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Agricultural Marketing Service, USDA.
Correcting amendment.
This document contains corrections to the final rule published on August 31, 2011, regarding the Cotton Board Rules and Regulations and the adjustment to the supplemental assessment collected for use by the Cotton Research and Promotion Program. Corrections are made to section 1205.510 of the final rule to remove expired Harmonized Tariff Schedule (HTS) codes and HTS codes representing ensembles, which are strictly used for statistical reporting. Furthermore, conversion factors and assessment rates for two HTS codes, which were inadvertently excluded from the final rule, are added, and clerical errors associated with three different HTS codes are corrected.
Shethir M. Riva, Chief, Research and Promotion Staff, Cotton and Tobacco Programs, AMS, USDA, Stop 0224, 1400 Independence Ave. SW., Room 2635-S, Washington, DC 20250-0224, telephone (540) 361-2726, facsimile (202) 690-1718, or email at
The final rule (76 FR 54078) amended the Cotton Board Rules and Regulations in 7 CFR 1205.510 by updating the value assigned to imported cotton for the purpose of calculating supplemental assessments collected for use by the Cotton Research and Promotion Program. The final rule was required to adjust the supplemental assessment and to ensure that assessments collected on imported raw cotton and the cotton content of imported cotton-containing products are the same as assessments collected on domestically produced cotton. In addition, textile trade conversion factors used to determine the raw fiber equivalents of imported cotton-containing products were updated and the number of HTS codes used to assess all imported cotton and cotton-containing products were expanded.
Following the publication of the final rule and during implementation with the U.S. Customs and Border Protection (CBP), eleven HTS codes were determined to have expired and, therefore, are no longer relevant to the assessment of imports which contain cotton. The eleven expired HTS codes are removed from the “Import Assessment Table.” In addition, CBP notified the Agricultural Marketing Service (AMS) that the “Import Assessment Table” contained 129 HTS codes which represent ensembles. Ensemble HTS codes are used identify and report statistics on articles that are marketed as a bundle and are composed of identical fabric. CBP does not use ensemble HTS codes for assessment purposes. Rather each article composing an ensemble is assessed using its own HTS code. Therefore, the 129 ensemble HTS codes are removed from the “Import Assessment Table.” Two HTS numbers were inadvertently excluded from the final rule. These HTS numbers (5608901000 and 5602906000) along with their conversion factors (1.0852 and 0.5426, respectively) and assessment rates (1.3744 and 0.6872, respectively) are added to the “Import Assessment Table.” Finally, clerical errors associated with three HTS numbers published in the final rule are corrected. HTS numbers 5513390011, 5513390015 and 5513390091 should read 5513390111, 5513390115 and 5513390191, respectively.
Advertising, Agricultural research, Cotton, Marketing agreements, Reporting and recordkeeping requirements.
Accordingly, 7 CFR part 1205 is corrected by making the following correcting amendment:
In § 1205.510, the table in paragraph (b)(3)(ii) is revised to read as follows:
(b) * * *
(3) * * *
(ii) * * *
7 U.S.C. 2101-2118.
Agricultural Marketing Service, USDA.
Final rule.
This rule establishes an industry-funded promotion, research, and information program for fresh cut Christmas trees. The Christmas Tree Promotion, Research, and Information Order (Order) is authorized under the Commodity Promotion, Research, and Information Act of 1996 (1996 Act). The Order will establish a national Christmas Tree Promotion Board (Board) comprised of 11 producers and one importer. Under the Order, producers and importers of fresh cut Christmas trees will pay an initial assessment of fifteen cents per Christmas tree. Producers and importers that produce or import less than 500 Christmas trees annually will be exempt from the assessment. A referendum will be conducted, among producers and importers, three years after the collection of assessments begin to determine if Christmas tree producers and importers favor the continuation of this program.
Effective November 9, 2011.
Patricia A. Petrella, Marketing Specialist, Research and Promotion Division, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., Room 1406, Stop 0244, Washington, DC 20250-0244;
This Order is issued pursuant to the Commodity Promotion, Research, and Information Act of 1996 (1996 Act) (7 U.S.C. 7411-7425).
As part of this rulemaking process, a proposed rule was published in the
This final rule has been determined not significant for purposes of Executive Order 12866 and therefore has not been reviewed by the Office of Management and Budget (OMB).
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 524 of the 1996 Act provides that it shall not affect or preempt any other Federal or State law authorizing promotion or research relating to an agricultural commodity.
Under section 519 of the 1996 Act, a person subject to an order may file a written petition with the Department stating that an order, any provision of an order, or any obligation imposed in connection with an order, is not established in accordance with the law, and requesting a modification of an order or an exemption from an order. Any petition filed challenging an order, any provision of an order, or any obligation imposed in connection with an order, shall be filed within two years after the effective date of an order, provision, or obligation subject to challenge in the petition. The petitioner will have the opportunity for a hearing on the petition. Thereafter, the Department will issue a ruling on the petition. The 1996 Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have the jurisdiction to review a final ruling on the petition, if the petitioner files a complaint for that purpose not later than 20 days after the date of the entry of the Department's final ruling.
This final rule has been reviewed under Executive Order 13132, Federalism. Section 524 of the 1996 Act provides that the Act shall not affect or preempt any other Federal or State law authorizing promotion or research relating to an agricultural commodity.
The proponent, the Christmas Tree Checkoff Task Force is an industry wide group of producers and importers that support this proposed program. They have conducted meetings throughout the United States with several State and multi-State Christmas tree organizations. The proposed program is not intended to duplicate any State program. The proponents have determined that they need a mechanism that would be sustainable over time. A national Christmas tree research and promotion program would accomplish this goal.
This rule establishes an industry-funded promotion, research, and information program for fresh cut Christmas trees. The Christmas Tree Promotion, Research, and Information Order (Order), was submitted to the Department of Agriculture (Department) by the Christmas Tree Checkoff Task Force (Task Force), an industry wide group of producers and importers that support this program. Under the Order, producers and importers of fresh cut Christmas trees will pay an initial assessment of $0.15 cents per tree, which would be paid to the Christmas Tree Promotion Board (Board). This Board will be responsible for administration and operation of the Order. Producers and importers that produce or import less than 500 Christmas trees annually will be exempt from the assessment. The program is authorized under the Commodity Promotion, Research, and Information Act of 1996 (1996 Act).
A referendum will be conducted, among producers and importers, three years after the collection of assessments begin to determine if Christmas tree producers and importers favor the continuation of this program. A final rule on the referendum procedures will be published in the
The Order is authorized under the 1996 Act which authorizes USDA to establish agricultural commodity research and promotion orders which may include a combination of promotion, research, industry information, and consumer information activities funded by mandatory assessments. These programs are designed to maintain and expand markets and uses for agricultural commodities. As defined under section 513(1)(D) of the 1996 Act, agricultural commodities include fresh cut Christmas trees. The Order will provide for the development and financing of a coordinated program of research, promotion, and information for Christmas trees.
The 1996 Act provides for a number of optional provisions that allow the tailoring of orders for different commodities. Section 516 of the 1996 Act provides permissive terms for orders, and other sections provide for alternatives. For example, section 514 of the 1996 Act provides for orders applicable to (1) Producers, (2) first handlers and others in the marketing chain as appropriate, and (3) importers (if imports are subject to assessments). Section 516 states that an order may include an exemption of
In addition, section 518 of the 1996 Act provides for referenda to ascertain approval of an order to be conducted either prior to its going into effect or within three years after assessments first begin under the order. An order also may provide for its approval in a referendum based upon different voting patterns. Section 515 provides for establishment of a board or council from among producers, first handlers and others in the marketing chain as appropriate, and importers, if imports are subject to assessment.
Christmas trees have been commercially sold in the United States since about 1850, when most were cut from wild stands. In the last 55 to 60 years, Christmas trees have been farmed and harvested as an agricultural row crop. Most Christmas trees are now grown on or selected and cut by consumers on tree farms. The U.S. Christmas tree industry consists of over 12,000 farms producing over 17 million Christmas trees per year. The best selling Christmas trees are Scotch pine, Douglas fir, noble fir, Fraser fir, Virginia pine, balsam fir and white pine.
Christmas trees are grown for retail sale in almost all U.S. states. Oregon, Michigan, Wisconsin, North Carolina and Pennsylvania together produce more than 75 percent of the trees produced each year. During 2007, 47 out of the 50 States contributed to the production of Christmas trees.
The fresh cut Christmas tree industry competes directly with the artificial Christmas tree industry. Artificial Christmas tree companies advertise heavily throughout the fall and Christmas seasons. According to data
According to U.S. Department of Commerce, U.S. Census Bureau, Foreign Trade Statistics, imports of Christmas trees from 2006 through 2008 averaged about 1.9 million trees. During those years, imports from Canada accounted for 99.72 percent of the total imports. Italy, Columbia and Mali comprised about .28 million trees or less than one percent. For the same period, these imports were valued at $27.427 million dollars.
According to the Task Force, in 2007 the average price per tree for a Noble was approximately $18.00 and the average price per tree for a Douglas was $11.00. By averaging these two types of Christmas trees, prices would be approximately $15 per tree. With 31 million trees cut in 2007, the value would be approximately $465 million (value at point of first sale).
A national research and promotion program for Christmas trees would help the industry to address the many market problems it currently faces. According to the Task Force, two main factors currently affecting Christmas tree sales, both in the domestic market and abroad, are increased competition and changing consumer habits.
According to additional data supplied by the Task Force, the market share of fresh Christmas trees in the U.S. from 1965 to 2008 has declined by 6 percent. In comparison, the market share of artificial trees has increased 655 percent from 1965 to 2008.
According to the proponent data, sales of fresh cut Christmas trees decreased by 15 million trees from 37 million trees sold in 1991 down to 22 million trees sold in 2002. The industry saw an increase in sales in 2003 through 2007 when the industry conducted a voluntary marketing campaign which was lead by a small group of producers and retailers. This voluntary marketing campaign saw sales rebound by 9 million trees—from 22 million trees sold in 2002 to 31 million trees sold in 2007. Even with the strong sales response to the marketing efforts, the voluntary marketing program suffered from a lack of funding.
The Christmas tree industry has tried three different times to conduct promotional programs based on voluntary contributions. Each time, after about three years, the revenue declined to a point where the programs were ineffective. The decline in revenue is attributable to the voluntary nature of these programs. Therefore, the proponents have determined that they need a mechanism that would be sustainable over time. They believe that a national Christmas tree research and promotion program would accomplish this goal.
Pursuant to section 513 of the 1996 Act, sections 1214.1 through 1214.30 of the Order define certain terms that will be used throughout the Order, such as Christmas trees, importer and producer. Several of the terms are common to all research and promotion programs authorized under the 1996 Act while other terms are specific to the Order.
Sections 1214.47 of the Order will detail the establishment and membership of the Christmas Tree Promotion Board, nominations and appointments, the term of office, removal and vacancies, procedure, reimbursement and attendance, powers and duties, and prohibited activities.
Sections 1214.50 through 1214.56 of the Order will detail requirements regarding the Board's budget and expenses, financial statements, assessments, and exemption from assessments.
The Board's programs and expenses will be funded through assessments on producers, importers, donations from any person including those not subject to assessments, other income, and other funds available to the Board. The Order will provide for an initial assessment rate of $0.15 per Christmas tree cut and sold domestically or imported into the United States.
This assessment rate will be reviewed by the Board after the initial referendum is conducted (3 years after assessments first begin). The assessment rate cannot be changed during the first three years of operation of the Order. The assessment rate may be increased or decreased no more than 2 cents per Christmas tree during the fiscal period. Any change in the assessment rate within this range will be subject to rulemaking by the Secretary. The assessment rate shall not exceed 20 cents per Christmas tree, nor shall it be less than 10 cents per Christmas tree, unless a majority of producers and importers approve such other levels of assessments through a referendum conducted pursuant to this subpart. Importers who import 500 Christmas trees or more would be required to pay assessments to the Board, if not collected by Customs.
Importer assessments will be collected through Customs. The Order will specify a list of numbers of the Harmonized Tariff Schedule of the United States that will identify Christmas trees subject to assessments.
The Order will provide authority for the Board to impose a late payment charge and interest for assessments overdue to the Board. The late payment charge and rate of interest will be prescribed in the Order's regulations issued by the Secretary.
Sections 1214.60 through 1214.62 of the Order will detail requirements regarding promotion, research and information projects authorized under the Order.
Sections 1214.70 through 1214.72 specify the reporting and recordkeeping requirements under the Order as well as requirements regarding confidentiality of information.
Section 1214.81(a)(1) of the Order specifies that the program will be implemented and a referendum conducted three years after assessments first begin under the Order. The Order will not continue unless it is approved by a majority of those persons voting in the referendum for approval.
Section 1214.81(b) of the Order specifies criteria for subsequent referenda. Under the Order, a referendum will be held to ascertain whether the program should continue, be amended, or be terminated.
Section 1214.80 and sections 1214.82 through 1214.88 describe the rights of the Secretary; authorize the Secretary to suspend or terminate the Order when deemed appropriate; prescribe proceedings after termination; address personal liability, separability, and amendments; and provide OMB control numbers. These provisions are common to all research and promotion program authorized under the 1996 Act.
In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS is required to examine the impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened. The Small Business Administration defines, in 13 CFR part 121, small agricultural producers as those having annual receipts of no more than $750,000 and small agricultural service firms (producers and importers) as those having annual receipts of no more than $7.0 million.
Under these criteria, the majority of the producers that will be affected by this Order will be considered small entities, while most importers will not. Producers and importers who cut and sell or imported less than 500 Christmas trees annually will be exempt from the assessment. Organic producers and importers would also be exempt from assessments. The number of entities assessed under the program will be approximately 3,263. Estimated revenue is expected to be approximately $2 million of which 10 percent is expected from imported product and 90 percent from domestic product.
According to the Task Force, based on data from the 2007 Census of Agriculture, there were approximately 12,255 Christmas tree farms that harvested Christmas trees in the United States. Approximately 25 percent of the producers or 3,100 Christmas tree producers will be subject to the assessment based on the exemption of those producing less than 500 trees will be exempt from assessments. Approximately 95 percent of the producers subject to the assessment qualified under the definition for small business owners. According to the Task Force the average price for 6 to 7 foot Douglas and Noble fir trees is $11.00 and $18.00, respectively. During 2007, 47 out of 50 States produced Christmas trees in the United States. Oregon, Michigan, Wisconsin, North Carolina, and Pennsylvania together produced more than 75 percent of the trees harvested in 2007. In 2008, there were approximately 200 importers. Based on the 2008 U.S. Customs data, 163 importers that imported more than 500 Christmas trees are subject to the assessment rate under the Order.
This rule establishes an industry-funded research, promotion, and information program for fresh cut Christmas trees. The program will be financed by an assessment on Christmas tree producers and importers and will be administered by a board of industry members selected by the Secretary. The initial assessment rate will be $0.15 per Christmas tree cut and sold or imported to the United States and could be increased to $0.20 per Christmas tree. Entities that cut and sell or import less than 500 Christmas trees will be exempt. The purpose of the program will be to strengthen the position of Christmas trees in the marketplace, and maintain and expand markets for Christmas trees. A referendum will be held among eligible producers and importers to determine whether they favor implementation of the program three years after the first assessments begin. The Order will continue if favored by a majority of producers and importers voting in the referendum. The program is authorized under the 1996 Act.
Regarding the economic impact of the Order on affected entities, Christmas tree producers and importers will be required to pay assessments to the Board. As previously mentioned, the initial assessment rate will be $0.15 per Christmas tree cut and sold or imported to the United States and could be increased to no more than $0.20 per Christmas tree.
Regarding the impact on the industry as a whole, the Order is expected to grow demand for fresh cut Christmas trees. The Christmas tree industry hopes to achieve a stable funding base to promote Christmas now and into the future.
Regarding alternatives, the Christmas tree industry has already considered and implemented voluntary programs, but based on past experiences, these programs only worked in the short term; until monies were depleted.
This action will impose an additional reporting and recordkeeping burden on producers and importers of fresh cut Christmas trees. Producers and importers interested in serving on the Board may be asked to submit a nomination form to the Board indicating their desire to serve or nominating another industry member to serve on the Board. Interested persons will also submit a background statement outlining their qualifications to serve on the Board. Producers and importers will have the opportunity to cast a ballot and vote for candidates to serve on the Board. Producer and importer nominees to the Board will have to submit a background form to the Secretary to ensure they are qualified to serve on the Board.
Additionally, producers and importers who domestically produce or import less than 500 Christmas trees annually could submit a request to the Board for an exemption from paying assessments on this volume. Producers and importers also will report regarding their sales/imports that will accompany their assessments paid to the Board. Producers and importers who will qualify as 100 percent organic under the NOP could submit a request to the Board for an exemption from assessments.
Finally, producers and importer who wanted to participate in a referendum to vote on whether the Order should continue will have to complete a ballot for submission to the Secretary. These forms were approved by OMB under OMB Control No. 0581-0267 and 0581-0268. Specific burdens for the forms are detailed later in this document in the section titled Paperwork Reduction Act. As with all Federal promotion programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. Finally, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.
AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
Regarding outreach efforts, as previously mentioned, the Task Force conducted sessions throughout the United Sates in different States and regions. These were held in conjunction with regional and state organization meetings. Approximately 50 sessions were held across the United States. Input regarding the proposed program was incorporated into the Task Force's proposal.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the reporting and recordkeeping provisions generated by this rule have been preapproved by the Office of Management and Budget (OMB).
In summary, the information collection requirements under the program concern Board nominations, refunds of assessments, exemption applications, and the collection of assessments. For Board nominations, producers and importers interested in serving on the Board will be asked to submit a “Nomination Form” to the Board indicating their desire to serve or to nominate another industry member to serve on the Board. Producers and importers will have the opportunity to submit a “Nomination Ballot” to the Board where they will vote for candidates to serve on the Board. Nominees will also have to submit a background information form, “AD-755,” to the Secretary to ensure they are qualified to serve on the Board.
Regarding assessments, producers and importers who cut and sell or import less than 500 Christmas trees annually could submit a request, “Application for Exemption from Assessments,” to the Board for an exemption from paying assessments. Producers and importers may be asked to submit a “Sales/Import Report” that will accompany their assessments paid to the Board and report the quantity of Christmas trees cut and sold or imported during the applicable period, the quantity for which assessments were paid, and the port of entry (for imports). Importer assessments will be collected by Customs. If Customs collects the assessment and the importer does not reach the assessable threshold, the Board will refund such assessments no later than 60 calendar days after receipt from the Board. Customs will remit the funds to the Board along with this information. Finally, producers and importers who will qualify as 100 percent organic under the NOP could submit an “Organic Exemption Form” to the Board and request an exemption from assessments.
Producers and importers will also file a form to request a refund of assessments paid if the referendum fails to pass. A referendum is proposed to be conducted three years after the assessments first begin to determine if producers and importers favor the continuance of the Order.
There will also be an additional burden on producers and importers voting in referenda. The referendum ballot, which represents the information collection requirement relating to referenda, is addressed in a final rule on referendum procedures which will be published in the
Information collection requirements that are included in this proposal include:
As noted above, under the program, producers and importers will be required to pay assessments and file reports with and submit assessments to the Board (importers through Customs). While the Order will impose certain recordkeeping requirements on producers and importers, information required under the Order could be compiled from records currently maintained. Such records shall be retained for at least two years beyond the marketing year of their applicability.
An estimated 12,455 respondents will provide information to the Board (12,255 producers and 200 importers). The estimated cost of providing the information to the Board by respondents will be $348,975. This total has been estimated by multiplying 10,575 total hours required for reporting and recordkeeping by $33, the average mean hourly earnings of various occupations involved in keeping this information. Data for computation of this hourly rate was obtained from the U.S. Department of Labor Statistics.
The Order's provisions have been carefully reviewed, and every effort has been made to minimize any unnecessary recordkeeping costs or requirements, including efforts to utilize information already submitted under other programs administered by USDA and other state programs.
The forms will require the minimum information necessary to effectively carry out the requirements of the program, and their use is necessary to fulfill the intent of the 1996 Act. Such information can be supplied without data processing equipment or outside technical expertise. In addition, there are no additional training requirements for individuals filling out reports and remitting assessments to the Board. The forms will be simple, easy to understand, and place as small a burden as possible on the person required to file the information.
Collecting information quarterly will coincide with normal industry business practices. The timing and frequency of collecting information are intended to meet the needs of the industry while minimizing the amount of work necessary to fill out the required reports. The requirement to keep records for two years is consistent with normal industry practices. In addition, the information to be included on these forms is not available from other sources because such information relates specifically to individual producers and importers who are subject to the provisions of the 1996 Act. Therefore, there is no practical method for collecting the required information without the use of these forms.
The previous proposed rule concerning this action published in the
Of the 565 comments submitted, 398 were in favor of the proposal, 147 were in opposition, nine were duplicates, six were neither for or against, four requested an extension of the comment period, and one had no comment. Comments were received from interested parties in 35 different States in the United States with the majority of those comments from North Carolina, Oregon, Michigan, and Wisconsin. Also, comments were received from interested parties in four Canadian provinces and the United Kingdom.
The majority of the comments that supported the Order suggested that the pooling of resources was a significant benefit of a national mandatory Christmas tree promotion program. Several commenters mentioned the need to promote the environmental and green benefits of Christmas trees and how providing education to the public of these aspects will result in the possible increase in sales. Many commented that they have seen the successes of other promotional programs and how beneficial it was to that industry. Commenters suggested promoting Christmas tree traditions of choosing a Christmas tree as a family experience.
Some commenters stated that there should not be a 500 Christmas tree threshold for payment of assessments. These commenters suggested that all Christmas tree producers should pay the assessment and share in the cost of promotion.
Section 516(a)(1) of the 1996 Act provides authority for the Secretary to exempt from an order any
There were 11 comments in support of the Order with modifications.
An association that includes all of the members of the Task Force and a national association promoting Christmas trees supported the proposal in general with some suggested modifications.
The first five modifications suggested changes to the Order language that are not adopted in this final rule. The first modification was to allow 10 percent of the assessments paid under this program by producers that are members of State/multi-State associations to be directed to the State/multi-State associations to carry out local programs without competing to raise additional funds. This was originally proposed to USDA by the proponents as a way to foster better cooperation with associations, however it was not included in the proposed Order by USDA.
USDA believes that with a mandatory requirement to set aside a specific percent of the funds collected under the
Another suggested modification would change section 1214.46(g) to allow the Board to contract with companies or organizations for their staffing needs. Adding this authority to allow the Board to contract with companies or organizations would provide more flexibility in meeting its needs for staffing. Such authority already exists in the proposed Order and permits such contracting under section 1214.46(o) and therefore, no changes are being made to the Order language to reflect these comments.
The proponents requested elimination of the organic exemption. This change was also requested by other commenters. Under authority provided by 7 U.S.C., the Order exempts producers who operate under an approved National Organic Program (NOP) (7 CFR part 205) system plan, produce only products that are eligible to be labeled as 100 percent organic under the NOP, and are not a split operation, from paying assessments. Thus, 100 percent organic Christmas trees would be exempt from assessment under the Order. Therefore, no changes are being made to the Order language to reflect these comments.
The fourth modification would provide clarifying language in section 1214.50(c) as provided in the preamble of the proposed rule. The commenters wanted this section clarified as stated in the preamble of the proposed Order in regard to shifting of funds from one program, plan, or project to another. The recently modified Guidelines for AMS Oversight of Commodity Research and Promotion Programs require approval by AMS of shifts in program funds from one major area to another. Therefore, no changes are being made to the Order language to reflect these comments.
The fifth and last change to the Order concerns the preamble of the proposed Order which states that if a Board member ceased to work for a producer or importer or ceased to do business in the region he or she represented, such position would become vacant. The comment indicated that in section 1214.41 nominees must domestically produce or import more than 500 Christmas trees during the most recent fiscal year. That is an eligibility requirement for Board members, but does not preclude members from being employees of companies that may be producers or importers assessed under this order. Therefore, the preamble (75 FR 68516) and Order language correctly specify the eligibility requirements for Board members. Therefore, no changes are being made to the Order language to reflect these comments.
The proponents also suggested two modifications that could be adopted by the Board through informal rulemaking, and therefore require no changes to the Order language. The first modification would be to provide for Certificates of Exemptions to be issued every five years instead of annually. The proponents indicated that production of individual farms do not vary greatly from year to year because of the nature of the Christmas trees crop. It normally takes an average of 4 to 10 years to produce a marketable Christmas tree. The proponents indicated that about 9,000 producers could be eligible for an exemption. In addition, the proponents indicated that exemption forms could require a producer to acknowledge that if a producer's situation changes it would their responsibility to inform the Board. Accordingly, no changes are made as a result of this suggestion.
The next modification would increase administrative costs from 10 percent, as proposed, to 15 percent as allowable under the Act. The commenter requested this increase because the start-up costs are likely to be higher than operating costs in later years with the need to educate producers about the program. In addition, the commenter believes a strong compliance element will be important to collecting assessments and assuring sustainability of the program. USDA is of the view if indeed there is concern in the industry that the administrative cost cap be increased to 15 percent, then as authorized by the 1996 Act, upon recommendation of the Board such a change could be accomplished though informal rulemaking. Therefore, no change to Order language is made as a result of this suggestion.
The proponents suggested six other modifications that would require changes to the Order language. The first change will add the refund procedure to the Order language as described in the preamble. The procedure would state that producers and importers that produced or imported 500 Christmas trees or less and did not apply for an exemption shall receive a refund from the Board within 30 calendar days after the end of the fiscal period. This procedure was outlined in the preamble of the proposed Order but not in the Order language. Therefore, section 1214.53(a)(7) was added to the Order language to clarify the procedure described in the preamble.
The second change would provide that for the initial crop year's budget which could be largely administrative that repayment of such expenses would not be considered an administrative expense in subsequent years. The Act provides that for fiscal years beginning 3 or more years after the date of the establishment of the Board, the Board may not expend for administration, maintenance, and functioning of the Board in a fiscal year an amount that exceeds 15 percent of the assessment and other income received by the Board. The proposed Order contains 10 percent as the limit. This language, therefore, permits the Board to expend more funds in the first three years of startup of the Order for administration, maintenance and functioning of the Board. This recommendation is reasonable and the appropriate Order language will be added to the section reflect this change.
Another change would delete erroneous section numbers from the table of contents of the Order. The table of contents for the Order included sections 1214.55 Refunds and 1214.56 Procedures for obtaining a refund. Provision for these sections is in section 1214.53; therefore, the reference to these section numbers is removed from the table of contents.
