explained above.
Board of Governors of the Federal Reserve System, Federal Reserve System.
Notice is hereby given of the final approval of a proposed information collection by the Board of Governors of the Federal Reserve System (Board) under OMB delegated authority, as per 5 CFR 1320.16 (OMB Regulations on Controlling Paperwork Burdens on the Public). Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the Paperwork Reduction Act Submission, supporting statements and approved collection of information instrument(s) are placed into OMB's public docket files. The Federal Reserve may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
Board of Governors of the Federal Reserve System, October 4, 2011.
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 November 4, 2011.
A. Federal Reserve Bank of Dallas (E. Ann Worthy, Vice President) 2200 North Pearl Street, Dallas, Texas 75201-2272:
1.
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:
Specifically, ORI found that the Respondent falsified Figure 2C of grant application 1 R01 HL107901-01, “Store-operated calcium entry in airway inflammation,” by altering the gain settings in the instrument used to measure store-operated current (SOC) densities in a whole cell patch clamp experiment comparing Stim 1
The questioned research was not submitted for publication.
Dr. Sanyal has entered into a Voluntary Settlement Agreement with ORI and Duke, in which he voluntarily agreed to the administrative actions set forth below. The administrative actions are required for two (2) years beginning on the date of Dr. Sanyal's employment in a research position in which he receives or applies for PHS support on or after the effective date of the Agreement (September 16, 2011); however, if he has not obtained employment in a research position in which he receives or applies for PHS support within three (3) years of the effective date of the Agreement, the administrative actions set forth below will no longer apply. Dr. Sanyal has voluntarily agreed:
(1) To have his research supervised as described below and to notify his employer(s)/institutions(s) of the terms of this supervision; Respondent agrees to ensure that prior to the submission of an application for PHS support for a research project on which Respondent's participation is proposed and prior to Respondent's participation in any capacity on PHS supported research, the institution employing him will submit a plan for supervision of Respondent's duties to ORI for approval; the plan for supervision must be designed to ensure the scientific integrity of Respondent's research contribution; Respondent agrees that he will not participate in any PHS supported research from the effective date of this Agreement until a plan for supervision is submitted to and approved by ORI; Respondent agrees to be responsible for maintaining compliance with the agreed upon plan for supervision;
(2) that any institution employing him must submit, in conjunction with each application for PHS funds, or report, manuscript, or contract involving PHS supported research in which Respondent is involved, a certification to ORI that the data provided by Respondent are based on actual experiments or are otherwise legitimately derived and that the data, procedures, and methodology are accurately reported in the application, report, manuscript, or abstract; and
(3) 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.
Food and Drug Administration, Centers for Medicare and Medicaid Services, HHS.
Notice.
The Food and Drug Administration (FDA) and the Centers for Medicare and Medicaid Services (CMS) (the Agencies) are soliciting nominations from sponsors of innovative device technologies to participate in a pilot program for concurrent review of certain FDA premarket review submissions and CMS national coverage determinations. The Agencies announced the intention to initiate a pilot program in the
As discussed in the September 17, 2010,
The expected benefits of an FDA-CMS parallel review program were discussed in the September 17, 2010, notice. The anticipated benefits include facilitating development of innovative new products and increased efficiency in the Agencies' review processes.
It has come to our attention that innovators have generally focused solely on obtaining FDA approval, only to later realize that Medicare payment may not automatically be forthcoming.
As stated in the notice of September 17, 2010, parallel review will serve the
The Agencies have developed a pilot program that reflects our review of the comments received on the September 17, 2010, notice and our interest in creating a streamlined process with minimal additional burden to interested sponsor/requesters. This document outlines the: (1) Guiding principles underlying the pilot program; (2) appropriate candidates for the pilot program; (3) procedures FDA and CMS intend to follow in conducting parallel product reviews; and (4) general roles and responsibilities of the sponsor/requester, FDA, and CMS.
In response to comments received, the Agencies have identified basic principles underlying the parallel review pilot program described in this document. The following principles are intended to create a common understanding among the sponsor/requester, FDA, and CMS about the goals and parameters of the parallel review pilot program:
1. Participation in parallel review will not affect the review standard for device approval by FDA or for a coverage determination by CMS.
2. The Agencies will adhere to all statutory and regulatory requirements as stipulated in the memorandum of understanding between FDA and CMS, available at
3. A sponsor/requester may withdraw from, and FDA and CMS may terminate, parallel review up until the time of CMS's public posting of an NCD tracking sheet.
4. The Agencies will not publicly disclose participation of a sponsor/requester in parallel review prior to CMS's posting of an NCD tracking sheet, unless the sponsor/requester consents or has already made this information public or disclosure is required by law. If a sponsor/requester does not wish the information that would be revealed by the posting of the NCD tracking sheet to become public, it must withdraw from parallel review prior to this point.
5. Due to Agency resource issues the pilot program expects to accept no more than three to five candidates per year.
During its pilot phase, the Agencies believe parallel review should focus on truly innovative technologies that are most likely to benefit from the efficiencies of parallel review. Accordingly, appropriate candidates for the parallel review pilot are medical devices which each use the following:
1. New technologies for which the sponsor/requester has had sufficient pre-investigational device exemption (IDE) interaction with FDA or approved IDE application.
2. New technologies for which an original or supplemental application for premarket approval (PMA) or petition for de novo review would be required.
3. New technologies that fall within the scope of a Part A or Part B Medicare benefit category and are not subject to an NCD.
The agencies encourage any interested sponsors who believe their devices are appropriate candidates and would like to explore the use of the pilot program to contact FDA by e-mail at:
For sponsor/requesters of devices that have already had contact with FDA through the pre-IDE or IDE process, much of the information necessary to assess the suitability of a candidate technology should already be in FDA's possession. The Agencies have developed the following procedures to ensure adequate information to assess a candidate's suitability for parallel review without creating a burdensome new application process:
1.
• Name of the sponsor/requester and relevant contact information;
• Pre-IDE/IDE/PMA/De Novo reference number;
• Name of the product;
• Succinct description of the technology and disease or condition the device is intended to diagnose or treat;
• Stage of development of the technology (that is, in preclinical testing, in clinical trials, currently undergoing premarket review by FDA);
• Brief statement explaining why the device is an appropriate candidate for the pilot program as described under the section II.B of this document entitled: “B. Appropriate Candidates.”
2.
3.
4.
5.
6.
The Agencies have outlined the general roles and responsibilities of each participant in the parallel review process to ensure clarity and shared
1.
2.
3.
The Agencies intend to accept requests for participation in the pilot program for parallel review for 2 years. The Agencies may terminate the pilot program before the close of the 2-year period, or may extend the pilot program beyond 2 years. The decisions will be announced in the
The Agencies intend to use their experience with the pilot program to develop a parallel review program not only for devices but also for drugs and biological products. The Agencies anticipate their experience with the parallel review program for devices and feedback from participants in the program will inform guidance for a broader program applicable to all medical products. The Agencies may also determine that they should extend or modify the parallel review pilot program to continue their evaluation.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995 (the PRA).
Fax written comments on the collection of information by November 10, 2011.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB,
Denver Presley, Jr., Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., PI50-400B, Rockville, MD 20850, 301-796-3793.
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
This proposed collection of information entitled “Experiment to Evaluate Risk Perceptions of Produce Growers, Food Retailers, and Consumers After a Food Recall Resulting From a Foodborne Illness Outbreak” will be conducted under a cooperative agreement between the Joint Institute for Food Safety and Applied Nutrition (JIFSAN) and the Center for Risk Communication Research (CRCR) at the University of Maryland. JIFSAN was established in 1996 and is a public and private partnership between FDA and the University of Maryland. The CRCR will design and administer the study.
FDA is requesting OMB approval under the PRA for the CRCR to conduct research with produce growers, food retailers, and consumers to gain information about these groups' risk perceptions associated with produce that has recently been subject to a food recall resulting from a foodborne illness outbreak. The purpose of this research is to help FDA better understand whether the magnitude and duration of the decline in commodity consumption following food recalls can be partly explained by grower and retailer speculations and projections about consumers' attitudes toward food recalls resulting from foodborne illness outbreaks. This research will be used to assess how grower, retailer, and consumer perceptions, attitudes, knowledge, and beliefs affect market recovery after a hypothetical fresh spinach recall.
Epidemiologists define foodborne illness outbreaks as two or more cases of a similar illness resulting from the ingestion of a common food (Ref. 1). Because many foodborne illness cases are mild, most outbreaks are never
When a widespread foodborne illness outbreak results in a food recall, the product can be out of the marketplace for an extended period of time; this occurred when fresh, bagged spinach was recalled in 2006 (Ref. 3). Tomatoes were also less available following the
The CRCR plans to conduct an experiment using a Web-based questionnaire. The center will use a convenience sample of 900 participants (180 growers, 180 retailers, 540 consumers) drawn from industry networks (for the growers and retailers), and a Web-based panel of U.S. households (for the consumers). Participation in the study is voluntary.
This study will help FDA better understand the reasons for the time between a food recall resulting from a foodborne illness outbreak and market recovery. In order to understand the complexities of market recovery process, the CRCR will compare understandings and reactions of growers, retailers, and consumers to a hypothetical food recall resulting from a hypothetical foodborne illness outbreak. To make this comparison, individuals in each group will be assigned to one of the following experimental conditions (consisting of vignettes in the form of news articles on a hypothetical food recall): An “anger” scenario, a “fear” scenario, or a “control” scenario. After reading the news article, participants will complete a questionnaire assessing their emotional response; appraisals; attribution of responsibility; perceptions about the safety of the affected produce; intentions to grow, sell, or buy the affected produce; perceived probability of a repeat event; and a measure of their innate ability to effectively respond to the information in the article.
To help design and refine the questionnaire, we will recruit 25 participants in order to conduct 10 cognitive interviews. We estimate cognitive interview recruitment will take 5 minutes (0.083 hours), for a total of 2 hours. The cognitive interviews are estimated at 1 hour per response for a total of 10 hours for the cognitive interview activities. We expect to send screeners to 800 members of a consumer panel, each taking 2 minutes (0.03 hours) to complete, for a total of 24 hours for the consumer panel screener activity. We also expect to administer 360 screeners to growers and retailers, each taking 2 minutes (0.03 hours) to complete, for a total of 22 hours (11 + 11 = 22). Twenty-four participants (20 consumers, 2 growers, 2 retailers) will complete the pretest. Each pretest will take 10 minutes (0.17 hours) for a total of 5 hours for the pretest activity. We estimate that 900 individuals (540 consumers, 180 growers, and 180 retailers) will complete the questionnaire for the experiment, each taking 10 minutes (0.17 hours) for a total of 153 hours for the experimental study activities. The estimated total hour burden of the collection of information is 216 hours.
In the
(Comment 1) One comment suggested that FDA should include the foodservice distributor community in the study.
(Response) FDA disagrees. FDA is not including the foodservice distributor community as a study sample because the foodservice distributor community is responsive to retail's demands for product. The retail sector is included in the study.
(Comment 2) One comment questioned the need for FDA to apply government resources toward the research question, which was characterized in the comment as a survey of consumers' reactions to food recalls.
(Response) FDA disagrees that the research data are not needed. The proposed study utilizes an experimental design to assess how well industry predicts consumer reaction to a food recall. This information will help FDA in their risk management role during and following a food recall. Risk management involves communicating both with industry and consumers about the important health and economic consequences related to the recall.
FDA estimates the burden of this collection of information as follows:
The following references have been placed on display in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday. (FDA has verified the Web site addresses, but we are not responsible for any subsequent changes to the Web sites after this document publishes in the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by November 10, 2011.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB,
Juanmanuel Vilela, Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., PI50-400B, Rockville, MD 20850, 301-796-7651,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
The Center for Veterinary Medicine's Guidance for Industry #79 “Dispute Resolution Procedures for Science-Based Decisions on Products Regulated by the Center for Veterinary Medicine” describes the process by which the Center for Veterinary Medicine (CVM) formally resolves disputes relating to scientific controversies. A scientific controversy involves issues concerning a specific product regulated by CVM related to matters of technical expertise and requires specialized education, training, or experience to be understood and resolved. Further, the guidance details information on how the Agency intends to interpret and apply provisions of the existing regulations regarding internal Agency review of decisions. In addition, the guidance outlines the established procedures for persons who are sponsors, applicants, or manufacturers, for animal drugs or other products regulated by CVM, that wish to submit a request for review of a scientific dispute. When a sponsor, applicant, or manufacturer has a scientific disagreement with a written decision by CVM, they may submit a request for a review of that decision by following the established Agency channels of supervision for review.
In the
FDA estimates the burden of this collection of information as follows:
This estimated annual reporting burden is based on CVM's experience over the past 3 years in handling formal appeals for scientific disputes. The number of respondents multiplied by the number of responses per respondent equals the total annual responses. The average burden per response (in hours) is based on discussions with industry and may vary depending on the complexity of the issue(s) involved and the duration of the appeal process.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that it will not hold a public meeting to discuss the results of a 2-year voluntary pilot program that enabled participating pharmaceutical firms to evaluate proposed proprietary names and submit the data generated from those evaluations for FDA to review. FDA anticipated holding a public meeting at the end of fiscal year 2011 to discuss the results of the pilot program, but the Agency did not receive sufficient pilot submissions to form a basis for discussion. Interested parties may submit to the docket any additional comments on the pilot program. As previously announced, FDA plans to publish a draft guidance describing the best test methods for proprietary name evaluation.
Submit either electronic or written comments by November 10, 2011.
Submit electronic comments on the pilot program or this document to
In Title I of the Food and Drug Administration Amendments Act of 2007 (Pub. L. 110-85), Congress reauthorized and expanded the Prescription Drug User Fee program for fiscal years 2008 to 2012 (PDUFA IV). In performance goals agreed to in conjunction with the reauthorization of PDUFA IV, FDA agreed to publish a concept paper on and implement a pilot program to enable pharmaceutical firms to evaluate proposed proprietary names and submit the data generated from those evaluations to FDA for review. (See IX.B at
In June 2008, FDA held a public technical meeting (see 73 FR 27001, May 12, 2008) to discuss a draft concept paper describing the pilot program and FDA's thinking about how pharmaceutical firms could participate in the pilot program to evaluate proposed proprietary names and submit the data generated to FDA for review. After considering comments from the meeting and the public docket, FDA announced the availability of the concept paper entitled “PDUFA Pilot Project Proprietary Name Review” in the
In the
FDA began accepting requests to participate in the pilot program on October 1, 2009, and the pilot program ended on September 30, 2011. Although three applicants registered to participate during the 2-year period, FDA received only one complete submission for pilot program review, which is not a sufficient number to assess the feasibility of industry conducting reviews of proposed proprietary names. Therefore, the public meeting that was anticipated to occur at the end of fiscal year 2011 to assess the pilot program for evaluation of proposed proprietary names will not be held because of insufficient participation. The pilot program docket (docket number FDA-2008-N-0281) has remained open for comment during the 2-year pilot program, and FDA has invited comments on human factor testing. In lieu of a public meeting, interested persons may submit any additional comments to the docket. After the close of the public comment period, FDA intends to publish a draft guidance
Interested persons may submit to the Division of Dockets Management (see
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Public Law 92-463), notice is hereby given of the following meeting:
The public can join the meeting by:
1. Calling Conference Phone Number: 888-790-3527 and providing Participant Code: 8064893, for the audio portion,
2. Connecting to the ACBSCT Adobe Connect Pro Meeting for the visual portion using the following URL:
Call (301) 443-0437 or send an e-mail to ptongele@hrsa.com if you are having trouble connecting to the meeting site.
Participants should call no later than 9:45 am EDT in order for logistics to be set up.
If you have never attended an Adobe Pro Connect Meeting, please test your connection using the following URL: https://hrsa.connectsolutions.com/common/help/en/support/meeting_test.htm.
For quick overview, please access:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.),notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and thediscussions could disclose confidential trade secrets or commercial property such as patentablematerial, and personal information concerning individuals associated with the grant applications,the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Institutes of Health (NIH), Public Health Services (PHS), Department of Health and Human Services, (DHHS).
Notice of Final Action under the
The Office of Biotechnology Activities (OBA) is updating Appendix B of the
The classification of agents into various RG categories is based largely on their ability to cause human disease and the availability of treatments for that disease. For the most part, the organisms listed in Appendix B are wild-type, non-attenuated strains and a distinction is not made between the RG classification for the wild-type organism and a corresponding attenuated strain. A few attenuated strains are classified in Appendix B at a lower RG than that of the wild-type organism. However, there are a number of well-established attenuated strains commonly employed in research that are not specifically listed and thus by default are included in the same RG as the wild-type organism. Therefore, the biosafety level (BL) specified for research subject to the
OBA has conducted an evaluation of certain attenuated strains, focusing on those for which a risk assessment had been undertaken and containment recommendations determined in the Centers for Disease Control and Prevention (CDC)/NIH publication
Specifying the risk groups for attenuated strains in Appendix B of the
OBA consulted the NIH RAC as well as other subject matter experts from NIH, CDC, and academia. These proposed changes were published in the
Certain attenuated strains or strains that have been demonstrated to have irreversibly lost known virulence factors may qualify for a reduction of the containment level compared to the Risk Group assigned to the parent strain (see Appendix B,
In addition to the change to the first paragraph of Section II-A-3, the following additions will be made to
The following footnote will be added regarding research with attenuated strains of
The following changes/additions will be made to
The following additions will be made to
United States Coast Guard.
Committee Management; Notice of Federal Advisory Committee Meeting.
The National Offshore Safety Advisory Committee (NOSAC) will meet on November 15, 2011, in Houston, Texas to discuss various issues related to safety of operations and other matters affecting the oil and gas offshore industry. The meeting will be open to the public.
NOSAC will meet Tuesday, November 15, 2011, from 9 a.m. to 4 p.m. Please note that the meeting may close early if the committee has completed its business or be extended based on the level of public comments.
The meeting will be held at Hilton Houston NASA Clear Lake, Discovery Ballroom, 3000 NASA Road One, Houston, Texas, 77058-4322.
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 November 1, 2011, and must be identified by USCG-2011-0877 and may be submitted by
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A public comment period will be held during the meeting on November 15, 2011, and speakers are requested to limit their comments to 3 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.
Commander Rob Smith, Designated Federal Officer of NOSAC, Commandant (CG-5222), U.S. Coast Guard, 2100 Second Street, SW., Stop 7126, Washington, DC 20593-0001 or Mr. Kevin Pekarek, Alternate Designated Federal Officer of NOSAC, Commandant (CG-5222), U.S. Coast Guard, 2100 Second Street, SW., Stop 7126, Washington, DC 20593-0001; telephone (202) 372-1386, fax (202) 372-1926. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.
Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. App. (Pub. L. 92-463). The National Offshore Safety Advisory Committee (NOSAC) provides advice and recommendations to the Department of Homeland Security on matters and actions concerning activities directly involved with or in support of the exploration of offshore mineral and energy resources insofar as they relate to matters within Coast Guard jurisdiction.
The NOSAC will meet, review and discuss reports and recommendations received from the Medical Evacuation of Injured Divers subcommittee and the Mississippi Canyon Incident Report subcommittee. The Committee will then use this information to formulate recommendations to the agency.
A complete agenda is as follows:
(1) Roll call of committee members and determination of a quorum.
(2) Approval of minutes from the May 19, 2011, meeting.
(3) Committee Administration.
a. Introduction of new members.
b. Nominations for Committee Chair and Vice Chair for presentation to the Commandant.
c. Discussion of Committee By-Laws.
d. DFO announcements.
(4) Presentation and discussion of reports and recommendations from the subcommittees on:
(a) Medical Evacuation of Injured Divers.
(b) Mississippi Canyon Incident Reports subcommittee, to include the appointment of a Co-chairman.
(5) Establishment of a sub-committee to work on the task to evaluate the requirements for licensing mariners who will man and operate large OSVs.
(6) Offshore Operators Committee (OOC) update regarding medical evacuations from the OCS.
(7) An update on USCG regulations and Federal Register notices.
(8) USCG Briefing on Joint Investigation Team for DEEPWATER HORIZON drilling rig explosion and sinking.
(9) Update from the Bureau of Ocean Energy Management Regulation and Enforcement concerning their reorganization, rules and regulations, etc. Discussion to include USCG/BOEMRE Memorandum of Agreement OCS-06 and contracting of the National Research Council's Marine Board to conduct a study on regulating worker safety in connection with the development of offshore renewable energy on the Outer Continental Shelf (OCS).
(10) EO 13580—Domestic Energy Development and Permitting in Alaska; USCG and BOEMRE processes involved.
(11) Updates on International Maritime Organization (IMO) activities of interest to the OCS community.
(12) Briefing on the activities of Ocean Energy Safety Advisory Committee.
(13) Use of Liquefied Natural Gas (LNG) as fuel for internal engines.
(14) Period for Public comment.
(15) Adjournment of meeting.
