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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 fi