The fourth change would provide clarification in section 1214.52(e) regarding the assessments due date. The commenters indicated that the wording in section 1214.52(e) could be construed as saying that assessments would not be due until the crop year following the sale of Christmas trees, or more than 14 months later. This is not the intent of the language. For the purpose of this program, crop year is defined as August 1 through July 31, accordingly, producers or importers that domestically produced or imported over 500 Christmas trees are to pay their assessments no later than February 15 of the crop year in which they are produced or imported. Therefore, section 1214.52(e) has been revised to clarify this change.
Another change would correct an erroneous section number in section 1214.62. In section 1214.62, section 1214.73 is erroneously referenced. The reference section number should be section 1214.83.
The last change would correct an erroneous sentence in the Order language regarding the time producers
Finally, one modification was suggested that would clarify language in the preamble. There is a phrase in the preamble of the proposed Order (75 FR 68516) that indicates the Board is to report its activities to manufacturers for the U.S. market. This language was not correct and should not have appeared in the preamble of the proposed Order.
There were 21 comments in opposition to the proposal that suggested key points in the areas of assessments, exemptions, promotion, referenda, reporting, and other issues. Based on our evaluation of these comments, no changes will be made the Order. These comments are discussed below.
A commenter expressed concern that the government should assess or tax imports of artificial trees instead of taxing or assessing domestically produced Christmas trees. Research and promotion programs are self help programs that promote an agricultural commodity. The Christmas tree industry decided to propose under the authority under the 1996 Act, a program to promote domestic and imported fresh cut Christmas trees.
The commenter was also concerned about assessing Christmas trees that are given to charity or trees lost to disease. If Christmas trees are donated to charity or lost to disease and therefore not sold into the marketplace, they will not be assessed under the Order.
A commenter also stated that not assessing producers or importers that produce or import less than 500 Christmas trees is the way for the proponents to get the program passed in a referendum. The commenter also stated that the initial exemption for Christmas tree producers was 2500 Christmas trees and the amount in the proposed Order is 500 Christmas trees. The Task Force reviewed various options for the exemption and determined that 500 Christmas trees would be appropriate because such a level would still provide the Board with resources to have a program that could be successful. USDA concurs with this exemption level because this level would exempt small operations that would otherwise be burdened by the assessment. Therefore, an exemption for producers and importers of less than 500 trees is authorized under the program and consistent with the Act's provisions.
The commenter questioned how the 500 Christmas tree exemptions would be applied. Under the Order, producers and importers of fewer than 500 Christmas trees would not be assessed under this Order. Producers and importers of 500 or more Christmas trees will be assessed on the total production number of Christmas trees produced or imported.
A commenter also stated that the Task Force cited an increase in sales when a similar marketing program was in existence. The commenter stated that this is merely a correlation, and no further evidence is provided establishing that the marketing program caused the increase in sales. Other commenters also stated that the benefits would not outweigh the cost of the program.
The Task Force provided that the main reason for the marketing program's demise was that it was voluntary in nature. Under the proposed Order, the assessments to fund the program would be mandatory, therefore, providing consistent funding by stakeholders. In addition, several comments in favor of the proposed Order supported the consistent funding which would provide the industry with a workable program to increase sales. Furthermore, a third party five-year evaluation is required of all research and promotion programs to determine the benefits to their industries under section 515(h) of the 1996 Act. These evaluations are available from the Boards and are posted on the AMS Web site. The industry may terminate the program if the first evaluation does not show a benefit to the Christmas tree industry.
A commenter also stated that if USDA promulgates this rule they should solicit data from other sources, develop a definitive plan for how to boost Christmas tree sales, and make a projection for the increase in fresh-cut Christmas tree sales and a cost benefit analysis. The Act provides authority for the Secretary to appoint a Board consisting of industry members. The Act states that such a Board must develop a plan under USDA oversight to promote Christmas trees. USDA approves the Board's annual budget and marketing plan. In addition, the Board must conduct a third party program evaluation every five years to evaluate the effectiveness of the program's activities. All these documents are discussed at Board meetings, are public information and available on the Board's Web site. The program evaluation is also available on AMS's Web site. These documents provide the road map for the Boards operations and assist the industry in determining if the program is effective.
Another issue some commenters raised was how much of the funds will be spent on administrative costs, USDA management, research and other projects. The Act authorizes that up to 15 percent of the assessments collected could be used for administrative expenses. However, the proponent group decided to limit the administrative expenses to 10 percent of the funds collected. USDA costs are based on the time spent by the USDA on oversight of the program. The majority of the funds are used for research and promotion of the commodity.
Several of the comments addressed the issue of promotion proposed under the Order. Some Christmas tree producers stated their opposition to perceived government intervention in their Christmas tree operations. They also stated that they preferred to do their own promotion and did not have any problems selling all of their trees, thus they did not see any benefit in the proposed program. Additionally, one commenter stated their belief that the program was illegal stating that the government can't promote private individuals' Christmas trees.
The 1996 Act provides the authority for agricultural industries to develop programs for research and promotion. These programs are initiated by members of the industry. USDA provides oversight of these programs and their activities. However, industry Boards that manage these programs develop their own budgets and marketing plans and conduct strategic planning for the programs. Although these programs are mandatory in nature, they do not preclude individuals from promoting their own commodity.
Another opposition comment stated the belief that Christmas trees were a
The commenter also stated their belief that “choose and cut” producers who provide trees to a distinct market may not realize the benefits of such a program because generic promotions would not attract customers to their operations. Various other commenters also stated that the government should not compel an industry with a variety of interests to speak with one voice when many are not in agreement.
This Board will consider the views and concerns of every segment of the industry and provide a marketing plan that benefits the whole Christmas tree industry. Producers in all sectors have diversified to provide different types of activities to increase sales and promote their product. A Christmas tree generic promotion program will not hinder any producer from continuing this type of activity. A generic promotion program can work in conjunction with other marketing activities that individual producers and importers already have developed or want to develop.
The commenter also suggested that the type of promotion the Board pursues may not be agreed upon by such commenter and that a one size fits all advertising campaign blurs distinctions among products in their industry. Additional commenters stated that the program should cover research but not promotion efforts. Research and promotion boards represent all sectors of the industry and the members will bring different backgrounds and expertise to the Board when developing marketing strategies. In addition, all meetings are open to the public. The Board would determine the kinds of activities conducted under the program based on those authorized under the Act. No changes have been made to reflect these comments.
The same commenter questioned whether the program will insure that large stores will water and properly care for Christmas trees to maintain quality. Many research and promotion programs include an educational component to those that handle the product. The Board may decide that one of the needs of the industry is to provide information, education and training on the handling of Christmas trees to assure quality of the product to the consumer.
A commenter questioned the criteria to determine the referendum vote. Other commenters did not agree with having a delayed referendum or having one vote per entity without regard to the volume produced or imported. Section 518 of the Act provides for a referendum to be conducted either before the program is in place or three years after assessments first begin under the order. The proponent group chose the delayed referendum option. The Act also provides for three options to the vote: By a majority of those persons voting, by persons voting for approval who represent a majority of the volume of the agricultural commodity, or by a majority of those persons voting for approval who also represent a majority of the volume of the agricultural commodity. The proponent group recommended counting by vote in order to attempt to ensure that small businesses have the same vote as large firms. Accordingly, the Order will be approved in a referendum if a majority of producers and importers voting in the referendum vote for approval.
Another commenter expressed the opinion that such voting was unfair. The commenter stated that one farm one vote does not adequately represent the producers that would be funding the program. The commenter also stated that the assessment should be on seedling nurseries since there is no true first handler. In addition, the commenter stated that there is no control on increasing the assessment.
The Act provides three methods for determining the vote in referendum. The proponents chose a majority of those persons voting as the voting method. The proponents also chose to assess producers and importers since these will directly benefit from the program. Further, the Order provides that the assessment can only be increased or decreased by 2 cents during the fiscal period and subject to rulemaking by the USDA; and it cannot exceed 20 cents or drop below 10 cents per fiscal period. In order to make any changes in the assessment rate, the Board would have to make that recommendation to USDA and the USDA will request comments for the industry before implementing any change in the assessment rate. No changes have been to the Order to reflect these concerns.
Another issue raised by commenters concerns the reporting burden under the Order. A commenter stated that the proposed program involves too much paperwork and that forms should be web-based to allow easy access. The commenter stated concern that Christmas tree producers were already reporting information to the other Federal agencies. The commenter was also concerned that the Board would be counting stumps. Goals under this program are to minimize reporting burden and eliminate duplication as much as possible. The Board could coordinate with other agencies to help insure there are no duplicative efforts. The Board also may opt to provide the required forms electronically in order to further reduce the reporting burden to producers and importers.
Another commenter was concerned that the reporting requirements would require producers to furnish customer information to the Board. The information required under the program does not contain producer or importer customer information. Furthermore, pursuant to section 515 of the 1996 Act, any information collected under the program is kept confidential.
Another commenter stated concern about how difficult it may be to terminate such a program once implemented. This program requires that a referendum be conducted 3 years after implementation and every 7 years thereafter to determine if producers and importers support continuation of the program. The industry may also request a referendum if 10 percent of those covered under the program request it. The Secretary can also suspend or terminate an order or a provision of an order if the Secretary finds that an order or a provision obstructs or does not tend to effectuate the purposes of the Act.
Some commenters raised constitutionality concerns. One commenter raised concerns about a perceived unequal burden of taxation. The commenter suggested that the exemption provision could affect producers that produce 500 trees or less because this creates unequal taxation treatment of Christmas tree producers. However, the assessment provided for in this type of program is not a tax nor does it yield revenue for the Federal government. These producer and importers funds raised by producers and importers are for the benefit of producers and importers.
The commenter also stated that some Texas producers were not in favor of the proposed Order, that Texas is a sovereign State, and therefore Texas Christmas tree producers should not be included in the Order. The 1996 Act
Another commenter in opposition raised concerns that the proposed Order may violate the Establishment Clause. The commenter stated that government speech cannot advocate religion or religious symbols.
USDA considers Christmas trees to be an agricultural commodity which is reported as such in various USDA crop reports and statistical data reports (
Another commenter in opposition concluded that the rule would fall outside the purpose of the 1996 Act by favoring one domestic industry-Christmas tree farming-to the detriment of another domestic industry-artificial tree manufacturing. The 1996 Act was developed to provide agricultural industries with a way to develop and expand markets of agricultural commodities. Promoting fresh cut Christmas trees is within the scope of the 1996 Act.
Another commenter stated that the proposed rule should be withdrawn as it was an inappropriate use of government power citing free markets, limited government, and individual freedom. The Proposed program was presented to the Department by an industry wide group of producers and importers who requested that such an industry-funded program be implemented. USDA has concluded that a research and promotion program for fresh cut Christmas trees is within the scope of its authority under the 1996 Act, and therefore is establishing this industry supported program.
Another comment in opposition stated concern that the Board makeup unfairly represents big business by its geographic areas and trees produced. USDA believes that the geographical representation proposed by the proponent group fairly divides the U.S. production and imports of Christmas trees. It is USDA policy that the Board consider for nomination, the diversity of the population served and the knowledge, skills, and abilities of the members to serve a diverse population, size of the operations, methods of production and distribution, and other distinguishing factors to ensure that the Board represents the diverse interest of persons responsible for paying assessments, and others in the marketing chain. USDA also makes sure that the geographical distribution of members closely reflects the distribution of the production.
After consideration of all relevant materials presented, including the proposal and comments received, the USDA has determined that this Order is consistent with and will effectuate the purposes of the 1996 Act.
It is found that good cause exist for not postponing the effective date of this rule until 30 days after publication in the
Administrative practice and procedure, Advertising, Consumer information, Marketing agreements, Christmas trees promotion, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, Title 7, Chapter XI of the Code of Federal Regulations is amended by adding part 1214 to read as follows:
7 U.S.C. 7411-7425; 7 U.S.C. 7401.
(a)
(1) Producer members from each of the following regions:
(i) Five producer members from Region #1—Western Region (states from the Pacific Ocean east to the Rocky Mountains): Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, Wyoming and all U.S. Territories located in the Pacific Ocean.
(ii) Two producer members from Region #2—Central Region (states east of the Rocky Mountains to the Great Lakes): Arkansas, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, South Dakota, Texas, and Wisconsin.
(iii) Four producer members from Region #3—Eastern Region (states east of the Great Lakes): Alabama, Connecticut, Delaware, Florida, Georgia, Kentucky, Louisiana, New York, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, North Carolina, Pennsylvania, Rhode Island, South Carolina, Tennessee, Virginia, Vermont, Washington, DC, West Virginia, and all U.S. Territories located in the Atlantic Ocean and Caribbean Sea, including but not limited to Puerto Rico.
(2) One Importer member.
(b)
(a) Voting for producer members will be made by mail ballot, electronic mail, in person, or by facsimile.
(b) Nominations for the initial Board will be conducted by the Department. Subsequent nominations will be conducted by the Board.
(c) The Board shall outreach to all segments of theChristmas tree industry and solicit nominations as described in paragraphs (d) and (e) of this section. Nominees must domestically produce or import more than 500 Christmas trees during the most recent fiscal period.
(d) Nomination of producer members will be conducted by the Board. The Board staff will seek nominations for each vacant producer seat from each region from producers who have paid their assessments to the Board in the most recent fiscal period. Producers who produce Christmas trees in more than one region may seek nomination only in the region in which they produce the majority of their Christmas trees. For selection to the initial Board, the Secretary will notify producers to request nominations to the Board. Subsequent nominations will be submitted to the Board office and placed on a ballot that will be sent to producers in each region for a vote. Producers who produce Christmas trees in more than one region may only vote in the region in which they produce the majority of their Christmas trees. The nominee receiving the highest number of votes and the nominee receiving the second highest number of votes shall be submitted to the Department as the producers' first and second choice nominees. The Board shall submit nominations to the Secretary not less than 90 days prior to the expiration of the term of office.
(e) Nominations for the importer member(s) will be conducted by the Board. The Board will solicit importer nominations from those importers who have paid their assessments to the Board in the most recent fiscal period. For selection to the initial Board, the Secretary will notify importers to request nominations to the Board. Subsequent nominations will be submitted to the Board office and placed on a ballot that will be sent to importers for a vote. The Board shall submit those nominations to the Secretary not less than 90 days prior to the expiration of the term of office. Two nominees for each importer position will be submitted to the Secretary for consideration.
(f) From the nominations, the Secretary shall select the members of the Board for each position on the Board. Members will serve until their successors have been appointed by the Secretary.
Board members will serve for a term of three years and be able to serve a maximum of two consecutive three-year terms. When the Board is first established, the members will be assigned initial terms of two, three, and four years. Initial terms will be staggered to assure continuity of the Board. The term of office will begin on January 1 and conclude on December 31. Members serving the initial term of two and four years will be eligible to serve a second term of three-years. Thereafter, each of the positions will carry a full three-year term. Board members shall serve during the term of office for which they have been appointed and qualified, and until their successors are appointed and have qualified.
(a) In the event that any member of the Board ceases to be a member of the category of membership from which the member was appointed to the Board, such position shall automatically become vacant.
(b) If a member of the Board consistently refuses to perform the duties of a member of the Board, or if a member of the Board engages in acts of dishonesty or willful misconduct, the Board may recommend to the Secretary that the member be removed from office. If the Secretary finds the recommendation of the Board shows adequate cause, the Secretary may remove such member from office. Further, without recommendation of the Board, a member may be removed by the Secretary upon showing of adequate cause, including the failure by a member to submit reports or remit assessments required under this part, if the Secretary determines that such member's continued service would be detrimental to the achievement of the purposes of the Act.
(c) Should any member position become vacant, successors for the unexpired terms of such member shall be appointed in the manner specified in § 1214.41. A vacancy will not be required to be filled if the unexpired term is less than six months.
(a) At a Board meeting, it will be considered a quorum when a majority of the Board members is present.
(b) All Board members will receive a minimum of 14 days advance notice of all Board and committee meetings, except when emergency circumstances exist and meetings need to be held prior to the advance notice.
(c) Each member of the Board will be entitled to one vote on any matter put to the Board. For any action of the Board to pass, at least a majority of the Board members present must vote in support of such action.
(d) The Board may appoint committees as necessary. It will be considered a quorum at a committee meeting when at least a majority of those appointed to the committee are present. Committees may consist of persons other than Board members, and such persons may vote in committee meetings as the Board shall determine. These committee members shall serve without compensation, but shall be reimbursed for reasonable travel expenses, as approved by the Board.
(e) In lieu of voting at a properly convened meeting, and when, in the opinion of the Board's chairperson, such action is considered necessary, the Board may take action by mail, telephone, electronic mail, facsimile, or any other means of communication. Any action taken under this procedure is valid only if:
(1) All members and the Secretary are notified and the members are provided the opportunity to vote;
(2) A majority of the members vote in favor of the action; and
(3) All votes are promptly confirmed in writing and recorded in the Board minutes.
(f) There shall be no voting by proxy.
(g) The chairperson shall be a voting member.
The members of the Board shall serve without compensation but shall be reimbursed for reasonable travel expenses, as approved by the Board, incurred by them in the performance of their duties as Board members.
The Board shall have the following powers and duties:
(a) To administer the Order in accordance with its terms and conditions and to collect assessments;
(b) To develop and recommend to the Secretary for approval such bylaws as may be necessary for the functioning of the Board, and such rules as may be necessary to administer the Order, including activities authorized to be carried out under the Order;
(c) To meet, organize, and select from among the members of the Board a chairperson, other officers, committees, and subcommittees, as the Board determines to be appropriate, provided that the committee and subcommittee members may also include individuals other than Board members;
(d) To notify producers and importers of all Board meetings through press releases or other means;
(e) To give the Secretary the same notice of meetings of the Board and committees as is given to members, including committee members if committee members are not members of the Board, in order that the Secretary's representative(s) may attend such meetings, and to keep and report minutes of each meeting of the Board and all committees to the Secretary;
(f) To appoint and convene, from time to time, committees that may include importers, exporters, producers or other members of the Christmas tree industry and public to assist in the development of research, promotion, advertising, and information programs for Christmas trees;
(g) To employ persons, other than members, as the Board considers necessary to assist the Board in carrying out its duties and to determine the compensation and specify the duties of such persons;
(h) To act as an intermediary between the Secretary and any producer or importer;
(i) To furnish to the Secretary any information or records that the Secretary may request;
(j) To receive, investigate, and report to the Secretary complaints of violations of the Order;
(k) To maintain such records and books and prepare and submit such reports and records from time to time to the Secretary as the Secretary may require and to make the records available to the Secretary for inspection and audit; to make appropriate accounting with respect to the receipt and disbursement of all funds entrusted to it; and to keep records that accurately reflect the actions and transactions of the Board;
(l) To recommend to the Secretary such amendments to the Order as the Board considers appropriate;
(m) To develop and carry out generic promotion, research, and information activities relating to Christmas trees;
(n) To work to achieve an effective, continuous, and coordinated program of promotion, research, evaluation, and information designed to strengthen the Christmas tree industry's position in the marketplace; maintain and expand existing markets for Christmas trees; and to carry out programs, plans, and projects designed to provide maximum benefits to the Christmas tree industry;
(o) To develop programs, plans, and projects, and enter into contracts or agreements, which must be approved by the Secretary before becoming effective, for the development and carrying out of programs or projects of research, information, or promotion, and the payment of costs thereof with funds collected pursuant to this subpart. Each contract or agreement shall provide that any person who enters into a contract or agreement with the Board shall develop and submit to the Board a proposed activity; keep accurate records of all of its transactions relating to the contract or agreement; account for funds received and expended in connection with the contract or agreement; make periodic reports to the Board of activities conducted under the contract or agreement; and make such other reports available as the Board or the Secretary considers necessary. Any contract or agreement shall provide that:
(1) The contractor or agreeing party shall develop and submit to the Board a program, plan, or project together with a budget or budgets that shall show the estimated cost to be incurred for such program, plan, or project;
(2) The contractor or agreeing party shall keep accurate records of all its transactions and make periodic reports to the Board of activities conducted, submit accounting for funds received and expended, and make such other reports as the Secretary or the Board may require;
(3) The Secretary may audit the records of the contracting or agreeing party periodically; and
(4) Any subcontractor who enters into a contract with a Board contractor and who receives or otherwise uses funds allocated by the Board shall be subject to the same provisions as the contractor;
(p) To prepare and submit for approval of the Secretary, within 60 days after assessments are due to the Board, rates of assessment and a fiscal period budget of the anticipated expenses to be incurred in the administration of the Order, in accordance with § 1214.50;
(q) To borrow funds necessary for the startup expenses of the order;
(r) To invest assessments collected under this part in accordance with § 1214.50;
(s) To pay the cost of the activities with assessments collected under § 1214.52;
(t) To recommend adjustments to the assessments as provided in § 1214.52;
(u) To periodically prepare, make public and to make available to producers and importers, reports of its activities and, at least once each fiscal period, to make public an accounting of funds received and expended; and
(v) To cause its books to be audited by an independent certified public accountant at the end of each fiscal period and at such other times as the Secretary may request, and to submit a report of the audit directly to the Secretary.
The Board may not engage in, and shall prohibit the employees and agents of the Board from engaging in:
(a) Any action that would be a conflict of interest;
(b) Using funds collected by the Board under the Order to undertake any action for the purpose of influencing legislation or governmental action or policy, by local, state, national, and foreign governments or any subdivision thereof, other than recommending to the Secretary amendments to the Order; and
(c) No program, plan, or project including advertising shall be false or misleading or disparaging to another agricultural commodity. Christmas trees of all origins shall be treated equally.
(a) Within 60 days after assessments are due to the Board, and as may be necessary thereafter, the Board shall prepare and submit to the Secretary a budget for the fiscal period covering its anticipated expenses and disbursements in administering this part. Each budget shall include:
(1) A statement of objectives and strategy for each program, plan, or project;
(2) A summary of anticipated revenue, with comparative data or at least one preceding year, except for the initial budget;
(3) A summary of proposed expenditures for each program, plan, or project; and
(4) Staff and administrative expense breakdowns, with comparative data for
(b) Each budget shall provide adequate funds to defray its proposed expenditures and to provide for a reserve as set forth in this part.
(c) Subject to this section, any amendment or addition to an approved budget must be approved by the Secretary, including shifting funds from one program, plan, or project to another.
(d) The Board is authorized to incur such expenses, including provision for a reserve, as the Secretary finds are reasonable and likely to be incurred by the Board for its maintenance and functioning, and to enable it to exercise its powers and perform its duties in accordance with the provisions of this part. Such expenses shall be paid from funds received by the Board.
(e) With approval of the Secretary, the Board may borrow money for the payment of administrative expenses, subject to the same fiscal, budget, and audit controls as other funds of the Board. Any such funds borrowed by the Board shall be expended for startup costs and are limited to the first year of operation of the Board.
(f) The Board may accept voluntary contributions, but these shall only be used to pay expenses incurred in the conduct of programs, plans, and projects approved by the Secretary. Such contributions shall be free from any encumbrance by the donor and the Board shall retain complete control of their use.
(g) In accordance with § 1214.54, the Board shall deposit funds in a refund escrow account and shall not use such funds for expenses, except as provided for in that section.
(h) The Board may also receive funds provided through the Department's Foreign Agricultural Service or from other sources, with the approval of the Secretary, for authorized activities.
(i) The Board shall reimburse the Secretary for all expenses incurred by the Secretary in the implementation, administration, enforcement, and supervision of the Order, including all referendum costs in connection with the Order.
(j) For fiscal years beginning 3 or more years after the date of the establishment of the Board, the Board may not expend for administration, maintenance, and functioning of the Board in a fiscal year an amount that exceeds 10 percent of the assessment and other income received by the Board. Reimbursements to the Secretary required under paragraph (i) of this section are excluded from this limitation on spending.
(k) The Board may establish an operating monetary reserve and may carry over to subsequent fiscal periods excess funds in any reserve so established:
(l) Pending disbursement of assessments and all other revenue under a budget approved by the Secretary, the Board may invest assessments and all other revenues collected under this section in:
(1) Obligations of the United States or any agency of the United States;
(2) General obligations of any State or any political subdivision of a State;
(3) Interest bearing accounts or certificates of deposit of financial institutions that are members of the Federal Reserve System; or
(4) Obligations fully guaranteed as to principal interest by the United States.
(a) The Board shall prepare and submit quarterly financial statements to the Secretary, or at any other time requested by the Secretary. Each such financial statement shall include, but not be limited to, a balance sheet, income statement, and expense budget. The expense budget shall show expenditures during the time period covered by the report, year-to-date expenditures, and the unexpended budget.
(b) Each financial statement shall be submitted to the Secretary within 45 days after the end of the time period to which it applies.
(c) The Board shall submit annually to the Secretary an annual financial statement within 90 days after the end of the fiscal period to which it applies.
(a) The funds to cover the Board's expenses shall be paid from assessments on producers, importers, and donations from any person including those not subject to assessments under this Order, and other funds available to the Board including those collected pursuant to § 1214.62 and subject to the limitations contained therein.
(b) The payment of assessments on domestic Christmas trees that are cut and sold will be the responsibility of the producer who produces the Christmas trees or causes the trees to be cut.
(c) Each importer of Christmas trees shall pay the assessment to the Board on Christmas trees imported for marketing in the United States, through Customs. If Customs does not collect an assessment from an importer, the importer will be responsible for paying the assessment directly to the Board 30 calendar days after importation.
(1) The assessment rate for imported Christmas trees shall be the same or equivalent to the rate for Christmas trees domestically produced in the United States.
(2) The import assessment shall be uniformly applied to imported Christmas trees that are identified by the numbers 0604.91.00.20, 0604.91.00.40, and 0604.91.00.60 in the Harmonized Tariff Schedule of the United States or any other numbers used to identify Christmas trees in that schedule.
(3) The assessments due on imported Christmas trees shall be paid when they enter into the United States.
(d) Such assessments shall be levied at an initial rate of 15 cents per Christmas tree domestically produced or imported into the United States. The assessment rate will be reviewed by the Board, after the initial referendum is conducted pursuant to this subpart. The assessment rate may be increased or decreased no more than 2 cents per Christmas tree during the fiscal period. Any change in the assessment rate shall be subject to rulemaking by the Department. The assessment rate shall not exceed 20 cents per Christmas tree, nor shall it be less than 10 cents per Christmas tree, unless a majority of producers and importers approve such other levels of assessment through a referendum conducted pursuant to this subpart.
(e) All assessment payments and reports will be submitted to the office of the Board. All assessment payments are to be received no later than February 15 of the crop year in which they are produced or imported. A late payment charge, may be imposed on any producer or importer who fails to remit to the Board, the total amount for which any such producer or importer is liable on or before the due date established by the Board. In addition to the late payment charge, an interest charge may be imposed on the outstanding amount for which the producer or importer is liable. The rate for late payment and interest charges shall be specified by the Secretary through rulemaking.
(f) Persons failing to remit total assessments due in a timely manner may also be subject to actions under federal debt collection procedures.