A copy of each report is available at the
The meeting will be recorded by a court reporter. A transcript of the meeting and any material presented at the meeting will be made available through the
The committee will review the information presented on each issue, deliberate on any recommendations presented in the subcommittees' reports, and formulate recommendations for the Department's consideration. The committee will also receive tasking from CDR Rob Smith, Designated Federal Officer, on evaluating the various requirements for licensing mariners who will man and operate large OSVs, and to make recommendations on same.
Transportation Security Administration, DHS.
30-day Notice.
This notice announces that the Transportation Security Administration (TSA) has forwarded the Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652-0050, abstracted below to OMB for review and approval of an extension of the currently approved collection under the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. TSA published a
Send your comments by November 10, 2011. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, OMB. Comments should be addressed to Desk Officer, Department of Homeland Security/TSA, and sent via electronic mail to
Joanna Johnson, TSA PRA Officer, Office of Information Technology (OIT), TSA-11, Transportation Security Administration, 601 South 12th Street, Arlington, VA 20598-6011; telephone (571) 227-3651; e-mail
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement 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;
(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 using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Once updated critical facility information is obtained, TSA intends to visit critical pipeline facilities and collect site-specific information from pipeline operators on facility security policies, procedures, and physical security measures. Information obtained on the visits will be collected on a Critical Facility Security Review (CFSR) Form. The CFSR will differ from TSA's Corporate Security Review (CSR) in that a CSR looks at corporate or company-wide security management plans and practices while the CFSR will look at individual pipeline facility security measures and procedures. TSA is seeking OMB approval to utilize the CFSR document during critical facility reviews in order to collect facility security information. Information collected from the reviews would be analyzed and used to determine strengths and weaknesses at the nation's critical pipeline facilities, areas to target for risk reduction strategies, pipeline industry implementation of the voluntary guidelines, and the need for regulations in accordance with Section 1557(d) of the Implementing the Recommendations of the 9/11 Commission Act of 2007. TSA anticipates visiting 120 critical facilities each year.
As part of this collection process, TSA intends to follow-up with pipeline operators on their implementation of security improvements and recommendations made during facility visits. During critical facility visits, TSA documents and provides recommendations to improve the security posture of the facility. TSA intends to follow-up with pipeline operators via email on their status toward implementation of the recommendations made during the critical facility visits. The follow-up will be conducted between approximately 12 and 24 months after the facility visit.
TSA will use the information collected to determine to what extent the pipeline industry is implementing the 2011 guidance document and security improvement recommendations made during critical facility visits. The information provided by owners or operators for each information collection is Sensitive Security Information (SSI), and it will be protected in accordance with procedures meeting the transmission, handling and storage requirements of SSI set forth in 49 CFR parts 15 and 1520.
Bureau of Land Management, Interior.
Notice of Intent.
In compliance with the National Environmental Policy Act of 1969 (NEPA), as amended, and the Federal Land Policy and Management Act of 1976 (FLPMA), as amended, the Bureau of Land Management (BLM) San Luis Valley Public Lands Center, Monte Vista, Colorado, intends to prepare a Resource Management Plan (RMP) Amendment with an associated Environmental Assessment (EA) and by this notice is announcing the beginning of the scoping process to solicit public comments and identify issues.
This notice initiates the public scoping process for the RMP amendment and associated EA. Comments on issues and planning criteria may be submitted in writing by November 10, 2011. The date(s) and location(s) of any scoping meetings will be announced at least 15 days in advance through local media and newspapers. In order to be included in the RMP amendment and associated EA, all comments must be received prior to the close of the 30 day scoping period or 30 days after the last public meeting, whichever is later. We will provide additional opportunities for public participation upon publication of the Draft RMP amendment and associated EA.
You may submit comments related to the proposed RMP amendment by any of the following methods:
•
•
•
Documents pertinent to this plan amendment and associated EA may be examined at the La Jara Field Office.
For further information and/or to have your name added to our mailing list, contact Jill Lucero, Interdisciplinary Team Lead, (719) 274-6327; see address above; e-mail
This document provides notice that the BLM La Jara Field Office La Jara, Colorado, intends to prepare an RMP amendment and associated EA for the San Luis Valley Public Lands Center, announces the beginning of the scoping process, and seeks public input on issues and planning criteria. The EA will analyze the BLM proposal to amend the San Luis Resource Area (SLRA) Resource Management Plan (RMP) of September 1991, to expand the Blanca Wetlands Area of Critical Environmental Concern (ACEC) and to analyze the terms, along with the compatibility and suitability, of three grazing allotments—one allotment within the Blanca Wetlands ACEC (Blanca allotment) and two allotments adjacent to the current ACEC (Lakes and Dry Lakes allotments). The purpose of the public scoping process is to determine relevant issues that will influence the scope of the environmental analysis, including alternatives, and guide the process for amending the RMP. The RMP amendment and associated EA will specifically address resources in the project area that may be affected. The BLM welcomes public comments concerning the RMP amendment and associated EA and on the following proposed planning criteria:
1. The BLM intends to continue to manage the SLRA in accordance with FLPMA, (43 U.S.C. 1701.
2. The BLM intends to use a collaborative, multi-jurisdictional approach with local, state, tribal and Federal agencies to jointly determine the desired future condition of public lands and provide consistency with existing plans and policies to the extent that those plans and policies are consistent with Federal law governing the administration of public land.
3. The BLM intends to limit its RMP amendment to enlarging the Blanca Wetlands ACEC and analyzing the three range allotments (Lakes, Dry Lakes and Blanca).
4. The BLM intends to address the socioeconomic impacts of the alternatives.
5. The amendment process will follow the NEPA planning process and will include an EA. If a Finding of No Significant Impact cannot be reached, an EIS will follow.
At present, the BLM has identified the following preliminary issues concerning the RMP amendment and associated EA. The BLM welcomes public comments on potential issues in addition to those identified here:
1. Compatibility of grazing with wetland habitat and waterbird production;
2. Need for restoration and connectivity of wetland habitat;
3. Impacts to cultural resources;
4. Impacts to mineral resource production;
5. Potential for recreational development and conflicts in priorities between recreation and wildlife.
The BLM will use and coordinate the NEPA commenting process to help fulfill the public involvement process under Section 106 of the National Historic Preservation Act (16 U.S.C. 470f) as provided for in 36 CFR 800.2(d)(3). Native American tribal consultations will be conducted in accordance with policy, and tribal concerns will be given due consideration, including impacts on Indian trust assets. Federal, state and local agencies, and tribes—along with other stakeholders that may be interested or affected by the BLM's decision on this project—are invited to participate in the scoping process and, if eligible, may request or be contacted by the BLM to participate as a cooperating agency. You may submit comments on issues and planning criteria in writing to the BLM at any public scoping meeting, or you may submit them to the BLM using one of the methods listed in the
The BLM will use an interdisciplinary approach to develop the RMP amendment in order to consider the resource issues and concerns identified during public scoping. The planning process will include specialists with expertise in rangeland management, minerals and geology, forestry, outdoor recreation, archaeology, botany, wildlife, fisheries, lands and realty, hydrology, soils, vegetation and fire.
40 CFR 1501.7 and 43 CFR 1610.2.
Bureau of Land Management, Interior.
Notice of Intent.
In compliance with the National Environmental Policy Act of 1969, as amended, and the Federal Land Policy and Management Act of 1976, as amended, the Bureau of Land Management (BLM) Southern Nevada District, Las Vegas Field Office, intends to prepare an Environmental Impact Statement (EIS) and by this notice is announcing the beginning of the scoping process to solicit public comments and identify issues.
This notice initiates the public scoping process for the EIS. Comments on issues may be submitted in writing until December 12, 2011. The date(s) and location(s) of any scoping meetings will be announced at least 15 days in advance through local news media, newspapers, and the BLM Web site at:
You may submit comments related to the Valley Electric Association Hidden Hills Transmission Project by any of the following methods:
•
•
•
•
Documents pertinent to this proposal may be examined at the BLM Southern Nevada District Office.
Gregory Helseth, Renewable Energy Project Manager, (702) 515-5173; or e-mail
The applicant, Valley Electric Association (VEA), has requested a right-of-way authorization for the construction, operation, maintenance, and termination of transmission infrastructure improvements in Pahrump and Sandy Valleys to Jean, Nevada, and terminating at Eldorado Substation near McCullough Pass. The proposed project will support the delivery of 500 megawatts into the VEA transmission system through the development of a solar electric generating facility to be located on private land in Inyo County, California. The proposed improvements may also support the development of additional renewable resource generation facilities in Nevada.
The proposed transmission upgrades would consist of the following new or expanded facilities on BLM managed land:
• A new 10-acre Tap 230/500 kilovolt (kV) Substation (Tap Substation) located immediately northeast of the existing VEA 138 kV and VEA 230 kV transmission line alignments adjacent to Highway 160.
• Approximately 53.7 miles of new 500 kV single-circuit transmission line from the Tap Substation to the existing Eldorado Substation.
• Approximately 9.7 miles of new 230 kV single-circuit transmission line from the solar electric generating facility site in Inyo County, California to the new Tap Substation.
• Improvement of existing VEA facilities to accommodate the necessary interconnections at Pahrump Substation, Vista Substation, Gamebird Substation, Charleston Substation, and Eldorado Substation.
• Installation of a buried 9.3 mile, 12-inch natural gas pipeline, which would extend from the solar electric generating facility site in Inyo County, California, to the existing VEA 230 kV transmission line. From this location, a 36-inch line would turn southeast and continue 26 miles to where it intersects the existing Kern River Gas Transmission pipeline.
• Construction and operation of new and improved existing access roads
• Temporary work areas associated with construction activities, material storage, and staging.
The proposed transmission project is in conformance with the 1998 Las Vegas Resource Management Plan and does not require a land use plan amendment.
The purpose of the public scoping process is to ascertain the relevant issues that will influence the scope of the environmental analysis, including alternatives, and guide the process for developing the EIS. At present, the BLM has identified the following preliminary issues: threatened and endangered species, visual resource impacts (including visual effects to the Old Spanish Trail National Historic Trail), recreation impacts, socioeconomic effects, and connected and cumulative actions.
The BLM will utilize and coordinate the NEPA commenting process to satisfy the public involvement process for Section 106 of the National Historic Preservation Act (NHPA) (16 U.S.C. 470f) as provided for in 36 CFR 800.2(d)(3). Native American tribal consultations will be conducted in accordance with policy, and tribal concerns will be given due consideration, including impacts on Indian trust assets. Federal, State, and local agencies, as well as individuals, organizations, or tribes that may be interested or affected by the BLM's decision on this project are invited to participate in the scoping process and, if eligible, may request or be requested by the BLM to participate as a cooperating agency.
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Land Management, Interior.
Notice of Filing of Plats of Survey; Arizona.
The plats of survey of the described lands were officially filed in the Arizona State Office, Bureau of Land Management, Phoenix, Arizona, on dates indicated.
The plat representing the dependent resurvey of a portion of the east boundary and a portion of the subdivisional lines, Township 1 North, Range 4 East, accepted September 26, 2011, and officially filed September 30, 2011, for Group 1076, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Western Regional Office.
The plat representing the dependent resurvey of a portion of the north boundary, a portion of the subdivisional lines, a portion of the subdivision of section 8 and portions of a metes-and-bounds survey of the south boundary of the Salt River Pima-Maricopa Indian Community and the subdivision of section 3, Township 1 North, Range 5 East, accepted September 26, 2011, and officially filed September 30, 2011, for Group 1076, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Western Regional Office.
The plat representing the dependent resurvey of a portion of the subdivisional lines and a portion of the subdivision of section 34, Township 2 North, Range 5 East, accepted September 26, 2011, and officially filed September 30, 2011, for Group 1076, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Western Regional Office.
A person or party who wishes to protest against any of these surveys must file a written protest with the Arizona State Director, Bureau of Land Management, stating that they wish to protest.
A statement of reasons for a protest may be filed with the notice of protest to the State Director, or the statement of reasons must be filed with the State Director within thirty (30) days after the protest is filed.
These plats will be available for inspection in the Arizona State Office, Bureau of Land Management, One North Central Avenue, Suite 800, Phoenix, Arizona 85004-4427. 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.
Bureau of Land Management, Interior.
Notice of final supplementary rules.
The Bureau of Land Management (BLM) Grand Junction Field Office (GJFO) is implementing supplementary rules to regulate conduct on public lands within the North Fruita Desert Management Area (NFDMA). These supplementary rules are needed to implement decisions found in the 2004 North Fruita Desert Management Plan (NFDMP) to protect public lands, resources, and public health, and provide for public safety.
You may send inquiries to the Bureau of Land Management, 2815 H Road, Grand Junction, Colorado 81506, or email comments to
Bryce Stewart, BLM Ranger, Bureau of Land Management, Grand Junction Field Office, at the address listed above or by telephone at 970-244-3070.
43 U.S.C. 1740, 43 U.S.C. 315a, and 43 CFR 8365.1-6.
Recreation resource management decisions for the GJFO were detailed in the Grand Junction Resource Area (GJRA) Resource Management Plan (RMP) in 1987. The Grand Valley, including the North Fruita Desert, was designated as an Intensive Recreation Management Area (IRMA) in the RMP. The RMP recommended additional planning for the IRMA due to its distinguishing characteristics and significant opportunities for recreation. The NFDMP and the supporting environmental assessment (EA) approved in 2004 fulfill the obligation of the GJFO to complete a site-specific recreation plan for this area. They establish management objectives and identify management strategies to achieve those objectives. The final rules published today are consistent with direction for recreation actions in the BLM's National Mountain Bicycling Strategic Action Plan (2002) and the BLM's National Management Strategy for Motorized Off-Highway Vehicle Use on Public Lands (2001). The BLM has added definitions in the final rule to clarify the meaning of camping, day-use areas, designated trails, firearms, vehicles, mechanized vehicles, off-road vehicles, and Special Recreation Management Areas. The BLM revised proposed rule number six to clarify allowable uses on roads and trails. That proposed rule was broken into four separate rules for clarification. The BLM revised proposed rule eight to clarify access to day-use areas for hunting. Possession of an off-road vehicle was inadvertently left out of proposed rule number four and was added in the final rule for consistency with rule numbers five and six. The BLM also clarified penalties under the Taylor Grazing Act of 1934. Otherwise, with the exception of minor non-substantive grammatical and formatting changes, the final rules remain as proposed.
The BLM GJFO proposed these supplementary rules in the
The BLM agrees with this comment and has made changes in final rule number nine.
These supplementary rules are not significant regulatory actions and are not subject to review by the Office of Management and Budget under Executive Order 12866. These supplementary rules will not have an annual effect of $100 million or more on the economy. They 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. These supplementary rules will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. The supplementary rules do not materially alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients; nor do they raise any novel legal or policy issues. These supplementary rules merely establish rules of conduct for public use of a limited area of public lands.
Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. The BLM invites public comments on how to make these supplementary rules easier to understand, including answers to questions such as the following:
1. Are the requirements in the supplementary rules clearly stated?
2. Do the supplementary rules contain technical language or jargon that interferes with their clarity?
3. Does the format of the supplementary rules (grouping and order of sections, use of headings, paragraphing,
4. Is the description of the supplementary rules in the
Please send any comments you have on the clarity of the rules to the address specified in the
The NFDMP amends the GJRA RMP and supports BLM policies. In 2002, an EA (CO-130-02-008-EA) was initiated to provide the environmental analysis necessary to implement these final supplementary rules, and the Decision Record (DR) was signed in 2004. These supplementary rules would give the BLM the tools to enforce the measures approved in the 2004 DR by allowing the BLM to enforce decisions developed to protect public health and safety and improve the protection of recreational and public land resources. These rules do not change any of the NEPA analysis or decisions in the 2004 DR. These rules are established for the purpose of enforcing the actions and protecting the resources identified in CO-130-02-008-EA.
The BLM reviewed CO-130-02-008-EA and found that the supplementary rules do not constitute a major Federal action significantly affecting the quality of the human environment under Section 102(2)(C) of NEPA, 42 U.S.C. 4332(2)(C). The DR and Finding of No Significant Impact (FONSI) were signed on November 8, 2004 (CO-130-02-008-EA, p. 74). The BLM placed the EA, DR and FONSI on file in the BLM Administrative Record, and invites the public to review these documents at the address specified in the
Congress enacted the Regulatory Flexibility Act (RFA) of 1980, as amended (5 U.S.C. 601-612), to ensure that government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. These supplementary rules merely establish rules of conduct for public use of a limited area of public lands. Therefore, the BLM has determined under the RFA that these supplementary rules would not have a significant economic impact on a substantial number of small entities.
These supplementary rules are not considered a “major rule” as defined under 5 U.S.C. 804(2). The supplementary rules merely establish rules of conduct for public use of a limited area of public lands.
These supplementary rules do not impose an unfunded mandate on state, local, or tribal governments in the aggregate, or the private sector, of more than $100 million per year; nor do they have a significant or unique effect on small governments. The rules have no effect on governmental or tribal entities and would impose no requirements on any of these entities. The supplementary rules merely establish rules of conduct for public use of a limited area of public lands. Therefore, the BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
These supplementary rules do not have significant takings implications, nor are they capable of interfering with Constitutionally-protected property rights. The supplementary rules merely establish rules of conduct for public use of a limited area of public lands. Therefore, the BLM has determined that these rules will not cause a “taking” of private property or require preparation of a Takings Assessment under this Executive Order.
These supplementary rules will not have a substantial direct effect on the states, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of government. These supplementary rules do not come into conflict with any state law or regulation. Therefore, in accordance with Executive Order 13132, the BLM has determined that these supplementary rules do not have sufficient Federalism implications to warrant preparation of a Federalism Assessment.
Under Executive Order 12988, the BLM has determined that these rules will not unduly burden the judicial system and that they meet the requirements of Sections 3(a) and 3(b)(2) of Executive Order 12988.
In accordance with Executive Order 13175, the BLM has found that these supplementary rules do not include policies that have tribal implications. The supplementary rules merely establish rules of conduct for public use of a limited area of public land and do not affect land held for the benefit of Indians or Alaska Natives or impede their rights.
These final supplementary rules do not directly provide for any information collection that the Office of Management and Budget must approve under the Paperwork Reduction Act, 44 U.S.C. 3501
Under Executive Order 13211, the BLM has determined that these supplementary rules are not a significant energy action, and would not have an adverse effect on energy supplies, production, or consumption.
The principal author of these supplementary rules is Eric Boik, Field Staff Ranger, Bureau of Land Management, Grand Junction Field Office, 2815 H Road, Grand Junction, Colorado 81506.
For the reasons stated in the preamble, and under the authorities for supplementary rules found at 43 U.S.C. 1740, 43 U.S.C. 315a, and 43 C.F.R. 8365.1-6, the Colorado State Director, issues final supplementary rules for public lands within the NFDMA, Colorado, to read as follows:
(1) Any non-amphibious registered motorboat;
(2) Any military, fire, emergency, or law enforcement vehicle while being used for emergency purposes;
(3) Any vehicle whose use is expressly authorized by the authorized officer, or otherwise officially approved;
(4) Vehicle in official use; and
(5) Any combat or combat support vehicle when used in times of national defense emergencies. (See 43 CFR 8340.0-5).
Unless otherwise authorized, the following acts are prohibited on public lands within the North Fruita Desert Management Area:
1. You must not start or maintain a fire outside of a metal fire ring at sites or areas where fire rings are provided by
2. You must not start or maintain a fire in sites or areas not designated as open for such use by a BLM sign or map. Mechanical stoves or other appliances fueled by gas and equipped with a valve that allows the operator to control the flame are exempt from this rule.
3. You must not cut, collect, or use live, dead, or down wood except in areas designated as open to such use by a BLM sign or map.
4. You must not operate or be in possession of an off-road vehicle or mechanized vehicle on any road which is not designated as open to such use by a BLM sign or map.
5. You must not operate or be in possession of an off-road vehicle or mechanized vehicle on any trail which is not designated as open to such use by a BLM sign or map.
6. You must not ride or be in possession of horses or other pack animals on any trail which is not designated as open to such use by a BLM sign or map.
7. Where pedestrian travel is restricted to a designated trail or route, you must not travel cross-country off the designated trail or route.
8. You must not discharge a firearm or other projectile shooting device of any kind, including those used for target shooting or paintball, where a BLM sign or map indicates a no-shooting area. Licensed hunters in pursuit of game during a legal hunting season with appropriate firearms, as defined by the Colorado Division of Wildlife, are exempt from this rule.
9. You must not enter or remain in a designated day-use area after sunset or before sunrise. Licensed hunters in pursuit of game during the proper season, as defined by the Colorado Division of Wildlife, are exempt from this rule.
10. You must not enter an area that is designated as closed by a BLM sign or map.
11. You must not camp in sites or areas not designated as open to camping by a BLM sign or map.
12. You must not burn wood or other material containing nails, glass, or any metal.
13. You must not park a vehicle in areas not designated for parking by a BLM sign or map.
14. You must not bring any dog into the NFDMA that is not controlled by visual, audible, or physical means.
15. You must remove and properly dispose of solid dog waste as indicated by a BLM sign or map.
16. You must properly dispose of solid human waste as indicated by a BLM sign or map.
17. You must not operate or be in possession of an off-road vehicle that produces sound exceeding 96 decibels.
The following persons are exempt from these supplementary rules: Any Federal, state, local, and/or military persons acting within the scope of their official duties; members of any organized rescue or fire-fighting force in performance of an official duty; and persons, agencies, municipalities, or companies holding an existing special-use permit inside the NFDMA and operating within the scope of their permit.