(g) The Board may authorize other organizations to collect assessments on its behalf with the approval of the Secretary.
(a)
(1) Any producer who domestically produces less than 500 Christmas trees who desires to claim an exemption from assessments as provided in § 1214.52 shall file an application on a form provided by the Board, for a certificate of exemption. Such producer shall certify that he/she will domestically produce less than 500 trees for the fiscal period for which the exemption is claimed. It is the responsibility of the producer to retain a copy of the certificate of exemption.
(2) Any importer who imports less than 500 trees in a fiscal period who desires to claim an exemption from assessments as provided in § 1214.52 shall file an application on a form provided by the Board, for a certificate of exemption. Such importer shall certify that the importer's total imports of Christmas trees are fewer than 500 trees for the fiscal period for which the exemption is claimed. It is the responsibility of the importer to retain a copy of the certificate of exemption.
(3) On receipt of an exemption application, the Board shall determine whether an exemption may be granted. The Board will then issue, if deemed appropriate, a certificate of exemption to the producer or importer which is eligible to receive one.
(4) The Board, with the Secretary's approval, may require persons receiving an exemption from assessments to provide to the Board reports on the disposition of exempt Christmas trees and, in the case of importers, proof of payment of assessments.
(5) The exemption will apply immediately following the issuance of the certificate of exemption.
(6) Producers and importers who received an exemption certificate from the Board but domestically produced or imported more than 500 Christmas trees during the fiscal period shall pay the Board the applicable assessments owed and submit any necessary reports to the Board pursuant to § 1214.70.
(7) Producers and importers who did not apply to the Board for an exemption and domestically produced or imported less than 500 Christmas trees during the fiscal period shall receive a refund from the Board for the applicable assessments within 30 calendar days after the end of the fiscal year. Board staff shall determine the assessments paid and refund the amount due to the producers and importers accordingly.
(8) The Board may develop additional procedures as it deems necessary for accurately accounting for this exemption. Such procedures shall be implemented through rulemaking by the Secretary.
(b)
(c)
(2) A producer who domestically produces Christmas trees under an approved National Organic Program (NOP) (7 CFR part 205) system plan, produces only products that are eligible to be labeled as 100 percent organic under the NOP and is not a split operation shall be exempt from payment of assessments. To obtain an organic exemption, an eligible producer shall submit a request for exemption to the Board, on a form provided by the Board, at any time initially and annually thereafter on or before the start of the fiscal period as long as such producer continues to be eligible for the exemption. The request shall include the following: The producer's name and address; a copy of the organic operation certificate provided by a USDA-accredited certifying agent as defined in the Organic Act, a signed certification that the applicant meets all of the requirements specified for an assessment exemption, and such other information as may be required by the Board and with the approval of the Secretary. The Board shall have 30 calendar days to approve the exemption request. If the exemption is not granted, the Board will notify the applicant and provide reasons for the denial within the same time frame.
(3) An importer who imports only Christmas trees that are eligible to be labeled as 100 percent organic under the NOP and is not a split operation shall be exempt from the payment of assessments. To obtain an organic exemption, an eligible importer must submit documentation to the Board and request an exemption from assessment on 100 percent of organic Christmas trees, on a form provided by the Board, at any time initially and annually thereafter on or before the beginning of the fiscal period as long as the importer continues to be eligible for the exemption. This documentation shall include the same information as required by producers in paragraph (c)(2) of this section. If the importer complies with the requirements of this section, the Board will grant the exemption and issue a Certificate of Exemption to the importer. The Board will also issue the importer a 9-digit alphanumeric number of the United States classification valid for 1 year from the date of issue. This alphanumeric number should be entered by the importer on the Customs entry documentation. Any line item entry of 100 percent organic Christmas trees bearing this alphanumeric number assigned by the Board will not be subject to assessments.
(4) Importers who are exempt from assessment in paragraph (c)(3) of this section shall also be eligible for reimbursement of assessments collected by Customs and may apply to the Board for a reimbursement. The importer would be required to submit satisfactory proof to the Board that the importer paid the assessment on exempt organic products.
(5) The exemption will apply immediately following the issuance of the exemption certificate.
(a) The Board shall establish an interest bearing escrow account with a financial institution that is a member of the Federal Reserve System and will deposit into such account an amount equal to 10 percent of the assessments collected during the period beginning on the effective date of the Order and ending on the date the Secretary announces the results of the required referendum.
(b) If the Order is not approved by the required referendum, the Board shall promptly pay refunds of assessments to all producers and importers that have paid assessments during the period beginning on the effective date of the Order and ending on the date the Secretary announces the results of the required referendum in the manner specified in paragraph (c) of this section.
(c) If the amount deposited in the escrow account is less than the amount of all refunds that producers and importers subject to the Order have a right to receive, the Board shall prorate the amount deposited in such account among all producers and importers who desire a refund of assessments paid no later than 90 days after the required referendum results are announced by the Secretary.
(d) Any producer or importer requesting a refund shall submit an application on the prescribed form to the Board within 30 days after the announcement of the referendum results of their request for a refund of the
(e) If the Order is approved by the required referendum conducted under § 1214.71 then:
(1) The escrow account shall be closed; and,
(2) The funds shall be available to the Board for disbursement under § 1214.50.
(a) The Board shall receive and evaluate, or on its own initiative, develop and submit to the Secretary for approval any program, plan, or project authorized under this subpart. Such programs, plans, or projects shall provide for:
(1) The establishment, issuance, effectuation, and administration of appropriate programs for promotion, research, and information, including producer and consumer industry information, with respect to Christmas trees;
(2) The establishment and conduct of research with respect to the image, desirability, use, marketability, quality, product development or production of Christmas trees, to the end that the marketing and use of Christmas trees may be encouraged, expanded, improved, or made more acceptable and to advance the image, desirability, or quality of Christmas trees.
(b) A program, plan, or project may not be implemented prior to approval of the program, plan, or project by the Secretary. Once a program, plan, or project is so approved, the Board shall take appropriate steps to implement it.
(c) Each program, plan, or project implemented under this subpart shall be reviewed or evaluated periodically by the Board to ensure that it contributes to an effective program of promotion, research, or information. If it is found by the Board that any such program, plan, or project does not contribute to an effective program of promotion, research, or information, then the Board shall terminate such program, plan, or project.
The Board shall, not less often than once every five years, authorize and fund, from funds otherwise available to the Board, an independent evaluation of the effectiveness of the Order and programs conducted by the Board pursuant to the Act. The Board shall submit to the Secretary, and make available to the public, the results of each periodic independent evaluation conducted under this paragraph.
Patents, copyrights, trademarks, information, publications, and product formulations developed through the use of funds received by the Board under this subpart shall be the property of the U.S. Government as represented by the Board and shall, along with any rents, royalties, residual payments, or other income from the rental, sales, leasing, franchising, or other uses of such patents, copyrights, trademarks, information, publications, or product formulations, inure to the benefit of the Board, shall be considered income subject to the same fiscal, budget, and audit controls as other funds of the Board, and may be licensed subject to approval by the Secretary. Upon termination of this subpart, § 1214.83 shall apply to determine disposition of all such property.
(a) Each producer and importer subject to this subpart shall be required to provide to the Board periodically such information as required by the Board, with the approval of the Secretary, which may include but not be limited to the following:
(1) Number of trees produced or total imports;
(2) Number of Christmas trees on which an assessment was paid;
(3) Name and address of producer or importer; and
(4) Date assessment was paid on each Christmas tree produced or imported.
(b) All reports required under § 1214.70 are due to the Board by February 15 of the crop year.
(c) This report shall accompany the payment of the collected assessments.
Each producer and importer subject to this subpart, including those who are exempt under this subpart, shall maintain any books and records necessary to carry out the provisions of this subpart and the regulations issued thereunder, including such records as are necessary to verify any reports required. Such books and records must be made available during normal business hours for inspection by the Board's or Secretary's employees or agents. Such records shall be retained for at least two years beyond the fiscal period of their applicability.
All information obtained from books, records, or reports under the Act, this subpart, and the regulations issued thereunder shall be kept confidential by all persons, including all employees and former employees of the Board, all officers and employees and former officers and employees of contracting and subcontracting agencies or agreeing parties having access to such information. Such information shall not be available to Board members, producers, or importers. Only those persons having a specific need for such information to effectively administer the provisions of this subpart shall have access to such information. Only such information so obtained as the Secretary deems relevant shall be disclosed by them, and then only in a judicial proceeding or administrative hearing brought at the direction, or on the request, of the Secretary, or to which the Secretary or any officer of the United States is a party, and involving this subpart. Nothing in this section shall be deemed to prohibit:
(a) The issuance of general statements based upon the reports of the number of persons subject to this subpart or statistical data collected therefrom, which statements do not identify the information furnished by any person; and
(b) The publication, by direction of the Secretary, of the name of any person who has been adjudged to have violated this subpart, together with a statement of the particular provisions of this subpart violated by such person.
All fiscal matters, programs, plans, or projects, rules or regulations, contracts, reports, or other substantive actions proposed or prepared by the Board shall be submitted to the Secretary for approval.
(a)
(1) The first referendum shall be conducted not later than 3 years after assessments first begin under the Order;
(2) The order will be approved in a referendum if:
(i) A majority of producers and importers vote for approval in the referendum.
(b)
(1) For the purpose of ascertaining whether producers and importers favor the continuation, suspension, or termination of the Order;
(2) Every seven years the Secretary shall hold a referendum to determine whether producers and importers of Christmas trees favor the continuation of the Order. The Order shall continue if it is favored by a majority of producers and importers voting for approval in the referendum who have been engaged in the production or importation of Christmas trees;
(3) At the request of the Board established in this Order;
(4) At the request of 10 percent or more of the number of persons eligible to vote in a referendum as set forth under the Order; or
(5) At any time as determined by the Secretary.
(a) The Secretary shall suspend or terminate this part or subpart or a provision thereof, if the Secretary finds that the subpart or a provision thereof obstructs or does not tend to effectuate the purpose of the Act, or if the Secretary determines that this subpart or a provision thereof is not favored by persons voting in a referendum conducted pursuant to the Act.
(b) The Secretary shall suspend or terminate this subpart at the end of the fiscal period whenever the Secretary determines that its suspension or termination is favored by a majority of producers and importers voting in a referenda who, during a representative period determined by the Secretary, have been engaged in the production or importation of Christmas trees.
(c) If, as a result of a referendum the Secretary determines that this subpart is not approved, the Secretary shall:
(1) Not later than one hundred and eighty (180) days after making the determination, suspend or terminate, as the case may be, collection of assessments under this subpart; and
(2) As soon as practical, suspend or terminate, as the case may be, activities under this subpart in an orderly manner.
(a) Upon the termination of this subpart, the Board shall recommend not more than three of its members to the Secretary to serve as trustees for the purpose of liquidating the affairs of the Board. Such persons, upon designation by the Secretary, shall become trustees of all of the funds and property then in the possession or under control of the Board, including claims for any funds unpaid or property not delivered, or any other claim existing at the time of such termination.
(b) The said trustees shall:
(1) Continue in such capacity until discharged by the Secretary;
(2) Carry out the obligations of the Board under any contracts or agreements entered into pursuant to the Order;
(3) From time to time account for all receipts and disbursements and deliver all property on hand, together with all books and records of the Board and the trustees, to such person or persons as the Secretary may direct; and
(4) Upon request of the Secretary execute such assignments or other instruments necessary and appropriate to vest in such persons title and right to all funds, property and claims vested in the Board or the trustees pursuant to the Order.
(c) Any person to whom funds, property or claims have been transferred or delivered pursuant to the Order shall be subject to the same obligations imposed upon the Board and upon the trustees.
(d) Any residual funds not required to defray the necessary expenses of liquidation shall be turned over to the Secretary to be disposed of, to the extent practical, to one or more Christmas tree organizations in the United States in the interest of continuing Christmas tree promotion, research, and information programs.
Unless otherwise expressly provided by the Secretary, the termination of this subpart or of any regulation issued pursuant thereto, or the issuance of any amendment to either thereof, shall not:
(a) Affect or waive any right, duty, obligation or liability which shall have arisen or which may thereafter arise in connection with any provision of this subpart or any regulation issued thereunder.
(b) Release or extinguish any violation of this subpart or any regulation issued thereunder.
(c) Affect or impair any rights or remedies of the United States, or of the Secretary or of any other persons, with respect to any such violation.
No member or employee of the Board shall be held personally responsible, either individually or jointly with others, in any way whatsoever, to any person for errors in judgment, mistakes, or other acts, either of commission or omission, as such member or employee, except for acts of dishonesty or willful misconduct.
If any provision of this subpart is declared invalid or the applicability thereof to any person or circumstances is held invalid, the validity of the remainder of this subpart or the applicability thereof to other persons or circumstances shall not be affected thereby.
Amendments to this subpart may be proposed from time to time by the Board or by any interested person affected by the provisions of the Act, including the Secretary.
The control number assigned to the information collection requirements by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, is OMB control number 0505-0001, and OMB control number 0581-0267 and 0581-0268.
Agricultural Marketing Service, Agriculture, USDA.
Final rule.
This final rule establishes procedures for conducting a referendum to determine whether the continuation
Patricia A. Petrella, Marketing Specialist, Research and Promotion Branch, FV, AMS, USDA, Stop 0244, Room 1406-S, 1400 Independence Avenue SW., Washington, DC 20250-0244; telephone (202) 720-9915 or (888) 720-9917 (toll free) or
This rule is issued pursuant to the Commodity Promotion, research, and Information Act of 1996 (1996 Act) (7 U.S.C. 7411-7425).
As part of this rulemaking process, two proposed rules were published in the
This rule has been determined to be not significant for purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget (OMB).
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 524 of the 1996 Act provides that the Act shall not affect or preempt any other Federal or State law authorizing promotion or research relating to an agricultural commodity.
Under Section 519 of the 1996 Act, a person subject to an order may file a petition with the Department (USDA) stating that an order, any provision of an order, or any obligation imposed in connection with an order, is not established in accordance with the law. In the petition, the person may request a modification of an order or an exemption from an order. Any petition filed challenging an order, any provision of an order, or any obligation imposed in connection with an order, shall be filed within two years after the effective date of an order, provision or obligation subject to challenge in the petition. The petitioner will have the opportunity for a hearing on the petition. Thereafter, the Department will issue a ruling on the petition. The 1996 Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have the jurisdiction to review a final ruling on the petition, if the petitioner files a complaint for that purpose not later than 20 days after the date of entry of the Department's final ruling.
This final rule establishes procedures for conducting a referendum to determine whether the continuation of the Christmas Promotion, Research, and Information Order (Order) is favored by domestic producers and importers of Christmas trees. Domestic producers and importers can vote three years after the establishment of the program to determine if they favor the continuation of the program. This referendum will need to be approved by a simple majority of the eligible domestic producers and importers voting in the referendum. The proponents proposed that a referendum be held among domestic producers and importers three years after the first assessments begin to determine whether they favor continuation of the program. USDA will conduct the referendum. These procedures will also be used for any subsequent referendum under the Order.
The 1996 Act authorizes USDA to establish agricultural commodity research and promotion orders which may include a combination of promotion, research, industry information, and consumer information activities funded by mandatory assessments. These programs are designed to maintain and expand markets and uses for agricultural commodities. As defined under section 513(1)(D) of the 1996 Act, agricultural commodities include the products of forestry, which includes Christmas trees.
The 1996 Act provides for alternatives within the terms of a variety of provisions. Paragraph (e) of section 518 of the 1996 Act provides three options for determining industry approval of a new research and promotion program: (1) By a majority of those persons voting; (2) by persons voting for approval who represent a majority of the volume of the agricultural commodity; or (3) by a majority of those persons voting for approval who also represent a majority of the volume of the agricultural commodity. In addition, section 518 of the 1996 Act provides for referenda to ascertain approval of an order to be conducted either prior to its going into effect or within three years after assessments first begin under an order.
USDA received a proposal for a national research and promotion program for Christmas trees from the Christmas Tree Checkoff Task Force (Task Force). The program will be financed by an assessment on Christmas trees domestic producers and importers and would be administered by a board of industry members selected by the Secretary of Agriculture (Secretary). The initial assessment rate will be $0.15 per Christmas tree domestically produced or imported into the United States and could be increased up to $0.20 per Christmas tree. The purpose of the program will be to strengthen the position of fresh cut Christmas trees in the marketplace and maintain and expand markets for Christmas trees within the United States.
The Task Force proposed that a referendum be held among domestic producers and importers three years after the first assessments begin to determine whether they favor continuation of the program. The Task Force recommended that the program be continued if it is favored by a majority of the current domestic producers and importers voting in the referendum. Current domestic producers or importers who domestically produce or import more than 500 Christmas trees annually will be eligible to vote in the referendum.
Accordingly, this rule will add subpart B to part 1214 that will establish procedures for conducting the referendum. The procedures will cover definitions, voting instructions, use of subagents, ballots, the referendum report, and confidentiality of information. The procedures will be applicable for the initial referendum and future referenda.
In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS is required to examine the impact of the final rule on small entities. Accordingly, AMS has considered the economic impact of this action on small entities.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened. The Small Business Administration defines, in 13 CFR part 121, small agricultural producers as those having annual receipts of no more than $750,000 and small agricultural service firms (domestic manufacturers and importers) as those having annual receipts of no more than $7.0 million.
Under these criteria, the majority of the domestic producers that would be covered under this Order will be considered small entities, while most importers will not. Domestic producers and importers who produced or imported less than 500 Christmas trees annually will be exempt from the assessment. Organic domestic producers and importers are also expected to be exempt from assessments. The number of entities assessed under the program would be approximately 3,263. Estimated revenue is expected at $2 million of which 10 percent is expected from imported product and 90 percent from domestic product.
According to the Task Force, based on data from the 2007 Census of Agriculture, there were approximately 12,255 Christmas tree farms that produced Christmas trees in the United States. Approximately 25 percent of the domestic producers or 3,100 Christmas tree domestic producers will be subject to the assessment based on the exemption of those producing less than 500 Christmas trees would be exempt from assessments. Approximately 95 percent of the domestic producers subject to the assessment qualified under the definition for small business owners. In 2008, there were approximately 175 importers. Based on the U.S. Customs data, 163 importers are subject to the assessment rate under the proposed Order.
This rule establishes procedures for conducting a referendum to determine whether domestic producers and importers favor continuation of a Christmas tree Order. USDA will conduct the referendum. The 1996 Act allows for a referendum to be conducted determining if domestic producers and importers favor the Order and also providing that a referendum be conducted up to three years after the effective date of the Proposed Order. Domestic producers and importers can vote three years after the establishment of the program to determine if they favor the continuation of the program. The procedures will also be used for any subsequent referendum under the Order. The procedures are authorized under paragraph (e) of section 518 the 1996 Act.
Regarding the economic impact of the Order on affected entities, domestic producers and importers of more than 500 Christmas trees annually will be required to pay assessments to the Board. As previously mentioned, the initial assessment rate will be $0.15 per Christmas tree domestically produced or imported to the United States and could be increased to no more than $0.20 per Christmas tree. Voting in the referendum is optional. If current domestic producers and importers chose to vote, the burden of voting would be offset by the benefits of having the opportunity to vote on whether or not they want the program to become effective.
Regarding alternatives, USDA considered requiring eligible voters to vote in person at various USDA offices across the country. Conducting the referendum from one central location by mail ballot will be more cost effective and reliable. USDA will provide easy access to information for potential voters through a toll free telephone line.
This action imposes an additional reporting burden on eligible domestic producers and importers of Christmas trees. Current eligible domestic producers and importers will have the opportunity to complete and submit a ballot to USDA indicating whether or not they favor continuation of the Order. The specific burden for the ballot is detailed later in this document in the section titled Paperwork Reduction Act. As with all Federal promotion programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. Finally, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.
AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
Regarding outreach efforts, USDA will keep these individuals informed throughout the program implementation and referendum process to ensure that they are aware of and are able to participate in the program implementation process. USDA will also publicize information regarding the referendum process so that trade associations and related industry media can be kept informed.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the referendum ballot, which represents the information collection and recordkeeping requirements that may be imposed by this rule, has been preapproved by OMB.
The information collection requirements in this rule concern the referendum that will be held to determine whether the program is favored by the industry. Current domestic producers and importers that domestically produce or import more than 500 Christmas trees annually will be eligible to vote in the referendum. The ballot will be completed by eligible current domestic producers and importers who want to indicate whether or not they support continuation of the program.
The ballot will be added to the other information collections approved under OMB No. 0581-0267.
An estimated 3,263 respondents would provide information to the Board (3,100 domestic producers and 163 importers). The estimated cost of providing the information to the Board by respondents will be $3,768.93. This total has been estimated by multiplying 114.21 total hours required for reporting and recordkeeping by $33, the average mean hourly earnings of various occupations involved in keeping this information. Data for computation of this hourly rate was obtained from the U.S. Department of Labor Statistics.
The Order's provisions have been carefully reviewed, and every effort has been made to minimize any unnecessary recordkeeping costs or requirements, including efforts to utilize information already submitted under other programs administered by USDA and other state programs.
A proposed rule regarding the referendum procedures was published in the
In the November 8, 2010, proposed rule, comments were also invited on the information collection requirements prescribed in the Paperwork Reduction Act section of this rule. Specifically, comments were solicited on: (a) Whether the proposed collection of information is necessary for the proper performance of functions of the proposed Order and USDA's oversight of the proposed Order, including whether the information would have practical utility; (b) the accuracy of USDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) the accuracy of USDA's estimate of the principal manufacturing areas in the United States for softwood lumber; (d) the accuracy of USDA's estimate of the number of domestic manufacturers and importers of softwood lumber that would be covered under the program; (e) ways to enhance the quality, utility, and clarity of the information to be collected; and (f) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. No comments were received regarding information collection.
Administrative practice and procedure, Advertising, Consumer information, Marketing agreements, Christmas trees, Promotion, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, Title 7, Chapter XI of the Code of Federal Regulations, is amended to read as follows:
7 U.S.C. 7411-7425; 7 U.S.C. 7401.
Referenda to determine whether eligible domestic producers and importers of Christmas trees favor the continuance, amendment, suspension, or termination of the Christmas Tree Promotion, Research, and Information Order shall be conducted in accordance with this subpart.
(a)
(b)
(c)
(d)
(1) Owns, or shares the ownership and risk of loss of the production of Christmas trees;
(2) Rents Christmas tree production land, facilities and/or equipment resulting in the ownership of all or a portion of the Christmas trees domestically produced;
(3) Owns Christmas tree production facilities and equipment but does not manage them and, as compensation, obtains the ownership of a portion of the Christmas trees domestically produced; or
(4) Is a party in a landlord-tenant relationship or a divided ownership arrangement involving totally independent entities cooperating only to domestically produce Christmas trees who share the risk of loss and receive a share of the Christmas trees domestically produced. No other acquisition of legal title to Christmas trees shall be deemed to result in persons becoming eligible domestic producers.
(e)
(f)
(g)
(h)
(1) A husband and a wife who have title to, or leasehold interest in, a Christmas tree farm as tenants in common, joint tenants, tenants by the entirety, or, under community property laws, as community property; and
(2) So-called “joint ventures” wherein one or more parties to an agreement, informal or otherwise, contributed land and others contributed capital, labor, management, or other services, or any variation of such contributions by two or more parties.
(i)
(j)
(j)
(a) Each eligible domestic producer and eligible importer of Christmas trees shall be entitled to cast only one ballot in the referendum. However, each domestic producer in a landlord/tenant relationship or a divided ownership arrangement involving totally independent entities cooperating only to domestically produce Christmas trees, in which more than one of the parties is a domestic producer or importer, shall be entitled to cast one ballot in the referendum covering only such domestic producer or importer's share of the ownership.
(b) Proxy voting is not authorized, but an officer or employee of an eligible corporate domestic producer or importer, or an administrator, executor, or trustee or an eligible entity may cast a ballot on behalf of such entity. Any individual so voting in a referendum shall certify that such individual is an officer or employee of the eligible entity, or an administrator, executive, or trustee of an eligible entity and that such individual has the authority to take such action. Upon request of the referendum agent, the individual shall submit adequate evidence of such authority.
(c) All ballots are to be cast by mail as instructed by the Department.
(d) Eligible domestic producers or eligible importers may be asked to provide proof of sales or acreage as proof of eligibility to vote in any referendum.
The referendum agent shall conduct the referendum, in the manner provided in this subpart, under the supervision of the Administrator. The Administrator may prescribe additional instructions, not inconsistent with the provisions of this subpart, to govern the procedure to be followed by the referendum agent. Such agent shall:
(a) Determine the period during which ballots may be cast.
(b) Provide ballots and related material to be used in the referendum. The ballot shall provide for recording essential information, including that needed for ascertaining whether the person voting, or on whose behalf the vote is cast, is an eligible voter.
(c) Give reasonable public notice of the referendum:
(1) By utilizing available media or public information sources, without incurring advertising expense, to publicize the dates, places, method of voting, eligibility requirements, and other pertinent information. Such sources of publicity may include, but are not limited to, print and radio; and
(2) By such other means as the agent may deem advisable.
(d) Mail to eligible domestic producers and importers whose names and addresses are known to the referendum agent, the instructions on voting, a ballot, and a summary of the terms and conditions of the proposed Order. No person who claims to be eligible to vote shall be refused a ballot.
(e) At the end of the voting period, collect, open, number, and review the ballots and tabulate the results in the presence of an agent of a third party authorized to monitor the referendum process.
(f) Prepare a report on the referendum.
(g) Announce the results to the public.
The referendum agent may appoint any individual or individuals necessary or desirable to assist the agent in performing such agent's functions of this subpart. Each individual so appointed may be authorized by the agent to perform any or all of the functions which, in the absence of such appointment, shall be performed by the agent.
The referendum agent and subagents shall accept all ballots cast. However, if an agent or subagent deems that a ballot should be challenged for any reason, the agent or subagent shall endorse above their signature, on the ballot, a statement to the effect that such ballot was challenged, by whom challenged, the reasons therefore, the results of any investigations made with respect thereto, and the disposition thereof. Ballots invalid under this subpart shall not be counted.
Except as otherwise directed, the referendum agent shall prepare and submit to the Administrator a report on the results of the referendum, the manner in which it was conducted, the extent and kind of public notice given, and other information pertinent to the analysis of the referendum and its results.
The ballots and other information or reports that reveal, or tend to reveal, the vote of any person covered under the Order and the voter list shall be strictly confidential and shall not be disclosed.
The control number assigned to the information collection requirement in this subpart by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35 is OMB control number 0581-0267.
Office of Advocacy and Outreach, Departmental Management, USDA.
Interim rule with request for comments.
Section 14204 of the Food, Conservation and Energy Act of 2008 (2008 Farm Bill), authorizes the Secretary of Agriculture to make grants to assist agricultural employers and
Comments on the interim rule must be received by the agency on or before December 8, 2011 to be assured of consideration.
Comments on the collection of information, Paperwork Reduction Act, must be received by the agency on or before January 9, 2012 to be assured of consideration.
You may submit comments on the interim rule, identified by RIN 0503-AA49 by any of the following methods:
Christine Chavez, Program Leader, Farmworker Coordination, Office of Advocacy and Outreach, U.S. Department of Agriculture, 1400 Independence Avenue SW., Stop 9801, Washington, DC 20250,
Section 14204 of the 2008 Farm Bill (Section 14204) authorizes the Secretary of Agriculture to make grants to assist agricultural employers and farmworkers by improving the supply, stability, safety, and training of the agricultural labor force. Such grants may be made to eligible entities for use in providing services to assist farmworkers who are citizens or otherwise legally present in the United States in securing, retaining, upgrading, or returning from agricultural jobs. The purpose of this rulemaking is to establish regulations governing the grants program, including eligibility, application for, evaluation, award and post-award administration of grants made pursuant to the authority granted to the Secretary under Section 14204. The 2010 Appropriations Act included an appropriation of $4 million to the U.S. Department of Agriculture's (USDA) Rural Housing Service (RHS) for this program, and the delegation of authority and funding for the program has since been transferred to the Office of Advocacy and Outreach (OAO), within Departmental Management of USDA. OAO has designated the program the Agricultural Career and Employment (ACE) Grants Program and it will be referred to as such hereafter.
As the title of Section 14204 of the 2008 Farm Bill suggests—“Grants to Improve the Supply, Stability, Safety, and Training of Agricultural Labor Force”—the grants program authorized by this section is designed to address the needs of both agricultural employers and farmworkers with respect to the supply of skilled labor in American agriculture and the stability of employment in that sector. About 800,000 hired farmworkers are employed in U.S. agriculture, with hired workers making up an estimated one-third of the total agricultural labor force. Particularly critical for labor-intensive sectors of agriculture, such as fruits and vegetables, the hired agricultural labor force in the United States is characterized by considerable instability. Among the hired workforce are large numbers of migrant and seasonal farmworkers, many of whom travel long distances to obtain employment, and often move from crop to crop as conditions warrant. See,
Despite this regular flow of workers, regional differences in crops, variations in harvest times, and unpredictable weather conditions mean that many growers complain of chronic labor shortages, while farmworkers frequently report it is difficult to locate employment or obtain sufficient hours of work to earn a living. Unemployment rates among farmworkers generally are double those of other wage and salaried workers and those working in field crops have twice the unemployment rate of livestock workers. Historically, the uncertainty farmworkers have faced as to the availability or duration of work, along with the low wages generally earned by hired farm laborers, has led to many employed in the agricultural labor sector to leave agriculture for employment in other industries. Because of high turnover rates in agricultural employment, it is estimated that 2.0 to 2.5 individual
The ACE grants program is intended to improve the supply of skilled agricultural workers and bring greater stability to the workforce in this sector. This stability will be realized through services specifically designed to assist farmworkers in securing, retaining, upgrading or returning from an agricultural job. Such services include the following:
• Agricultural labor skills development;
• The provision of agricultural labor market information;
• Transportation;
• Short-term housing while in transit to an agricultural worksite;
• Workplace literacy and assistance with English as a second language;
• Health and safety instruction, including ways of safeguarding the food supply of the United States; and
• Other such services the Secretary deems appropriate.
The training and services offered through the ACE grants program will benefit growers by contributing to the establishment of a more skilled pool of workers. Farmworkers who avail themselves of the training and the other services under the program should have enhanced employment opportunities, with the prospect of obtaining additional hours of work and pay or better paying positions on the farm and expanded promotional opportunities as a result of upgraded skills. Moreover, to the extent greater opportunities exist for farmworkers within the agricultural industry, hired farm laborers will have greater incentives to remain in agriculture and will be less likely to leave farm work for other occupations. Finally, training farmworkers in ways to safeguard the food supply of the United States is intended to benefit not only consumers, but to benefit growers and farmworkers alike by minimizing disruptions in the agricultural sector due to product contamination. Taken together, the listed services and program goals are intended to promote stability in the workforce and thereby improve the supply of skilled labor across U.S. agriculture.
The Office of Management and Budget (OMB) has determined that this rule is non-significant for the purposes of Executive Orders 12866 and 13563 and, therefore, it has not been reviewed by OMB.
We have prepared an economic analysis for this rule which is summarized below. The economic analysis provides a cost-benefit analysis, as required by Executive Orders 12866 and 13563, and an initial regulatory flexibility analysis that examines the potential economic effects of this interim rule on small entities, as required by the Regulatory Flexibility Act. Copies of the full analysis are available by contacting the person listed under
The economic analysis outlines several benefits of this program. The program would provide agricultural employers with access to a more stable and skilled pool of farmworkers and would provide farmworkers with enhanced employment opportunities, such as additional hours of work, better terms and conditions of employment, training, an increase in wages, and more opportunity for advancement. Training farmworkers in ways to safeguard the food supply will benefit not only agricultural employers and farmworkers, but also consumers.
The total cost of this program would be $4 million to taxpayers, most of which would be awarded as grants with a 15 percent maximum that could be used to administer the program.
The initial Regulatory Flexibility Analysis addresses the expected impact of this program on small entities. It is expected that the majority of the entities eligible for grants will be small. However, OAO does not expect this rule to have a significant economic impact on a substantial number of small entities.
In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This interim rule would allow USDA to make grants to assist agricultural employers and farmworkers by improving the supply, stability, safety, and training of the agricultural labor force.
OAO is asking OMB to approve its use of this information collection activity to ensure that it will maximize the utility of information which is created, collected and maintained and minimize both the burden imposed on entities seeking to participate in the program as well as costs to the Federal government.
OAO is soliciting comments from the public concerning OAO's proposed information collection and recordkeeping requirements. These comments will help OAO:
(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;
(2) Evaluate the accuracy of OAO's estimate of the burden on the proposed information collection, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology;
(1)
Copies of this information collection can be obtained from Christine Chavez, Program Leader, Farmworker Coordination, Office of Advocacy and Outreach, U.S. Department of Agriculture, 1400 Independence Avenue SW, Stop 9801, Washington, DC 20250,
The Office of Advocacy and Outreach is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this interim final rule, please contact Christine Chavez, Program Leader, Farmworker Coordination, Office of Advocacy and Outreach, U.S. Department of Agriculture, 1400 Independence Avenue SW, Stop 9801, Washington, DC 20250,
This interim rule applies to the following Federal assistance program administered by the Office of Advocacy and Outreach: 10.465, Farmworker Training Grants.
The Department concludes that the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. 4321
Pursuant to the requirements of Section 654 of the Treasury and general Government Appropriations Act of 1999, 5 U.S.C. 601 note, the Department concludes this regulation has no potential negative effect on family well-being as defined thereunder.
The Department concludes that this interim rule has no negative effect on the health and safety of children.
Pursuant to Executive Order No. 13132, 64 FR 43225 (August 10, 1999) and the Unfunded Mandates Act of 1995, 2 U.S.C. 1501
In accordance with Executive Order 13175, 65 FR 67249 (Nov. 9, 2000), the Department concludes this rule, as proposed, does not have “tribal implications” nor substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.
This interim rule has been reviewed in accordance with Executive Order 12988, Civil Justice Reform. This rule would not preempt State or local laws, is not intended to have retroactive effect, and would not involve administrative appeals.
This interim rule would not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Provisions of this rule would not have a substantial direct effect on States or their political subdivisions or on the distribution of power and responsibilities among the various government levels.
For the reasons set forth in the Final Rule Related Notice for 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), this program is excluded from the scope of the Executive Order 12372, which requires intergovernmental consultation with State and local officials. This program does not directly affect State and local governments.
Agricultural labor, Agricultural employers, Farmworkers, Grants, Training.
For the reasons discussed in the preamble, the Office of Advocacy and Outreach, Departmental Management, amends chapter XXV of title 7 of the Code of Federal Regulations by adding part 2502 to read as follows:
7 U.S.C. 2008q-1.
(a) This part contains program-specific definitions for the ACE Grants Program.
(b) Subpart B establishes the criteria to be used in determining eligibility for an ACE grant award and the requirements for the delivery of program benefits and services, including who is considered eligible to receive such benefits and services and what the responsibilities are of ACE grantees.
(c) Subpart C establishes that, unless otherwise provided herein, the procedures for applying for ACE grants, the processes to be followed by OAO in evaluating grant proposals and awarding program funds, and the procedures for post-award administration of ACE grants are those set forth in a rule proposed ON DATE to codify provisions at 7 CFR part 2500, subparts A, B, C, D, and E.
As used in this part (unless otherwise indicated):
Any request by the applicant or grantee for a waiver or deviation from any provision of this part shall be submitted to the ADO identified in the agency specific requirements. OAO shall review the request and notify the applicant/grantee whether the request to deviate has been approved within 30 calendar days from the date of receipt of the deviation request. If the deviation request is still under consideration at the end of 30 calendar days, OAO shall inform the applicant/grantee in writing of the date when the applicant/grantee may expect the decision.
(a) Entities eligible to apply for and receive a grant under this part include:
(1) A non-profit organization;
(2) A consortium of nonprofit organizations; or
(3) A consortium which includes a non-profit organization(s) and one or more of the following: agribusinesses, State and local governments, agricultural labor organizations, farmer or rancher cooperatives, and community-based organizations with the capacity to train farm workers.
(b) Additional information about eligible entities may be included in the RFP. In addition, the RFP will specify the criteria by which an entity's capacity to train farm workers will be evaluated, but at a minimum, the entity shall be required to demonstrate that it has:
(1) An understanding of the issues facing hired farmworkers and conditions under which they work;
(2) Familiarity with the agricultural industry in the geographic area to be served, including agricultural labor needs and existing services for farmworkers; and
(3) The capacity to effectively administer a program of services and benefits authorized by the ACE program.
(c) An applicant will be required to submit information to OAO, as specified in the RFP and/or FOA as part of the grant application.
(a) The ACE grants program will be centrally administered by the USDA in a manner consistent with these regulations, as well as the pertinent requirements of 7 CFR part 3015, 7 CFR part 3016, 7 CFR part 3018, 7 CFR part 3019 and 7 CFR 3052.
(b) The Office of Advocacy and Outreach (OAO) has been designated as the organizational unit responsible for administering the ACE program, including, among other things, determining the number and amount of grants to be awarded, the purposes for the grants to be awarded, as well as the criteria for the evaluation and award of grants.
(c) Services and benefits provided under the ACE grants program are limited to those which will assist eligible farmworkers in securing, retaining, upgrading or returning from agricultural jobs.
(d) Such services will include the following:
(1) Agricultural labor skills development
(2) Provision of agricultural labor market information:
(3) Transportation:
(4) Short-term housing while in transit to an agricultural worksite;
(5) Workplace literacy and assistance with English as a second language;
(6) Health and safety instruction, including ways of safeguarding the food supply of the United States;
(7) Such other services as the Secretary deems appropriate.
(e) Grant funds shall not be used to deliver or replace any services or benefits which an agricultural employer, association, contractor, or any other entity is legally obliged to provide.
(a) Those eligible to receive program services or benefits under the ACE program are farmworkers who meet the definition of “United States Workers” as set forth in § 2502.2 of this part.
(b) Grantees shall be responsible for verifying the employment of farmworkers who are actively employed and are seeking to participate in program services or benefits. Unemployed farmworkers seeking to participate shall be required to certify to grantees that they are eligible for program services and benefits as provided herein. Additional eligibility requirements may be included in the RFP.
Each grantee is responsible for providing services and/or benefits authorized by this program in accord with a service delivery strategy described in its approved grant plan. The services must reflect the needs of the relevant farmworker population in the area to be served and be consistent with the goals of assisting farmworkers in securing, retaining, upgrading, or returning from agricultural jobs. The necessary components of a service delivery strategy and grant plan will be fully set forth in an RFP but the plan shall include, at a minimum, the following:
(a) The employment and education needs of the farmworker population to be served;
(b) The manner in which the proposed services to be delivered will assist agricultural employers and farmworkers in securing, retaining, upgrading or returning from agricultural jobs;
(c) The manner in which the proposed services will be coordinated with other available services;
(d) The number of participants the grantee expects to serve for each service provided, the results expected and the anticipated expenditures for each category of service.
(a) Unless otherwise provided in this rule, the requirements governing pre-award solicitation and submission of proposals and/or applications, the review and evaluation of such, the award of grant funds, and post-award and close-out procedures are those set forth at 7 CFR part 2500, subparts A, B, C, D, and E.
(b) For purposes of the ACE Grants Program, the provisions of Subpart E, at 7 CFR 2500.49, “Prior Approvals,” shall not apply. In lieu of that provision, the following requirements shall apply: Awardees may not subcontract more than 20 percent of the award to other parties without prior written approval of the ADO. To request approval, a justification for the proposed subcontract, a performance statement, and a detailed budget for the subcontract must be submitted in writing to the ADO.
U.S. Citizenship and Immigration Services, DHS.
Final rule; correction.
The Department of Homeland Security (DHS) is issuing a final rule to restore text that was inadvertently deleted in a September 7, 2011, final rule entitled
This final rule is effective November 8, 2011.
Paola Rodriguez Hale, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529-2060 telephone (202) 272-1470.
In the final rule
Administrative practice and procedure, Authority delegations (Government agencies), Freedom of information, Privacy, Reporting and recordkeeping requirements, Surety bonds.
Accordingly, 8 CFR part 103.7 is amended by making the following correcting amendment:
5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C. 9701; 48 U.S.C. 1806; Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1
(b) * * *
(1) * * *
(i) * * *
(J)
Nuclear Regulatory Commission.
Final rule.
The U.S. Nuclear Regulatory Commission (NRC or the Commission) is amending its regulations to implement the 2010 “Agreement between the Government of Australia and the Government of the United States of America Concerning Peaceful Uses of Nuclear Energy” (the Agreement). The Agreement prohibits the United States from using Australian-obligated nuclear material to produce tritium for use in a nuclear explosive device, or for any other “military purpose” as defined in the Agreement. The Agreement's definition of military purpose states that it includes “depleted uranium munitions, and other direct military non-nuclear applications, as mutually determined by the Parties.” The amendments in this final rule help enable the U.S. Government to meet its Agreement obligations with the Government of Australia.
This final rule is effective November 8, 2011.
You can access publicly available documents related to this document using the following methods:
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•
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Naiem S. Tanious, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: (301) 415-6103; email:
Section 123 of the Atomic Energy Act of 1954, as amended, sets the specific terms and conditions that must be included in the agreements concluded between the United States and a foreign government to establish the framework for peaceful nuclear cooperation and trade between the countries. The United States has entered into over twenty such agreements that are active at this time, including agreements with the European Atomic Energy Community and the International Atomic Energy Agency (IAEA). The United States entered into a Section 123 agreement with Australia in 1979.
In 2010, the United States and Australia negotiated a new agreement. While it is very similar to the agreement signed in 1979, the 2010 Agreement clarifies restrictions on the use of Australian-obligated nuclear material in the United States by adding a definition of “military purpose.” The 2010 Agreement retains Article 9(4) of the 1979 agreement, which states in relevant part that the U.S. must “establish and maintain a system of accounting for and control of all material transferred pursuant to this Agreement and any material used in or produced through the use of any material, equipment or components so transferred.”
As discussed in this document, the NRC finds that in order to implement provisions in Article 8 (“No explosive or military application”) of the 2010 Agreement, NRC regulations in Title 10 of the
Article 8(1) states, in relevant part, that Australian-obligated nuclear material “shall not be used for any nuclear explosive device, for research on or development of any nuclear explosive device, including but not limited to, the production of tritium for use in such a device, or for any military purpose.” Article 8(2) states that the term “military purpose” includes “military nuclear propulsion; munitions, including depleted uranium munitions; and other direct military non-nuclear applications as mutually determined by the Parties.” The term “military purpose” does not include “the supply of electricity to a military base from any power network, the production of radioisotopes to be used for medical purposes in military hospitals, and such other similar purposes as may be mutually determined by the Parties.”
The Agreement defines “material” as including source material, and broadly defines “source material” as including uranium ores “in such concentration as mutually determined by the Parties from time to time.” The term “Australian-obligated source material” is used in this rulemaking to designate the material covered by the rule, and such material is that which originates in Australia and is imported from there to the United States. The term “Australian-obligated source material” should be understood as describing a subset of the material referenced in the existing definition of
The NRC has determined that in order to fully implement Article 8 of the Agreement, it is necessary to amend the regulations in 10 CFR part 40 to exclude Australian-obligated source material from an existing exemption applicable to mixtures that contain less than one-twentieth of one percent of source material; exclude Australian-obligated source material from an existing exemption applicable to uranium contained in counterweights installed in aircraft and military projectiles; and prohibit the receipt, processing, transfer, or other use of Australian-obligated source material for military purposes.
The NRC is amending § 40.13(a). Section 40.13(a) exempts from the regulations in 10 CFR part 40, and from the requirements for a license, source material in any chemical mixture, compound, solution, or alloy, in which the source material is by weight less than one-twentieth of one percent of the mixture, compound, solution, or alloy. This § 40.13(a) exemption is modified to state that it does not apply to any Australian-obligated source material. This change is being made to be consistent with Article 8(2) of the 2010 Agreement, which states that the term “military purpose” includes “direct military non-nuclear applications.”
The NRC is amending § 40.13(c)(5). This exemption applies to uranium contained in counterweights installed in aircraft, rockets, projectiles, and missiles. This § 40.13(c)(5) exemption is being modified by adding a new paragraph 40.13(c)(5)(v), stating that the exemption does not apply to counterweights manufactured for the military using Australian-obligated source material. The new paragraph 40.13(c)(5)(v) is needed to be consistent with Article 8(2) of the 2010 Agreement, which states that the term “military purpose” includes “direct military non-nuclear applications.”
The NRC is amending 10 CFR part 40 by adding a new § 40.52, titled “Restrictions on the Use of Australian-Obligated Source Material.” The new requirement prohibits those possessing Australian-obligated source material from processing or otherwise using that material for military purposes, and prohibits the transfer of such material to others for military purposes. Section 40.52 defines “military purposes” in a manner consistent with Article 8 of the Agreement.
Because the substance of the amendments made by this rule involves a foreign affairs function of the United States, the notice and comment provisions of the Administrative Procedure Act do not apply (5 U.S.C. 553(a)(1)). These regulations codify explicit obligations established by an international agreement to which the United States is a party, which the NRC has no discretion or authority to modify. Under these circumstances, the NRC finds good cause for dispensing with the usual 30-day delay in the rule's effective date, in accordance with 5 U.S.C. 553(d)(3). The amendments are effective upon publication in the
For the purpose of Section 223 of the Atomic Energy Act of 1954, as amended (AEA), the Commission is issuing the final rule to amend 10 CFR part 40 under one or more of Sections 161b, 161i, or 161o of the AEA. Willful violations of the rule will be subject to criminal enforcement.
Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the
The National Technology Transfer and Advancement Act of 1995, Public Law 104-113, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless using such a standard is inconsistent with applicable law or is otherwise impractical. In this final rule, the NRC is modifying its regulations to implement the Agreement between the United States of America and the Australian Government for Peaceful Nuclear Cooperation. This action does not constitute the establishment of a standard that establishes generally applicable requirements.
The NRC has prepared an environmental assessment (ADAMS Accession Number ML112560425), and has determined that there will be no significant impact to the public from this action.
This final rule does not contain new or amended information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information for an information collection requirement unless the requesting document displays a currently valid OMB control number.
A regulatory analysis has not been prepared for this regulation. The information reported is necessary to satisfy United States Government obligations under the Agreement.
The NRC has determined that the backfit rule (§§ 50.109, 70.76, 72.62, or 76.76) does not apply to this final rule because this amendment does not involve any provisions that would impose backfits as defined in the backfit rule. Therefore, a backfit analysis is not required.
In accordance with the Congressional Review Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs of OMB.
Criminal penalties, Government contracts, Hazardous materials transportation, Nuclear materials, Reporting and recordkeeping requirements, Source material, Uranium.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; 5 U.S.C. 552 and 553; and the Energy Policy Act of 2005; Public Law 109-58, 119 Stat. 594 (2005), the
Secs. 62, 63, 64, 65, 81, 161, 182, 183, 186, 68 Stat. 932, 933, 935, 948, 953, 954, 955, as amended, secs. 11e(2), 83, 84, Pub. L. 95-604, 92 Stat. 3033, as amended, 3039, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2014(e)(2), 2092, 2093, 2094, 2095, 2111, 2113, 2114, 2201, 2232, 2233, 2236, 2282); sec. 274, Pub. L. 86-373, 73 Stat. 688 (42 U.S.C. 2021); secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); sec. 275, 92 Stat. 3021, as amended by Pub. L. 97-415, 96 Stat. 2067 (42 U.S.C. 2022); sec. 193, 104 Stat. 2835, as amended by Pub. L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 2243), sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. No. 109-59, 119 Stat. 594 (2005).
Section 40.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851). Section 40.31(g) also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Section 40.46 also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 40.71 also issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).
(a) * * * The exemption contained in this paragraph does not apply to Australian-obligated source material, nor does it include byproduct materials as defined in this part.
(c) * * *
(5) * * *
(v) Consistent with § 40.52, the counterweights are not manufactured for a military purpose using Australian-obligated source material.
(a) In accordance with Article 8 of the Agreement between the Government of Australia and the Government of the United States of America Concerning Peaceful Uses of Nuclear Energy, dated 2010, Australian-obligated source material shall not be used for military purposes. As used in this section, “military purposes” includes, but is not limited to, the production of tritium for use in nuclear explosive devices; military nuclear propulsion; munitions, including depleted uranium munitions; and other direct military non-nuclear applications. “Military purposes” does not include the supply of electricity to a military base from any power network; the production of radioisotopes to be used for medical purposes in military hospitals; and such other similar purposes.
(b) Licensees are prohibited from receiving, processing, transferring, or otherwise using Australian-obligated source material for military purposes.
For the Nuclear Regulatory Commission.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Final rule; correction.
This final rule reinstates in Department of Energy (DOE) regulations the energy and water conservation standards required by the Energy Policy Act of 2005 (EPACT 2005) for commercial clothes washers (CCWs) until January 1, 2013. In the final rule establishing amended standards for CCW, published in the
This correction is effective on November 8, 2011. The effective date of the rule published Friday, January 8, 2010, was March 9, 2010. The standards established in that final rule will be applicable starting January 8, 2013.
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.
Elizabeth Kohl, Esq., U.S. Department of Energy, Office of General Counsel, GC-71, 1000 Independence Avenue SW., Washington, DC 20585-0121.
DOE published amended energy and water conservation standards for commercial clothes washers on January 8, 2010 (75 FR 1122). Compliance with these amended standards is required as of January 1, 2103. Prior to January 1, 2013, manufacturers are required to meet the standards established by Title III, Part C
The regulatory reviews conducted for this rulemaking are those set forth in the October 8, 2005 final rule that originally codified the EPACT 2005 standards into DOE's regulations.
Pursuant to the Administrative Procedure Act, 5 U.S.C. 553(b), DOE has determined that notice and prior opportunity for comment on this rule are unnecessary and contrary to the public interest. The standards being reinstated into DOE's regulations in today's final rule are currently required by EPACT 2005. DOE previously codified these standards in its regulations in the October 2005 final rule without prior opportunity for comment given the EPACT 2005 directive. DOE has determined that there is good cause to waive the 30-day
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Intragovernmental relations, Reporting and recordkeeping requirements, and Small businesses.
Accordingly, part 431 of chapter II, subchapter D, of title 10 of the Code of Federal Regulations, is corrected by making the following correcting amendments:
42 U.S.C. 6291-6317.
(a) Each commercial clothes washer manufactured between January 1, 2007, and January 8, 2013, shall have—
(1) A modified energy factor of at least 1.26; and
(2) A water consumption factor of not more than 9.5.
(b) Each commercial clothes washer manufactured on or after January 8, 2013, shall have a modified energy factor no less than and a water factor no greater than:
Federal Aviation Administration (FAA), DOT.
Final rule; correction.
The FAA is correcting an airworthiness directive (AD) that published in the
This final rule; correction, is effective November 8, 2011. The effective date for AD 2009-10-09 R2 remains September 12, 2011.
You may examine the AD docket on the Internet at
Ann Johnson, Aerospace Engineer, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Wichita, Kansas 67209;
Airworthiness Directive 2009-10-09 R2, Amendment 39-16782 (76 FR 53308, August 26, 2011), currently requires either installing a placard prohibiting spins and other acrobatic maneuvers in the airplane or replacing the rudder stop, the rudder stop bumper, and the attachment hardware with a new rudder stop modification kit for certain Cessna Models 150F, 150G, 150H, 150J, 150K, 150L, 150M, A150K, A150L, A150M, F150F, F150G, F150H, F150J, F150K, F150L, F150M, FA150K, FA150L, FRA150L, FA150M, FRA150M, 152, A152, F152, and FA152 airplanes.
As published, the text in the Procedures column of Table 2 in paragraph (g)(1) of this AD incorrectly states “* * * fabricate the placard required in paragraph (g)(1)(i) of this AD * * *”, and the text should refer to paragraph (g)(1)(ii).
No other part of the preamble or regulatory information has been changed; therefore, only the changed portion of the final rule is being published in the
The effective date of this AD remains September 12, 2011.
In the
A person authorized to perform maintenance as specified in 14 CFR 43.3 of the Federal Aviation Administration Regulations (14 CFR 43.3) is required to make the AFM and POH changes, fabricate the placard required in paragraph (g)(1)(ii) of this AD, and make an entry into the aircraft logbook showing compliance with the portion of the AD per compliance with 14 CFR 43.9.
Federal Aviation Administration, DOT.
Final rule.
This amendment supersedes an existing airworthiness directive (AD) that applies to MD Helicopters, Inc. (MDHI) Model MD900 helicopters. That AD currently requires turning ON both Vertical Stabilizer Control System (VSCS) switches and turning OFF the autopilot (AP/SAS) switch; pulling certain AP/SAS circuit breakers; installing a placard near the AP/SAS master switch; installing an airspeed limitation placard on the instrument panel; and making changes to the Rotorcraft Flight Manual (RFM). This amendment retains those requirements and provides an option of replacing each affected tube adapter with a newly-designed tube adapter, which provides terminating action for the unsafe condition. This amendment is prompted by the manufacturer introducing an improved, newly-designed tube adapter. The actions specified by this AD are intended to prevent loss of yaw control and subsequent loss of control of the helicopter.
Effective December 13, 2011.