Under the Taylor Grazing Act of 1934, 43 U.S.C. 315a, any willful violation of these supplementary rules on public lands within a grazing district shall be punishable by a fine of not more than $500.
Under section 303(a) of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1733(a) and 43 CFR 8360.0-7, any person who knowingly and willfully violates any of these supplementary rules on public lands within the NFDMA may be tried before a United States Magistrate and fined no more than $1,000, imprisoned for no more than 12 months, or both. Such violations may also be subject to the enhanced fines provided for by 18 U.S.C. 3571.
Bureau of Land Management, Interior.
Notice of final supplementary rules.
The Bureau of Land Management (BLM) Grand Junction Field Office (GJFO) is implementing supplementary rules to regulate conduct on public lands within Bangs Canyon Special Recreation Management Area (BCSRMA). These supplementary rules are needed to implement decisions found in the 1999 Bangs Canyon Special Recreation Management Area Management Plan (BCSRMAMP) and the Grand Junction Resource Management Plan (GJRMP). These rules are needed to protect natural resources located within the BCSRMA and provide for public health and safety.
You may send inquiries to the Bureau of Land Management, Grand Junction Field Office, 2815 H Road, Grand Junction, Colorado 81506, or e-mail comments to
Bryce Stewart, Ranger, Bureau of Land Management, Grand Junction Field Office, at the address listed above or by telephone at (970) 244-3070.
43 U.S.C. 1740, 43 U.S.C. 315a, and 43 CFR 8365.1-6
Recreation resource management decisions for the GJFO were detailed in the GJRMP in 1987. The Grand Valley, including the Bangs Canyon area, was designated as an Intensive Recreation Management Area (IRMA) in the GJRMP. The plan recommended additional planning for the IRMA due to its distinguishing characteristics and significant recreation opportunities. The BCSRMAMP was approved in 1999 and the subsequent BCSRMA implementation plan and environmental assessment (EA) were approved in 2006, fulfilling the GJFO obligation to complete site-specific plans for this area. The BCSRMAP establishes management objectives and identifies management strategies to achieve those objectives while the BCSRMA implementation plan provides site-specific direction and analysis of management actions. The final rules are consistent with the BLM's National Management Strategy for Motorized Off-Highway Vehicle Use on Public Lands (2001). The BLM has added definitions to the final rule to clarify the meaning of camping, day-use areas, designated trails, firearms, vehicles, mechanized
The BLM proposed these supplementary rules in the
These supplementary rules are not significant regulatory actions and are not subject to review by the Office of Management and Budget under Executive Order 12866. These supplementary rules will not have an annual effect of $100 million or more on the economy. They 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. These supplementary rules will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. The supplementary rules do not materially alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients, nor do they raise novel legal or policy issues. These supplementary rules merely establish rules of conduct for public use of a limited area of public lands.
Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. The BLM invites public comments on how to make these supplementary rules easier to understand, including answers to questions such as the following:
1. Are the requirements in the supplementary rules clearly stated?
2. Do the supplementary rules contain technical language or jargon that interferes with their clarity?
3. Does the format of the supplementary rules (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce clarity?
4. Is the description of the supplementary rules in the
Please send any comments you have on the clarity of the rules to the address specified in the
Between 1995 and 1999, the Bangs Canyon Citizens Advisory Group formed and convened a series of public meetings, working group meetings, and field trips to accomplish additional planning outlined in the GJRMP, eventually developing recommendations on how the Bangs Canyon area should be managed. These recommendations were endorsed by the Northwest Resource Advisory Council and compiled into a non-NEPA document known as the BCSRMAMP. In December 2003, environmental assessment CO-130-04-018-EA was initiated to provide the environmental analysis necessary to implement these recommendations, and a Decision Record (DR) was signed in 2006. These supplementary rules would allow the BLM to implement the measures approved in the 2006 DR by allowing the BLM to enforce decisions developed to protect public health and safety and improve the protection of recreational and public lands resources. These rules do not change any of the NEPA analysis or recommendations from the DR signed in 2006. These rules are established for the purpose of enforcing the actions and protecting the resources identified in CO-130-04-018-EA.
The BLM reviewed CO-130-04-018-EA and found that the supplementary rules do not constitute a major Federal action significantly affecting the quality of the human environment under Section 102(2)(C) of NEPA, 42 U.S.C. 4332(2)(C). The DR and Finding of No Significant Impact (FONSI) were signed on April 5, 2006 (CO-130-04-018-EA, p. 11). The BLM placed the EA, DR and FONSI on file in the BLM Administrative Record, and invites the public to review these documents at the address specified in the
Congress enacted the Regulatory Flexibility Act (RFA) of 1980, as amended (5 U.S.C. 601-612), to ensure that government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. These supplementary rules merely establish rules of conduct for public use of a limited area of public lands. Therefore, the BLM has determined under the RFA that these supplementary rules would not have a significant economic impact on a substantial number of small entities.
These supplementary rules are not considered a “major rule” as defined under 5 U.S.C. 804(2). The supplementary rules merely establish rules of conduct for public use of a limited area of public lands.
These supplementary rules do not impose an unfunded mandate on state, local, or tribal governments in the aggregate, or the private sector, of more than $100 million per year; nor do they have a significant or unique effect on small governments. The rules have no effect on governmental or tribal entities and would impose no requirements on any of these entities. The supplementary rules merely establish rules of conduct for public use of a limited area of public lands. Therefore, the BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
These supplementary rules do not have significant takings implications, nor are they capable of interfering with Constitutionally-protected property rights. The supplementary rules merely establish rules of conduct for public use
These supplementary rules will not have a substantial direct effect on the states, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of government. These supplementary rules do not come into conflict with any state law or regulation. Therefore, in accordance with Executive Order 13132, the BLM has determined that these supplementary rules do not have sufficient Federalism implications to warrant preparation of a Federalism Assessment.
Under Executive Order 12988, the BLM has determined that these rules will not unduly burden the judicial system and that they meet the requirements of Sections 3(a) and 3(b)(2) of Executive Order 12988.
In accordance with Executive Order 13175, the BLM has found that these supplementary rules do not include policies that have tribal implications. The supplementary rules merely establish rules of conduct for public use of a limited area of public land and do not affect land held for the benefit of Indians or Alaska Natives or impede their rights.
These final supplementary rules do not directly provide for any information collection that the Office of Management and Budget must approve under the Paperwork Reduction Act, 44 U.S.C. 3501
Under Executive Order 13211, the BLM has determined that these supplementary rules are not a significant energy action, and that they would not have an adverse effect on energy supplies, production, or consumption.
The principal author of these supplementary rules is Eric Boik, Field Staff Ranger, Bureau of Land Management, Grand Junction Field Office, 2815 H Road, Grand Junction, Colorado 81506.
For the reasons stated in the preamble, and under the authorities for supplementary rules found at 43 U.S.C. 1740, 43 U.S.C. 315a, and 43 CFR 8365.1-6, the Colorado State Director issues these final supplementary rules for public lands within the BCSRMA, Colorado, to read as follows:
(1) Any non-amphibious registered motorboat;
(2) Any military, fire, emergency, or law enforcement vehicle while being used for emergency purposes;
(3) Any vehicle whose use is expressly authorized by the authorized officer, or otherwise officially approved;
(4) Vehicle in official use; and
(5) Any combat or combat support vehicle when used in times of national defense emergencies. (See 43 CFR 8340.0-5)
Unless otherwise authorized, the following acts are prohibited on public lands within the BCSRMA:
1. You must not start or maintain a fire in sites or areas not designated as open for such use by a BLM sign or map. Mechanical stoves or other appliances fueled by gas and equipped with a valve that allows the operator to control the flame are exempt from this rule.
2. You must not start or maintain a fire outside of a metal fire ring at sites or areas where fire rings are provided by the BLM. Mechanical stoves or appliances fueled by gas and equipped with a valve that allows the operator to control the flame are exempt from this rule.
3. You must not cut, collect, or use live, dead, or down wood except in areas designated as open to such use by a BLM sign or map.
4. You must not camp in sites or areas not designated as open to camping by a BLM sign or map.
5. You must properly dispose of solid human waste as indicated by a BLM sign or map.
6. You must not operate or be in possession of an off-road vehicle or mechanized vehicle on any road which is not designated as open to such use by a BLM sign or map.
7. You must not operate or be in possession of an off-road vehicle or
8. You must not ride or be in possession of horses or other pack animals on any trail which is not designated as open to such use by a BLM sign or map.
9. Where pedestrian travel is restricted to a designated trail or route, you must not travel cross-country off the designated trail or route.
10. You must not operate or be in possession of an off-road vehicle or mechanized vehicle in violation of vehicle width and/or vehicle type restrictions as indicated by a BLM sign or map.
11. You must not operate or be in possession of an off-road vehicle that produces sound exceeding 96 decibels.
12. You must not discharge a firearm or other projectile shooting device of any kind, including those used for target shooting or paintball, where a BLM sign or map indicates a no-shooting area. Licensed hunters in pursuit of game during a legal hunting season with appropriate firearms, as defined by the Colorado Division of Wildlife, are exempt from this rule.
13. You must not enter an area that is designated as closed by a BLM sign or map.
14. You must remove and properly dispose of solid dog waste as indicated by a BLM sign or map.
15. You must not bring any dog into the BCSRMA that is not controlled by visual, audible, or physical means.
16. You must not park a vehicle in areas not designated for parking by a BLM sign or map.
17. You must not burn wood or other material containing nails, glass, or any metal.
18. You must not enter or remain in a designated day-use area after sunset or before sunrise. Licensed hunters in pursuit of game during a legal hunting season, as defined by the Colorado Division of Wildlife, are exempt from this rule.
The following persons are exempt from these supplementary rules: any Federal, state, local, and/or military persons acting within the scope of their official duties; members of any organized rescue or fire-fighting force in the performance of an official duty; and persons, agencies, municipalities, or companies holding an existing special-use permit inside the BCSRMA and operating within the scope of their permit.
Under the Taylor Grazing Act of 1934, 43 U.S.C. 315a, any willful violation of these supplementary rules on public lands within a grazing district shall be punishable by a fine of not more than $500.
Under Section 303(a) of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1733(a) and 43 CFR 8360.0-7, any person who knowingly and willfully violates any of these supplementary rules on public lands within the BCSRMA may be tried before a United States Magistrate and fined no more than $1,000, imprisoned for no more than 12 months, or both. Such violations may also be subject to the enhanced fines provided for by 18 U.S.C. 3571.
Bureau of Land Management, Interior.
Notice of Final Supplementary Rules.
The Bureau of Land Management (BLM) Little Snake Field Office is issuing final supplementary rules to regulate conduct on specific public lands within Routt County, Colorado. The rules apply to the Emerald Mountain Special Recreation Management Area (SRMA), also known as Emerald Mountain. The BLM determined these rules are necessary to protect Emerald Mountain's natural resources and provide for public health and safety.
These rules are effective November 10, 2011.
You may submit inquiries by the following methods: Mail or hand-delivery: BLM, Little Snake Field Office, 455 Emerson Street, Craig, Colorado 81625.
Gina Robison, Outdoor Recreation Planner, BLM Little Snake Field Office (see
Prior to the BLM's ownership on February 22, 2007, the Emerald Mountain parcel was owned by the Colorado State Land Board and closed to the general public with the exception of permitted agriculture and hunting. Since 2007 the area has been managed as a day use area and has remained closed to motorized vehicle use. A wide variety of recreational uses are allowed and occur on the parcel including biking, hiking, hunting, horseback riding, sightseeing, and wildlife viewing. This wide variety of use has resulted in user conflicts and the need for additional management actions to address user conflicts, impacts to natural resources, and public safety concerns.
Emerald Mountain is a 4,139-acre parcel of public land in Routt County, Colorado. The parcel is surrounded by private land, a Colorado Division of Wildlife State Wildlife Area and property owned by the Colorado State Land Board. Cow Creek Road (Routt County Road 45) provides legal public access to Emerald Mountain.
These final supplementary rules would apply to Emerald Mountain SRMA, identified as follows:
A map of the area is available at the Little Snake Field Office.
Emerald Mountain is managed as an SRMA with two adjoining Recreation Management Zones. Zone 1 is managed under a destination recreation-tourism market strategy. The strategy targets Steamboat Springs-area visitors, including local residents, wanting to participate in strenuous and challenging mountain biking and Nordic skiing on primitive trails that are close to the town. Zone 2 is managed under a community recreation market strategy, primarily for Steamboat Springs area
These final supplementary rules implement management decisions made in the Emerald Mountain Land Exchange Environmental Assessment (EA)/Plan Amendment approved in October 2006; the Recreation Activity Management Plan and Transportation Management Plan (RAMP/TMP Phase 1) approved in June 2007; and the Emerald Mountain SRMA Implementation Plan Amendment approved in December 2008, which further defined the final supplementary rules. These documents are available for review at the BLM Little Snake Field Office. The Emerald Mountain SRMA Implementation Plan Amendment included considerable public involvement and review, including six public meetings held at three separate locations.
The BLM published proposed supplementary rules in the
Of the four opposing comments, three opposed proposed supplementary rule number 5, requiring non-working dogs to be on a leash, but allowing working dogs to be off-leash during legal hunting periods when controlled by someone legally hunting or when working as cattle dogs. Two of the opposing comments suggested that dogs should be allowed off-leash while under voice control. The BLM has not revised the proposed supplementary rules in response to these comments because changes would result in conflicts with the SRMA's goal of protecting wildlife resources. The leash requirements in the final supplementary rules allow recreationists and other members of the public to have dogs within the Emerald Mountain SRMA but provide for the protection of wildlife resources.
The third opposing comment to rule number 5 suggested that restraining a dog on a leash would not work when grouse hunting. In response to this comment, the BLM has revised the proposed supplementary rules by adding a definition of “working dog” to mean a dog suitable by size, breeding or training for useful work such as hunting or livestock herding. The definition of “working dog” was inadvertently left out of the proposed supplementary rules and was added to the final supplementary rule for clarity. The BLM revised final supplementary rule number 5 to be consistent with the new definition of “working dog.”
The final opposing comment concerned game carts not being allowed in Zone 2 of the Emerald Mountain SRMA. This individual felt that game carts should be allowed in all zones for the purpose of retrieving big game. The BLM has not revisited the rules in response to this comment because the suggested change would be in conflict with land use planning decisions that restrict mechanized use in Zone 2. Comprehensive travel management planning addresses all resource use aspects, accompanying modes and conditions of travel on the public lands. Land use plan decisions must delineate Travel Management Areas (TMAs). Zone 2 of the Emerald Mountain SRMA was delineated for non-mechanized use only.
The BLM revised the proposed supplementary rules by listing the definitions in alphabetical order, deleting the definition of “official use” and adding the definition of “official duty” in the final supplementary rules. “Official duty” means use by an employee, agent or designated representative of the Federal government or one of its contractors, in the course of his or her employment, agency or representation. The term “official use” was defined in the proposed supplementary rules, but was not referenced in the proposed or final supplementary rules. The term “official duty” is listed in the exemptions in both the proposed and final supplementary rules.
The BLM also revised the proposed supplementary rules by adding penalties under the Taylor Grazing Act, which were inadvertently omitted in the proposed supplementary rules.
The final supplementary rules do not comprise a significant regulatory action and are not subject to review by the Office of Management and Budget under Executive Order 12866. They do not have an annual effect of $100 million or more on the economy. They do 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. They do not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. They do not materially alter the budgetary effects of entitlements, grants, user fees, loan programs, or the rights or obligations of their recipients, nor do they raise novel legal or policy issues. The final supplementary rules merely establish rules of conduct for public use of a limited area of public lands.
Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. The BLM invites your comments on how to make these supplementary rules easier to understand, including answers to questions such as the following:
(1) Are the requirements in the supplementary rules clearly stated?
(2) Do the supplementary rules contain technical language or jargon that interferes with their clarity?
(3) Does the format of the supplementary rules (grouping and order or sections, use of headings, paragraphing,
(4) Would the supplementary rules be easier to understand if they were divided into more (but shorter) sections?
(5) Is the description of the supplementary rules in the
The BLM prepared two EAs: the Emerald Mountain Land Exchange EA/Plan Amendment (EA CO-100-2006-089) and the Recreation Activity Management Plan and Transportation Management Plan (EA CO-100-2007-057). The impacts of the proposed supplemental rules were analyzed in both documents. The proposed supplementary rules were published in the
Congress enacted the Regulatory Flexibility Act of 1980 (RFA), as amended, 5 U.S.C. 601-612, to ensure that government regulations do not unnecessarily or proportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. These final supplementary rules merely establish rules of conduct for public use of a limited area of public lands. Therefore, the BLM has determined under the RFA that these rules would not have a significant economic impact on a substantial number of small entities.
These final supplementary rules are not considered a `major rule' as defined under 5 U.S.C. 804(2). The supplementary rules merely establish rules of conduct for public use of a limited area of public lands and do not affect commercial or business activities of any kind.
These final supplementary rules will not impose an unfunded mandate on state, local, or tribal governments in the aggregate, or the private sector of more than $100 million per year; nor will they have a significant or unique effect on small governments. The final supplementary rules will have no effect on governmental or tribal entities and will impose no requirements on any of these entities. The final supplementary rules merely establish rules of conduct for public use of a limited area of public lands and do not affect tribal, commercial or business activities of any kind. Therefore, the BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
The final supplementary rules do not represent a government action capable of interfering with constitutionally protected property rights. Therefore, the BLM has determined that the final supplementary rules will not cause a taking of private property or require further discussion of takings implications under this Executive Order.
The final supplementary rules 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. Therefore, in accordance with Executive Order 13132, the BLM has determined that the supplementary rules will not have sufficient Federalism implications to warrant preparation of a Federalism Assessment.
Under Executive Order 12988, the BLM determined that these final supplementary rules would not unduly burden the judicial system and that they meet the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.
In accordance with Executive Order 13175, the BLM initiated consultation with the following Native American tribes regarding the proposed Emerald Mountain Land Exchange project in September 2004: Southern Ute Tribe, Ute Mountain Ute Tribal Council, Colorado Commission of Indian Affairs, and the Uintah and Ouray Tribal Council. The tribes did not identify any concerns regarding traditional or religious cultural properties in the Emerald Mountain SRMA. These supplementary rules would not affect Indian land, resources, or religious rights.
Under Executive Order 13211, the BLM determined that the final supplementary rules will not comprise a significant energy action, and that they will not have an adverse effect on energy supplies, production or consumption.
The final supplementary rules do not directly provide for any information collection that the Office of Management and Budget must approve under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
The principal author of these final supplementary rules is Gina Robison, Outdoor Recreation Planner, BLM Little Snake Field Office.
For the reasons stated in the Preamble, and under the authority of the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. 1733 and 1740, 43 U.S.C. 315a, 43 CFR 8364.1, and 43 CFR 8365.1-6, the BLM Colorado State Director establishes the following final supplementary rules for public lands within the Emerald Mountain SRMA.
Unless otherwise authorized by the Little Snake Field Manager, the following rules apply within the Emerald Mountain SRMA boundary:
1. Camping and overnight use is prohibited. The area is closed between sunset and sunrise, except for lawful hunting licensed periods and for retrieval of legally-taken game. Hunters are not allowed to camp overnight.
2. No mechanized transport activities are allowed within Zone 2, including game carts.
3. No person or persons shall discharge a firearm or other projectile shooting device of any kind, including those used for target shooting or paintball, except licensed hunters in pursuit of game during the proper season with appropriate firearms, as defined by the Colorado Division of Wildlife (CDOW), Section 33-1-102, Colorado Revised Statutes, Article IV, Number 004: Manner of Taking Wildlife.
4. Zone 2 and trails south of Ridge Trail in Zone 1 are closed to the public from December 1 to June 30 to protect wintering and calving elk.
5. Non-working dogs must be on a six-foot or less hand-held leash at all times. Working dogs are allowed off-leash only during legal hunting periods when controlled by someone legally hunting, or when working to herd livestock.
6. Fires are not allowed except at the trailheads in a mechanical stove or other appliance fueled by gas and equipped with a valve that allows the operator to turn the flame on and off.
7. Possession of glass containers is prohibited.
8. The entire area is designated closed to motorized vehicle travel, with the exception of Cow Creek Road (Routt County Road 45). The closure excludes:
(a) Any military, fire, emergency or law enforcement vehicle being used for emergency purposes;
(b) Any vehicle expressly authorized by the authorized officer, or otherwise officially approved (
The following persons are exempt from these supplementary rules: any Federal, state, local and/or military employee acting within the scope of their official duties; members of any organized rescue or fire-fighting force performing an official duty; and persons, agencies, municipalities or companies holding an existing special-use permit inside the SRMA and operating within the scope of their permit.