You may get the service information identified in this AD from MD Helicopters, Inc.,
Eric D. Schrieber, FAA, Los Angeles Aircraft Certification Office, Aviation Safety Engineer, Airframe Branch, 3960 Paramount Blvd., Lakewood, California 90712, telephone (562) 627-5348, fax (562) 627-5210.
On December 28, 2010, we issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to all MDHI Model MD900 helicopters with a VSCS tube adapter, part number 500N7218-1, installed. This proposal was published in the
We provided the public the opportunity to participate in developing this AD. We received no comments on the proposal or on the determination of the cost to the public. We have determined that air safety and the public interest require adopting the AD as proposed.
We estimate that this AD will affect 39 helicopters of U.S. registry. It will take about 5.5 hours to install the newly designed tube adapters and 0.5 hours for all other required modifications at an average labor rate of $85 per work hour. Required parts will cost about $244 for 2 tube adapters. Based on these figures, we estimate the total cost impact of this AD on U.S. operators is $29,406, assuming both tube adapters are replaced on the entire fleet of helicopters.
We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the 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 an economic evaluation of the estimated costs to comply with this AD. See the AD docket to examine the economic evaluation.
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.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
49 U.S.C. 106(g), 40113, 44701.
Model MD900 helicopters with a Vertical Stabilizer Control System (VSCS) tube adapter, part number (P/N) 500N7218-1, installed, certificated in any category.
Required before further flight, unless accomplished previously.
To prevent loss of yaw control and subsequent loss of control of the helicopter, do the following:
(a) Turn ON both VSCS switches.
(b) If installed, de-energize the autopilot (AP/SAS) as follows:
(1) Determine if the AP/SAS trim actuators are centered. If the AP/SAS trim actuators are not centered, center them.
(2) After the AP/SAS trim actuators are centered:
(i) Turn the AP/SAS MSTR switch to the OFF position.
(ii) Pull the following AP circuit breakers located on the A601 Essential Bus Circuit Breaker Panel, mounted in the cockpit console, and install a plastic cable tie on each circuit breaker to prevent accidental energizing of the circuit:
(A) AP/SAS CMPTR (CB28),
(B) AP/SAS DISC (CB29), and
(C) AP/SAS ACCEL (CB30).
(3) Install a placard next to the AP Mode Select panel that contains the AP/SAS MSTR switch stating “AP/SAS DEACTIVATED.”
(c) Install a placard on the instrument panel as close as practicable to the airspeed indicator that states:
“AIRSPEED LIMIT 100 KIAS or V
(d) Make pen and ink changes or insert a copy of this AD into the Limitations section of the rotorcraft flight manual (RFM) to revise the limitations as follows: “V
(e) Make pen and ink changes or insert a copy of this AD into the Limitations section of the RFM to revise the emergency procedures as follows: “If you experience an anti-torque system malfunction, turn both VSCS switches to OFF during final approach for a run-on landing.”
(f) Instead of complying with paragraphs (a) through (e) of this AD, you may replace both VSCS tube adapters, P/N 500N7218-1, with airworthy VSCS tube adapters, P/N 900C2010303-101. If you install VSCS tube adapters, P/N 900C2010303-101, and previously have complied with AD 2008-22-53 (73 FR 73165, December 2, 2008), return the helicopter to its normal configuration by returning the switches and circuit breakers to their normal operating position, operationally testing the auto-pilot system, removing the two placards, and removing the revisions to the RFM pertaining to the airspeed limitation. Replacing both VSCS tube adapters, P/N 500N7218-1, with airworthy VSCS tube adapters, P/N 900C2010303-101, and returning the helicopter to its normal operating configuration constitutes terminating action for the requirements of this AD.
(g) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Contact the Manager, Los Angeles Aircraft Certification Office, FAA,
(h) The Joint Aircraft System/Component (JASC) Code is 6720: Tail Rotor Control System.
(i) This amendment becomes effective on December 13, 2011.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action changes the using agency name for Restricted Area R-2104 A through E, Huntsville, AL to read “Commander, U.S. Army Garrison, Redstone, Redstone Arsenal, AL.” There are no changes to the boundaries; designated altitudes; time of designation; or activities conducted within the affected restricted areas.
Effective date 0901 UTC, February 9, 2012.
Paul Gallant, Airspace, Regulations and ATC Procedures Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783.
The Base Realignment and Closure Commission directed the merger of the “Army Missile Command” and the “Aviation and Troop Command” to form the “Aviation and Missile Command.” As a result, the current using agency organizational name is no longer accurate. Therefore, the U.S. Army requested that the FAA change the name of the using agency for Restricted Areas R-2104A through E to “Commander, U.S. Army Garrison, Redstone Arsenal, AL.”
This action amends Title 14 Code of Federal Regulations (14 CFR) part 73 by amending the using agency name for Restricted Areas R-2104A, B, C, D and E, in Huntsville, AL, from “Commanding General, U.S. Army Missile Command, Redstone Arsenal, AL” to “Commander, U.S. Army Garrison Redstone, Redstone Arsenal, AL.” This is an administrative change to update the title of the using agency. It does not affect the boundaries, designated altitudes, or activities conducted within the restricted area; therefore, notice and public procedures under 5 U.S.C. 553(b) are unnecessary.
Section 73.21 of Title 14, CFR part 73 was republished in FAA Order 7400.8T, effective February 16, 2011.
The FAA has determined that this action only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as amends the description of Restricted Areas R-2104A, B, C, D and E, Huntsville, AL.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, Environmental Impacts: Policies and Procedures, paragraph 311d. This airspace action is an administrative change to the descriptions of the affected restricted area to update the using agency name. It does not alter the dimensions, altitudes, or times of designation of the airspace; therefore, it is not expected to cause any potentially significant
Airspace, Prohibited areas, Restricted areas.
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73, as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
By removing the words “Using Agency. Commanding General, U.S. Army Missile Command, Redstone Arsenal, AL” and inserting the words “Using Agency. Commander, U.S. Army Garrison Redstone, Redstone Arsenal, AL”
By removing the words “Using Agency. Commanding General, U.S. Army Missile Command, Redstone Arsenal, AL” and inserting the words “Using Agency. Commander, U.S. Army Garrison Redstone, Redstone Arsenal, AL”
By removing the words “Using Agency. Commanding General, U.S. Army Missile Command, Redstone Arsenal, AL” and inserting the words “Using Agency. Commander, U.S. Army Garrison Redstone, Redstone Arsenal, AL”
By removing the words “Using Agency. Commanding General, U.S. Army Missile Command, Redstone Arsenal, AL” and inserting the words “Using Agency. Commander, U.S. Army Garrison Redstone, Redstone Arsenal, AL”
By removing the words “Using Agency. Commanding General, U.S. Army Missile Command, Redstone Arsenal, AL” and inserting the words “Using Agency. Commander, U.S. Army Garrison Redstone, Redstone Arsenal, AL”
Internal Revenue Service (IRS), Treasury.
Final regulations.
This document contains final regulations that provide guidance on the portion of property (held in trust or otherwise) includible in the grantor's gross estate if the grantor has retained the use of the property, the right to an annuity, unitrust, graduated retained interest, or other payment from the property for life, for any period not ascertainable without reference to the grantor's death, or for a period that does not in fact end before the grantor's death. The final regulations will affect estates that file Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return.
Theresa M. Melchiorre at (202) 622-3090 (not a toll-free number).
On April 30, 2009, proposed regulations (REG-119532-08) were published in the
In addition, the proposed regulations would add § 20.2036-1(c)(1)(ii),
Written comments were received on the proposed regulations. No public hearing was scheduled because no individual or organization requested the opportunity to provide oral comments at a hearing. All comments are available at
Section 20.2036-1(b)(1)(ii) of the proposed regulations provides the method required to compute the amount includible in the decedent's gross estate under section 2036 in a situation where the decedent is to receive a payment (or an increased payment) after the death of another beneficiary who is receiving an annuity or other payment at the time of the decedent's death. If the decedent predeceases the other beneficiary, under the proposed regulations, the amount includible is the greater of: (1) The amount of corpus required to generate sufficient income to pay the annuity payable to the decedent as of the date of death; or (2) the amount of corpus required to produce sufficient income to satisfy the annuity or other payment the decedent would have been entitled to receive if the decedent had survived the other beneficiary, reduced by the present value of the other beneficiary's interest. The amount includible, however, cannot exceed the fair market value of the trust corpus on the date of death.
One commentator opined that this method attributes to the decedent a greater portion of a trust's value than is
The requested approach in the comment was not adopted because it is inconsistent with the existing regulations. The regulations have provided, historically, that if the decedent retained or reserved an interest or right with respect to all or a portion of the property transferred, then the amount includible under section 2036 is the value of the property with respect to which the decedent retained the interest less the value of any outstanding income interest that is not subject to the decedent's retained interest and that is being enjoyed by another person at the time of decedent's death. Nevertheless, once this computation has been completed, a ceiling on the amount includible in the gross estate under section 2036 (specifically, the fair market value of the trust at death) is imposed. The method in the proposed regulations implements this principle. This method has been clarified in the final regulations by providing that, solely for the purpose of calculating the present value of the current recipient's interest in this computation, the exhaustion of trust corpus test described in § 20.7520-3(b)(2) is not to be applied in cases where § 20.7520-3(b)(2) would otherwise require it to be applied.
In response to a comment, paragraph (i) of
In response to a commentator's request for a detailed example, a step-by-step illustration of the method described in § 20.2036-1(c)(2)(ii) (renumbered as § 20.2036-1(c)(2)(iii) in the final regulations) has been added in
One commentator requested that the regulations clarify the interaction of sections 2033 and 2036 in a situation where the decedent establishes a GRT under the terms of which the retained interest is paid to the decedent for a specified term of years and, if the decedent dies prior to the expiration of that term, the retained annuity or other payment is to be paid to the decedent's estate for the balance of the term. See for example § 25.2702-3(e),
The commentator noted that, because all or a portion of the trust corpus is includible in the decedent's gross estate under section 2036, the annuity or other payments that become payable after the decedent's death and are required to be paid to the estate for the remainder of the trust term are reflected in the amount includible under section 2036, and therefore should not also be includible under section 2033.
The IRS and the Treasury Department agree. To the extent that all or a portion of the trust corpus is includible in the gross estate under section 2036 as a result of the decedent's retained annuity or other interest, double inclusion of the same asset would result if any payment that becomes payable after the decedent's date of death to the estate also is included in the decedent's gross estate under section 2033 as a separate item. Accordingly, § 20.2036-1(c)(1)(i) of the regulations has been revised to provide specifically that payments that become payable to the decedent's estate after the decedent's death (as opposed to payments that are payable to the decedent prior to the decedent's death but are not paid until after the decedent's death) are not subject to inclusion under section 2033, if section 2036 is applied to include all or a portion of the trust corpus in the gross estate. This rule is also reflected in § 20.2036-1(c)(2)(iv),
The payments described in the preceding paragraph are to be distinguished, however, from annuity or other payments payable to the decedent prior to the decedent's date of death, but that are not paid until after death. Such payments are includible in the decedent's gross estate under section 2033 as a separate receivable. Thus, such an amount payable by the trust reduces the fair market value of the trust as of the date of death, but is included in the decedent's gross estate under section 2033 as a receivable amount.
In response to comments, the method set forth in § 20.2036-1(b)(1)(ii) of the proposed regulations for calculating the amount includible if part or all of the decedent's retained annuity follows an annuity interest payable to another at the time of the decedent's death has been moved to a separate section, § 20.2036-1(c)(2)(ii). As a conforming change, paragraph (ii) of
Also in response to a comment, the manner of computing the amount to be included in the decedent's gross estate has been clarified at the end of § 20.2036-1(c)(2)(i).
It has been determined that this Treasury decision 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 and, because these regulations do not impose on small entities a collection of information requirement, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking preceding this regulation was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
The principal author of these regulations is Theresa M. Melchiorre, Office of Associate Chief Counsel (Passthroughs and Special Industries), IRS.
Estate taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 20 is amended as follows:
26 U.S.C. 7805 * * *
The revisions and additions read as follows:
(b) * * * (1) * * *
(ii) A decedent reserved the right to receive the income, annuity, or other payment from transferred property after the death of another person who was in fact enjoying the income, annuity, or other payment at the time of the decedent's death. In such a case, the amount to be included in the decedent's gross estate under this section does not include the value of the outstanding interest of the other person as determined in paragraphs (c)(1)(i) and (c)(2)(ii) of this section. See also, paragraphs (c)(1)(ii)
(c) * * *
(1) * * *
(i) * * * If this section applies to an interest retained by the decedent in a trust or otherwise and the terms of the trust or other governing instrument provide that, after the decedent's death, payments the decedent was receiving during life are to continue to be made to the decedent's estate for a specified period (as opposed to payments that were payable to the decedent prior to the decedent's death but were not actually paid until after the decedent's death), such payments that become payable after the decedent's death are not includible in the decedent's gross estate under section 2033 because they are properly reflected in the value of the trust corpus included under this section. Payments that become payable to the decedent prior to the decedent's date of death, but are not paid until after the decedent's date of death, are includible in the decedent's gross estate under section 2033.
(ii) * * *
Decedent (D) creates an irrevocable inter vivos trust. The terms of the trust provide that all of the trust income is to be paid to D and D's child, C, in equal shares during their joint lives and, on the death of the first to die of D and C, all of the trust income is to be paid to the survivor. On the death of the survivor of D and C, the remainder is to be paid to another individual, F. Subsequently, D dies survived by C. Fifty percent of the value of the trust corpus is includible in D's gross estate under section 2036(a)(1) because, under the terms of the trust, D retained the right to receive one-half of the trust income for D's life. In addition, the excess (if any) of the value of the remaining 50 percent of the trust corpus, over the present value of C's outstanding life estate in that 50 percent of trust corpus, also is includible in D's gross estate under section 2036(a)(1), because D retained the right to receive all of the trust income for such time as D survived C. If C had predeceased D, then 100 percent of the trust corpus would have been includible in D's gross estate.
(2) * * *
(i) * * * The portion of the trust's corpus includible in the decedent's gross estate for Federal estate tax purposes is that portion of the trust corpus necessary to provide the decedent's retained use or retained annuity, unitrust, or other payment (without reducing or invading principal). In the case of a retained annuity or unitrust, the portion of the trust's corpus includible in the decedent's gross estate is that portion of the trust corpus necessary to generate sufficient income to satisfy the retained annuity or unitrust (without reducing or invading principal), using the interest rates provided in section 7520 and the adjustment factors prescribed in § 20.2031-7 (or § 20.2031-7A), if applicable. The computation is illustrated in paragraph (c)(2)(iv),
(ii)
(A)
(B)
(C)
(D)
(E)
(F)
(iii)
(B)
(
(
(
(
(C)
(iv)
(i) On November 1, year N, D transfers assets valued at $2,000,000 to a GRAT. Under the terms of the GRAT, the trustee is to pay to D an annuity for a 5-year term that is a qualified interest described in section 2702(b). The annuity amount is to be paid annually at the end of each trust year, on October 31st. The first annual payment is to be $100,000. Each succeeding payment is to be 120 percent of the amount paid in the preceding year. Income not distributed in any year is to be added to principal. If D dies during the 5-year term, the payments are to be made to D's estate for the balance of the GRAT term. At the end of the 5-year term, the trust is to terminate and the corpus is to be distributed to C, D's child. D dies on January 31st of the third year of the GRAT term. On the date of D's death, the value of the trust corpus is $3,200,000, the section 7520 interest rate is 6.8 percent, and the adjustment factor from Table K of § 20.2031-7 is 1.0000. D's executor does not elect to value the gross estate as of the alternate valuation date pursuant to section 2032.
(ii) The amount includible in D's gross estate under section 2036(a)(1) as described in paragraph (c)(2)(iii)(C) of this section is determined and illustrated as follows:
(iii) Specifically:
(A)
(B)
(C)
(D)
(E)
(F)
(iv) An illustration of the amount of trust corpus (as of the decedent's death) necessary to produce the scheduled payments is as follows:
(v) A total corpus amount (as defined in paragraph (c)(2)(iii)(B)(
(vi) If, instead, D's annuity was to have been paid on a monthly or quarterly basis, then the periodic addition would have to be adjusted as provided in paragraph (c)(2)(iii)(B)(
(i) D creates an irrevocable inter vivos trust. The terms of the trust provide that an annuity of $10,000 per year is to be paid to D and C, D's child, in equal shares during their joint lives. On the death of the first to die of D and C, the entire $10,000 annuity is to be paid to the survivor for life. On the death of the survivor of D and C, the remainder is to be paid to another individual, F. Subsequently, D dies survived by C. On D's date of death, the fair market value of the trust is $120,000 and the section 7520 rate is 7 percent. At the date of D's death, the amount of trust corpus needed to produce D's annuity interest ($5,000 per year) is $71,429 ($5,000/0.07). In addition, assume the present value of C's right to receive $5,000 annually for the remainder of
(3)
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, Thirteenth Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Burlington Northern Santa Fe Railway Bridge across the Lake Washington Ship Canal, mile 0.1, at Seattle, WA. The deviation is necessary to facilitate replacement of a counterweight trunnion bearing. This deviation allows the bridge to remain in the down or closed position during the maintenance period.
This deviation is effective from 8 p.m. on November 8, 2011 through 5 p.m. on November 22, 2011.
Documents mentioned in this preamble as being available in the docket are part of docket USCG-2011-0973 and are available online by going to
If you have questions on this rule, call or email the Bridge Administrator, Coast Guard Thirteenth District;
Burlington Northern Santa Fe (BNSF) Railway has requested to not open the BNSF Rail Bascule Bridge across the Lake Washington Ship Canal, mile 0.1, for vessel traffic for a 14 day period to facilitate heavy maintenance on the bridge. The bridge provides 43 feet of vertical clearance above mean high water while in the closed position. Under normal operations this bridge opens on signal as required by 33 CFR 117.5 and 33 CFR 117.1051(c). The deviation period is from 8 p.m. November 8, 2011 through 5 p.m. November 22, 2011. This deviation allows the draw span of the BNSF Railway Bridge across the Lake Washington Ship Canal, mile 0.1, to remain in the closed position and to not open for maritime traffic from 8 p.m. November 8, 2011 through 5 p.m. November 22, 2011. This time frame was selected because it corresponds with the closure of the Army Corps of Engineering Hiram M. Chittenden lock immediately upstream or inland of the bridge on the Lake Washington Ship Canal. This stretch of the Lake Washington Ship Canal experiences heavy waterway usage and is utilized by vessels ranging from commercial tug and barge to pleasure craft. Mariners have been notified and will be kept informed of the bridge's operational status via the Coast Guard Notice to Mariners publication and Broadcast Notice to Mariners as appropriate. Vessels which do not require a bridge opening may continue to transit beneath the bridge during this closure period. Due to the nature of work being performed the draw span will be unable to open for maritime traffic during this maintenance period.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the Navy Pier Southeast Safety Zone in Chicago Harbor from December 3, 2011 through January 1, 2012. This action is necessary and intended to ensure safety
The regulations in 33 CFR 165.931 will be enforced at various times and on various dates from 5:45 p.m. on December 3, 2011 to 12:30 a.m. on January 1, 2012.
If you have questions on this notice, call or email BM1 Adam Kraft, Prevention Department, Coast Guard Sector Lake Michigan, Milwaukee, WI at (414) 747-7154,
The Coast Guard will enforce the Safety Zone; Chicago Harbor, Navy Pier Southeast, Chicago, IL listed in 33 CFR 165.931 for the following events:
(1)
All vessels must obtain permission from the Captain of the Port, Sector Lake Michigan, or his or her on-scene representative to enter, move within or exit the safety zone. Vessels and persons granted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port, Sector Lake Michigan, or his or her on-scene representative. While within a safety zone, all vessels shall operate at the minimum speed necessary to maintain a safe course.
This notice is issued under authority of 33 CFR 165.931 and5 U.S.C. 552(a). In addition to this notice in the
United States Patent and Trademark Office, Commerce.
Final rule.
The United States Patent and Trademark Office (“USPTO”) is adopting as a final rule, with minor changes, an interim final rule amending the Rules of Practice in Trademark Cases and the Rules of Practice in Filings Pursuant to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (“Madrid Rules”) to implement the Trademark Technical and Conforming Amendment Act of 2010. The interim final rule was published in the
This rule is effective on November 8, 2011.
Cynthia C. Lynch, Office of the Deputy Commissioner for Trademark Examination Policy, by telephone at (571) 272-8742.
On June 24, 2010, the USPTO published an interim final rule at 75 FR 35973 amending the Rules of Practice in Trademark Cases and the Madrid Rules to implement the Trademark Technical and Conforming Amendment Act of 2010 (“TTCAA”), Public Law 111-146, 124 Stat. 66 (2010). This legislation and the implementing rule harmonized the framework for submitting trademark registration maintenance filings to the USPTO by permitting holders of international registrations with an extension of protection to the United States under the Madrid Protocol (“Madrid Protocol registrants”) to file Affidavits or Declarations of Use or Excusable Nonuse at intervals identical to those for nationally issued registrations. In addition, all trademark owners may now cure deficiencies in their maintenance filings outside of the statutory filing period upon payment of a deficiency surcharge, specifically including when the affidavit or declaration was not filed in the name of the owner of the registration.
The interim final rule provided a 60-day comment period that ended August 23, 2010. No comments were received. For the reasons given in the interim final rule, the USPTO is adopting the interim final rule amending 37 CFR parts 2 and 7 as a final rule, with minor changes.
The rule is changed slightly for purposes of clarification. Specifically, 37 CFR 2.163(a), 2.164(a), and 7.39(c) are amended to reflect that deficiencies may be corrected after notification from the USPTO. These revisions reflect the amendments to Sections 8 and 71 of the Lanham Act, 15 U.S.C. 1058 and 1141k, providing that deficiencies may be corrected after notification of the deficiency.
This document adopts as a final rule, with minor procedural changes, the interim final rule that is already in effect. The changes from the interim rule contained in this final rule constitute interpretative rules or rules of agency practice and procedure and accordingly, are not subject to the requirements for prior notice and comment.
Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.
Administrative practice and procedure, Trademarks.
Administrative practice and procedure, Trademarks, International registration.
Accordingly, the interim final rule amending 37 CFR parts 2 and 7, which was published at 75 FR 35973 on June 24, 2010, is adopted as a final rule with the following changes:
15 U.S.C. 1123, 35 U.S.C. 2, unless otherwise noted.
(a) If the affidavit or declaration is filed within the time periods set forth in section 8 of the Act, deficiencies may be corrected after notification from the Office if the requirements of § 2.164 are met.
(a) If the affidavit or declaration is filed within the time periods set forth in section 8 of the Act, deficiencies may be corrected after notification from the Office, as follows:
15 U.S.C. 1123, 35 U.S.C. 2, unless otherwise noted.
(c) If the affidavit or declaration is filed within the time periods set forth in section 71 of the Act, deficiencies may be corrected after notification from the Office, as follows:
Environmental Protection Agency (EPA).
Final rule.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C.3501
Cassandra Vail, Toxics Release Inventory Program Division, Office of Information Analysis and Access (2844T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460;
EPA is amending the table of currently approved Information Collection Request (ICR) control numbers under the heading 40 CFR part 9; Toxic Chemical Release Reporting Community Right-to-Know issued by OMB under the Paperwork Reduction Act (44 U.S.C. 3501
EPA will continue to present OMB control numbers in a consolidated table format to be codified in 40 CFR part 9 of the Agency's regulations. The table lists CFR citations with reporting, recordkeeping, or other information collection requirements, and the current OMB control numbers. This listing of the OMB control numbers and their subsequent codification in the CFR satisfies the requirements of the Paperwork Reduction Act (44 U.S.C. 3501
EPA finds that there is “good cause” under section 553(b)(B) of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), to amend this table without prior notice and comment.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. In addition, this action does not impose any enforceable duty, contain any unfunded mandate, or impose any significant or unique impact on small governments as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not require prior consultation with State, local, and tribal government officials as specified by Executive Order 12875 (58 FR 58093, October 28, 1993) or Executive Order 13084 (63 FR 27655 (May 10, 1998), or involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). Because this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 40 CFR part 9 is amended as follows:
7 U.S.C. 135
Environmental Protection Agency (EPA).
Final rule.
EPA is finalizing approval of revisions to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) portion of the California State Implementation Plan (SIP). These revisions were proposed in the
EPA has established docket number EPA-R09-OAR-2011-0312 for this action. Generally, documents in the docket for this action are available electronically at
David Grounds, EPA Region IX, (415) 972-3019,
Throughout this document, “we,” “us” and “our” refer to EPA.
On June 16, 2011 (76 FR 35167), EPA proposed to approve the following rule into the California SIP.
We proposed to approve this rule because we determined that it complied with the relevant CAA requirements. Our proposed action contains more information on the rule and our evaluation.
EPA's proposed action provided a 30-day public comment period. During this period, we received no comments.
No comments were submitted that change our assessment that the submitted rule complies with the relevant CAA requirements. Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully approving this rule into the California SIP.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(c) * * *
(379) * * *
(i) * * *
(C) * * *
(
Environmental Protection Agency (EPA).
Lifting of Administrative Stay for Hydrogen Sulfide; Correction.
The Environmental Protection Agency published in the
Effective on October 17, 2011.
Daniel R. Bushman, Environmental Analysis Division, Office of Information Analysis and Access (2842T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460;
The Environmental Protection Agency published a document on August 22, 1994 (59 FR 43048) imposing stays on the reporting requirements for hydrogen sulfide and methyl mercaptan found at 40 CFR 372.65. The document published in the
In FR Doc. 2011-23534 published on October 17, 2011 (76 FR 64022), make the following corrections.
1. On page 64025, in the second column, add a new paragraph before the beginning of section IV as follows:
“In order to lift the stay, as a procedural matter, EPA must include an instruction to the Office of the Federal Register, as required by 1 CFR 21.1. This instruction does not alter or change the content or text of any regulatory provision.”
2. On page 64037, in the third column following the signature, correctly revise the amendatory language to read as follows:
“Therefore, 40 CFR part 372 is affected as follows:
42 U.S.C. 11023 and 11048.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; interim measures extended.
NMFS issues this temporary rule to extend the effective date of interim measures to reduce overfishing of gag in the Gulf of Mexico (Gulf) implemented by a temporary rule published by NMFS on June 2, 2011. This temporary rule extends the interim measures implemented to reduce overfishing of gag in the Gulf by reducing the commercial quota for gag and, thus, the combined commercial quota for shallow-water grouper species (SWG), establishing a 2-month recreational season for gag, and suspending red grouper multi-use allocation in the Gulf grouper and tilefish individual fishing quota (IFQ) program, as recommended by the Gulf of Mexico Fishery Management Council (Council). The intended effect of this rule is to reduce overfishing of the gag resource in the Gulf.
The effective date for the temporary rule published at 76 FR 31874, June 2, 2011, is extended from November 30, 2011, to June 2, 2012, unless NMFS publishes a superseding document in the
Copies of the final regulatory flexibility analysis (FRFA), a regulatory impact review, and an environmental assessment (EA) may be obtained from the Southeast Regional Office Web site at:
Peter Hood, Southeast Regional Office, NMFS,
The reef fish fishery of the Gulf of Mexico is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
On June 2, 2011, NMFS published the final temporary rule (76 FR 31874) to implement measures to reduce the commercial quota for gag from 1.49 million lb (0.68 million kg) to 430,000 lb (195,045 kg), reduce the commercial SWG quota from 6.22 million lb (2.82 million kg) to 5.16 million lb (2.34 million kg), suspend red grouper multi-use allocation in the Gulf grouper and tilefish IFQ program, and implement a recreational fishing season for gag from September 16 through November 15, with a 2-fish daily bag limit. This temporary rule extends these measures for an additional 186 days, unless this rule is superseded by subsequent rulemaking. The purpose of the interim measures and this extension of the rule is to reduce the overfishing of the gag resource in the Gulf while long-term management measures are developed and implemented through Amendment 32 to the FMP, approved by the Council at its August 2011 meeting. Amendment 32 will include management measures to end overfishing of gag, allow the gag stock to rebuild, and co-manage gag and red grouper by implementing concurrent management measures. The proposed rule for Amendment 32 published on November 2, 2011 (76 FR 67656) and requested public comment. Section 305(c)(2) of the Magnuson-Stevens Act provides the Council the authority to request interim measures, if necessary, to reduce overfishing. The Council, at its October 2011 meeting concurred with extending the interim measures currently in place. Section 305(c)(3)(B) of the Magnuson-Stevens Act allows for interim measures to be extended for one additional period of 186 days provided that the public has had an opportunity to comment on the interim measures and that the Council is actively preparing a plan amendment to address the overfishing on a permanent basis. A proposed temporary rule, published on April 21, 2011 (76 FR 22345), requested public comments on these same interim measures. NMFS responded to these comments in the final temporary rule published on June 2, 2011 (76 FR 31874), and they are not repeated here.
The Administrator, Southeast Region, NMFS, (RA) has determined that the interim measures this temporary rule extends are necessary for the conservation and management of the Gulf gag stock, until more permanent measures are implemented, and is consistent with the Magnuson-Stevens Act and other applicable laws. The Council has developed and submitted Amendment 32 to establish long-term measures to end the overfishing of Gulf gag and rebuild the stock. Amendment 32 and its associated regulations are still being implemented and are not expected to become effective until sometime in early 2012.
This temporary rule has been determined to be not significant for purposes of E.O. 12866.
This temporary rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is issued without opportunity for prior notice and comment.
An EA was prepared for the interim measures contained in the June 2, 2011, temporary rule (76 FR 31874). Because the conditions that existed at the time the June 2, 2011, temporary rule was implemented have not changed, the impacts of continuing the interim measures through this extension have already been considered. Copies of the EA are available from NMFS (see
The Assistant Administrator for Fisheries, NOAA (AA) finds good cause under 5 U.S.C. 553 (b)(B) to waive prior notice and opportunity for public comment on this temporary rule extension. Providing prior notice and opportunity for public comment would be contrary to the public interest. This rule would continue interim measures implemented by the June 2, 2011, temporary rule, for not more than an additional 186 days beyond the current expiration date of November 29, 2011. The conditions prompting the initial temporary rule still remain, and more permanent measures to be completed through Amendment 32 have not yet been finalized. Failure to extend these interim measures, while NOAA finalizes the more permanent measures in Amendment 32, would result in additional overfishing of the Gulf gag stock, which is contrary to the public interest and in violation of National Standard 1 of the Magnuson-Stevens Act.
For the aforementioned reasons, the AA also finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness of this rule.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; inseason quota transfer and General category retention limit adjustment.
NMFS has determined that an Atlantic bluefin tuna (BFT) quota transfer is appropriate, and transfers 50 metric tons (mt) from the Reserve category to the General category for the remainder of the 2011 fishing year. NMFS also has determined that the General category daily BFT retention limit should be adjusted from three to two large medium or giant BFT for the remainder of the 2011 fishing year (
Effective November 6, 2011, through December 31, 2011.
Sarah McLaughlin or Tom Warren, (978) 281-9260.
Regulations implemented under the authority of the Atlantic Tunas Convention Act (16 U.S.C. 971
The 2011 BFT fishing year began on January 1, 2011, and ends December 31, 2011. The 2011 BFT quota specifications (76 FR 39019, July 5, 2011) established a quota of 435.1 mt for the General category fishery (the commercial tunas fishery in which handgear is used). Each of the General category time periods (January, June-August, September, October-November, and December) is allocated a portion of the annual General category quota, thereby ensuring extended fishing opportunities throughout the fishing season, particularly in years when catch rates are high. The General category fishery is open until December 31, 2011, or until the General category quota is reached. The 2011 BFT quota specifications also established a Reserve category of 70.5 mt for inseason adjustments, and potential quota transfers, scientific research collection, and accounting for potential overharvest in any category except the Purse Seine category.
Under § 635.27(a)(7), NMFS has the authority to allocate any portion of the Reserve category to any category quota in the fishery, other than the Angling category school BFT subquota (for which there is a separate reserve), after considering determination criteria provided under § 635.27(a)(8), which include: The usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock; the catches of the particular category quota to date and the likelihood of closure of that segment of the fishery if no adjustment is made; the projected ability of the vessels fishing under the particular category quota to harvest the additional amount of BFT before the end of the fishing year; the estimated amounts by which quotas for other gear categories of the fishery might be exceeded; effects of the adjustment on BFT rebuilding and overfishing; effects of the adjustment on accomplishing the objectives of the fishery management plan; variations in seasonal distribution, abundance, or migration patterns of BFT; effects of catch rates in one area precluding vessels in another area from having a reasonable opportunity to harvest a portion of the category's quota; and a review of dealer reports, daily landing trends, and the availability of the BFT on the fishing grounds.
NMFS has considered the determination criteria regarding inseason adjustments and their applicability to the General category fishery for the remainder of the 2011 fishing year. These considerations include, but are not limited to, the following. As of October 26, 2011, the General category has landed 413.1 mt, or 95 percent of its 2011 quota of 435.1 mt. Overall, approximately 64 percent of the available commercial BFT quota (775.4 mt) has been harvested. Several Atlantic tuna dealers are currently providing biological samples from BFT caught by General category vessels to support ongoing NMFS-approved research regarding reproduction status and feeding habits of BFT. Continued landings of BFT would support the collection of a broad range of data for these studies and for stock monitoring purposes. Some categories are not expected to use their available 2011 quotas (
A quota transfer at this time would provide additional opportunities to harvest the U.S. BFT quota without exceeding it, while preserving the opportunity for General category fishermen to participate in the winter BFT fishery in the mid-Atlantic region that typically begins in December when commercial-sized BFT become available in that area. Per the Consolidated HMS FMP, the December General category fishery is allocated 5.2 percent of the General category quota (
Based on the considerations above, as well as the available quota, fishery performance in recent years, and the availability of BFT on the fishing grounds, NMFS has determined that a quota transfer is warranted and transfers 50 mt of the 70.5 mt of the Reserve category to the General category. Thus, the General category quota is adjusted to 485.1 mt for the 2011 fishing year. Once the adjusted General category quota has been reached, or on December 31, 2011 (whichever comes first), the 2011 General category fishery will be closed. The 2012 General category fishery begins January 1, 2012.
Under 50 CFR 635.23(a)(4), NMFS may increase or decrease the daily retention limit of large medium and giant BFT over a range of zero to a maximum of three per vessel based on consideration of the criteria provided under § 635.27(a)(8), as listed above.
For the 2011 fishing year to date, NMFS adjusted the General category limit from the default level of one large medium or giant BFT as follows: two large medium or giant BFT for January (75 FR 79309, December 20, 2010), and three large medium or giant BFT for June through August (76 FR 32086, June 3, 2011) and three large medium or giant BFT for September through December (76 FR 52886, August 24, 2011). In these actions, NMFS indicated that additional retention limit adjustments could be made, if necessary.
As indicated above, the General category has landed 413.1 mt, or 95 percent of its 2011 quota of 435.1 mt based on landings through October 26, 2011. Based on considerations of the available quota, fishery performance in recent years (landings and discards), and the availability of BFT on the fishing grounds, NMFS has determined that the General category retention limit should be reduced. Accordingly, NMFS adjusts the General category retention limit from three to two large medium or giant BFT per vessel per day/trip effective
Regardless of the duration of a fishing trip, the daily retention limit applies upon landing. For example, whether a vessel fishing under the General category limit takes a two-day trip or makes two trips in one day, the daily limit of two fish may not be exceeded upon landing. This General category retention limit is effective in all areas, except for the Gulf of Mexico, and applies to vessels permitted in the General category as well as to those HMS Charter/Headboat permitted vessels fishing commercially for BFT.
This adjustment is intended to provide a reasonable opportunity to harvest the U.S. landings quota of BFT without exceeding it, while maintaining an equitable distribution of fishing opportunities; to help achieve optimum yield in the General category BFT fishery; to collect a broad range of data for stock monitoring purposes; and to be consistent with the objectives of the Consolidated HMS FMP.
NMFS selected the daily retention limit for the remainder of the 2011 fishing year after examining an array of data as it pertains to the determination criteria. These data included, but were not limited to, current and previous catch and effort rates in the BFT fisheries, quota availability, previous public comments on inseason management measures, and stock status. NMFS will continue to monitor the BFT fishery closely through the mandatory dealer landing reports, which NMFS requires to be submitted within 24 hours of a dealer receiving BFT. Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional action is necessary to ensure available quota is not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas. NMFS will address the January 2012 General category daily retention limit via a separate inseason action later in the year, if necessary.
Closure of the General category or subsequent adjustments to the daily retention limits, if any, will be published in the
The Assistant Administrator for NMFS (AA) finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:
The regulations implementing the Consolidated HMS FMP provide for inseason retention limit adjustments to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Based on available BFT quotas, fishery performance in recent years, and the availability of BFT on the fishing grounds, a quota transfer is warranted to provide additional opportunities to harvest the U.S. BFT quota, including preserving the opportunity for General category fishermen to participate in the winter BFT fishery in the mid-Atlantic region that typically begins in December. A reduction in the General category daily retention limit is necessary to extend fishing opportunities throughout the fishing year while reducing the risk of combined landings and dead discards exceeding the available U.S. quota, consistent with ICCAT recommendations.
Affording prior notice and opportunity for public comment to implement these retention limits is impracticable as it would preclude NMFS from acting promptly to allow continued harvest of BFT that are available on the fishing grounds via a quota transfer from the Reserve category to the General category. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, and because this action relieves a restriction (
This action is being taken under 50 CFR 635.23(a)(4) and 635.27(a)(7), and is exempt from review under Executive Order 12866.
16 U.S.C. 971
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Fishery closures.
NMFS is closing the commercial fishery for non-sandbar large coastal sharks (LCS) in the Atlantic region. This action is necessary under existing regulations because landings in this fishery have exceeded 80 percent of the available quota.
The commercial non-sandbar LCS fishery in the Atlantic region is closed effective 11:30 p.m. local time November 15, 2011, until the effective date of the final 2012 shark season specifications, which NMFS will publish as a separate document in the
Karyl Brewster-Geisz or Peter Cooper, (301) 427-8503; (fax) (301) 713-1917.
The Atlantic shark fisheries are managed under the 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan (FMP), its amendments, and its implementing regulations found at 50 CFR part 635 and issued under authority of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801
Under § 635.5(b)(1), shark dealers are required to report to NMFS every two weeks all sharks landed. Dealer reports for fish received between the 1st and 15th of any month must be received by NMFS by the 25th of that month. Dealer reports for fish received between the 16th and the end of any month must be received by NMFS by the 10th of the following month. Under § 635.28(b)(2), when NMFS projects that fishing season landings for a species group have reached or are about to reach 80 percent of the available quota, NMFS will file for publication with the Office of the Federal Register a notice of closure for that shark species group that will be effective no fewer than 5 days from the
On December 8, 2011 (75 FR 76302), NMFS announced that the non-sandbar LCS fishery quota in the Atlantic region for the 2011 fishing year would be 190.4 metric tons (mt) dressed weight (dw) (419,756 lb dw). Dealer reports through November 1, 2011, indicate that 140.6 mt dw or 74 percent of the available quota for non-sandbar LCS Atlantic fishery has been landed. Assuming landings continue at the current rate, NMFS projects that 83 percent of the quota will be landed by November 15. Dealer reports received to date indicate that 22 percent of the quota was landed from the opening of the fishery on July 15, 2011, through July 31, 2011; 20 percent of the quota was landed in August; 21 percent of the quota was landed in September; and 11 percent of the quota was landed in October. Because this exceeds the 80 percent threshold specified in the regulations, NMFS is closing the commercial non-sandbar LSC fishery in the Atlantic region as of 11:30 p.m. local time November 15, 2011. This closure does not affect any other shark fishery.
As such, as of November 15, 2011, all commercial non-sandbar LCS fisheries in all regions and fisheries will be closed. All of the pelagic shark fisheries will remain open.
During this closure a fishing vessel issued an Atlantic Shark limited access permit (LAP) pursuant to § 635.4 may not possess or sell a non-sandbar LCS. A shark dealer, issued a permit pursuant to § 635.4, may not purchase or receive non-sandbar LCS from a vessel issued an Atlantic Shark Limited Access Permit, except that a permitted shark dealer or processor may possess sharks that were harvested, off-loaded, and sold, traded, or bartered, prior to the effective date of the closure and were held in storage consistent with 50 CFR 635.28(b)(4). Additionally, a shark dealer issued a Federal permit pursuant to § 635.4, may in accordance with state regulations, purchase or receive a non-sandbar LCS if the shark was harvested, off-loaded, and sold, traded, or bartered from a vessel that fishes only in state waters and had not been issued an Atlantic Shark LAP, HMS Angling permit, or HMS Charter/Headboat permit pursuant to § 635.4.
Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries, NOAA (AA), finds that providing for prior notice and public comment for this action is impracticable and contrary to the public interest because the fisheries are currently underway, and any delay in this action would cause overharvest of the quotas and be inconsistent with management requirements and objectives. Similarly, affording prior notice and opportunity for public comment on this action is contrary to the public interest because if the quotas are exceeded, the affected public is likely to experience reductions in the available quotas and a lack of fishing opportunities in future seasons. Thus, for these reasons, the AA also finds good cause to waive the 30-day delay in effective date pursuant to 5 U.S.C. 553(d)(3). This action is required under 50 CFR 635.28(b)(2) and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Agricultural Marketing Service, USDA.
Proposed rule.
This proposed rule would amend the U.S. Department of Agriculture's (USDA's) National List of Allowed and Prohibited Substances (National List) to reflect recommendations submitted to the Secretary of Agriculture (Secretary) by the National Organic Standards Board (NOSB) on October 28, 2010, and April 29, 2011. The recommendations addressed in this proposed rule pertain to changing the annotation for one substance, tetracycline, currently allowed for use in organic crop production, and adding two substances, formic acid and attapulgite, along with any restrictive annotations, for use in organic livestock production and organic processing, respectively.
Comments must be received by January 9, 2012.
Interested persons may comment on the proposed rule using the following procedures:
•
•
Melissa Bailey, Ph.D., Director, Standards Division, Telephone: (202) 720-3252; Fax: (202) 205-7808.
On December 21, 2000, the Secretary established, within the National Organic Program (NOP) (7 CFR part 205), the National List regulations §§ 205.600 through 205.607. This National List identifies the synthetic substances that may be used and the nonsynthetic (natural) substances that may not be used in organic production. The National List also identifies synthetic, nonsynthetic nonagricultural and nonorganic agricultural substances that may be used in organic handling. The Organic Foods Production Act of 1990, as amended (7 U.S.C. 6501
Under the authority of the OFPA, as amended (7 U.S.C. 6501-6522), the National List can be amended by the Secretary based on recommendations developed by the NOSB. Since established, the NOP has published multiple amendments to the National List: October 31, 2003 (68 FR 61987); November 3, 2003 (68 FR 62215); October 21, 2005 (70 FR 61217); June 7, 2006 (71 FR 32803); September 11, 2006 (71 FR 53299); June 27, 2007 (72 FR 35137); October 16, 2007 (72 FR 58469); December 10, 2007 (72 FR 69569); December 12, 2007 (72 FR 70479); September 18, 2008 (73 FR 54057); October 9, 2008 (73 FR 59479); July 6, 2010 (75 FR 38693); August 24, 2010 (75 FR 51919) December 13, 2010 (75 FR 77521); and March 14, 2011 (76 FR 13501). Additionally, proposed amendments to the National List were published on November 8, 2010 (75 FR 68505) and on May 5, 2011 (76 FR 25612).
This proposed rule would amend the National List to reflect three recommendations submitted to the Secretary by the NOSB on October 28, 2010, and April 29, 2011. Based upon their evaluation of petitions submitted by industry participants and review of technical reports, the NOSB recommended that the Secretary revise the annotation for one substance (tetracycline) for organic crop production on § 205.601, add one substance (formic acid) to § 205.603(b) for organic livestock production, and add one substance (attapulgite) to § 205.605(a) for organic processing. The exemptions for use of each substance in organic production were evaluated by the NOSB using the criteria specified in OFPA (7 U.S.C. 6517-6518).
The following provides an overview of the proposed amendments to
This proposed rule would amend § 205.601 by changing the annotation at paragraph (i)(12) to add an expiration date and specify the permitted use for the following substance:
Oxytetracyclines are derived from the soil bacteria,
On July 6, 2010, AMS published a final rule (75 FR 38693), amending the listing for tetracycline to allow the use of another form of tetracycline, oxytetracycline hydrochloride, and adding an expiration date of October 21, 2012, in accordance with the NOSB November 2008 recommendation. In October 2010, a petition was submitted requesting the removal of the October 21, 2012 expiration date. In effect, the petitioner requested an allowance for the use of tetracycline to control fire blight in apples and pears beyond the substance's current expiration date.
The NOSB Crops Committee reviewed the October 2010 petition to remove the expiration date from the current tetracycline annotation and initially issued a Committee proposal against the petitioner's request. The Committee referenced their concerns over antibiotic resistance and availability of fire blight resistant varieties as alternatives to tetracycline use as the basis for their proposal.
At its April 26-29, 2011, meeting in Seattle, WA, the NOSB received public comment on the Crops Committee's proposal to reject the petitioner's request. During the meeting, the NOSB discussed and received comments on potential alternatives to tetracycline, the challenges with the efficacy and adoption of those alternative strategies, and the potential impact of not allowing tetracycline for fire blight control after October 2012. Many commenters discussed the scope and availability of alternative methods for fire blight control including the use of fire blight resistant root stocks, biological controls, streptomycin, and apple and pear varieties that are less susceptible to fire blight. Comments from producers and researchers informed the NOSB that fire blight resistant root stocks and some biological controls are not yet commercially available.
Based upon the public comments, the NOSB Crops Committee revised their proposal at the April 2011 NOSB meeting and recommended extending the allowance for the use of tetracycline to control fire blight in apples and pears until October 21, 2014. The NOSB voted on and issued a final recommendation in support of this proposal. The NOSB concluded that use of tetracycline should be permitted to continue through October 21, 2014, as options for biological controls and resistant varieties and rootstocks are further developed for commercial use. In their recommendation, the NOSB specified that the annotation include language to convey that the use of tetracycline is limited to apples and pears. The addition of “apples and pears” in the annotation accurately identifies the allowed use of this substance in organic production and would not change current use patterns.
The NOSB recommendation also stated that the Board expects the industry to make progress in the development of alternatives for fire blight control. The NOSB recommendation conveyed this expectation in stating that, “members of the industry will collaborate and coordinate efforts in preparing for the
In response to the requests by the NOSB and the industry for additional resources to support research on alternatives to tetracycline in organic production, the NOP issued requests to the USDA Agricultural Research Service and the National Institute of Food and Agriculture in May of 2011 for assistance in prioritizing research in the following areas: (1) The efficacy of combinations of substances for fire blight management; (2) breeding, production, and propagation of resistant cultivars and rootstocks that are commercially viable; and (3) cultural practices, crop management, disease forecasting and other production practices that can optimize control of this disease.
The Secretary has reviewed and proposes to accept the NOSB's recommendation. This proposed rule would amend § 205.601(i)(12) of the National List by: (1) Inserting the qualifying words “in apples and pears”; between the words “control” and “only,” in the current annotation and (2) replacing the current expiration date of “October 21, 2012” with the new expiration date, “October 21, 2014,” after which tetracycline may not be used in organic apple and pear crop production for fire blight control.
This proposed rule would amend § 205.603 by redesignating current paragraphs (b)(2) through (b)(7) as paragraphs (b)(3) through (b)(8) for the purpose of adding the following substance as an external parasiticide at (b)(2):
Formic acid (CAS #64-18-6). Formic acid was petitioned for use in May 2010, as a pesticide for suppression of
The use of synthetic formic acid is regulated by other Federal agencies. Formic acid has antibacterial properties that make it effective as a preservative, and the Food and Drug Administration (FDA) permits its use as a food additive in the feed and drinking water of animals (21 CFR 573.480). FDA also permits the use of formic acid as flavoring agent in processed foods (21 CFR 172.515). The Environmental Protection Agency (EPA) has exempted synthetic formic acid from the requirement of a tolerance in or on honey and honeycomb when used to control tracheal mites and suppress
At its October 25-28, 2010, meeting in Madison, WI, the NOSB recommended adding formic acid to the National List for use in organic livestock production solely as a pesticide within honeybee hives. The NOSB evaluated formic acid against the evaluation criteria of 7 U.S.C. 6517 and 6510 of the OFPA and received public comment at this meeting.
During their deliberations, the NOSB also considered formic acid in the context of their final recommendations for apiculture standards from 2001 and 2010 and feedback from the Apiculture Working Group. Based upon their review of this information, the NOSB issued a final recommendation to add formic acid to the National List at
At the October 2010 NOSB meeting, the NOP and NOSB discussed the placement of formic acid on the National List. The NOP raised the question of whether listing formic acid, a miticide, under § 205.603(b) is appropriate given that § 205.603(b) specifies that substances under this section be limited to use as “a topical treatment,
The Secretary has reviewed and proposes to accept the NOSB's recommendation. Consistent with the NOSB recommendation, this proposed rule would amend § 205.603 of the National List by adding formic acid (CAS #64-18-6) at paragraph (b)(2) as a synthetic substance allowed for use as follows:
Formic acid (CAS #64-18-6)—for use as a pesticide solely within honeybee hives.
This proposed rule would amend § 205.605(a) of the National List regulations by adding the following substance:
Attapulgite. Attapulgite was petitioned for two uses: (1) As a nonsynthetic processing aid in organic handling for purifying vegetable and animal oils; and (2) as a livestock feed additive.
At its April 26-29, 2011, meeting in Seattle, WA, the NOSB recommended adding attapulgite to the National List for use as a processing aid in organic handling of plant and animal oils. The NOSB did not receive public comments against this recommendation. During their deliberations, the NOSB noted that bentonite, a material already on the National List which can serve a similar bleaching function as attapulgite, requires acid activation. The NOSB explained that, though acid activation can be used to enhance bleaching properties of attapulgite, acid activation is not required for the substance to function as a processing aid and, therefore, may be preferable to the use of bentonite. The NOSB did not, however, recommend restricting the use of attapulgite to non-acid activated forms. During this public meeting, the NOSB evaluated attapulgite against the evaluation criteria of 7 U.S.C. 6517 and 6510 of the OFPA, received public comment, and concluded the substance is consistent with the OFPA evaluation criteria. Based upon the evaluation criteria, public comment, and the petitioner's request, the NOSB issued a final recommendation to add attapulgite to the National List.
The Secretary has reviewed and proposes to accept the NOSB recommendation. Consistent with the NOSB recommendation, this proposed rule would amend § 205.605(a) of the National List by adding attapulgite as follows:
Attapulgite—as a processing aid in the handling of plant and animal oils.
Two notices were published regarding the meetings of the NOSB and deliberations on recommendations and substances petitioned for amending the National List. Substances and recommendations included in this proposed rule were announced for NOSB deliberation in the following
The OFPA, as amended [7 U.S.C. 6501
This action has been determined not significant for purposes of Executive Order 12866, and therefore, has not been reviewed by the Office of Management and Budget.
Executive Order 12988 instructs each executive agency to adhere to certain requirements in the development of new and revised regulations in order to avoid unduly burdening the court system. This proposed rule is not intended to have a retroactive effect.
States and local jurisdictions are preempted under the OFPA from creating programs of accreditation for private persons or State officials who want to become certifying agents of organic farms or handling operations. A governing State official would have to apply to USDA to be accredited as a certifying agent, as described in § 2115(b) of the OFPA (7 U.S.C. 6514(b)). States are also preempted under §§ 2104 through 2108 of the OFPA (7 U.S.C. 6503 through 6507) from creating certification programs to certify organic farms or handling operations unless the State programs have been submitted to, and approved by, the Secretary as meeting the requirements of the OFPA.
Pursuant to § 2108(b)(2) of the OFPA (7 U.S.C. 6507(b)(2)), a State organic certification program may contain additional requirements for the production and handling of organically produced agricultural products that are produced in the State and for the certification of organic farm and handling operations located within the State under certain circumstances. Such additional requirements must: (a) Further the purposes of the OFPA, (b) not be inconsistent with the OFPA, (c) not be discriminatory toward agricultural commodities organically produced in other States, and (d) not be effective until approved by the Secretary.
Pursuant to § 2120(f) of the OFPA (7 U.S.C. 6519(f)), this proposed rule would not alter the authority of the Secretary under the Federal Meat Inspection Act (21 U.S.C. 601-624), the Poultry Products Inspection Act (21 U.S.C. 451-471), or the Egg Products Inspection Act (21 U.S.C. 1031-1056), concerning meat, poultry, and egg products, nor any of the authorities of the Secretary of Health and Human Services under the Federal Food, Drug and Cosmetic Act (21 U.S.C. 301
Section 2121 of the OFPA (7 U.S.C. 6520) provides for the Secretary to establish an expedited administrative appeals procedure under which persons may appeal an action of the Secretary, the applicable governing State official, or a certifying agent under this title that adversely affects such person or is inconsistent with the organic certification program established under this title. The OFPA also provides that the U.S. District Court for the district in which a person is located has jurisdiction to review the Secretary's decision.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
Pursuant to the requirements set forth in the RFA, the AMS performed an economic impact analysis on small entities in the final rule published in the
Small agricultural service firms, which include producers, handlers, and accredited certifying agents, have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $7,000,000 and small agricultural producers are defined as those having annual receipts of less than $750,000.