Under the
Under Section 303(a) of FLPMA, 43 U.S.C. 1733(a), if you violate any of these supplementary rules on public lands within the boundaries established in the rules, you may be tried before a United States Magistrate and fined no more than $1,000 or imprisoned for no more than 12 months, or both. Such violations may also be subject to the enhanced fines provided for by 18 U.S.C. 3571.
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 Hot Springs Resources LTD for renewal of oil and gas lease WYW174755 for land in Natrona 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.
BLM, Julie L. Weaver, Chief, Fluid Minerals Adjudication, at (307) 775-6176.
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 16-2/3 percent, respectively. The lessee has paid the required $500 administrative fee and $163 to reimburse the Department for the cost of this
Bureau of Land Management, Interior.
Notice.
Under the provisions of the Mineral Leasing Act of 1920, as amended, the Bureau of Land Management-Eastern States (BLM-ES) received a petition for reinstatement of oil and gas lease MSES 56250 from Antares Exploration Fund, L.P. for lands in Perry County, Mississippi. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Kemba Anderson-Artis, Supervisory Land Law Examiner, BLM-ES, 7450
No valid lease has been issued affecting these lands. The lessee has agreed to the new lease terms for rental and royalties at rates of $10 per acre or fraction thereof, per year, and 16
Bureau of Land Management, Interior.
Public Land Order.
This order extends the duration of the withdrawal created by Public Land Order No. 6886 for an additional 20-year period. This extension is necessary to continue the protection of the unique topographic characteristics and recreational values of the Snowy Range Recreation Area, which would otherwise expire on October 7, 2011.
Nathan Haynes, U.S. Forest Service, Region 2, Supervisors Office, 2468 Jackson Street, Laramie, Wyoming 82070-6535, (307) 745-2317, or Janelle Wrigley, BLM Wyoming State Office, 5353 N. Yellowstone Road, P.O. Box 1828, Cheyenne, Wyoming 82003, (307) 775-6257. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to reach the Forest Service or Bureau of Land Management contact 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 purpose for which the withdrawal was first made requires this extension in order to continue the protection of the unique topographic characteristics and recreational values of the Snowy Range Recreation Area. The withdrawal extended by this order will expire on October 7, 2031, unless as a result of a review conducted prior to the expiration date pursuant to Section 204(f) of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714(f), the Secretary determines that the withdrawal shall be further extended.
By virtue of the authority vested in the Secretary of the Interior by Section 204 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714, it is ordered as follows:
Public Land Order No. 6886 (56 FR 50661 (1991)), which withdrew 21,636.29 acres of National Forest System lands from location and entry under the United States mining laws (30 U.S.C. Ch. 2), but not from leasing under the mineral leasing laws, to protect the unique topographic characteristics and recreational values of the Snowy Range Area, is hereby extended for an additional 20-year period.
43 CFR 2310.4.
Bureau of Land Management, Interior.
Notice of Realty Action.
The Bureau of Land Management (BLM), Redding Field Office, proposes to sell a parcel of public land consisting of 160.03 acres, more or less, in Shasta County, California. The public land would be sold to the County of Shasta for the appraised fair market value of $176,000.
Written comments regarding the proposed sale must be received by the BLM on or before November 25, 2011.
Written comments concerning the proposed sale should be sent to the Field Manager, BLM Redding Field Office, 355 Hemsted Drive, Redding, California 96002.
Ilene Emry, Realty Specialist, BLM Redding Field Office, 355 Hemsted Drive, Redding, California 96002, phone (530) 224-2122 or visit the Web site at
The following parcel of public land is being proposed for direct sale to the County of Shasta in accordance with Sections 203 and 209 of the Federal Land Policy and Management Act of 1976 (FLPMA), as amended (43 U.S.C. 1713 and 1719).
The area described contains 160.03 acres, more or less, in Shasta County.
The public land was first identified as suitable for disposal by exchange in the 1993 BLM Redding Resource Management Plan (RMP). The Redding RMP was amended in 2005 to identify the land as available for sale. The land is not needed for any other Federal purpose, and its disposal would be in the public interest. The purpose of the sale is to dispose of public land which is difficult and uneconomic to manage as part of the public lands because it is isolated from other public lands in the area. The BLM is proposing a direct sale to the County of Shasta that wants to acquire the land as a buffer area to preclude incompatible development near its existing landfill on adjacent non-Federal land. The sale of this land to the County of Shasta would serve an important public objective, therefore a competitive sale is not considered appropriate. The BLM has completed a mineral potential report which concluded the land proposed for sale
On October 11, 2011, the above described land will be segregated from all forms of appropriation under the public land laws, including the mining laws, except for the sale provisions of the FLPMA. Until completion of the sale, the BLM will no longer accept land use applications affecting the identified public lands, except applications for the amendment of previously filed right-of-way applications or existing authorizations to increase the term of the grants in accordance with 43 CFR 2802.15 and 2886.15. The segregation terminates upon issuance of a patent, publication in the
1. A reservation of a right-of-way (ROW) to the United States for ditches and canals constructed by authority of the United States under the Act of August 30, 1890 (43 U.S.C 945);
2. A reservation of all minerals to the United States, together with the right by itself, its permittees, licensees and lessees to prospect for, mine, and remove the minerals under applicable law and such regulations as the Secretary of the Interior may prescribe.
3. Subject to the following existing ROWs: a ROW for a power-line issued under serial number CACA 24929 and a ROW for a telephone line issued under serial number CACA 26611.
4. A condition that the conveyance be subject to valid existing rights;
5. An appropriate indemnification clause protecting the United States from claims arising out of the patentee's use, occupancy, or operations on the patented lands; and
6. Additional terms and conditions that the authorized officer deems appropriate.
The ROW's listed in 3 above may be replaced by permanent easements prior to conveyance. The parcel may be subject to applications for ROWs received prior to publication of this Notice if processing the application would not adversely affect the marketability or appraised value of the land. Case files containing details on the existing ROWs are available for review at the Redding Field Office.
Detailed information concerning the proposed land sale including the appraisal, planning and environmental documents, and a mineral report are available for review at the BLM Redding Field Office at the address above, or by calling (530) 224-2122.
Public comments regarding the proposed sale may be submitted in writing to the attention of the BLM Redding Field Manager (see
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, be advised 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 from public review your personal identifying information, we cannot guarantee that we will be able to do so.
43 CFR 2711.1-2(a) and (c).
National Park Service, Interior.
Notice of Availability of the Draft General Management Plan and Environmental Impact Statement.
Pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 4332(2)(C), the National Park Service (NPS) announces the availability of a Draft Environmental Impact Statement (DEIS) for the General Management Plan (GMP) for Blue Ridge Parkway (parkway).
Consistent with NPS laws, regulations, and policies and the purpose of the parkway, the DEIS/GMP describes the NPS preferred alternative—Alternative B—to guide the management of the parkway over the next 20 years. The preferred alternative incorporates various management strategies to ensure protection, access, and enjoyment of the parkway's resources. The document analyzes the environmental impacts of the preferred alternative, along with two other alternatives, including the no-action alternative.
The NPS will accept comments from the public on the DEIS/GMP for at least 60 days, starting from the date the Environmental Protection Agency publishes the Notice of Availability. The date, time, and location of public meetings will be announced through the NPS Planning, Environment, and Public Comment (PEPC) Web site:
Electronic copies of the draft DEIS/GMP will be available online at
Comments may be submitted by several methods. The preferred method is commenting via the internet on the PEPC website above. An electronic public comment form is provided on this website. You may also mail comments to Superintendent Phil Francis, Blue Ridge Parkway, 199 Hemphill Knob Road, Asheville, NC 28803. Finally, you may hand-deliver comments to the parkway. Before including your address, phone number, email address, or other personal identifying information in your comment, please 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. We will always make submissions from organizations or businesses, and from individuals identifying themselves as representatives of or officials of organizations or businesses, available for public inspection in their entirety. A limited number of compact disks and printed copies of the DEIS/GMP will be made available at Blue Ridge Parkway Headquarter, 199 Hemphill Knob Road, Asheville, NC 28803.
Public meetings, newsletters, and internet updates have kept the public informed and involved throughout the planning process. The DEIS/GMP provides a framework for management, use, and
The authority for publishing this notice is contained in 40 CFR 1506.6.
Superintendent Phil Francis, Blue Ridge Parkway, 199 Hemphill Knob Road, Asheville, NC 28803 or telephone at (828) 271-4779.
The responsible official for this Draft EIS is the Regional Director, NPS Southeast Region, 100 Alabama Street, SW., 1924 Building, Atlanta, Georgia 30303.
National Park Service, Interior.
Notice.
The Peabody Museum of Natural History, Yale University, in consultation with the appropriate Indian tribe, has determined that the cultural item meets the definition of unassociated funerary object and repatriation to the Indian tribe stated below may occur if no additional claimants come forward. Representatives of any Indian tribe that believes itself to be culturally affiliated with the cultural item may contact the Peabody Museum of Natural History, Yale University.
Representatives of any Indian tribe that believes it has a cultural affiliation with the cultural item should contact the Peabody Museum of Natural History, Yale University at the address below by November 10, 2011.
Professor Derek E.G. Briggs, Director, Peabody Museum of Natural History, P.O. Box 208118, New Haven, CT 06520-8118, telephone (203) 432-3752.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate a cultural item in the possession of the Peabody Museum of Natural History, Yale University, New Haven, CT, that meets the definition of unassociated funerary object under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the cultural item. The National Park Service is not responsible for the determinations in this notice.
In 1886, Mrs. Kate Foot Coe collected one chilkat blanket on Kiloosnoo Island, AK. On November 19, 1902, Mrs. Foot Coe donated it to the Peabody Museum of Natural History. The museum's catalog describes the blanket as being found in a “receptacle on the top of a totem pole containing the bones and ashes of a cremated body.” No human remains associated with this blanket are in the museum's collection.
The catalog description of the blanket indicates that it was collected from a funerary context and was in association with bones at the time that it was collected. Based on the collection location on Kiloosnoo Island in the Northwest Coast culture area, the recovery of the blanket from a grave pole, and the type of object (chilkat blanket), this item is believed to be culturally affiliated with the Central Council of the Tlingit & Haida Indian Tribes.
Officials of the Peabody Museum of Natural History, Yale University have determined that:
• Pursuant to 25 U.S.C. 3001(3)(B), the single cultural item described above is reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and is believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary object and the Central Council of the Tlingit & Haida Indian Tribes.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the unassociated funerary object should contact Professor Derek E.G. Briggs, Director, Peabody Museum of Natural History, P.O. Box 208118, New Haven, CT 06520-8118, telephone (203) 432-3752, before November 10, 2011. Repatriation of the unassociated funerary object to the Central Council of the Tlingit & Haida Indian Tribes may proceed after that date if no additional claimants come forward.
The Peabody Museum of Natural History, Yale University is responsible for notifying the Central Council of the Tlingit & Haida Indian Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The University of Colorado Museum has completed an inventory of human remains and an associated funerary object in consultation with the appropriate Indian tribes, and has
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains and associated funerary object should contact the University of Colorado Museum at the address below by November 10, 2011.
Steve Lekson, Curator of Anthropology, University of Colorado Museum, Campus Box 218, Boulder, CO 80309, telephone (303) 492-6671.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and an associated funerary object in the possession of the University of Colorado Museum, Boulder, CO. The human remains and associated funerary object were removed from Culberson, El Paso, and Hudspeth Counties, TX.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary object. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains and associated funerary object was made by the University of Colorado Museum professional staff in consultation with representatives of the Apache Tribe of Oklahoma; Fort Sill Apache Tribe of Oklahoma; Hopi Tribe of Arizona; Jicarilla Apache Nation, New Mexico; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; Pueblo of Acoma, New Mexico; Pueblo of Zia, New Mexico; San Carlos Apache of the San Carlos Reservation, Arizona; Tonto Apache Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; Ysleta del Sur Pueblo of Texas; and Zuni Tribe of the Zuni Reservation, New Mexico (hereinafter referred to as “The Tribes”).
On an unknown date, human remains (a cremation) representing a minimum of one individual were removed from south of Van Horn, Culberson County, TX by Joe Ben Wheat, the University of Colorado Museum's curator of anthropology from 1953 to 1988. In November 2009, the human remains (TIN 0290) were found in the museum collection. The human remains have been identified as Jornada Mogollon based on other material culture collected from the same location. No known individual was identified. No associated funerary objects are present.
On an unknown date, human remains representing a minimum of one individual were removed from either Culberson, El Paso, or Hudspeth County, TX by Dr. Wheat, or near Fort Bayard, Grant County, NM by Hugo G. Rodeck, the University of Colorado Museum's director from 1939 to 1971. In November 2009, the human remains (a tooth) (TIN 0091) were found in the collection. The human remains have been identified as Mogollon- most likely Jornada Mogollon- based on the material culture collected from the same location. No known individual was identified. No associated funerary objects are present.
On an unknown date, human remains representing a minimum of one individual were removed from “Hueco Mountain area camps 1, 2, 3; Hot Wells Section; below Basketmaker caves,” in El Paso or Hudspeth Counties, TX by Dr. Wheat. In November 2009, the human remains (a tooth) (TIN 0162) were found in the collection. The human remains have been identified as Jornada Mogollon based on the provenience. No known individual was identified. No associated funerary objects are present.
On an unknown date, human remains representing a minimum of three individuals were removed from the Hueco Mountains, El Paso and Hudspeth Counties, TX by Dr. Wheat. In November 2009, the human remains (a tooth (TIN 0195) and two vertebrae (TIN 0257) and (TIN 0458)) were found in the collection. The human remains have been identified as Jornada Mogollon based on other material culture collected from the same location. No known individuals were identified. One funerary object, a projectile point, is associated with one of the vertebrae (TIN 0458).
On an unknown date, human remains representing a minimum of one individual were removed from Hudspeth County, TX by Dr. Wheat. In November 2009, the human remains (a tooth) (TIN 0186) were found in the collection. The human remains have been identified as Jornada Mogollon based on other material culture collected from the same location. No known individual was identified. No associated funerary objects are present.
Officials of the University of Colorado Museum have determined that:
• Based on locational information and the material culture believed to have come from those same locations, the human remains are Native American.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and associated funerary object and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission, the land from which the Native American human remains and associated funerary object were removed is the aboriginal land of the Fort Sill Apache Tribe of Oklahoma; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; and Ysleta del Sur Pueblo of Texas.
• Multiple lines of evidence, including treaties, Acts of Congress, and Executive Orders, indicate that the land from which the Native American human remains and associated funerary object were removed is the aboriginal land of the Apache Tribe of Oklahoma; Fort Sill Apache Tribe of Oklahoma; Jicarilla Apache Nation, New Mexico; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; San Carlos Apache of the San Carlos Reservation, Arizona; Tonto Apache Tribe of Arizona; and White Mountain Apache Tribe of the Fort Apache Reservation, Arizona.
• Other credible lines of evidence indicate that the land from which the Native American human remains and associated funerary object were removed is the aboriginal land of the Hopi Tribe of Arizona; Pueblo of Acoma, New Mexico; Pueblo of Zia, New Mexico; and Zuni Tribe of the Zuni Reservation, New Mexico.
• Pursuant to 25 U.S.C. 3001(9), the human remains described above represent the physical remains of seven individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the one object described above is reasonably believed to have been placed with or near individual human remains
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains and associated funerary object is to the Pueblo of Acoma, New Mexico.
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary object, or any other Indian tribe that believes it satisfies the criteria in 43 CFR 10.11(c)(1) should contact Steve Lekson, Curator of Anthropology, University of Colorado Museum, Campus Box 218, Boulder, CO 80309, telephone (303) 492-6671, before November 10, 2011. Disposition of the human remains and associated funerary object to the Pueblo of Acoma, New Mexico, may proceed after that date if no additional claimants come forward.
The University of Colorado Museum is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The Fort Lewis College has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian tribes. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects may contact Fort Lewis College. Repatriation of the human remains and associated funerary objects to the Indian tribes stated below may occur if no additional claimants come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains and associated funerary objects should contact the Fort Lewis College at the address below by November 10, 2011.
Dawn Mulhern, Department of Anthropology, Fort Lewis College, 1000 Rim Dr., Durango, CO 81301, telephone (970) 247-7500.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects in the possession of Fort Lewis College, Durango, CO. The human remains and associated funerary objects were removed from Archuleta, La Plata, and Montezuma Counties, CO.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by Fort Lewis College professional staff in consultation with representatives of the Hopi Tribe of Arizona; Jicarilla Apache Nation, New Mexico; Navajo Nation, Arizona, New Mexico & Utah; Pueblo of Acoma, New Mexico; Pueblo of Jemez, New Mexico; Pueblo of Nambe, New Mexico; Pueblo of Pojoaque, New Mexico; Pueblo of Santa Clara, New Mexico; Pueblo of Taos, New Mexico; Pueblo of Tesuque, New Mexico; Pueblo of Zia, New Mexico; Southern Ute Indian Tribe of the Southern Ute Reservation, Utah; Ute Indian Tribe of the Uintah & Ouray Reservation, Colorado, New Mexico & Utah; Ute Mountain Tribe of the Ute Mountain Reservation, Colorado; and the Zuni Tribe of the Zuni Reservation, New Mexico.
In the 1970s, human remains representing a minimum of one individual were removed from the Arboles area, Archuleta County, CO. Dr. Susan Riches, archeologist, reported that Dr. Katherine Hulbert, a physical anthropologist at Fort Lewis College in the 1970s, noted that the remains are “10th Century Arboles Area.” No known individual was identified. No associated funerary objects are present.
In the early 1980s, human remains representing a minimum of one individual were removed from private land at 6775 County Road 203, West Animas Valley, near Durango, La Plata County, CO. This burial was recovered as a result of construction in the area. No known individual was identified. The 11 associated funerary objects are 1 gray Chapin pitcher and 10 sherds of grayware pottery.
In 1978, human remains representing a minimum of one individual were removed from a construction site on Forest Avenue, in Durango, La Plata County, CO. The human remains were uncovered by workers from a local contracting company and brought to the college in a box. The immediate location is destroyed. According to Dr. Riches, the remains seem to be an isolated burial and are associated with a grayware jar. No known individual was identified. The one associated funerary object is a partial ceramic jar.
In 1958, human remains representing a minimum of three individuals were removed from the Crestview area of Durango, La Plata County, CO. The remains were found by Pat Murphy and were donated to Fort Lewis College by Murphy in October 1995. No known individuals were identified. The two associated funerary objects are a pottery bowl and pot.
In 1989, human remains representing a minimum of one individual were removed from 5LP 4883, in La Plata County, CO. These remains were found along Rim Drive (County Road 239), near the Fort Lewis College Campus on City of Durango land. These remains were exposed as the result of road construction and subsequent erosion. The control of these remains were officially transferred to Fort Lewis College in 2011. No known individual was identified. The one associated funerary object is a reconstructed Chapin grayware pot.
The associated funerary objects for the above four sites are consistent with the Basketmaker III/Pueblo I period (A.D. 650-840).
In 1984, human remains representing a minimum of one individual were removed from 5LP 1421, in La Plata County, CO. The remains were found on Rim Road on the Fort Lewis College campus and the site was disturbed due to road construction. No known individual was identified. The eight associated funerary objects are pottery sherds (one grayware jar sherd and seven Rosa black-on-white bowl sherds).
According to the site form, this site dates to the Basketmaker III/Pueblo I period (7th or 8th century A.D.) based on ceramic evidence.
In 1997, human remains representing a minimum of one individual were removed from site 5LP 4847, in La Plata County, CO. The remains were excavated by archeologists from Fort Lewis College from a burial context
The bowl is consistent with the Pueblo I period (A.D. 700-840).
In 1977, human remains representing a minimum of three individuals were removed from 5LP 135 (the Hurlbutt Site), in La Plata County, CO. The burial was recovered from the floor of an abandoned pit structure under the direction of Dr. Riches. No known individuals were identified. The 10 associated funerary objects are 1 complete bowl, 1 reconstructed piece of pottery, 2 smaller reconstructed pieces of pottery, and 6 sherds.
This is a transitional Basketmaker III/Pueblo I site based on ceramics. The pit structure has been dated to the Pueblo I period (A.D. 700s) (Charles MC, Schriever B, 1999. “The reexcavation of 5LP135, The Hurlbutt Site: A Basketmaker III transitional Pueblo I site in La Plata County, Colorado”).
In 1967-1968, human remains representing a minimum of six individuals were removed from a site called West Animas 4 (WA4), in La Plata County, CO. The remains were excavated by John Ives as part of the Fort Lewis College summer field program. The site was on private land. No known individuals were identified. No associated funerary objects are present.
Site WA4 is from the Pueblo I period (A.D. 700-840) based on the artifactual evidence from this site.
In 1966, human remains representing a minimum of two individuals were removed from site 5LP 245, 456, and 604 (treated as one site), 3 miles southwest of Durango on private land, in La Plata County, CO. This burial was excavated by Homer Root, an amateur archeologist, during field school excavations for Fort Lewis College. The land was subsequently bought by the Colorado Division of Wildlife and deeded to the U.S. Department of the Interior, Bureau of Reclamation. No known individuals were identified. The three associated funerary objects are two pottery bowls (one black-on-white interior decorated and one grayware storage vessel) and one mortuary slab.
The burial context is a Basketmaker III (7th century A.D.) pithouse, based on architecture, artifacts, and non-cutting dates (Duke, p. 52).
In 1967, human remains representing a minimum of 23 individuals were removed from site 5LP 238, also called WA3, in La Plata County, CO. These burials were recovered from a site on private land by John Ives. No known individuals were identified. No associated funerary objects are present.
Site 5LP 238 is determined to be from the Basketmaker III/Pueblo I period (A.D. 650-840) based on the archeological context, including architecture and ceramics (Philip G. Duke, 1985, “Fort Lewis College Archaeological Investigations in Ridges Basin, Southwest Colorado: 1965-1982.” Robert W. Delaney, editor. Paper No. 4. Occasional Papers of the Center of Southwest Studies, Fort Lewis College, p. 143).
In 1967-1968, human remains representing a minimum of three individuals were removed from site WA5, in La Plata County, CO. These remains were excavated by Dr. John Ives from a site designated by him as WA5 (West Animas 5). The site was on private land and was excavated as part of the Fort Lewis College summer field program. No known individuals were identified. No associated funerary objects are present.
The temporal context of the site is the Pueblo I period (A.D. 700-840) based on other artifacts from the site.
In 1981, human remains representing a minimum of two individuals were removed from 5LP630, in La Plata County, CO. These remains were recovered during the excavation of a pithouse located in Ridges Basin, approximately 3 miles southwest of Durango. The excavation was part of the 1981 archeological field program run by Fort Lewis College and directed by Philip Duke. At the time of excavation, the land was owned by the Colorado Division of Wildlife, but which has subsequently been deeded to the U.S. Department of the Interior, Bureau of Reclamation. In 2011, the Colorado Division of Wildlife officially transferred the remains to Fort Lewis College. No known individuals were identified. The three associated funerary objects are two ceramic black-on-gray interior decorated bowls and the tip of a bone awl.
These burials are from a Pueblo I (late 8th century A.D.) pithouse based on archaeomagnetic dating (Duke, pp. 147-148).
In 1985, human remains representing a minimum of four individuals were removed from site 5LP 483, in La Plata County, CO. These burials were recovered during excavations of sites in Bodo Canyon, approximately 3 miles southwest of Durango. This project was funded by the government as part of the Uranium Mill Tailings Remedial Action Project. No known individuals were identified. The two associated funerary objects are the tip of a bone awl and a Chapin gray jar.
These burials are from a late Basketmaker III-Pueblo I pithouse based on ceramics and tree-ring dates, giving a range of dates from A.D. 650 through the early A.D. 800s (Steven L. Fuller, 1988, “Archaeological Investigations in the Bodo Canyon Area, La Plata County, CO. UMTRA Archaeological Report 25,” p. 198). The date and geographic location of this site are consistent with Ancestral Puebloan burials.
In 1985, human remains representing a minimum of eight individuals were removed from site 5LP 481, in La Plata County, CO. These burials were recovered during excavations of sites in Bodo Canyon, approximately 3 miles southwest of Durango. This project was funded by the government as part of the Uranium Mill Tailings Remedial Action Project. No known individuals were identified. The 66 associated funerary objects are 1 Chapin gray jar, 1 Chapin black-on-white bowl, 55 grayware sherds, 1 quartzite flake, and 8 artifacts (which possibly represents a medicine pouch).
These burials are from a late Basketmaker III-Pueblo I (8th century A.D.) pithouse based on ceramics and architecture (Fuller, 1988; p. 117, 158-159).
In 1978, human remains representing a minimum of 11 individuals were removed from site 5LP 117, in La Plata County, CO. These burials were recovered by Dr. Riches in the Bodo Industrial Park just south of Durango along the Animas River. Salvage excavations were carried out as part of the Fort Lewis College summer field school. The site was on private land. No known individuals were identified. The 36 associated funerary objects are 32 grayware sherds, 2 Olivella shells, 1 chert biface, and 1 lithic point.
These burials are from the Pueblo I period (A.D. 700-840) based on the artifactual evidence from the site (Charles, MC, 1996. “The Emergency Excavations of Three Human Burials in Bodo Industrial Ranches, La Plata County, CO”).
In 1978, human remains representing a minimum of one individual were removed from site 5LP 119, in La Plata County, CO. This burial was recovered from the surface of site 5LP 119 on the Bodo Industrial Park south of Durango on the Animas River. The site was on private land. No known individual was identified. No associated funerary objects are present.
The archeological context of this site was determined to be Basketmaker III/Pueblo I (A.D. 650-840) (Charles, MC, 1994. “A Cultural Resource Inventory of
In 1978, human remains representing a minimum of two individuals were removed from site 5LP 138, in La Plata County, CO. This burial was recovered from the surface of the site, on private land, in Bodo Industrial Park, south of Durango, CO, by students undertaking survey and salvage excavations under the direction of Dr. Riches. No known individuals were identified. The three associated funerary objects are one partial bear mandible, one dog vertebra, and one bone awl.
These burials were determined to be from the Basketmaker III/Pueblo I period based on artifactual evidence from the site.
In 1975, human remains representing a minimum of five individuals were removed from site 5LP 115, in La Plata County, CO. These remains were recovered by Jeff Wharton and Barry Hibbets on private land in the Bodo Industrial Park under the direction of John Ives and Dr. Riches. The site, a pit structure, had been partially removed by road construction. No known individuals were identified. No associated funerary objects are present.
The site dates to the Pueblo I-III period (A.D. 700-1300) according to the Colorado Historical Society Office of Archaeology and Historic Preservation Compass Database, an online cultural resource database.
In 1980, human remains representing a minimum of one individual were removed from site 5LP 425, in La Plata County, CO. The burial was recovered as part of salvage excavations under the direction of Jamie Carlson during a summer field program at Fort Lewis College. No known individual was identified. No associated funerary objects are present.
The archeological context of this site was determined to be Pueblo I (A.D. 700-840) based on ceramics (Charles MC, 2005. “A report on the archaeological excavations at site 5LP425, the Seven Dog Site: A Pueblo I habitation site, La Plata County, CO”).
In the 1970s, human remains representing a minimum of five individuals were removed from the Mancos River Area, Montezuma County, CO. No known individuals were identified. No associated funerary objects are present.
Dr. Riches reported that a note by Katherine Hulbert, physical anthropologist at Fort Lewis College in the 1970s, indicates that the remains were recovered from the Mancos River Area. Further documentation by Katherine Hulbert indicates that the remains date to approximately A.D. 1070 (Pueblo II period). One cranium exhibits posterior cranial flattening due to cradleboarding, a cultural practice consistent with this time period.
In 1978, human remains representing a minimum of one individual were removed from a site on private land identified by John Ives as “Treptow” near Mancos, in Montezuma County, CO. No known individual was identified. No associated funerary objects are present.
Without associated funerary objects present the exact date of the remains is uncertain. However, the presence of posterior cranial flattening due to cradleboarding and location of this site are consistent with an Ancestral Puebloan burial, no earlier than the Pueblo I period (beginning A.D. 700).
In 1977-78, human remains representing a minimum of one individual were removed from site MT 4037, in Montezuma County, CO. The site was excavated by Metropolitan State College of Denver. No known individual was identified. No associated funerary objects are present.
The archeological context of this site was determined to be Pueblo I-III (A.D. 650-1250) based on the Colorado Historical Society Office of Archaeology and Historic Preservation Compass Database.
In the 1990s, human remains representing a minimum of four individuals were removed from site 5MT 4802 (the Pigg site), in Montezuma County, CO, excavated by Jim Judge. No known individuals were identified. No associated funerary objects are present.
Based on architectural and artifactual evidence, the archeological context of this site was determined to be Pueblo II/III (A.D. 1150-1250).
In summary, the human remains and associated funerary objects all are from Ancestral Puebloan sites (Basketmaker and/or Pueblo periods). The preponderance of geographical, kinship, biological, archeological, linguistic, folklore, oral tradition and historic evidence, as well as expert opinion, suggests that Ancestral Puebloan sites are culturally affiliated with the 21 modern Puebloan tribes: The Hopi Tribe of Arizona; Kewa Pueblo, New Mexico; Ohkay Owingeh, New Mexico; Pueblo of Acoma, New Mexico; Pueblo of Cochiti, New Mexico; Pueblo of Jemez, New Mexico; Pueblo of Isleta, New Mexico; Pueblo of Laguna, New Mexico; Pueblo of Nambe, New Mexico; Pueblo of Picuris, New Mexico; Pueblo of Pojoaque, New Mexico; Pueblo of San Felipe, New Mexico; Pueblo of San Ildefonso, New Mexico; Pueblo of Sandia, New Mexico; Pueblo of Santa Ana, New Mexico; Pueblo of Santa Clara, New Mexico; Pueblo of Taos, New Mexico; Pueblo of Tesuque, New Mexico; Pueblo of Zia, New Mexico; Ysleta Del Sur Pueblo of Texas; and the Zuni Tribe of the Zuni Reservation, New Mexico (hereinafter referred to as “The Tribes”).
Aspects of a shared group identity between the Athapaskan speaking tribes of the Southwest-Navajo and Jicarilla Apache and Ancestral Puebloans, as well as the Ute tribes and Ancestral Puebloans were also considered, but cultural affiliation was not supported by a preponderance of evidence. The Athapaskan speaking tribes of the Southwest have geographic, folklore, oral traditional, ethnohistorical, and/or historical ties to the Durango area. Cross-cultural influences and intermarriage with Puebloans also support a relationship of shared group identity between Athapaskan and Puebloan groups. However, current archeological evidence does not support a common Athapaskan and Puebloan origin prior to about A.D. 1500. Thus, from an archeological perspective, the evidence does not support cultural affiliation for the Navajo Nation and Jicarilla Apache with the predominantly Basketmaker and Pueblo I human remains and associated funerary objects described in this Notice of Inventory Completion.
The Ute Mountain Ute Tribe, Southern Ute Indian Tribe, and Ute Indian Tribe of the Uintah & Ouray Reservation have geographic, ethnohistorical, and/or historical ties to the Durango area and linguistic ties to the Hopi tribe. Intermarriage with Puebloan peoples is also recognized as a potential link between these groups. However, the body of evidence does not collectively support a common Ute and Puebloan origin. Therefore, a preponderance of evidence does not support cultural affiliation for the contemporary Ute tribes with the predominantly Basketmaker and Pueblo I period human remains and associated funerary objects described in this Notice of Inventory Completion.
Officials of Fort Lewis College have determined that
• Pursuant to 25 U.S.C. 3001(9), the human remains described above represent the physical remains of 91 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 147 objects described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), that there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and The Tribes.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains and/or associated funerary objects should contact Dawn Mulhern, Department of Anthropology, Fort Lewis College, 1000 Rim Dr., Durango, CO 81301, telephone (970) 247-7500, before November 10, 2011. Repatriation of the human remains and/or associated funerary objects to The Tribes may proceed after that date if no additional claimants come forward.
Fort Lewis College is responsible for notifying the Hopi Tribe of Arizona; Jicarilla Apache Nation, New Mexico; Kewa Pueblo, New Mexico; Navajo Nation, Arizona, New Mexico & Utah; Ohkay Owingeh, New Mexico; Pueblo of Acoma, New Mexico; Pueblo of Cochiti, New Mexico; Pueblo of Jemez, New Mexico; Pueblo of Isleta, New Mexico; Pueblo of Laguna, New Mexico; Pueblo of Nambe, New Mexico; Pueblo of Picuris, New Mexico; Pueblo of Pojoaque, New Mexico; Pueblo of San Felipe, New Mexico; Pueblo of San Ildefonso, New Mexico; Pueblo of Sandia, New Mexico; Pueblo of Santa Ana, New Mexico; Pueblo of Santa Clara, New Mexico; Pueblo of Taos, New Mexico; Pueblo of Tesuque, New Mexico; Pueblo of Zia, New Mexico; Southern Ute Indian Tribe of the Southern Ute Reservation, Utah; Ute Indian Tribe of the Uintah & Ouray Reservation, Colorado, New Mexico & Utah; Ute Mountain Tribe of the Ute Mountain Reservation, Colorado; Ysleta Del Sur Pueblo of Texas; and the Zuni Tribe of the Zuni Reservation, New Mexico, that this notice has been published.
National Park Service, Interior.
Notice.
The University of Toledo has completed an inventory of human remains, in consultation with the appropriate Indian tribes, and has determined that there is no cultural affiliation between the remains and any present-day Indian tribe. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains may contact The University of Toledo, Office of General Counsel, 2801 W. Bancroft St., Toledo, OH 43606, telephone (419) 530-8412. Disposition of the human remains to the Indian tribes stated below may occur if no additional requestors come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains should contact The University of Toledo at the above-stated address by November 10, 2011.
Peter J. Papadimos, Vice President and General Counsel, The University of Toledo, 2801 W. Bancroft St., Toledo, OH 43606, telephone (419) 530-8412.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the possession of The University of Toledo, Toledo, OH. The human remains were removed from Gard Island, Lake Erie, Monroe County, MI.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by The University of Toledo professional staff in consultation with representatives of the Forest County Potawatomi Community, Wisconsin; Ottawa Tribe of Oklahoma; and the Hannahville Indian Community, Michigan.
In the mid 1970's and early 1980's, human remains, consisting of bone and skull fragments and teeth, representing a minimum of forty-six individuals were removed from Gard Island in Lake Erie, Monroe County, MI in a series of archeological digs sponsored by The University's Department of Sociology and Anthropology. No known individuals were identified. No associated funerary objects were present.
• Based on laboratory and field analysis, the human remains are determined to be Native American. The remains are attributed to the Western Basin tradition of early farmers who inhabited the coastline of Lake Erie in and around the 8th Century A.D. and who were either annihilated and/or assimilated by subsequent tribal groups.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission, the land from which the Native American human remains were removed is the aboriginal land of the Forest County Potawatomi Community, Wisconsin; Ottawa Tribe of Oklahoma; and the Hannahville Indian Community, Michigan.
• Multiple lines of evidence, including treaties, Acts of Congress, and Executive Orders, indicate that the land from which the Native American human remains were removed is the aboriginal land of the Forest County Potawatomi Community, Wisconsin; Ottawa Tribe of Oklahoma; and the Hannahville Indian Community, Michigan.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of forty-six individuals of Native American ancestry.
• Pursuant to 43 CFR 10.11(c)(1), disposition of the human remains is to the twelve Federally recognized tribes in the Michigan Anishinaabek Cultural Preservation and Repatriation Alliance: the Bay Mills Indian Community, Michigan; Grand Traverse Band of Ottawa and Chippewa Indians, Michigan; Hannahville Indian Community, Michigan; Keweenaw Bay Indian Community, Michigan; Lac Vieux Desert Band of Lake Superior Chippewa Indians, Michigan; Little River Band of Ottawa Indians,
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains or any other Indian tribe that believes it satisfies the criteria in 43 CFR 10.11(c)(1) should contact Peter J. Papadimos, Vice President and General Counsel, The University of Toledo, 2801 W. Bancroft St., Toledo, OH 43605; telephone (419) 530-8412, before November 10, 2011. Disposition of the human remains to The Tribes may proceed after that date if no additional requestors come forward.
The University of Toledo, Toledo, Ohio is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The University of Colorado Museum has completed an inventory of human remains, in consultation with the appropriate Indian tribes, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribe. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains may contact the University of Colorado Museum. Disposition of the human remains to the Indian tribes stated below may occur if no additional requestors come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains should contact the University of Colorado Museum at the address below by November 10, 2011.
Steve Lekson, Curator of Anthropology, University of Colorado Museum, Campus Box 218, Boulder, CO 80309, telephone (303) 492-6671.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the possession of the University of Colorado Museum, Boulder, CO. The human remains were removed from California.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by University of Colorado Museum professional staff in consultation with representatives of the Agua Caliente Band of Cahuilla Mission Indians, California; Alturas Indian Rancheria, California; Augustine Band of Cahuilla Mission Indians, California; Barona Group of Capitan Grande Ban of Mission Indians of the Barona Reservation, California; Bear River Band of Rohnerville Rancheria, California; Berry Creek Rancheria of Maidu Indians of California; Big Lagoon Rancheria, California; Big Pine Band of Owens Valley Paiute Shoshone Indians of the Big Pine Reservation, California; Big Sandy Rancheria of Mono Indians of California; Big Valley Band of Pomo Indians of the Big Valley Rancheria, California; Blue Lake Rancheria, California; Bridgeport Paiute Indian Colony of California; Buena Vista Rancheria of Me-Wuk Indians of California; Burns Paiute Tribe of the Burns Paiute Indian Colony of Oregon; Cabazon Band of Mission Indians, California; Cachil DeHe Band of Wintun Indians of the Colusa Indian Community of the Colusa Rancheria, California; Caddo Nation of Oklahoma; Cahto Indian Tribe of the Laytonville Rancheria, California; Cahuilla Band of Mission Indians of the Cahuilla Reservation, California; California Valley Miwok Tribe, California; Campo Band of Diegueno Mission Indians of the Campo Reservation, California; Cedarville Rancheria, California; Chemehuevi Indian Tribe of the Chemehuevi Reservation, California; Cher-Ae Heights Indian Community of the Trinidad Rancheria, California; Chicken Ranch Rancheria of Me-Wuk Indians of California; Cloverdale Rancheria of Pomo Indians of California; Cold Springs Rancheria of Mono Indians of California; Colorado River Indian Tribes of the Colorado River Indian Reservation, Arizona and California; Confederated Tribes of the Grand Ronde Community of Oregon; Confederated Tribes of the Siletz Reservation, Oregon; Coyote Valley Band of Pomo Indians of California; Death Valley Timbi-Sha Shoshone Band of California; Dry Creek Rancheria of Pomo Indians of California; Elem Indian Colony of Pomo Indians of the Sulphur Bank Rancheria, California; Elk Valley Rancheria, California; Enterprise Rancheria of Maidu Indians of California; Ewiiaapaayp Band of Kumeyaay Indians, California; Federated Indians of Graton Rancheria, California; Fort Bidwell Indian Community of the Fort Bidwell Reservation of California; Fort Independence Indian Community of Paiute of the Fort Independence Reservation, California; Fort McDermitt Paiute and Shoshone Tribes of the Fort McDermitt Indian Reservation, Nevada and Oregon; Fort McDowell Yavapai Nation, Arizona; Fort Mohave Indian Tribes of Arizona, California & Nevada; Greenville Rancheria of Maidu Indians of California; Grindstone Indian Rancheria of Wintun-Wailaki Indians of California; Guidiville Rancheria of California; Habematolel Pomo of Upper Lake, California; Hoopa Valley Tribe, California; Hopland Band of Pomo Indians of the Hopland Rancheria, California; Iipay Nation of Santa Ysabel, California; Inaja Band of Diegueno Mission Indians of the Inaja and Cosmit Reservation, California; Ione Band of Miwok Indians of California; Jackson Rancheria of Me-Wuk Indians of California; Jamul Indian Village of California; Kaibab Band of Paiute Indians of the Kaibab Indian Reservation, Arizona; Karuk Tribe; Kashia Band of Pomo Indians of the Stewarts Point Rancheria, California; Klamath Tribes, Oregon; La Jolla Band of Luiseno Indians, California; La Posta Band of Diegueno Mission Indians of the La Posta Indian Reservation, California; Las Vegas Tribe of Paiute Indians of the Las Vegas Indian Colony, Nevada; Los Coyotes Band of Cahuilla & Cupeno Indians, California; Lovelock Paiute Tribe of the Lovelock Indian Colony, Nevada; Lower Lake Rancheria, California; Lytton Rancheria of California; Manchester Band of Pomo Indians of the Manchester-Point Arena
On an unknown date, human remains representing a minimum of one individual were removed from California by Joe Ben Wheat, the curator of anthropology at the University of Colorado Museum from 1953 to 1988. In November 2009, the human remains (a tooth) (TIN 0058) were found in the collection. No known individual was identified. No associated funerary objects are present.