Based on USDA data from the Economic Research Service (ERS), the U.S. organic sector included nearly 13,000 certified organic crop and livestock operations at the end of 2008. These operations contained more than 4.8 million certified acres consisting of 2,665,382 acres of cropland and 2,160,577 acres of pasture and rangeland. The total acreage under organic management represents a twelve percent increase from 2007.
The U.S. sales of organic food and beverages have grown from $3.6 billion in 1997 to nearly $21.1 billion in 2008.
In addition, USDA has accredited 93 certifying agents who provide certification services to producers and handlers. A complete list of names and addresses of accredited certifying agents may be found on the AMS NOP Web site, at
No additional collection or recordkeeping requirements are imposed on the public by this proposed rule. Accordingly, OMB clearance is not required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, chapter 35.
This proposed rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation will not have substantial
This proposed rule reflects recommendations submitted by the NOSB to the Secretary to amend the annotation for one substance and to add two substances on the National List. A 60-day period for interested persons to comment on this rule is provided and is deemed appropriate.
Administrative practice and procedure, Agriculture, Animals, Archives and records, Imports, Labeling, Organically produced products, Plants, Reporting and recordkeeping requirements, Seals and insignia, Soil conservation.
For the reasons set forth in the preamble, 7 CFR part 205, Subpart G is proposed to be amended as follows:
1. The authority citation for 7 CFR part 205 continues to read as follows:
7 U.S.C. 6501-6522.
2. Section 205.601 paragraph (i)(12) is revised to read as follows:
(i) * * *
(12) Tetracycline, for fire blight control in apples and pears only until October 21, 2014.
3. Section 205.603 is amended by:
A. Redesignating paragraphs (b)(2) through (b)(7) as paragraphs (b)(3) through (b)(8); and
B. Adding new paragraph (b)(2) to read as follows:
(b) * * *
(2) Formic acid (CAS #64-18-6)—for use as a pesticide solely within honeybee hives.
4. In § 205.605(a), the substance “Attapulgite” is added in alphabetical order to read as follows:
(a) * * *
Attapulgite—as a processing aid in the handling of plant and animal oils.
Office of Advocacy and Outreach, Departmental Management, USDA.
Proposed rule; withdrawal.
On October 27, 2011, USDA submitted a proposed rule concerning grants to assist agricultural employers and farm workers by improving the supply, stability, safety, and training of the agricultural labor force. The Department intended this document to be submitted as an interim rule. Therefore, the proposed rule is withdrawn. In the Rules and Regulations section of this issue of the
As of November 8, 2011, the proposed rule published October 27, 2011, at 76 FR 66656, is withdrawn.
Christine Chavez, Program Leader, Farmworker Coordination, Office of Advocacy and Outreach, U.S. Department of Agriculture, 1400 Independence Avenue SW., Stop 9801, Washington, DC 20250, Voice: (202) 205-4215, Fax: (202) 720-7136, Email:
USDA is withdrawing its proposed rule of October 27, 2011, entitled “Agricultural Career and Employment Grants Program,” because it was intended to publish in the
Food Safety and Inspection Service, USDA.
Proposed rule; reopening of comment period.
The Food Safety and Inspection Service (FSIS) is reopening for 60 days the comment period for the proposed rule, “Common or Usual Name for Raw Meat and Poultry Products Containing Added Solutions.” It is also providing information concerning data used to develop the proposed rule and providing examples of labels about which FSIS has concerns.
The comment period for the proposed rule published July 27, 2011, at 76 FR 44855, is reopened. Submit comments by January 9, 2012.
FSIS invites interested persons to submit relevant comments on the implementation of this proposed rule. Comments may be submitted by either of the following methods:
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Ms. Rosalyn Murphy-Jenkins, Director, Labeling and Program Delivery Division, Office of Policy and Program Development, FSIS, USDA, (301) 504-0879.
On July 27, 2011, FSIS published the proposed rule “Common or Usual Name for Raw Meat and Poultry Products Containing Added Solutions” (76 FR 44855) to amend its regulations to establish a common or usual name for raw meat and poultry products that do not meet standard of identity regulations and to which solutions have been added. The Agency proposed that the common or usual name for such products include an accurate description of the raw meat or poultry component, the percentage of added solution incorporated into the raw meat or poultry product, and the individual ingredients or multi-ingredient components in the solution listed in the descending order of predominance by weight. FSIS also proposed that the print for all words in the common or usual name appear in a single font size, color, and style of print and that the name appear on a single-color contrasting background. In addition, the Agency proposed to remove the standard of identity regulation for “ready-to-cook poultry products to which solutions are added.” The comment period for the proposed rule ended on September 26, 2011.
The Agency received a request for a 60 day extension of the comment period. The letter explained that additional time to comment was necessary because the proposed amendments are important to many meat and poultry companies. FSIS agrees that the proposed amendments are important, and, to provide more time for constructive comment, the Agency is reopening the comment period for the proposed rule. The comment period will close on January 9, 2012.
The letter also requested the information, data, and evidence that FSIS considered in developing the proposed rule. In addition, the request asked the Agency for examples of specific labels in the marketplace about which it has concerns.
The Agency responded that the information, data, and evidence on which it based the proposed amendments can be found in the Truthful Labeling Coalition's (TLC) petition and attachments referenced in the proposed rule (76 FR 44857). The TLC petition and its attachments are available in the FSIS Docket Room and on its Web site (
In response to the request for specific labels in the marketplace that FSIS has concerns about, examples of such labels are included in the Sorensen Associates Consumer Research Study (
The Agency's response to the request for information, data, and evidence that FSIS considered in developing the proposed rule is posted on its Web site at (
FSIS will announce this notice online through the FSIS Web page located at
FSIS will also make copies of this
The U.S. Department of Agriculture (USDA) prohibits discrimination in all its programs and activities on the basis of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, and marital or family status. (Not all prohibited bases apply to all programs.)
Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's Target Center at (202) 720-2600 (voice and TTY).
To file a written complaint of discrimination, write USDA, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue, SW., Washington, DC 20250-941 or call (202) 720-5964 (voice and TTY).
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Proposed determination.
The U.S. Department of Energy (DOE) has preliminarily determined that residential refrigeration products that do not incorporate a compressor qualify as covered products under Part B of Title III of the Energy Policy and Conservation Act (EPCA), as amended. DOE reached this preliminary conclusion because classifying products of such type as covered products is necessary or appropriate to carry out the purposes of EPCA, and the average U.S. household energy use for such products, (
DOE will accept written comments, data, and information on this notice, but no later than December 8, 2011.
Interested persons may submit comments, identified by docket number EERE-2011-BT-DET-0072, by any of the following methods:
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Mr. Lucas Adin, 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.
In the Office of General Counsel, contact Mr. Michael Kido, U.S. Department of Energy, Office of the General Counsel, GC-71, 1000 Independence Avenue SW., Washington, DC 20585-0121.
Title III of the Energy Policy and Conservation Act (EPCA), as amended (42 U.S.C. 6291
EPCA specifies a list of covered consumer products that includes refrigerators, refrigerator-freezers, and freezers (referred to collectively as “residential refrigeration products”) that can be operated by alternating current (AC) electricity, are not designed to be used without doors, and include a compressor and condenser as an integral part of the cabinet assembly. (42 U.S.C. 6292(a)(1)) This proposed coverage determination addresses those residential refrigeration products that do not meet these specific criteria.
In addition to specifying a list of covered residential and commercial products, EPCA permits the Secretary of Energy to classify additional types of consumer products as covered products when certain prerequisites have been met. For a given product to be classified as a covered product, the Secretary must determine that (1) Covering that product is either necessary or appropriate to carry out the purposes of EPCA and (2) the average annual per-household energy use by products of such type is likely to exceed 100 kWh per year. (42 U.S.C. 6292(b)(1)).
After first determining whether the above criteria are met, the Secretary may prescribe energy conservation standards for a covered product. See 42 U.S.C. 6295(o) and (p). In order to set standards for a given product that has been added as a newly covered product pursuant to 42 U.S.C. 6292(b)(1), the Secretary must determine that four additional criteria are met. First, the average per household energy use within the United States by the products of such type (or class) exceeded 150 kilowatt-hours (or its BTU equivalent) for any 12-month period ending before such determination. Second, the aggregate household energy use within the United States by products of such type (or class) exceeded 4,200,000,000 kilowatt-hours (or its BTU equivalent) for any such 12-month period. Third, a substantial improvement in the energy efficiency of products of such type (or class) is technologically feasible. And fourth, the application of a labeling rule under 42 U.S.C. 6294 to such type (or class) is not likely to be sufficient to induce manufacturers to produce, and consumers and other persons to purchase, covered products of such type (or class) that achieve the maximum energy efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(l)(1)).
In addition to the above, if DOE issues a final determination that non-compressor residential refrigeration products are covered products, DOE will consider test procedures for these products and will determine if they satisfy the provisions of 42 U.S.C. 6295(l)(1) during the course of any energy conservation standards rulemaking.
DOE has not previously conducted an energy conservation standard rulemaking for non-compressor equipped residential refrigeration products. If, after public comment, DOE issues a final determination of coverage for this product, DOE will consider both test procedures and energy conservation standards for these products.
Additionally, assuming that DOE determines that the criteria for extending coverage to non-compressor
With respect to energy conservation standards, DOE typically prepares an Energy Conservation Standards Rulemaking Framework Document (the framework document). The framework document explains the issues, analyses, and process that it is considering for the development of energy conservation standards for the product(s) to be addressed by the standard. After DOE receives comments on the framework document, DOE typically prepares an Energy Conservation Standards Rulemaking preliminary analysis, and an accompanying technical support document (TSD) that provides the details of DOE's analysis. The preliminary analysis typically provides initial draft analyses of potential impacts of energy conservation standards on consumers, manufacturers, and the nation. Neither of these steps is legally required and DOE may, depending on the circumstances of a particular case, combine these steps when preparing a new standards rulemaking.
DOE also typically publishes a notice of proposed rulemaking (NOPR) as part of the energy conservation standards rulemaking. The NOPR provides DOE's proposal for potential energy conservation standards and a summary of the results of DOE's supporting technical analysis. The details of DOE's energy conservation standards analysis are provided in an accompanying TSD. DOE's analysis describes both the burdens and benefits of potential standards, pursuant to 42 U.S.C. 6295(o). Because non-compressor residential refrigeration products would be newly covered under 42 U.S.C. 6292(b)(1), DOE would also consider, as noted above, whether these products satisfy certain specified criteria before prescribing standards for them. See 42 U.S.C. 6295(l)(1). After the publication of the NOPR, DOE affords interested persons an opportunity during a period of not less than 60 days to provide oral and written comment. After receiving and considering the comments on the NOPR, and not less than 90 days after the publication of the NOPR, DOE would issue the final rule prescribing any new energy conservation standards for residential refrigeration products that do not incorporate a compressor.
DOE proposes in this determination to extend coverage to refrigeration products that are not currently covered under existing authority for residential refrigeration products (42 U.S.C. 6292(a)(1)) because they use alternative refrigeration technologies that do not include a compressor and condenser unit as an integral part of the cabinet assembly. Hence, DOE is proposing to extend coverage to those residential refrigeration products that operate using AC electricity but use either thermoelectric-based or absorption-based systems. In addition, while some non-compressor refrigeration products operate using energy sources other than AC electricity, it is DOE's understanding that most, if not all, of these products would likely fall outside the scope of coverage as consumer products under EPCA because they are primarily used in mobile applications such as recreational vehicles. See 42 U.S.C. 6292(a) (excluding from coverage “those consumer products designed solely for use in recreational vehicles and other mobile equipment”).
DOE seeks feedback from interested parties on this scope of coverage.
The following sections describe DOE's evaluation of whether residential refrigeration products that do not incorporate a compressor fulfill the EPCA criteria for being added as covered products. As stated previously, DOE may classify a consumer product as a covered product if (1) Classifying products of such type as covered products is necessary and appropriate to carry out the purposes of EPCA; and (2) the average annual per-household energy use by products of such type is likely to exceed 100 kilowatt-hours (or its Btu equivalent) per year. 42 U.S.C. 6292(b)(1).
To satisfy the purposes of EPCA, the coverage of non-compressor residential refrigeration products is both necessary and appropriate to carry out the purposes of EPCA. These products consume energy generated from limited energy supplies and their regulation would be likely to result in the improvement of their energy efficiency. Accordingly, establishing standards for these products fall squarely within the overall statutory goals set out in EPCA to: (1) Conserve energy supplies through energy conservation programs; and (2) provide for improved energy efficiency of major appliances and certain other consumer products. (42 U.S.C. 6201)
In a related matter, DOE recently set energy conservation standards and accompanying test procedures for residential refrigerators, refrigerator-freezers, and freezers (collectively, refrigeration products). See 76 FR 57516 (Sept. 15, 2011) (amending energy conservation standards for residential refrigeration products) and 75 FR 78810 (Dec. 16, 2010) (amending current test procedures and issuing an interim final rule to create revised test procedures for products manufactured starting in 2014). During DOE's efforts to amend the standards for these products, interested parties urged DOE to include wine chillers as part of this effort. See 75 FR 59470, 59486 (Sept. 27, 2010) (residential refrigeration products NOPR, noting industry's urging that DOE consider wine storage products within the scope of the standards rulemaking). Wine chillers are devices used to store bottles of wine at temperatures that are higher than those used to store fresh food. Wine chillers, which typically use either a conventional compressor-condenser or a thermoelectric-based system, have a temperature range of between 45 °F and 55 °F, compared to 39 °F for the safe storage of fresh food used in refrigerators and refrigerator-freezers. Given the different purposes served by these products and their accompanying performance characteristic differences, DOE decided to generally address these wine chiller products in a separate rulemaking. 76 FR at 57534.
Consistent with this approach, DOE is currently considering initiating an energy conservation standard rulemaking addressing wine chillers. As a prerequisite to the setting of standards for these products, DOE is interested in ensuring that both compressor-based and non-compressor-based products would be covered as part of this approach in order to prevent a mass
Available information collected by DOE suggests that products using thermoelectric technology will be much less efficient than their compressor-equipped counterparts.
DOE estimated the average household energy use for two of the primary types of residential refrigeration products that do not incorporate a compressor—thermoelectric wine chillers and absorption refrigeration products.
Thermoelectric wine chillers incorporate cooling modules that utilize the Peltier effect.
To estimate the size of the thermoelectric wine chiller market, DOE purchased data on wine chiller sales in the U.S. from 2007 to 2010 from the NPD Group, Inc. (NPD), a marketing research firm.
Specifically, DOE researched two of the three largest wine chiller brands based on sales figures in the NPD database, Haier
To estimate vapor compression wine chiller energy use, DOE relied on the annual energy use of vapor compression wine chiller products permitted under California's maximum energy use standards
Additionally, during the recent standards rulemaking for residential refrigeration products, DOE tested a thermoelectric refrigerator. The results from those tests showed that this particular product's efficiency was an order of magnitude lower than that of a conventional comparable vapor compression product.
However, because these observations are based on limited testing of a single thermoelectric product purchased in 2008, DOE recently performed metering of four thermoelectric wine chillers with capacities of six, 12, 15, and 28 bottles during the period from May 27, 2011 to June 28, 2011. While the metering was conducted in a non-controlled ambient environment with room temperatures varying between 64 °F and 85 °F, DOE believed that the additional measurements would improve DOE's understanding of typical thermoelectric wine chiller energy use, since a greater number of data points would be likely to improve the confidence of the measured values, because the initial product was not a wine chiller, and because thermoelectric refrigeration technology may have evolved in the past three years. The measured energy use for the four units over the approximately one-month time period varied between 18 to 50 kWh, with the high value associated with the 28 bottle capacity wine chiller. Assuming wine chillers are powered year-round,
The limited metered data clearly indicate that thermoelectric wine chiller annual energy use exceeds the 100 kWh per year threshold set by EPCA for establishing coverage. DOE notes that the range of thermoelectric wine chiller energy use based on the metering is
In contrast with thermoelectric refrigeration products, absorption refrigeration products use a fluid-based refrigeration cycle that relies upon heat addition, which is typically provided by electric resistance heaters or fuels such as natural gas and propane. Such systems “compress”
Electric-powered absorption units are commonly used by the hotel industry since they are much quieter than products with a compressor. These products would be part of the coverage determination proposed in this notice. Natural gas- or propane-fired absorption units are used primarily in mobile applications, remote areas, and mobile residences that do not have reliable access to electricity—these products would not be part of the coverage determination as proposed. Electric-powered absorption products tend to have a fairly significant level of energy use. As an example, the energy use of the Dometic CS 52 DV, a representative absorption refrigeration wine chiller product, is reported by the manufacturer to use 1.25 kWh per day in a 68 °F ambient environment,
Based upon these evaluations of the two primary types of residential refrigeration products that do not incorporate a compressor (
The Office of Management and Budget has determined that coverage determination rulemakings do not constitute “significant regulatory actions” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this proposed action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB).
The Regulatory Flexibility Act (5 U.S.C. 601
DOE reviewed today's proposed determination under the provisions of the Regulatory Flexibility Act and the policies and procedures published on February 19, 2003. If adopted, today's proposed determination would set no standards; they would only positively determine that future standards may be warranted and should be explored in an energy conservation standards and test procedure rulemaking. Economic impacts on small entities would be considered in the context of such rulemakings. On the basis of the
This proposed determination that residential refrigeration products that do not incorporate a compressor meet the criteria for covered products for which the Secretary may prescribe energy conservation standards pursuant to 42 U.S.C. 6295(o) and (p) will impose no new information or record-keeping requirements. Accordingly, the Office of Management and Budget (OMB) clearance is not required under the Paperwork Reduction Act. (44 U.S.C. 3501
In this notice, DOE proposes to positively determine that future standards may be warranted and that environmental impacts should be explored in an energy conservation standards rulemaking. DOE has determined that review under the National Environmental Policy Act of 1969 (NEPA), Public Law 91-190, codified at 42 U.S.C. 4321
Executive Order (E.O.) 13132, “Federalism” 64 FR 43255 (August 10, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to assess carefully the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in developing regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process that it will follow in developing such regulations. 65 FR 13735 (March 14, 2000). DOE has examined today's proposed determination and concludes that it would not preempt State law or 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. DOE notes, however, that if the agency determines that the products at issue in today's notice are covered and energy conservation standards are subsequently promulgated for these products, any existing State standards would be preempted by EPCA. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the product that is the subject of today's proposed determination. States can petition DOE for exemption from such preemption to the extent permitted, and based on criteria, set forth in EPCA. (42 U.S.C. 6297) No further action is required by E.O. 13132.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of E.O. 12988, “Civil Justice Reform” 61 FR 4729 (February 7, 1996), imposes on Federal agencies the duty to: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. Section 3(b) of E.O. 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation specifies the following: (1) The preemptive effect, if any; (2) any effect on existing Federal law or regulation; (3) a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) the retroactive effect, if any; (5) definitions of key terms; and (6) other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of E.O. 12988 requires Executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether these standards are met, or whether it is unreasonable to meet one or more of them. DOE completed the required review and determined that, to the extent permitted by law, this proposed determination meets the relevant standards of E.O. 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4, codified at 2 U.S.C. 1501
Section 654 of the Treasury and General Government Appropriations Act of 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This proposed determination would not have any impact on the autonomy or integrity of the family as an institution.
Pursuant to E.O. 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights” 53 FR 8859 (March 15, 1988), DOE determined that this proposed determination would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
The Treasury and General Government Appropriation Act of 2001 (44 U.S.C. 3516, note) requires agencies to review most disseminations of information they make to the public under guidelines established by each agency pursuant to general guidelines issued by the Office of Management and Budget (OMB). The OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed today's proposed determination under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
E.O. 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OMB a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates a final rule or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under E.O. 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of the Office of Information and Regulatory Affairs (OIRA) as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use if the proposal is implemented, and of reasonable alternatives to the proposed action and their expected benefits on energy supply, distribution, and use.
DOE has concluded that today's regulatory action proposing to determine that residential refrigeration products that do not incorporate a compressor meet the criteria for covered products for which the Secretary may prescribe energy conservation standards pursuant to 42 U.S.C. 6295(o) and (p) would not have a significant adverse effect on the supply, distribution, or use of energy. This action is also not a significant regulatory action for purposes of E.O. 12866, and the OIRA Administrator has not designated this proposed determination as a significant energy action. Therefore, this proposed determination is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects for this proposed determination.
On December 16, 2004, OMB, in consultation with the Office of Science and Technology Policy (OSTP), issued its Final Information Quality Bulletin for Peer Review (the Bulletin). 70 FR 2664 (January 14, 2005). The Bulletin establishes that certain scientific information shall be peer reviewed by qualified specialists before it is disseminated by the Federal government, including influential scientific information related to agency regulatory actions. The purpose of the Bulletin is to enhance the quality and credibility of the Government's scientific information. DOE has determined that the analyses conducted for this rulemaking do not constitute “influential scientific information,” which the Bulletin defines as “scientific information the agency reasonably can determine will have or does have a clear and substantial impact on important public policies or private sector decisions.” 70 FR 2667 (January 14, 2005). The analyses were subject to pre-dissemination review prior to issuance of this rulemaking.
DOE will determine the appropriate level of review that would be applicable to any future rulemaking to establish energy conservation standards for set-top boxes and network equipment.
DOE will accept comments, data, and information regarding this notice of proposed determination no later than the date provided at the beginning of this notice. After the close of the comment period, DOE will review the comments received and determine whether residential refrigeration products that do not incorporate a compressor are covered products under EPCA.
Comments, data, and information submitted to DOE's email address for this proposed determination should be provided in WordPerfect, Microsoft Word, PDF, or text (ASCII) file format. Submissions should avoid the use of special characters or any form of encryption, and wherever possible comments should include the electronic signature of the author. No telefacsimiles (faxes) will be accepted.
According to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two copies: One copy of the document should have all the information believed to be confidential deleted. DOE will make its own determination as to the confidential status of the information and treat it according to its determination.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known or available from public sources; (4) whether the information has previously been made available to others without obligations concerning its confidentiality; (5) an explanation of the competitive injury to the submitting persons which would result from public disclosure; (6) a date after which such information might no longer be considered confidential; and (7) why disclosure of the information would be contrary to the public interest.
DOE welcomes comments on all aspects of this proposed determination. DOE is particularly interested in receiving comments from interested parties on the following issues related to the proposed determination for residential refrigeration products that do not incorporate a compressor:
(1) Is the proposed scope of coverage for residential refrigeration products that do not incorporate a compressor sufficient or are there aspects to this proposed scope that require modification?
(2) Should the scope of coverage be extended to also include products that are not powered or activated solely by AC power input, for instance products that are fired with natural gas or propane? What are the annual shipments of such products?
(3) DOE notes that since the statutory definition of a refrigerator excludes certain products—namely, those devices that are designed to be used without doors—DOE is interested in whether its scope of coverage should also include products that are designed to be used
(4) DOE is interested in whether classifying residential refrigeration products that do not incorporate a compressor as covered products is necessary or appropriate to carry out the purposes of EPCA.
(5) DOE seeks stock and shipment data for residential refrigeration products that do not incorporate a compressor, segregated by different product types.
(6) DOE seeks information regarding energy test procedures suited for residential refrigeration products that do not incorporate a compressor.
(7) DOE seeks information regarding energy use of these products.
(8) DOE seeks information concerning the extent to which similar coverage may be appropriate for commercial or industrial products that utilize similar refrigeration technologies.
(9) DOE seeks calculations and accompanying values for household and national energy consumption.
(10) DOE seeks information as to the availability or lack of availability of technologies for improving energy efficiency of residential refrigeration products that do not incorporate a compressor.
The Department is interested in receiving views concerning other relevant issues that participants believe would affect DOE's ability to establish test procedures and energy conservation standards for residential refrigeration products that do not incorporate a compressor. The Department invites all interested parties to submit in writing by December 8, 2011, comments and information on matters addressed in this notice and on other matters relevant to consideration of a determination for residential refrigeration products that do not incorporate a compressor.
After the expiration of the period for submitting written statements, the Department will consider all comments and additional information that is obtained from interested parties or through further analyses, and it will prepare a final determination. If DOE determines that residential refrigeration products that do not incorporate a compressor qualify as covered products, DOE will consider initiating rulemakings to develop test procedures and energy conservation standards for residential refrigeration products that do not incorporate a compressor. Members of the public will be given an opportunity to submit written and oral comments on any proposed test procedure and standards.
Administrative practice and procedure, Confidential business information, Energy conservation, Reporting and recordkeeping requirements.
U.S. Small Business Administration (SBA).
Proposed rule; reopening of comment period.
SBA is reopening the comment period for the proposed rule published in the
SBA is reopening the comment period for an additional 30 days in response to the significant level of interest generated by the proposed rule among small businesses. Given the scope of the proposed rule and the nature of the issues raised by the comments received to date, SBA believes that affected businesses need more time to review the proposal and prepare their comments.
The comment period for the proposed rule published on October 7, 2011 (76 FR 62313) is extended through December 8, 2011.
You may submit comments, identified by RIN: 3245-AG23, by any of the following methods:
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SBA will post all comments on
Dean Koppel, Office of Government Contracting, 409 Third Street SW., Washington, DC 20416; (202) 205-9751;
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Bombardier, Inc. Model CL-600-2B16 (CL-601-3A, CL-601-3R, and CL-604 Variants) airplanes. 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:
There have been several occurrences of the air driven generator (ADG) failure to power essential buses during functional tests of the ADG. It was found that the low threshold setting of the circuit protection on the ADG generator control unit (GCU) can prevent the supply of power from the ADG to the essential buses. In the event of an emergency, loss of power to the essential buses can prevent continued safe flight.
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 December 23, 2011.
You may send comments by any of the following methods:
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For service information identified in this proposed AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada;
You may examine the AD docket on the Internet at
Assata Dessaline, Aerospace Engineer, Avionics and Flight Test Branch, ANE-172, FAA, New York Aircraft Certification Office (ACO), 1600 Stewart Avenue, Suite 410, Westbury, New York 11590;
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
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2011-25, dated July 25, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
There have been several occurrences of the air driven generator (ADG) failure to power essential buses during functional tests of the ADG. It was found that the low threshold setting of the circuit protection on the ADG generator control unit (GCU) can prevent the supply of power from the ADG to the essential buses. In the event of an emergency, loss of power to the essential buses can prevent continued safe flight.
This directive mandates the replacement of the ADG GCU.
Bombardier, Inc. has issued Service Bulletin 605-24-003, dated April 25, 2011; and Service Bulletin 604-24-023, dated April 25, 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 70 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. Required parts would cost about $0 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $5,950, 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 December 23, 2011.
(b) None.
(c) This AD applies to Bombardier, Inc. Model CL-600-2B16 (CL-601-3A, CL-601-3R, and CL-604 Variants) airplanes, certificated in any category, serial numbers 5408 through 5665 inclusive, and 5701 through 5856 inclusive.