Officials of the University of Colorado Museum have determined that:
• Based on the collecting history of Joe Ben Wheat, the human remains are Native American.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission, the land from which the Native American human remains were removed is the aboriginal land of the Colorado River Indian Tribes of the Colorado River Indian Reservation, Arizona and California; Fort McDermitt Paiute and Shoshone Tribes of the Fort McDermitt Indian Reservation, Nevada and Oregon; Fort McDowell Yavapai Nation, Arizona; Fort Mohave Indian Tribes of Arizona, California & Nevada; Kaibab Band of Paiute Indians of the Kaibab Indian Reservation, Arizona; Klamath Tribes, Oregon; Las Vegas Tribe of Paiute Indians of the Las Vegas Indian Colony, Nevada; Moapa Band of Paiute Indians of the Moapa River Indian Reservation, Nevada; Paiute Indian Tribe of Utah (Cedar Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes); Paiute-Shoshone Tribe of the Fallon Reservation and Colony, Nevada; Pit River Tribe, California (includes XL Ranch, Big Bend, Likely, Lookout, Montgomery Creek and Roaring Creek Rancherias); Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada; Quechan Tribe of the Fort Yuma Indian Reservation, California & Arizona; Reno-Sparks Indian Colony, Nevada; Walker River Paiute Tribe of the Walker River Reservation, Nevada; Washoe Tribe of Nevada & California (Carson Colony, Dresslerville Colony, Woodfords Community, Stewart Community, & Washoe Ranches); Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona; and Yerington Paiute Tribe of the Yerington Colony & Campbell Ranch, Nevada.
• Multiple lines of evidence, including treaties, Acts of Congress, and Executive Orders, indicate that the land from which the Native American human remains were removed is the aboriginal land of the Agua Caliente Band of Cahuilla Mission Indians, California; Augustine Band of Cahuilla Mission Indians, California; Berry Creek Rancheria of Maidu Indians of California; Big Pine Band of Owens Valley Paiute Shoshone Indians of the Big Pine Reservation, California; Big Sandy Rancheria of Mono Indians of California; Big Valley Band of Pomo Indians of the Big Valley Rancheria, California; Bridgeport Paiute Indian Colony of California; Buena Vista Rancheria of Me-Wuk Indians of California; Burns Paiute Tribe of the
• Other credible lines of evidence indicate that the land from which the Native American human remains and associated funerary object were removed is the aboriginal land of the Alturas Indian Rancheria, California; Barona Group of Capitan Grande Ban of Mission Indians of the Barona Reservation, California; Bear River Band of Rohnerville Rancheria, California; Big Lagoon Rancheria, California; Blue Lake Rancheria, California; Cabazon Band of Mission Indians, California; Cachil DeHe Band of Wintun Indians of the Colusa Indian Community of the Colusa Rancheria, California; Cahto Indian Tribe of the Laytonville Rancheria, California; Cahuilla Band of Mission Indians of the Cahuilla Reservation, California; Campo Band of Diegueno Mission Indians of the Campo Reservation, California; Cedarville Rancheria, California; Chemehuevi Indian Tribe of the Chemehuevi Reservation, California; Cher-Ae Heights Indian Community of the Trinidad Rancheria, California; Death Valley Timbi-Sha Shoshone Band of California; Elk Valley Rancheria, California; Ewiiaapaayp Band of Kumeyaay Indians, California; Federated Indians of Graton Rancheria, California; Fort Bidwell Indian Community of the Fort Bidwell Reservation of California; Fort Independence Indian Community of Paiute of the Fort Independence Reservation, California; Greenville Rancheria of Maidu Indians of California; Guidiville Rancheria of California; Habematolel Pomo of Upper Lake, California; Iipay Nation of Santa Ysabel, California; Inaja Band of Diegueno Mission Indians of the Inaja and Cosmit Reservation, California; Jamul Indian Village of California; Karuk Tribe; La Posta Band of Diegueno Mission Indians of the La Posta Indian Reservation, California; Lower Lake Rancheria, California; Lytton Rancheria of California; Manzanita Band of Diegueno Mission Indians of the Manzanita Reservation, California; Mechoopda Indian Tribe of the Chico Rancheria, California; Mesa Grande Band of Diegueno Mission Indians of the Mesa Grande Reservation, California; Potter Valley Tribe, California; Quartz Valley Indian Community of the Quartz Valley Reservation of California; Redding Rancheria California; Resighini Rancheria California; San Manuel Band of Mission Indians, California; Santa Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation, California; Susanville Indian Rancheria, California; Sycuan Band of the Kumeyaay Nation; Twenty-Nine Palms Band of Mission Indians of California; United Auburn Indian Community of the Auburn Rancheria or California; Viejas (Baron Long) Group of Capitan Grande Band of Mission Indians of the Viejas Reservation, California; Wiyot Tribe, California; Yocha Dehe Wintun Nation, California; and Yurok Tribe of the Yurok Reservation, California.
• Pursuant to 25 U.S.C. 3001(9), the human remains described above
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains is to the Santa Rosa Indian Community of the Santa Rosa Rancheria, California.
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains or any other Indian tribe that believes it satisfies the criteria in 43 CFR 10.11(c)(1) should contact Steve Lekson, Curator of Anthropology, University of Colorado Museum, Campus Box 218, Boulder, CO 80309, telephone (303) 492-6671, before November 10, 2011. Disposition of the human remains to the Santa Rosa Indian Community of the Santa Rosa Rancheria, California may proceed after that date if no additional claimants come forward.
The University of Colorado Museum is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The Peabody Museum of Archaeology and Ethnology, Harvard University has completed an inventory of human remains, in consultation with the appropriate Indian tribes, and has determined that there is a cultural affiliation between the human remains and present-day Indian tribes. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains may contact the Peabody Museum of Archaeology and Ethnology, Harvard University. Repatriation of the human remains to the Indian tribes stated below may occur if no additional claimants come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains should contact the Peabody Museum of Archaeology and Ethnology, Harvard University at the address below by November 10, 2011.
Patricia Capone, Repatriation Coordinator, Peabody Museum of Archaeology and Ethnology, Harvard University, 11 Divinity Ave., Cambridge, MA 02138, telephone (617) 496-3702.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the possession of the Peabody Museum of Archaeology and Ethnology, Harvard University (Peabody Museum), Cambridge, MA. The human remains were removed from Cayuga County, NY.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Peabody Museum professional staff in consultation with representatives of the Cayuga Nation of New York; Oneida Nation of New York; Oneida Tribe of Indians of Wisconsin; Onondaga Nation of New York; Saint Regis Mohawk Tribe, New York; Seneca Nation of New York; Seneca-Cayuga Tribe of Oklahoma; Tonawanda Band of Seneca Indians of New York; and the Tuscarora Nation of New York (hereinafter “The Tribes”).
At an unknown date, human remains representing a minimum of two individuals were removed from Cayuga County, NY, by an unknown collector. In 1950 the remains were donated to the Peabody Museum by the Peabody Museum in Salem, MA (now the Peabody Essex Museum). No known individuals were identified. No associated funerary objects are present.
Museum documentation describes these individuals as “Iroquois”. The designation “Iroquois” post-dates contact between Native American groups and Euro-American people in this area and suggests that the human remains date to the Historic period (post-A.D. 1540). The western portion of central New York, including Cayuga County, is the traditional heartland of the Cayuga Nation. Consultation with representatives of The Tribes indicates that Cayuga County, NY, was inhabited by members of the historic Cayuga Nation. However, The Tribes have requested that, due to a shared cultural identity among all Iroquois Nations, the remains be affiliated and repatriated collectively to The Tribes.
Officials of the Peabody Museum have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of two individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and The Tribes.
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains should contact Patricia Capone, Repatriation Coordinator, Peabody Museum of Archaeology and Ethnology, Harvard University, 11 Divinity Ave., Cambridge, MA 02138, telephone (617) 496-3702, before November 10, 2011. Repatriation of the human remains to The Tribes may proceed after that date if no additional claimants come forward.
The Peabody Museum is responsible for notifying The Tribes that this notice has been published.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
James R. Holbein, Secretary to the
General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission has received a complaint filed on behalf of Westinghouse Solar, Inc. on October 4, 2011. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain integrated solar systems and components thereof. The complaint names as respondents Zep Solar, Inc. of CA; Canadian Solar Inc. of Canada; and Canadian Solar (USA) Inc. of CA.
The complainant, proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five pages in length, on any public interest issues raised by the complaint. Comments should address whether issuance of an exclusion order and/or a cease and desist order in this investigation would negatively affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the orders are used in the United States;
(ii) Identify any public health, safety, or welfare concerns in the United States relating to the potential orders;
(iii) Indicate the extent to which like or directly competitive articles are produced in the United States or are otherwise available in the United States, with respect to the articles potentially subject to the orders; and
(iv) Indicate whether Complainant, Complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to an exclusion order and a cease and desist order within a commercially reasonable time.
Written submissions must be filed no later than by close of business, five business days after the date of publication of this notice in the
Persons filing written submissions must file the original document and 12 true copies thereof on or before the deadlines stated above with the Office of the Secretary. Submissions should refer to the docket number (“Docket No. 2847”) in a prominent place on the cover page and/or the first page. The Commission's rules authorize filing submissions with the Secretary by facsimile or electronic means only to the extent permitted by section 201.8 of the rules (see Handbook for Electronic Filing Procedures,
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.50(a)(4) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.50(a)(4)).
By order of the Commission.
On the basis of the record
The Commission instituted these reviews on April 1, 2011 (76 FR 18248) and determined on July 5, 2011 that it would conduct expedited reviews (76 FR 50756, August 16, 2011).
The Commission transmitted its determination in these reviews to the Secretary of Commerce on October 4, 2011. The views of the Commission are contained in USITC Publication 4270 (October 2011), entitled
By order of the Commission.
Notice is hereby given pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment, Stipulation and Competitive Impact Statement have been filed with the United States District Court for the Southern District of New York in
Copies of the Complaint, proposed Final Judgment and Competitive Impact Statement are available for inspection at the Department of Justice, Antitrust Division, Antitrust Documents Group, 450 Fifth Street NW., DC 20530 Suite 1010 (
Public comment is invited within 60 days of the date of this notice. Such comments, and responses thereto, will be published in the
v.
The United States of America, acting under the direction of the Attorney General of the United States, brings this civil antitrust action under Section 4 of the Sherman Act, as amended, 15 U.S.C. 4, to obtain equitable and other relief from Defendant's violation of Section 1 of the Sherman Act, as amended, 15 U.S.C. 1.
On January 18, 2006, KeySpan Corporation (“KeySpan”) and Morgan Stanley Capital Group Inc. (“MSGC”), a subsidiary of defendant Morgan Stanley,
1. Between 2003 and 2006, KeySpan, the largest seller of electricity generating capacity (“installed capacity”) in the New York City market, earned substantial revenues due to tight supply conditions. Because purchasers of capacity required almost all of KeySpan's output to meet expected demand, KeySpan's ability to set price levels was limited only by a regulatory ceiling (called a “bid cap”). Indeed, the market price for capacity was consistently at or near KeySpan's bid cap, with KeySpan sacrificing sales on only a small fraction of its capacity.
2. But market conditions were about to change. Two large, new electricity generation plants were slated to come on line in 2006 (with no exit expected until at least 2009), breaking the capacity shortage that had kept prices at the capped levels.
3. KeySpan could prevent the new capacity from lowering prices by withholding a substantial amount of its own capacity from the market. This “bid the cap” strategy would keep market prices high, but at a significant cost—the sacrificed sales would reduce KeySpan's revenues by as much as $90 million per year. Alternatively, KeySpan could compete with its rivals for sales by bidding more capacity at lower prices. This “competitive strategy” could earn KeySpan more than bidding its cap, but it carried a risk—KeySpan's competitors could undercut its price and take sales away, making the strategy less profitable than “bidding the cap.”
4. KeySpan searched for a way to avoid both the revenue decline from bidding its cap and the revenue risks of competitive bidding. It decided to enter into an agreement that gave it a financial interest in the capacity of Astoria—KeySpan's largest competitor. By providing KeySpan revenues on a larger base of sales, such an agreement would make KeySpan's “bid the cap” strategy more profitable than a successful competitive bid strategy. Rather than directly approach its competitor, KeySpan turned to Morgan to act as the counterparty to the agreement—the Morgan/KeySpan Swap—recognizing that Morgan would, and in fact did, enter into an offsetting agreement with Astoria (the “Morgan/Astoria Hedge”).
5. Morgan recognized that it could profit from combining the economic interests of KeySpan and Astoria. Morgan extracted revenues by entering into the financial instruments and thereby stepping into the middle of the two companies. With KeySpan deriving revenues from both its own and Astoria's capacity, the Morgan/KeySpan Swap removed any incentive for KeySpan to bid competitively, locking it into bidding its cap. Capacity prices remained as high as if no entry had occurred.
6. Morgan Stanley is a Delaware corporation with its principal place of business in New York City. Morgan Stanley provides diversified financial services, operating a global asset management business, investment banking services, and a global securities business, including a commodities trading division. Morgan Stanley Capital Group, Inc., a wholly owned subsidiary of Morgan Stanley, functions as and is publicly referred to as the commodities trading division for the parent company Morgan Stanley. In 2010, Morgan Stanley had revenues of $31.6 billion.
7. The United States files this complaint under Section 4 of the Sherman Act, 15 U.S.C. 4, seeking equitable relief from Defendant's violation of Section 1 of the Sherman Act, 15 U.S.C. 1.
8. This court has jurisdiction over this matter pursuant to 15 U.S.C. 4 and 28 U.S.C. 1331 and 1337.
9. Defendant waives any objection to venue and personal jurisdiction in this judicial district for the purpose of this Complaint.
10. Defendant engaged in interstate commerce during the relevant period of the allegations in this Complaint; Morgan is a worldwide company that regularly engages in financial transactions across the country and throughout the world.
11. Sellers of retail electricity must purchase a product from generators
12. The price for installed capacity has been set through auctions administered by the NYISO. The rules under which these auctions are conducted have changed from time to time. Unless otherwise noted, the description of the installed capacity market in the following paragraphs relates to the period May 2003 through March 2008.
13. Because transmission constraints limit the amount of energy that can be imported into the New York City area from the power grid, the NYISO requires retail providers of electricity to customers in New York City to purchase 80% of their capacity from generators in that region. The NYISO operates separate capacity auctions for the New York City region (also known as “In-City” and “Zone J”). The NYISO organizes the auctions to serve two distinct seasonal periods, summer (May through October) and winter (November through April). For each season, the NYISO conducts seasonal, monthly and spot auctions in which capacity can be acquired for all or some of the seasonal period.
14. In each of the types of auctions, capacity suppliers offer price and quantity bids. Supplier bids are “stacked” from lowest-priced to highest, and compared to the total amount of demand being satisfied in the auction. The offering price of the last bid in the “stack” needed to meet requisite demand establishes the market price for all capacity bid into that auction. Capacity bid at higher than this price is unsold, as is any excess capacity bid at what becomes the market price.
15. The New York City Installed Capacity (“NYC Capacity”) Market constitutes a relevant geographic and product market.
16. The NYC Capacity Market is highly concentrated, with three firms—KeySpan, NRG Energy, Inc. (“NRG”) and Astoria Generating Company Acquisitions, L.L.C. (a joint venture of Madison Dearborn Partners, LLC and US Power Generating Company, which purchased the Astoria generating assets from Reliant Energy, Inc. in February 2006)—controlling a substantial portion of generating capacity in the market. Because purchasers of capacity require at least some of each of these three suppliers' output to meet expected demand, the firms are subject to a bid and price cap for nearly all of their generating capacity in New York City and are not allowed to sell that capacity outside of the NYISO auction process. The NYISO-set bid cap for KeySpan is the highest of the three firms, followed by NRG and Astoria.
17. KeySpan possessed market power in the NYC Capacity Market.
18. It is difficult and time-consuming to build or expand generating facilities within the NYC Capacity Market given limited undeveloped space for building or expanding generating facilities and extensive regulatory obligations.
19. From June 2003 through December 2005, KeySpan set the market price in the New York City spot auction by bidding its capacity at its cap. Given extremely tight supply and demand conditions, KeySpan needed to withhold only a small amount of capacity to ensure that the market cleared at its cap.
20. KeySpan anticipated that the tight supply and demand conditions in the NYC Capacity Market would change in 2006, due to the entry of approximately 1000 MW of new generation. Because of the addition of this new capacity, KeySpan would have to withhold significantly more capacity from the market and would earn substantially lower revenues if it continued to bid all of its capacity at its bid cap. KeySpan anticipated that demand growth and retirement of old generation units would restore tight supply and demand conditions in 2009.
21. KeySpan could no longer be confident that “bidding the cap” would remain its best strategy during the 2006-2009 period. It considered various competitive bidding strategies under which KeySpan would compete with its rivals for sales by bidding more capacity at lower prices. These strategies could potentially produce much higher returns for KeySpan but carried the risk that competitors would undercut its price and take sales away, making the strategy less profitable than “bidding the cap.”
22. KeySpan also considered acquiring Astoria's generating assets, which were for sale. This would have solved the problem that new entry posed for KeySpan's revenue stream, as Astoria's capacity would have provided KeySpan with sufficient additional revenues to make continuing to “bid the cap” its best strategy. KeySpan consulted with Morgan about acquiring the assets. But KeySpan soon concluded that its acquisition of its largest competitor would raise serious market power issues and communicated that conclusion to Morgan.
23. Instead of purchasing the Astoria assets, KeySpan decided to acquire a financial interest in substantially all of Astoria's capacity. KeySpan would pay Astoria's owner a fixed revenue stream in return for the revenues generated from Astoria's capacity sales in the auctions.
24. KeySpan did not approach Astoria directly, instead approaching Morgan to arrange a financial agreement providing KeySpan with payments derived from the market clearing price for an amount of capacity essentially equivalent to what Astoria owned. KeySpan recognized that Morgan would need simultaneously to enter into an off-setting financial agreement with another capacity supplier. Morgan agreed to such a Swap but, as expected, informed KeySpan that the agreement was contingent on Morgan entering into an offsetting agreement with the owner of the Astoria assets.
25. Over the course of late 2005, Morgan negotiated the terms of the derivative agreements with Astoria and KeySpan. Those negotiations illustrate that Morgan recognized its role as a principal in effectively combining the capacity of the two companies. Under the terms initially discussed with Astoria, Morgan would have controlled the bidding of Astoria's capacity. Morgan also proposed that the financial derivative with Astoria be converted into a physical contract, transferring the rights to Astoria's capacity to Morgan in exchange for fixed payments, in the event that the structure of the auction market was disrupted; and, at the same time, Morgan proposed in its negotiations with KeySpan to transfer this physical capacity to KeySpan should a market disruption occur.
26. On or about January 9, 2006, KeySpan and Morgan finalized the terms of the Morgan/KeySpan Swap. Under the agreement, if the market price for capacity was above $7.57 per kW-month, Morgan would pay KeySpan the difference between the market price and $7.57 times 1800 MW; if the market price was below $7.57, KeySpan would
27. The Morgan/KeySpan Swap was executed on January 18, 2006. The term of the Morgan/KeySpan Swap ran from May 2006 through April 2009.
28. On or about January 9, 2006, Morgan and Astoria finalized the terms of the Morgan/Astoria Hedge. Under that agreement, if the market price for capacity was above $7.07 per kW-month, Astoria would pay Morgan the difference times 1800 MW; if the market price was below $7.07, Astoria would be paid the difference times 1800 MW.
29. The Morgan/Astoria Hedge was executed on January 11, 2006. The term of the Morgan/Astoria Hedge ran from May 2006 through April 2009, matching the duration of the Morgan/KeySpan Swap.
30. The clear tendency of the Morgan/KeySpan Swap was to alter KeySpan's bidding in the NYC Capacity Market auctions.
31. Without the Morgan/KeySpan Swap, KeySpan likely would have chosen from a range of potentially profitable competitive strategies in response to the entry of new capacity. Had it done so, the price of capacity would have declined. By transferring a financial interest in Astoria's capacity to KeySpan, however, the Morgan/KeySpan Swap effectively eliminated KeySpan's incentive to compete for sales in the same way a purchase of Astoria or a direct agreement between KeySpan and Astoria would have done. By providing KeySpan revenues from Astoria's capacity, in addition to KeySpan's own revenues, the Morgan/KeySpan Swap made bidding the cap KeySpan's most profitable strategy regardless of its rivals' bids.
32. After the Morgan/KeySpan Swap went into effect in May 2006, KeySpan paid and received revenues under the agreement with Morgan and consistently bid its capacity at its cap even though a significant portion of its capacity went unsold. Despite the addition of significant new generating capacity in New York City, the market price of capacity did not decline.
33. In August 2007, the State of New York conditioned the sale of KeySpan to a new owner on the divestiture of KeySpan's Ravenswood generating assets and required KeySpan to bid its New York City capacity at zero from March 2008 until the divestiture was completed. Since March 2008, the market price for capacity has declined.
34. But for the Morgan/KeySpan Swap, installed capacity likely would have been procured at a lower price in New York City from May 2006 through February 2008.
35. From May 2006 to April 2008, Morgan earned approximately $21.6 million in net revenues from the Morgan/KeySpan Swap and the Morgan/Astoria Hedge.
36. The Morgan/KeySpan Swap produced no countervailing efficiencies.
37. Plaintiff incorporates the allegations of paragraphs 1 through 36 above.
38. Morgan entered into an agreement the likely effect of which has been to increase prices in the NYC Capacity Market, in violation of Section 1 of the Sherman Act, 15 U.S.C. 1.
39. That the Court adjudge and decree that the Morgan/KeySpan Swap constitutes an illegal restraint in the sale of installed capacity in the New York City market in violation of Section 1 of the Sherman Act;
40. That Plaintiff shall have such other relief, including equitable monetary relief, as the nature of this case may require and as is just and proper to prevent the recurrence of the alleged violation and to dissipate the anticompetitive effects of the violation; and
41. That Plaintiff recover the costs of this action.
Dated: September 30, 2011.
Respectfully submitted,
v.
Plaintiff United States of America (“United States”), pursuant to Section 2(b) of the Antitrust Procedures and Penalties Act (“APPA” or “Tunney Act”), 15 U.S.C. 16(b)-(h), files this Competitive Impact Statement relating to the proposed Final Judgment submitted for entry in this civil antitrust proceeding.
The United States brought this lawsuit against Defendant Morgan Stanley (“Morgan”) on September 30, 2011, to remedy a violation of Section 1 of the Sherman Act, 15 U.S.C. 1. In January 2006, Morgan Stanley Capital Group Inc. (“MSGC”), a subsidiary of defendant Morgan Stanley,
The proposed Final Judgment remedies this violation by requiring Morgan to disgorge profits obtained through the anticompetitive agreement. Under the terms of the proposed Final Judgment, Morgan will surrender $4.8 million to the Treasury of the United States. Disgorgement will deter Morgan and others from future violations of the antitrust laws.
The United States and Morgan have stipulated that the proposed Final Judgment may be entered after compliance with the APPA, unless the United States withdraws its consent. Entry of the proposed Final Judgment would terminate this action, except that this Court would retain jurisdiction to construe, modify, and enforce the proposed Final Judgment and to punish violations thereof.
Morgan Stanley is a Delaware corporation with its principal place of business in New York City. Morgan Stanley provides diversified financial services, operating a global asset
In the state of New York, sellers of retail electricity must purchase a product from generators known as installed capacity (“capacity”).
The price for installed capacity has been set through auctions administered by the NYISO. The NYISO organizes the auctions to serve two distinct seasonal periods, summer (May though October) and winter (November through April). For each season, the NYISO conducts seasonal, monthly, and spot auctions in which capacity can be acquired for all or some of the seasonal period. Capacity suppliers offer price and quantity bids in each of these three auctions. Supplier bids are “stacked” from lowest-priced to highest. The stack is then compared to the amount of demand. The offering price of the last bid in the “stack” needed to meet requisite demand establishes the market price for all capacity sold into that auction. Any capacity bid at higher than this price is unsold, as is any excess capacity bid at what becomes the market price.
The NYC Capacity Market was highly concentrated during the relevant period, with three firms—Astoria, NRG Energy, Inc., and KeySpan—controlling a substantial portion of the market's generating capacity. These three were designated as pivotal suppliers by the Federal Energy Regulatory Commission, meaning that at least some of each of these three suppliers' output was required to satisfy demand. The three firms were subject to bid and price caps—KeySpan's being the highest—for nearly all of their generating capacity in New York City and were not allowed to sell their capacity outside of the NYISO auction process.
1. KeySpan Assesses Plans for Changed Market Conditions
From June 2003 through December 2005, almost all installed capacity in the market was needed to meet demand. With these tight market conditions, KeySpan could sell almost all of its capacity into the market, even while bidding at its cap. KeySpan did so, and the market cleared at the price established by the cap, with only a small fraction of KeySpan's capacity remaining unsold.
KeySpan anticipated that the tight supply and demand conditions in the NYC Capacity Market would end in 2006 due to the entry into the market of approximately 1000 MW of generation capacity, and would not return until 2009 with the retirement of old generation units and demand growth.
KeySpan could no longer be confident that “bid the cap” would remain its best strategy during the 2006-2009 period. The “bid the cap” strategy would keep market prices high, but at a significant cost. KeySpan would have to withhold a significant additional amount of capacity to account for the new entry. The additional withholding would reduce KeySpan's revenues by as much as $90 million per year. Alternatively, KeySpan could compete with its rivals for sales by bidding more capacity at lower prices. KeySpan considered various competitive bidding strategies. These could potentially produce much higher returns for KeySpan than bidding the cap but carried the risk that competitors would undercut its price and take sales away, making the strategy potentially less profitable than bidding the cap.
KeySpan also considered acquiring Astoria's generating assets from Reliant Energy, Inc., which was putting them up for sale. This would have solved the problem that new entry posed for KeySpan's revenue stream, as Astoria's capacity would have provided KeySpan with sufficient additional revenues to make continuing to “bid the cap” its best strategy. Simultaneously, Morgan was interested in buying the same assets and seeking a strategic partner with whom to bid. Morgan and KeySpan discussed such a partnership and the market power issues of a bid involving KeySpan. KeySpan soon concluded that its acquisition of its largest competitor would raise serious market power issues and communicated that conclusion to Morgan.
Instead of purchasing the Astoria assets, KeySpan decided to acquire a financial interest in substantially all of Astoria's capacity. KeySpan would pay Astoria's owner a fixed revenue stream in return for the revenues generated from Astoria's capacity sales in the auctions.
KeySpan realized that it could not approach the owner of Astoria assets directly, so it turned to Morgan to act as a counter-party. Morgan agreed to serve as the counter-party but informed KeySpan that the agreement was contingent on it entering into an offsetting agreement with the owner of the Astoria generating assets.
On or about January 9, 2006, KeySpan and Morgan finalized the terms of a financial derivative arrangement between the two companies, “the Morgan/KeySpan Swap.” Under the agreement, if the market price for capacity was above $7.57 per kW-month, Morgan would pay KeySpan the difference between the market price and $7.57 times 1800 MW; if the market price was below $7.57, KeySpan would pay Morgan the difference times 1800 MW. The Morgan/KeySpan Swap was executed on January 18, 2006. The term of the Morgan/KeySpan Swap ran from May 2006 through April 2009.
On or about January 9, 2006, Morgan and Astoria finalized the terms of the offsetting agreement (“Morgan/Astoria Hedge”). Under that agreement, if the market price for capacity was above $7.07 per kW-month, Astoria would pay Morgan the difference times 1800 MW; if the market price was below $7.07, Astoria would be paid the difference times 1800 MW. The Morgan/Astoria Hedge was executed on January 11, 2006. The term of the Morgan/Astoria Hedge ran from May 2006 through April 2009, matching the duration of the Morgan/KeySpan Swap.
Morgan earned approximately $21.6 million in net revenues from the Morgan/KeySpan Swap and the Morgan/Astoria Hedge.
After the Morgan/KeySpan Swap went into effect in May 2006, KeySpan
The clear tendency of the Morgan/KeySpan Swap was to alter KeySpan's bidding in the NYC Capacity Market auctions. The swap effectively eliminated KeySpan's incentive to compete for sales in the same way a purchase of Astoria or a direct agreement between KeySpan and Astoria would have done. By adding revenues from Astoria's capacity to KeySpan's own, the Morgan/KeySpan Swap made bidding the cap KeySpan's most profitable strategy regardless of its rivals' bids. Without the swap, KeySpan likely would have chosen from a range of potentially profitable competitive strategies in response to the entry of new capacity and, had it done so, the price of capacity would have declined. The swap produced no countervailing efficiencies.
On February 22, 2010, the United States filed suit against KeySpan for its role in the Morgan/KeySpan Swap. Simultaneous with the filing of its Complaint, the United States filed a proposed Final Judgment requiring KeySpan to pay to the United States $12 million as disgorgement of ill-gotten gains.
The proposed Final Judgment requires Morgan to disgorge profits gained as a result of its unlawful agreement restraining trade. Morgan is to surrender $4.8 million to the Treasury of the United States.
KeySpan, pursuant to a Final Judgment sought by the United States, has surrendered $12 million as a result of its role in the Morgan/KeySpan Swap.
The $4.8 million disgorgement amount is the product of settlement and accounts for litigation risks and costs. While the disgorged sum represents less than all of Morgan's net transaction revenues under the two agreements,
Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any person who has been injured as a result of conduct prohibited by the antitrust laws may bring suit in federal court to recover three times the damages the person has suffered, as well as costs and reasonable attorneys' fees. Entry of the proposed Final Judgment will neither impair nor assist the bringing of any private antitrust damage action. Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 16(a), the proposed Final Judgment has no
The United States and the Defendant have stipulated that the proposed Final Judgment may be entered by the Court after compliance with the provisions of the APPA, provided that the United States has not withdrawn its consent. The APPA conditions entry upon the Court's determination that the proposed Final Judgment is in the public interest.
The APPA provides a period of at least sixty (60) days preceding the effective date of the proposed Final Judgment within which any person may submit to the United States written comments regarding the proposed Final Judgment. Any person who wishes to comment should do so within sixty (60) days of the date of publication of this Competitive Impact Statement in the
Written comments should be submitted to: William H. Stallings, Chief, Transportation, Energy & Agriculture Section, Antitrust Division, United States Department of Justice, 450 Fifth Street, NW.; Suite 8000, Washington, DC 20530.
The proposed Final Judgment provides that the Court retains jurisdiction over this action, and the parties may apply to the Court for any order necessary or appropriate for the modification, interpretation, or enforcement of the Final Judgment.
The United States considered, as an alternative to the proposed Final Judgment, a full trial on the merits against the Defendant. The United States is satisfied, however, that the disgorgement of profits is an appropriate remedy in this matter. A disgorgement remedy should deter Morgan and others from engaging in similar conduct and thus achieves a significant portion of the relief the United States would have
The Clayton Act, as amended by the APPA, requires that proposed consent judgments in antitrust cases brought by the United States be subject to a sixty-day comment period, after which the court shall determine whether entry of the proposed Final Judgment “is in the public interest.” 15 U.S.C. 16(e)(1). In making that determination, the court is directed to consider:
(A) The competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration of relief sought, anticipated effects of alternative remedies actually considered, whether its terms are ambiguous, and any other competitive considerations bearing upon the adequacy of such judgment that the court deems necessary to a determination of whether the consent judgment is in the public interest; and
(B) the impact of entry of such judgment upon competition in the relevant market or markets, upon the public generally and individuals alleging specific injury from the violations set forth in the complaint including consideration of the public benefit, if any, to be derived from a determination of the issues at trial.
Under the APPA a court considers, among other things, the relationship between the remedy secured and the specific allegations set forth in the United States' complaint, whether the decree is sufficiently clear, whether enforcement mechanisms are sufficient, and whether the decree may positively harm third parties.
Courts have greater flexibility in approving proposed consent decrees than in crafting their own decrees following a finding of liability in a litigated matter. “[A] proposed decree must be approved even if it falls short of the remedy the court would impose on its own, as long as it falls within the range of acceptability or is `within the reaches of public interest.' ”
Moreover, the court's role under the APPA is limited to reviewing the remedy in relationship to the violations that the United States has alleged in its Complaint, and does not authorize the court to “construct [its] own hypothetical case and then evaluate the decree against that case.”
In its 2004 amendments, Congress made clear its intent to preserve the practical benefits of utilizing consent decrees in antitrust enforcement, adding the unambiguous instruction that “[n]othing in this section shall be construed to require the court to conduct an evidentiary hearing or to require the court to permit anyone to intervene.” 15 U.S.C. 16(e)(2). This language effectuates what Congress intended when it enacted the Tunney Act in 1974, as Senator Tunney explained: “[t]he court is nowhere compelled to go to trial or to engage in extended proceedings which might have the effect of vitiating the benefits of prompt and less costly settlement through the consent decree process.” 119 Cong. Rec. 24,598 (1973) (statement of Senator Tunney). Rather, the procedure for the public interest determination is left to the discretion of the court, with the recognition that the court's “scope of review remains sharply proscribed by precedent and the nature of Tunney Act proceedings.”
There are no determinative materials or documents within the meaning of the APPA that the United States considered in formulating the proposed Final Judgment.
Respectfully submitted,
v.
This Court has jurisdiction of the subject matter herein and of each of the parties consenting hereto. The Complaint states a claim upon which relief may be granted to the United States against Morgan under Sections 1 and 4 of the Sherman Act, 15 U.S.C. 1 and 4.
This Final Judgment applies to Morgan and each of its successors, assigns, and to all other persons in active concert or participation with it who shall have received actual notice of the Settlement Agreement and Order by personal service or otherwise.
A. Within thirty (30) days of the entry of this Final Judgment, Morgan shall pay to the United States the sum of four million eight hundred thousand dollars ($4,800,000.00).
B. The payment specified above shall be made by wire transfer. Before making the transfer, Morgan shall contact Janie Ingalls, of the Antitrust Division's Antitrust Documents Group, at (202) 514-2481 for wire transfer instructions.
C. In the event of a default in payment, interest at the rate of eighteen (18) percent per annum shall accrue thereon from the date of default to the date of payment.
This Court retains jurisdiction to enable any party to this Final Judgment to apply to this Court at any time for further orders and directions as may be necessary or appropriate to carry out or construe this Final Judgment, to modify any of its provisions, to enforce compliance, and to punish violations of its provisions. Upon notification by the United States to the Court of Morgan's payment of the funds required by Section III above, this Section IV will have no further force or effect.
Entry of this Final Judgment is in the public interest. The parties have complied with the requirements of the Antitrust Procedures and Penalties Act, 15 U.S.C. 16, including making copies available to the public of this Final Judgment, the Competitive Impact Statement, and any comments thereon and Plaintiff's responses to comments. Based upon the record before the Court, which includes the Competitive Impact Statement and any comments and response to comments filed with the Court, entry of this Final Judgment is in the public interest.
The Foreign Claims Settlement Commission, pursuant to its regulations (45 CFR part 503.25) and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice in regard to the scheduling of open meetings as follows:
All meetings are held at the Foreign Claims Settlement Commission, 600 E Street, NW., Washington, DC. Requests for information, or advance notices of intention to observe an open meeting, may be directed to: Judith H. Lock, Executive Officer, Foreign Claims Settlement Commission, 600 E Street, NW., Suite 6002, Washington, DC 20579.
National Corrections Academy, 11900 East Cornell Avenue, Aurora, CO 80014, 1 (303) 338-6600.
Important trends in corrections-related policy, program, and practices; identifying and meeting the needs of the field of corrections; Performance Based Outcomes; Director's report; Federal Partners Reports; Presentations.
Thomas Beauclair, Deputy Director, 202-307-3106, ext. 44254.
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
This notice announces the application of Curtis-Straus LLC for renewal of its recognition as a Nationally Recognized Testing Laboratory (NRTL) and presents the Agency's preliminary finding to deny this application for renewal of NRTL recognition.
Submit information or comments, or a request to extend the comment period, on or before November 10, 2011. All submissions must bear a postmark or provide other evidence of the submission date.
Submit comments by any of the following methods:
Bernard Pasquet, Acting Director, Office of Technical Programs and Coordination Activities, NRTL Program, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-3655, Washington, DC 20210;
The Occupational Safety and Health Administration (OSHA) is providing notice that Curtis-Straus LLC (CSL) applied for renewal of its recognition as a Nationally Recognized Testing Laboratory (NRTL). (See Ex. 2—CSL renewal application dated 06/04/2004.)
The Agency processes applications by an NRTL for initial recognition, or for an expansion or renewal of this recognition, following requirements in Appendix A to 29 CFR 1910.7. This appendix requires that the Agency publish two notices in the
CSL applied to OSHA for its initial recognition in February 1998 when it was a limited liability company chartered in the Commonwealth of Massachusetts. After processing the application, including performing the necessary on-site assessments, OSHA announced its preliminary finding on the application in a notice published in the
Wendel describes itself as “one of the most prominent listed investment companies in Europe. Its philosophy is to invest for the long term, as a majority or principal shareholder, in listed or unlisted companies with leadership positions, so as to accelerate their own growth and business development” (
On June 4, 2004, CSL submitted its renewal application. On April 27, 2007, OSHA informed CSL by letter that CSL appeared not to meet the NRTL Program policy on independence under
OSHA responded to CSL on August 14, 2008 (see Ex. 6—OSHA letter to CSL, dated 08/14/2008), and reiterated the following concerns about CSL's independence: (1) The substantial relationship
On February 20, 2009, CSL responded by letter (see Ex. 7—CSL letter to OSHA, dated 02/20/2009) describing its efforts to: (1) Monitor Wendel's acquisitions; (2) perform enhanced certification procedures on products manufactured by subsidiaries and other companies organizationally affiliated with Wendel; and (3) use both external and internal audits to ensure that CSL maintains its independence. CSL asserted that it would accomplish these efforts through extensive procedures it has in place to identify public Wendel subsidiaries, its conflict management procedures that require additional witnessing and review of test data on products produced by Wendel subsidiaries, audits by internal compliance officers, and IFIA membership. It also informed OSHA that it was changing its executive leadership and augmenting its board of directors with additional independent directors to dilute the potential for undue influence upon the board. However, the mutual board members shared between BVSA, Legrand, and Wendel would remain on the board. OSHA fully considered CSL's efforts to rebut the presumption of undue influence. However, on January 19, 2010, the Agency responded with a negative finding of renewal (see Ex. 8—OSHA negative finding of renewal, dated 01/19/2010). OSHA based its decision, in part, on concerns that OSHA would not be able to effectively monitor CSL's efforts, even if CSL made good-faith efforts, because of the extent and complexity of Wendel and Legrand's operations. OSHA does not have the resources or expertise to monitor all of Wendel's and Legrand's acquisitions, products, and operations.
In response to the negative finding of renewal, CSL submitted a revised application on October 18, 2010 (see Ex. 9—CSL revised renewal application, dated 10/18/2010). The revised application reiterated its commitment to objective testing, the procedures of the CSL Compliance Committee, and requirements of the external audits. CSL also proposed a temporary limitation, in which CSL would limit its testing and certification to existing customers and products. On August 1, 2011, CSL notified OSHA that Wendel reduced its ownership of Legrand from 32% to 11.1% (Ex. 10). However, as described below, the revised application and reduction in ownership fail to address the fundamental violation of the NRTL independence requirement.
OSHA requires NRTLs and applicants to be “completely independent” of the manufacturers of the equipment the NRTLs are testing (see 29 CFR 1910.7(b)(3)). This independence requirement is fundamental to the third-party testing and certification system. Early in the NRTL Program, OSHA extended the practices that two NRTLs—Underwriters Laboratories (UL) and Factory Mutual Research Corporation (FMRC)—instituted in their testing and certification programs. These practices included having no affiliations with (
The NRTL Program Directive that was in effect when CSL applied for NRTL recognition stated that, to meet the independence requirement, NRTLs and applicants “must be free from commercial, financial and other pressures that could compromise the results of its testing and certification processes” (see NRTL Program Policies, Procedures, and Guidelines—CPL 01-00-003—CPL 1-0.3 (NRTL Program Directive), Appendix C.V). The Directive makes it clear that NRTLs and applicants must avoid these pressures from manufacturers of equipment.
Under its independence policy, OSHA presumes that “pressures” exist if there is a substantial relationship between the NRTL or applicant and a manufacturer “of products that must be certified which could compromise the objectivity and impartiality in determining the results of its testing and certification processes.” Substantial, for purposes of the policy, “means of such a nature and extent as to exert undue influence on the testing and certification processes.”
In some limited situations, the policy allows OSHA to prescribe “conditions” on NRTLs or applicants for initial or continued recognition, even when the Agency determines that pressures exist. Such conditions, however, “must be consistent with the policy,” in that they must effectively eliminate the pressures stemming from the substantial relationship. The Directive also provides examples of options OSHA may consider when imposing conditions: (1) Restricting the suppliers for whom the NRTL or applicant may test and certify products; or (2) restricting the type of products the NRTL or applicant may test and certify.
Whether imposing conditions on an NRTL or applicant is appropriate is a judgment made by the Agency on a case-by-case basis. OSHA has discretion whether to impose conditions in a particular case. The independence policy does not
In analyzing these situations, OSHA must carefully examine the ownership situation; the types of products at issue; the scope and magnitude of the NRTL's or applicant's operations; the scope and magnitude of the operations of the manufacturers making, and the employers using, the products; and other factors. OSHA also must consider the degree to which it can monitor the NRTL or applicant's compliance with any imposed conditions, which is a particularly important factor. OSHA typically audits NRTLs once a year to ensure they continue to meet the NRTL requirements, including the independence requirement, and to maintain the quality of their testing and certification operations. If imposing conditions on an NRTL or applicant would be difficult or impossible for OSHA to audit effectively, imposing conditions on the NRTL or applicant would not be appropriate.
OSHA believes its policy on NRTL independence is a straightforward approach for judging an NRTL's or applicant's compliance with the Agency's independence requirement under 29 CFR 1910.7. OSHA cannot perform in-depth analyses of an NRTL's or applicant's ownership or financial relationship and interests. Therefore, the NRTL or applicant has the burden of showing it is independent, and that any relationship with a manufacturer or employer involves no, or only minor, pressures.
Wendel Investissement (Wendel) owns, at least in part, both CSL and Legrand (a manufacturer). Wendel owns 58% of CSL and 11% of Legrand through various intermediaries. Legrand is a manufacturer of various products, many of which require NRTL certification if used in the workplace. Under the NRTL independence policy, this relationship constitutes a “substantial relationship,” in which a major owner of a supplier of products requiring NRTL certification has an ownership interest in excess of two percent in CSL, an NRTL. Because of this substantial relationship, OSHA presumes that pressures exist on CSL that could compromise the results of its testing and certification processes and that CSL, therefore, is not independent.
CSL attempted to rebut the presumption of pressures. In various letters to the Agency, CSL explained why it believes it is not subject to pressures from Wendel or Legrand that could compromise the results of its testing and certification processes. CSL stated that its relationship to Legrand is highly attenuated and that its decision making is independent of both Wendel and Legrand (Ex. 9, p. 3). To rebut the presumption of pressures, CSL also proposed that it renew temporarily only product certifications for existing customers not associated with Wendel (Ex. 9 pp. 1, 10). Finally, CSL claimed that it took a variety of steps to ensure that it will not test or certify any products made by Legrand (Ex. 9, pp. 10-12). The Agency carefully considered this information, and finds that CSL did not adequately rebut the presumption of pressures, as discussed below.
To rebut the presumption of pressure, CSL contended that “the relationship of Legrand or other Wendel holdings is highly attenuated” (Ex. 9, p. 3) and, as such, does not result in undue pressure on CSL. CSL argues that Wendel is a long-term investor that does not manage CSL's day-to-day operations. CSL also noted that Wendel does not exert control over CSL, therefore assuring CSL's independence from Wendel and Legrand.
CSL's assertion that Wendel does not manage, or exert control over, CSL does not address the fundamental issue regarding the control that a parent company has over a subsidiary (
Although CSL claims an “attenuated” connection to Wendel, CSL did not provide any assurances that Wendel will refrain from exerting control over CSL, or pressuring CSL through Bureau Veritas. To the contrary, Wendel has a corporate policy that encourages exerting control over Bureau Veritas and CSL. Wendel's Web site states that its “policy is to be the key or controlling shareholder in its listed or unlisted investments on a long-term and hands-on basis. It expresses this commitment by actively participating in these companies' strategic decisions, based on the principle of direct, constructive and transparent give-and-take with their managers” (
CSL also claims that, because no member of its Board of Managers has “significant ties” to any of BVSA's parent companies, there is little
Furthermore, CSL asserted that individuals affiliated with Wendel and Legrand are no longer members of its Board of Managers (see Ex. 7). However, based on the information CSL provided, several BVSA-affiliated members remain on CSL's board: John Beisheim is Vice President of Acquisitions and Risk Management at BVCPS and Oliver Butler is a Senior Vice President of BVCPS (Ex. 7, p. 2). BVCPS is a subsidiary of BVSA, which is a subsidiary of Wendel. This arrangement perpetuates a direct line of communication and influence between Wendel and CSL by way of BVSA and senior officers at BVCPS. CSL provided no information to OSHA regarding the removal of members of its board who also were members of Legrand's, Wendel's, and BVSA's boards. These associations make Wendel privy to the BVSA's Board of Director's deliberations on behalf of CSL. Because of the close linkages, the potential remains for Wendel to influence CSL's testing and certification operations. Furthermore, since Wendel benefits from Legrand's success as a manufacturer of NRTL-certified products, the presumption is that pressures from Wendel could compromise CSL's testing and certification processes with regard to these Legrand products. In summary, the modifications CSL made to its Board of Managers provided little organizational separation between CSL and Wendel and, therefore, do not adequately rebut the presumption of pressures.
OSHA has concerns regarding entities that own intermediary companies between Legrand and Wendel, the companies these intermediaries own, and the business lines of these companies. The organizational chart provided by CSL on January 31, 2008 (Ex. 5; Ex. 1), fails to show the part owners of a number of these intermediaries. CSL also provided no information on the new intermediate owner of BVSA. Also missing is the name of intermediate companies owned by Wendel's subsidiaries. OSHA requested this information on August 14, 2008, but CSL repeatedly failed to provide the information required to address OSHA's concerns.
In its revised application, submitted October 18, 2010 (see Ex. 9), CSL requested that OSHA renew CSL's recognition by imposing a limitation that would restrict CSL to “only renew existing NRTL product certifications for existing customers * * * until the matter of ownership of [CSL] is resolved to OSHA's satisfaction.” CSL argued that this limitation would eliminate the presumption of pressure or other concerns regarding Wendel's ownership of CSL or the content of Wendel's holdings. CSL claimed that this approach would address OSHA's concerns regarding undue pressure because none of its existing customers had affiliations with Wendel. This limitation does not address OSHA's concerns adequately. The Agency must examine carefully the ownership situation; the types of products at issue; the scope and magnitude of the NRTL's and applicant's operations; the scope and magnitude of the operations of manufacturers making, and the employers using, the products; and other factors. OSHA also must consider the degree to which it can monitor NRTL compliance with such a condition.
As proposed by CSL, the limitation would be temporary and, therefore, would not resolve the ultimate independence issue. CSL would remain organizationally affiliated with Wendel, a situation in which Wendel could exert undue pressure on CSL. For instance, CSL's current NRTL certifications include testing for the standard UL 60950, which covers products made by Legrand. Under CSL's proposal, Wendel could still exert pressure on CSL to reject similar products made by Legrand's competitors.
Furthermore, CSL claimed that the proposed condition is a “self regulating” limitation that OSHA could audit easily. However, Wendel's operations are so vast that OSHA seriously doubts that CSL could effectively enforce the proposed condition. In this regard, Legrand is a world-wide enterprise with operations and affiliates in the U.S., Europe, Canada, Mexico, South America, China, and other Asian countries. One of these affiliates, Bticino, has operations in 60 countries. Wendel's 2007 annual report states that Legrand acquired 15 suppliers or manufacturers during the preceding three years, and the 2008 annual report describes Legrand as having a 19% market share of products and systems for electrical installations, and offering nearly 170,000 products. Moreover, CSL reports that it currently has 203 outstanding certifications distributed among 78 customers. Accordingly, it is infeasible for either OSHA or CSL to monitor every merger and acquisition of CSL's customers to ensure that none of these transactions involve a Wendel subsidiary. This infeasibility, along with the temporary status of this proposed condition, makes it an unacceptable option to resolve CSL's independence issue.
CSL established a compliance program that includes participation in various ethics programs, as well as formation of a Compliance Committee of CSL's Board consisting of independent managers to “assure that there are no pressures to distort its NRTL testing and certifications” (Ex. 9, p. 10). CSL also noted that Bureau Veritas is a member of the IFIA, which CSL claimed “assure[s] independence with respect to * * * certifications” as a part of the IFIA's ethical requirements (Ex. 9, p. 12). The ethical programs include both internal and external audits. Furthermore, CSL claimed that its conflict-management procedures require that it test and certify all products “independently of all of its clients. It does not design or manufacture products that it tests or certifies” (Ex. 9, p. 10). However, implementation of this compliance program does not rebut the presumption of pressures.
First, OSHA does not allow an NRTL to “self certify” its independence. Second, CSL's policy does not address the fundamental ownership conflict (
As described above, OSHA's independence policy permits OSHA to impose conditions only when minimal pressures exist, and the conditions are consistent with the NRTL independence requirement. The extent to which OSHA may impose conditions on a manufacturer-owned NRTL depends in part on the ownership arrangement, the scope of the NRTL's recognition, and the scope of the products manufactured.
In this case, Wendel owns a substantial share of CSL and a manufacturer, rather than a small minority interest in either organization, which would severely limit the pressure it could exert on the NRTL. Furthermore, Wendel owns and operates an enormous variety of companies. Wendel could own companies that produce numerous types of products that require NRTL certification. In such cases, OSHA cannot impose conditions on CSL that are consistent with the fundamental requirement that NRTLs be independent of “any manufacturers or vendors of equipment or material being tested for [equipment requirements]” (see 29 CFR 1910.7(b)(3)). In this regard, OSHA must consider whether it can reasonably monitor an NRTL's compliance with the conditions. OSHA cannot monitor reliably the various CSL and Wendel ownership relationships and affiliations with the numerous subsidiaries of Wendel. As noted earlier, the Agency's policy on independence must provide a straightforward, practical approach to determining whether an organization meets the requirement for independence. Accordingly, OSHA is not requiring its staff to analyze actual or potential business activities that could cause actual or potential conflicts and pressures. When these activities are extensive, which is the case for the world-wide operations of Legrand, this information is far beyond OSHA's auditing capabilities under the NRTL Program. In summary, OSHA cannot reasonably determine with its existing resources the extent to which Wendel-affiliated companies contribute to the sale and manufacture of products submitted to CSL for NRTL testing and certification.
CSL contended that OSHA permitted other NRTLs in positions similar to CSL's to adopt conditions that rebut the presumption of pressures (Ex. 9, p. 6). In particular, CSL argued that OSHA permitted such conditions in the cases of Intertek Testing Services NA, Inc. (Intertek), National Technical Systems, Inc. (NTS), and Wyle Laboratories, Inc. (Wyle), and that those cases indicate that OSHA also should apply conditions in CSL's case (Ex. 9, pp. 7-9). OSHA disagrees with this argument because CSL's case differs from these other cases. As mentioned above, OSHA applies conditions only in circumstances in which minimal pressures exist, and OSHA can reasonably determine and monitor the effectiveness of the conditions, and the conditions are consistent with OSHA's independence requirement.
In the Intertek case, Intertek's parent acquired, and merged into Intertek's overall laboratory operations, a small manufacturer of laboratory test equipment, Compliance Design. Consequently, Intertek lost its independence because its parent company owned a manufacturer of equipment that needed NRTL approval. OSHA, however, imposed a condition on Intertek's recognition that effectively eliminated the pressures stemming from Intertek's relationship with Compliance Design (66 FR 29178). This condition included a no-testing policy for Compliance Design and for any other manufacturer affiliated with Intertek. Although OSHA received no information showing that Intertek or its parent owned any other manufacturing interest, the Agency imposed the broader condition as a precaution. OSHA could impose this condition because, unlike CSL's situation, Compliance Design was a small company that produced just one type of product; therefore, Intertek could enforce the no-testing policy. Because of Compliance Design's limited operations, OSHA could monitor effectively Intertek's compliance with the independence policy. As noted earlier, CSL's situation is much different than Intertek's because Wendel's and Legrand's operations involve multiple products manufactured and sold by numerous and various subsidiaries, making it impossible for OSHA to impose conditions on CSL's recognition that would mitigate all of the pressures and that OSHA could monitor reasonably and effectively.
OSHA also imposed a condition on Wyle (59 FR 37509). When OSHA granted Wyle NRTL recognition, Wyle was part of an organization with a division that manufactured and distributed electronic enclosure cabinets. As with Intertek, the condition imposed on Wyle required that Wyle not test or certify any equipment that used electronic enclosures manufactured by the affiliated division. Unlike CSL's situation, this condition was easy for Wyle and OSHA to monitor because the only product at issue was electrical enclosure cabinets.
Lastly, OSHA imposed conditions on NTS (63 FR 68306). NTS was a public company that “could conceivably perform the design and engineering services * * * for manufacturers or vendors of the products covered within the scope of the test standards for which OSHA has recognized NTS” (63 FR 68306). Because NTS is a public company, OSHA had a concern that manufacturers or vendors could acquire ownership of NTS. Accordingly, OSHA imposed a condition on NTS that restricted it from testing and certifying products for a client to which it sells design or similar services. OSHA also required NTS to provide OSHA an opportunity to review NTS's NRTL Quality Manual, Quality Assurance Procedures, and other procedures within 30 days of certifying its first products under the NRTL Program (63 FR 68306, 68309). OSHA imposed these conditions only as a preemptive measure because there was no evidence in the record that any manufacturers or vendors owned NTS, or that NTS was providing design and engineering services to manufacturers or vendors. However, this is not the case for CSL, in which a manufacturer's direct ownership interest and the potential for indirect affiliation with numerous other manufacturers and vendors, results in a presumption of pressure that violates the NRTL independence policy.
Thus, OSHA's determination regarding the imposition of conditions on CSL's NRTL recognition is consistent with the Agency's previous actions on this issue. Although OSHA provided CSL with several opportunities to rebut the presumption of pressures, CSL did not meet its burden of demonstrating by clear and convincing evidence that pressures do not, and will not, exist that could compromise the results of its testing and certification process.
CSL seeks renewal of its recognition for the one site that OSHA previously recognized. CSL also is requesting that OSHA renew its recognition to use the
Following a thorough review of the application file and other pertinent information, and for the reasons stated above, OSHA determined that CSL does not meet all of the requirements for renewal of its NRTL recognition. The NRTL Program staff, therefore, recommends preliminarily that the Assistant Secretary deny CSL's application for renewal of its NRTL recognition.
OSHA welcomes public comment as to whether CSL meets the requirements of 29 CFR 1910.7 for renewal of its recognition as an NRTL. Comments should consist of pertinent written documents and exhibits. Commenters needing more time to comment must submit a request in writing, stating the reasons for the request. OSHA must receive the written request for an extension by the due date for comments (see
The NRTL Program staff will review all comments submitted to the docket in a timely manner, and, after addressing the issues raised by the comments, will recommend whether to grant the renewal of NRTL recognition to CSL. The Assistant Secretary will make the final decision on granting NRTL recognition, and, in making this decision, may undertake other proceedings prescribed in Appendix A to 29 CFR 1910.7. OSHA will publish a public notice of this final decision in the
David Michaels, PhD, MPH, Assistant Secretary of Labor for Occupational Safety and Health, 200 Constitution Avenue, NW., Washington, DC 20210, authorized the preparation of this notice. Accordingly, the Agency is issuing this notice pursuant to Sections 6(b) and 8(g) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655 and 657), Secretary of Labor's Order No. 4-2010 (75 FR 55355), and 29 CFR 1911.
National Archives and Records Administration.
Notice of opening of additional materials.
This notice announces the opening of Nixon Presidential Historical Materials by the Richard Nixon Presidential Library and Museum, a division of the National Archives and Records Administration. Notice is hereby given that the Agency has identified, inventoried, and prepared for public access additional textual materials and sound recordings from among the Nixon Presidential Historical Materials. Furthermore, in response to the July 29, 2011, court order in the case of
The Richard Nixon Presidential Library and Museum intends to make the materials described in this notice available to the public on Thursday, November 10, 2011, at the Richard Nixon Library and Museum's primary location in Yorba Linda, California, beginning at 9 a.m. P.S.T./12 p.m. E.S.T. In accordance with 36 CFR 1275.44, any person who believes it necessary to file a claim of legal right or privilege concerning access to Nixon Presidential Historical Materials must notify the Archivist of the United States in writing of the claimed right, privilege, or defense within 30 days of the publication of this notice. The formerly redacted segments of the WSPF tape transcripts associated with the grand jury testimony of President Nixon will be made available to the public in the research room of the National Archives at College Park, located at 8601 Adelphi Road, College Park, Maryland, beginning at 12 p.m. E.S.T.
The Richard Nixon Presidential Library and Museum, a division of the National Archives, is located at 18001 Yorba Linda Boulevard., Yorba Linda, California. The National Archives at College Park is located at 8601 Adelphi Road, College Park, Maryland. Researchers must have a NARA researcher card, which they may obtain when they arrive at either facility. Selections from the materials described in paragraphs 1 through 5 of this notice will be available at
Timothy Naftali, Director, Richard Nixon Presidential Library and Museum, 714-983-9120.
In accordance with section 104 of Title I of the Presidential Recordings and Materials Preservation Act (PRMPA, 44 U.S.C. 2111 note) and 1275.42(b) of the PRMPA Regulations implementing the
The following materials will be made available in accordance with this notice:
1. Previously restricted textual materials.
2. White House Central Files, Staff Member and Office Files.
3. White House Central Files, Name Files:
4. White House Special Files, Staff Member and Office Files. Volume: <60 minutes of audio recordings from the following collections: President's Personal File (PPF).
5. Record Group 460, Records of the Watergate Special Prosecution Force (WSPF).
Nuclear Regulatory Commission.
License application; opportunity for hearing and order.
Requests for a hearing or Leave to Intervene must be filed by December 12, 2011. Any potential party as defined in Title 10 of the
You can access publicly available documents related to this document using the following methods:
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Marilyn Diaz, Project Manager, Fuel Manufacturing Branch, Division of Fuel Cycle Safety and Safeguards, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, Mailstop: EBB2-C40M, Rockville, Maryland 20852;
The NRC has accepted for detailed technical review an application for a new license for the possession and use of special nuclear material (SNM) for performance testing of radiation detection systems for locating SNM, under a project sponsored by the Domestic Nuclear Detection Office (DNDO) of the U.S. Department of Homeland Security (DHS). Rapiscan Laboratories, Inc. (the Applicant) requested the new license for a period of 10 years. This license application, if approved, would authorize the Applicant to possess and use special nuclear materials under 10 CFR Part 70, “Domestic Licensing of Special Nuclear Material.”
In its application, dated October 22, 2010, the Applicant requested a license to possess and use SNM to conduct tests of new technology for use in detection systems. The SNM would be used as test objects for concept demonstrations and characterization testing. Following an administrative review, the NRC requested the Applicant to revise its application to include elements essential to conducting a detailed technical review. The Applicant submitted a revised license application, dated February 9, 2011, and supplemental information on March 10, 2011. By letter dated March 10, 2011, the NRC staff found the revised license application acceptable to begin a detailed technical review. The application has been docketed in Docket No. 70-7021.
If the NRC approves the license application, the basis for approval will be documented in a Safety Evaluation Report (SER) supporting the issuance of a new NRC license. The SER would contain the findings required by the Atomic Energy Act of 1954, as amended (the Act), and the NRC's regulations, for issuing an SNM license. The SER would also include a determination of the need to complete an environmental
Requirements for submitting hearing requests and petitions for Leave to Intervene are found in 10 CFR 2.309, “Hearing Requests, Petitions to Intervene, Requirements for Standing, and Contentions.” Interested persons should consult 10 CFR Part 2, Section 2.309, which is available at the NRC's PDR, located at One White Flint North, 11555 Rockville Pike, O1-F21, Rockville, MD 20852. You may also call the PDR at 1-800-397-4209 or 301-415-4737. The NRC regulations are also accessible electronically from the NRC's Web site at
Any person whose interest may be affected by this proceeding, and who desires to participate as a party in the proceeding must file a written petition for Leave to Intervene. 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 must provide the name, address, and telephone number of the petitioner; and specifically explain the reasons why intervention should be permitted with particular reference to the following factors: (1) The nature of the petitioner's right under the Act to be made a party to the proceeding; (2) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (3) the possible effect of any order that may be entered in the proceeding on the petitioner's interest.
A petition for Leave to Intervene must also include a specification of the contentions that the petitioner seeks to have litigated in the hearing. For each contention, the petitioner must provide a specific statement of the issue of law or fact to be raised or controverted, as well as a brief explanation of the basis for the contention. Additionally, the petitioner must demonstrate that the issue raised by each contention is within the scope of the proceeding, and is material to the findings that the NRC must make to support the granting of a license in response to the application. The petition must also include a concise statement of the alleged facts or expert opinions which support the position of the petitioner, and on which the petitioner intends to rely at the Hearing—together with references to the specific sources and documents on which the petitioner intends to rely. Finally, the petition must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact, including references to specific portions of the license application that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the license application fails to contain information on a relevant matter as required by law, the identification of each failure, and the supporting reasons for the petitioner's belief. Each contention must be one that, if proven, would entitle the petitioner to relief.
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 with respect to resolution of that person's admitted contentions, including the opportunity to present evidence and to submit a cross-examination plan for cross-examination of witnesses, consistent with the NRC's regulations, policies, and procedures. The Atomic Safety and Licensing Board (the Licensing Board) will set the time and place for any pre-hearing conferences and evidentiary hearings, and the appropriate notices will be provided.
Petitions for leave to intervene must be submitted no later than 60 days from October 11, 2011. Non-timely petitions for Leave to Intervene and contentions, amended petitions, and supplemental petitions will not be entertained, absent a determination by the Commission, the Licensing Board or a Presiding Officer that the petition should be granted and/or the contentions should be admitted based upon a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)-(viii).
A State, county, municipality, Federally recognized Indian Tribe, or agencies thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(d)(2). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission by December 12, 2011. The petition must be filed in accordance with the filing instructions in Section IV of this document, and should meet the requirements for petitions for Leave to Intervene set forth in this section, except that State and Federally recognized Indian tribes do not need to address the standing requirements in 10 CFR 2.309(d)(1) if the facility is located within its boundaries. The entities listed above could also seek to participate in a hearing as a non-party, pursuant to 10 CFR 2.315(c).
Any person who does not wish, or is not qualified, to become a party to this proceeding may request permission to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of position on the issues, but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any pre-hearing conference, subject to such limits and conditions as may be imposed by the Licensing Board. Persons desiring to make a limited appearance are requested to inform the Secretary of the Commission by December 12, 2011.
All documents filed in NRC's 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 o