(d) Air Transport Association (ATA) of America Code 24: Electrical Power.
(e) The mandatory continuing airworthiness information (MCAI) states:
There have been several occurrences of the air driven generator (ADG) failure to power essential buses during functional tests of the ADG. It was found that the low threshold setting of the circuit protection on the ADG generator control unit (GCU) can prevent the supply of power from the ADG to the essential buses. In the event of an emergency, loss of power to the essential buses can prevent continued safe flight.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) Within 36 months after the effective date of this AD, remove the ADG GCU, Hamilton Sundstrand part number (P/N) 761341A (Bombardier P/N 604-90800-7), and install a new or serviceable ADG GCU Hamilton Sundstrand P/N 761341B (Bombardier P/N 604-90800-27) in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 605-24-003, dated April 25, 2011 (for serial numbers 5701 through 5856); and Bombardier Service Bulletin 604-24-023, dated April 25, 2011 (for serial numbers 5408 through 5665); as applicable.
(h) As of the effective date of this AD, no person may install an ADG GCU, Hamilton Sundstrand P/N 761341A (Bombardier P/N 604-90800-7) 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 Canadian Airworthiness Directive CF-2011-25, dated July 25, 2011; Bombardier Service Bulletin 605-24-003, dated April 25, 2011; and Bombardier Service Bulletin 604-24-023, dated April 25, 2011; for related information.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Bombardier, Inc. Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. 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:
There have been several occurrences of the air driven generator (ADG) failure to power essential buses during functional tests of the ADG. It was found that the low threshold setting of the circuit protection on the ADG generator control unit (GCU) can prevent the supply of power from the ADG to the essential buses. In the event of an emergency, loss of power to the essential buses can prevent continued safe flight.
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 December 23, 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; email
You may examine the AD docket on the Internet at
Assata Dessaline, Aerospace Engineer, Avionics and Flight Test Branch, ANE-172, FAA, New York Aircraft Certification Office (ACO), 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone (516) 228-7301; 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
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2011-26, dated July 25, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
There have been several occurrences of the air driven generator (ADG) failure to power essential buses during functional tests of the ADG. It was found that the low threshold setting of the circuit protection on the ADG generator control unit (GCU) can prevent the supply of power from the ADG to the essential buses. In the event of an emergency, loss of power to the essential buses can prevent continued safe flight.
This [TCCA] directive mandates the replacement of the ADG GCU.
You may obtain further information by examining the MCAI in the AD docket.
Bombardier, Inc. has issued Service Bulletin 601R-24-130, dated April 27, 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 589 products of U.S. registry. We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required
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 December 23, 2011.
(b) None.
(c) This AD applies to Bombardier, Inc. Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes, certificated in any category, serial number 7305 through 7990 inclusive, and 8000 through 8109 inclusive.
(d) Air Transport Association (ATA) of America Code 24: Electrical Power.
(e) The mandatory continuing airworthiness information (MCAI) states:
There have been several occurrences of the air driven generator (ADG) failure to power essential buses during functional tests of the ADG. It was found that the low threshold setting of the circuit protection on the ADG generator control unit (GCU) can prevent the supply of power from the ADG to the essential buses. In the event of an emergency, loss of power to the essential buses can prevent continued safe flight.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) Within 24 months after the effective date of this AD, remove the ADG GCU, part number (P/N) 604-90800-7, and install a new or serviceable ADG GCU, P/N 604-90800-27, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 601R-24-130, dated April 27, 2011.
(h) As of the effective date of this AD, no person may install an ADG GCU, P/N 604-90800-7, 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 Canadian Airworthiness Directive CF-2011-26, dated July 25, 2011; and Bombardier Service Bulletin 601R-24-130, dated April 27, 2011; for related information.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain The Boeing Company Airplanes Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes. This proposed AD would require checking the escape slide girt for serviceability and replacement if necessary, modifying the cable routing provision, replacing the regulator padding, modifying the aspirator orientation, and modifying the valise. This proposed AD also would, for certain airplanes, require modifying or replacing the Vespel piston, modifying the pilot valve regulator, installing a new firing cable and safety pin, and modifying the slide valise. This proposed AD was prompted by reports of escape slides failing to deploy from the forward and aft right-hand doors during scheduled maintenance slide deployments, which could result in the slide being unusable during an emergency evacuation and increased likelihood of injury to passengers or crewmembers due to the difficulty in evacuating the aircraft.
We must receive comments on this proposed AD by December 23, 2011.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Goodrich Corporation, Aircraft Interior Products,
You may examine the AD docket on the Internet at
Patrick Gillespie, 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 eight reports from five operators of escape slides failing to deploy from the forward and aft right-hand doors during scheduled maintenance slide deployments. During the attempted escape slide deployments, the valise release cable was caught in the gap between the latch bracket and the lower edge of the aft side of the compartment latch bracket. This caused the door to stall, ultimately preventing the door from fully opening, which prevented escape slide deployment. This condition, if not corrected, could result in the escape slide being unusable during an emergency evacuation and increased likelihood of injury to passengers or crewmembers due to the difficulty in evacuating the aircraft.
We reviewed Goodrich Service Bulletin 5A3307-25-389, dated November 8, 2010. This service information describes procedures for checking the escape slide girt for continued serviceability, and replacing the girt with a new girt if necessary. This service information also describes procedures for modifying the cable routing provision on the girt by removing three Velcro tabs and installing two fabric tunnels. Additionally, this service information describes procedures for modifying the valise by removing the parachute spring band and installing an aspirator support pad, replacing the regulator valve padding with new padding, and repacking the slide with the aspirator in a different orientation within the slide pack.
For slides having certain part numbers, Goodrich Service Bulletin 5A3307-25-389, dated November 8, 2010, specifies concurrent accomplishment of a modification specified in Goodrich Service Bulletin 5A3307-25-339, Revision 3, dated May 8, 2009. The modification involves modifying certain pilot valve regulators by replacing the trigger housing, bushing, and rod; installing a new firing cable and safety pin; and modifying the slide valise to accept the safety pin used with the modified valve.
For certain slides, Goodrich Service Bulletin 5A3307-25-389, dated November 8, 2010, also specifies concurrent accomplishment of Goodrich Service Bulletin 25-349, Revision 1, dated January 11, 2010, which describes procedures for modifying the Vespel piston in the regulator valves, or as an option to the modification, replacing the Vespel piston with a certain new or serviceable Vespel piston.
Slides having part number (P/N) 5A3307-3 are affected by Boeing Service Bulletin 737-25-1491, dated
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 Goodrich Service Bulletin 5A3307-25-389, dated November 8, 2010; Goodrich Service Bulletin 5A3307-25-339, Revision 3, dated May 8, 2009; and Goodrich Service Bulletin 25-349, Revision 1, dated January 11, 2010; described previously.
We estimate that this proposed AD affects 557 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 check of the girt. We have no way of determining the number of aircraft that might need these replacements.
According to the parts supplier, 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.
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 December 23, 2011.
This AD affects AD 2008-24-08, Amendment 39-15748 (73 FR 72320, November 28, 2008).
This AD applies to The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes, certificated in any category, with Goodrich Corporation door escape slide part number (P/N) 5A3086-1, -3, or -301, serial number (S/N) B3F001 through B3F611 inclusive; P/N 5A3088-1, -3, or -301, S/N B3A001 through B3A685 inclusive; or P/N 5A3307-1, -3, -5, or -301, S/N BNG0001 through BNG5707 inclusive.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 25, Equipment/Furnishings.
This AD was prompted by reports of escape slides failing to deploy from the forward and aft right-hand doors during scheduled maintenance slide deployments. We are issuing this AD to prevent failure of an escape slide to deploy, which could result in the slide being unusable during an emergency evacuation and increased likelihood of injury to passengers or crewmembers due to the difficulty in evacuating the aircraft.
Comply with this AD within the compliance times specified, unless already done.
Within 36 months after the effective date of this AD: Do the actions in paragraph (g)(1) and (g)(2) of this AD.
(1) Check the girt for continued serviceability, in accordance with the Accomplishment Instructions of Goodrich Service Bulletin 5A3307-25-389, dated November 8, 2010. If the girt is unserviceable: Before further flight, replace the girt with a new girt, in accordance with the Accomplishment Instructions of Goodrich Service Bulletin 5A3307-25-389, dated November 8, 2010.
(2) Modify the cable routing provision on the girt, modify the valise, replace the regulator padding, and modify the aspirator orientation in the slide pack, in accordance with the Accomplishment Instructions of Goodrich Service Bulletin 5A3307-25-389, dated November 8, 2010
(1) For slide P/N 5A3307-3 or 5A3307-301: Prior to or concurrently with accomplishing the actions required by paragraph (g) of this AD, modify the pilot valve regulator P/N 4A3865-2, -3, or -4, as applicable; install a new firing cable and safety pin; and modify the slide valise; in accordance with the Accomplishment Instructions of Goodrich Service Bulletin 5A3307-25-339, Revision 3, dated May 8, 2009.
(2) For slide P/N 5A3307-3, 5A3307-5, or 5A3307-301: Prior to or concurrently with accomplishing the actions required by paragraph (g) of this AD, modify the Vespel piston in the regulator valves or replace the Vespel piston with a new or serviceable Vespel piston P/N 3A3566-2 or 3A3832-2, as applicable, in accordance with the Accomplishment Instructions of Goodrich Service Bulletin 25-349, Revision 1, dated January 11, 2010.
(1) Modifying the pilot valve regulator, installing a new firing cable and safety pin, or modifying the slide valise in accordance with Goodrich Service Bulletin 5A3307-25-339, Revision 1, dated September 26, 2003; or Revision 2, dated March 31, 2004; before the effective date of this AD is acceptable for compliance with the corresponding modification or installations required by paragraph (h) of this AD.
(2) Modifying or replacing the Vespel piston in the regulator valves, in accordance with Goodrich Service Bulletin 25-349, dated September 15, 2004, before the effective date of this AD is acceptable for compliance with the corresponding modification required by paragraph (h) of this AD.
As of the effective date of this AD, no person may install on any airplane a part identified in paragraph (j)(1), (j)(2), or (j)(3) of this AD.
(1) A regulator having P/N 4A3865-2, -3, or -4.
(2) An evacuation system having P/N 5A3086-1, -3, or -301, serial number (S/N) B3F001 through B3F611 inclusive; P/N 5A3088-1, -3, or -301, S/N B3A001 through B3A685 inclusive; or P/N 5A3307-1, -3, -5, or -301, S/N BNG0001 through BNG5707 inclusive.
(3) Regulator valve padding having P/N 3A4047-13.
(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 emailed 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 Patrick Gillespie, 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 Goodrich Corporation, Aircraft Interior Products,
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes; Model CL-600-2D15 (Regional Jet Series 705) airplanes; and Model CL-600-2D24 (Regional Jet Series 900) airplanes. 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:
A number of reports of aileron control stiffness have been received on Bombardier Regional Jet aeroplanes. Bombardier has reviewed the current maintenance tasks for the aileron control system and determined that an additional maintenance task is required.
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 December 23, 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;
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;
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
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2011-07, dated April 26, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
A number of reports of aileron control stiffness have been received on Bombardier Regional Jet aeroplanes. Bombardier has reviewed the current maintenance tasks for the aileron control system and determined that an additional maintenance task is required.
This directive mandates revision of the approved maintenance schedule to incorporate the discard task for outboard wing aileron pulleys to prevent aileron control stiffness during flight which could result in reduced controllability of the aeroplane.
Bombardier, Inc. has issued Temporary Revision 1-41, dated October 22, 2010, to Section 2—Systems/Powerplant Program of Part 1 of the Bombardier CL-600-2C10, CL-600-2D15, CL-600-2D24, CL-600-2E25 Maintenance Requirements 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 398 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 $33,830, 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
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 December 23, 2011.
(b) None.
(c) This AD applies to all Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes; Model CL-600-2D15 (Regional Jet Series 705) airplanes; and Model CL-600-2D24 (Regional Jet Series 900) airplanes; certificated in any category.
(d) Air Transport Association (ATA) of America Code 27: Flight controls.
(e) The mandatory continuing airworthiness information (MCAI) states:
A number of reports of aileron control stiffness have been received on Bombardier Regional Jet aeroplanes. Bombardier has reviewed the current maintenance tasks for the aileron control system and determined that an additional maintenance task is required.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) Within 30 days after the effective date of this AD: Revise the maintenance program to incorporate Task 271000-218, discard of the outboard wing aileron pulleys, as specified in Bombardier Temporary Revision (TR) 1-41, dated October 22, 2010, to Section 2—Systems/Powerplant Program of Part 1 of the Bombardier CL-600-2C10, CL-600-2D15, CL-600-2D24, CL-600-2E25 Maintenance Requirements Manual (MRM). For this task, the initial compliance time starts at the applicable time specified in paragraphs (g)(1), (g)(2), (g)(3), or (g)(4) of this AD. Thereafter, operate the airplane according to the procedures and compliance times in Bombardier TR 1-41, dated October 22, 2010.
(1) For airplanes with 10,000 or less total flight hours as of the effective date of this AD: Prior to the outboard wing aileron pulley accumulating 12,000 total flight hours.
(2) For airplanes with more than 10,000 total flight hours but with 16,000 total flight hours or less as of the effective date of this AD: Prior to the outboard wing aileron pulley accumulating 17,300 total flight hours, or within 2,000 flight hours after the effective date of this AD, whichever is earlier.
(3) For airplanes with more than 16,000 total flight hours but with 20,000 total flight hours or less as of the effective date of this AD: Prior to the outboard wing aileron pulley accumulating 20,800 total flight hours, or within 1,300 flight hours after the effective date of this AD, whichever is earlier.
(4) For airplanes with more than 20,000 total flight hours as of the effective date of this AD: Within 800 flight hours after the effective date of this AD.
The actions required by paragraphs (g) of this AD may be done by inserting a copy of Bombardier TR 1-41, dated October 22, 2010, into Section 2—Systems/Powerplant Program of Part 1 of the Bombardier CL-600-2C10, CL-600-2D15, CL-600-2D24, CL-600-2E25 MRM. When this TR has been included in the general revisions of the MRM, the general revisions may be inserted in the MRM, and the TR may be removed from the MRM, provided that the relevant information in the general revision is identical to that in Bombardier TR 1-41, dated October 22, 2010.
(h) After accomplishing the revision required by paragraph (g) of this AD, no alternative actions (
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 Transport Canada Civil Aviation Airworthiness Directive CF-2011-07, dated April 26, 2011; and Bombardier Temporary Revision 1-41, dated October 22, 2010, to Section 2—Systems/Powerplant Program of Part 1 of the Bombardier CL-600-2C10, CL-600-2D15, CL-600-2D24, CL-600-2E25 MRM; for related information.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Fokker Services B.V. Model F.28 Mark 0070 and 0100 airplanes. 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:
A recent safety review revealed that the fuel crossfeed valves cannot be controlled when only emergency electrical power is available.
This condition, if not corrected, could (in combination with other factors) prevent an in-flight engine re-light following a double engine flame-out event, possibly resulting in loss of the aeroplane.
We must receive comments on this proposed AD by December 23, 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; email
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 2010-0158R1, dated November 8, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
A recent safety review revealed that the fuel crossfeed valves cannot be controlled when only emergency electrical power is available.
This condition, if not corrected, could (in combination with other factors) prevent an in-flight engine re-light following a double engine flame-out event, possibly resulting in loss of the aeroplane.
Another review revealed that an unwanted configuration of the fuel fire shut-off valve indication logic had been introduced during production on a limited number of F28 Mark 0100 aeroplanes.
Furthermore, most of the current fuel crossfeed indications are based on the crossfeed selection made by the flight crew and not on the actual positions of the crossfeed valve actuators. In combination with other factors, the current crossfeed indications may mislead flight crews, possibly resulting in single engine in-flight shutdowns and/or unnecessary precautionary landings.
For the reasons described above, this AD requires modifications of the crossfeed valve control and power supply, of the crossfeed indication logic and power supply and of the fuel fire shut-off valve indication logic.
Fokker Services B.V. has issued the following service bulletins:
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 6 products of U.S. registry. We also estimate that it would take about 86 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 $4,180 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 costs. 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 $68,940, or $11,490 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 December 23, 2011.
(b) None.
(c) This AD applies to Fokker Services B.V. Model F.28 Mark 0070 and 0100 airplanes; certificated in any category; serial numbers 11244 through 11585 inclusive.
(d) Air Transport Association (ATA) of America Code 28: Fuel.
(e) The mandatory continuing airworthiness information (MCAI) states:
A recent safety review revealed that the fuel crossfeed valves cannot be controlled when only emergency electrical power is available.
This condition, if not corrected, could (in combination with other factors) prevent an in-flight engine re-light following a double engine flame-out event, possibly resulting in 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 24 months after the effective date of this AD, modify the crossfeed valve control and power supply, the crossfeed indication logic and power supply, and the fuel fire shut-off valve indication logic, in accordance with the Accomplishment Instructions of Fokker Service Bulletin SBF100-28-047, Revision 3, dated May 2, 2011, including Fokker Manual Change Notification—Operational Documentation MCNO-F100-060, dated June 10, 2011, and Manual Change Notification—Operational Document MCNO-F100-049, Revision 1, dated May 30, 2011, including the drawings specified in paragraphs (g)(1) through (g)(15) of this AD.
(1) Fokker Drawing D42770, Sheet 6, Issue U, dated May 2, 2011.
(2) Fokker Drawing D42780, Sheet 6, Issue T, dated May 2, 2011.
(3) Fokker Drawing W41074, Sheet 100, Issue GB, dated May 2, 2011.
(4) Fokker Drawing W41074, Sheet 101, Issue FW, dated May 2, 2011.
(5) Fokker Drawing W41194, Sheets 010 and 012, Issue J, dated May 2, 2011.
(6) Fokker Drawing W41194, Sheets 011, 013, and 015, Issue U, dated May 2, 2011.
(7) Fokker Drawing W41194, Sheets 014, 019, and 020, Issue S, dated May 2, 2011.
(8) Fokker Drawing W41194, Sheet 017, Issue Q, dated May 2, 2011.
(9) Fokker Drawing W41319, Sheets 063, 064, 065, 066, 069, 071, and 074, Issue DY, dated May 2, 2011.
(10) Fokker Drawing W41319, Sheets 067, 068, 070, 072, and 073, Issue DW, dated May 2, 2011.
(11) Fokker Drawing W46211, Sheet 71, Issue DL, dated April 21, 2009.
(12) Fokker Drawing W46211, Sheet 74, Issue DN, dated July 16, 2010.
(13) Fokker Drawing W46254, Sheets 30 through 36, Issue BL, dated March 30, 2009;
(14) Fokker Drawing W46254, Sheet 37, Issue BP, dated March 30, 2009.
(15) Fokker Drawing W59221, Sheets 161 and 162, Issue FC, July 9, 2010.
(h) Before or concurrent with the modification specified in paragraph (g) of this AD, do the applicable actions specified in paragraphs (h)(1) and (h)(2) of this AD:
(1) For all airplanes: Modify the overhead panel (introduce provisions for a modified crossfeed indication) in accordance with the Accomplishment Instructions of Fokker Profroma Service Bulletin SBF100-28-043, Revision 1, dated March 31, 2009, including Appendix II, Revision 2, dated July 22, 2010, including the drawings specified in paragraphs (h)(1)(i) through (h)(1)(iv) of this AD.
(i) Fokker Drawing W41194, Sheet 009, Issue F, dated March 31, 2009.
(ii) Fokker Drawing W41194, Sheet 016, Issue N, dated March 31, 2009.
(iii) Fokker Drawing W41194, Sheet 018, Issue S, dated March 31, 2009.
(iv) Fokker Drawing W59221, Sheet 159, Issue ED, dated October 2, 2009.
(2) For airplanes with serial numbers 11442 through 11585, equipped with the automatic fuel transfer system: Modify the transfer logic of the center wing fuel tank, in accordance with the Accomplishment Instructions of Fokker Service Bulletin SBF100-28-052, including Fokker Manual Change Notification—Operational Documentation MCNO-F100-052 and Manual Change Notification—Maintenance Documentation MCNM-F100-126, dated June 15, 2009, including the drawings specified in paragraphs (h)(2)(i) through (h)(2)(v) of this AD.
(i) Fokker Drawing D42126, Sheet 38, Issue AR, October 6, 1993.
(ii) Fokker Drawing D42213, Sheet 2, Issue H, dated May 23, 1990.
(iii) Fokker Drawing D42220, Sheet 60, Issue V, dated September 1, 1991.
(iv) Fokker Drawing D42220, Sheet 71, Issue AQ, dated June 7, 1993.
(v) Fokker Drawing D42250, Sheet 23, Issue U, dated April 1993.
(i) Modifications accomplished before the effective date of this AD according to the service bulletins specified in paragraphs (i)(1), (i)(2), (i)(3), and (i)(4) of this AD, as applicable, are considered acceptable for compliance with the corresponding action specified in this AD.
(1) Fokker Service Bulletin SBF100-28-043, including Appendix II, dated March 31, 2009.
(2) Fokker Service Bulletin SBF100-28-047, Revision 2, dated August 4, 2010.
(3) Fokker Service Bulletin SBF100-28-047, Revision 1, dated July 22, 2010.
(4) Fokker Service Bulletin SBF100-28-047, dated May 10, 2010.
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 2010-0158R1, dated November 8, 2010; and the service bulletins specified in paragraphs (g) and (h) of this AD; for related information.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, & 702), CL-600-2D15 (Regional Jet Series 705), CL-600-2D24 (Regional Jet Series 900), and CL-600-2E25 (Regional Jet Series 1000) airplanes. 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:
[I]t was found that the * * * ADG [air driven generator] GCU [generator control unit] transformer primary winding can break due to thermal fatigue. Broken transformer primary winding can prevent the supply of power from the ADG to the essential buses. In the event of an emergency, failure for the essential buses to remain powered can prevent continued safe flight.
We must receive comments on this proposed AD by December 23, 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; email
You may examine the AD docket on the Internet at
Assata Dessaline, Aerospace Engineer, Avionics and Flight Test Branch, ANE-172, FAA, New York Aircraft Certification Office (ACO), 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone (516) 228-7301; 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
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2011-27, dated July 25, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
There have been several occurrences of the air driven generator (ADG) failure to power essential buses during functional tests of the ADG on aeroplane models CL-600-2B16 and CL-600-2B19. The aeroplane models CL-600-2C10, CL-600-2D15, CL-600-2D24, and CL-600-2E25 use the same ADG generator control unit (GCU) as models CL-600-2B16 and CL-600-2B19. However the aeroplane models CL-600-2C10, CL-600-2D15, CL-600-2D24, and CL-600-2E25 are installed with a different hydraulic pump and do not experience the same failure due to the low threshold setting of the circuit protection. However, it was found that the same ADG GCU transformer primary winding can break due to thermal fatigue. Broken transformer primary winding can prevent the supply of power from the ADG to the essential buses. In the event of an emergency, failure for the essential buses to remain powered can prevent continued safe flight.
This [TCCA] directive mandates the replacement of the ADG GCU.
Bombardier, Inc. has issued Service Bulletin 670BA-24-031, dated May 30, 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 402 products of U.S. registry. We also estimate that it would take about 2 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 $0 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $68,340, or $170 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
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 December 23, 2011.
(b) None.
(c) This AD applies to the airplanes, certificated in any category, identified in paragraphs (c)(1), (c)(2), and (c)(3) of this AD.
(1) Bombardier, Inc. Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes, serial numbers 10003 through 10319 inclusive.
(2) Bombardier, Inc. Model CL-600-2D15 (Regional Jet Series 705) and CL-600-2D24 (Regional Jet Series 900) airplanes, serial numbers 15001 through 15260 inclusive.
(3) Bombardier, Inc. Model CL-600-2E25 (Regional Jet Series 1000) airplanes, serial numbers 19001 through 19012 inclusive.
(d) Air Transport Association (ATA) of America Code 24: Electrical Power.
(e) The mandatory continuing airworthiness information (MCAI) states:
[I]t was found that the * * * ADG [air driven generator] GCU [generator control unit] transformer primary winding can break due to thermal fatigue. Broken transformer primary winding can prevent the supply of power from the ADG to the essential buses. In the event of an emergency, failure for the essential buses to remain powered can prevent continued safe flight.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) Within 10,000 flight hours or 60 months after the effective date of this AD, whichever occurs first, remove the ADG GCU, part number (P/N) 604-90800-7, and install a new or serviceable ADG GCU, P/N 604-90800-27, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 670BA-24-031, dated May 30, 2011.
(h) As of the effective date of this AD, no person may install an ADG GCU, P/N 604-90800-7, 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 Canadian Airworthiness Directive CF-2011-27, dated July 25, 2011; and Bombardier Service Bulletin 670BA-24-031, dated May 30, 2011; 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 B4-2C, B4-103, and B4-203 airplanes; Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model C4-605R Variant F airplanes (collectively called A300-600 series airplanes); and Model A310 series airplanes. 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:
During a routine visual inspection on two A310 in-service aeroplanes, cracks were found in the wing MLG [main landing gear] rib 5 aft bearing forward lug. Laboratory examination of the cracked ribs confirmed that the cracks were the result of pitting corrosion in the forward lug hole. Also on both aeroplanes, medium to heavy corrosion was found in the forward lugs on the opposite wing after removal of the bushes. * * * This situation, if not corrected, could
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 December 23, 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; email
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
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2010-0251, dated November 29, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
During a routine visual inspection on two A310 in-service aeroplanes, cracks were found in the wing MLG rib 5 aft bearing forward lug. Laboratory examination of the cracked ribs confirmed that the cracks were the result of pitting corrosion in the forward lug hole. Also on both aeroplanes, medium to heavy corrosion was found in the forward lugs on the opposite wing after removal of the bushes. Similarly to A310 aeroplanes, although there have been no reports of crack findings on any A300, A300-600 or A300-600ST aeroplanes, the differences in MLG rib 5 design compared to A310 aeroplanes does not allow the exclusion of the possibility of cracks. This situation, if not corrected, could affect the structural integrity of the MLG attachment [which could result in the collapse of the MLG].
In order to ensure the detection of any crack at an early stage in the forward lug of the RH and LH MLG rib 5 aft bearing forward lug, Airbus developed inspection programs which were rendered mandatory, initially by EASA AD 2006-0372-E [which corresponds with FAA AD 2007-03-18, Amendment 39-14929] and now by AD 2010-0250 applicable to A300B4/C4/F4 and A300-600 aeroplanes and AD 2007-0195 [which corresponds with FAA AD 2008-17-02, Amendment 39-15640] applicable to A310 aeroplanes.
More recently, it has been determined that the installation of new bushes with increased interference fit adequately corrects the unsafe condition and ensures the structural integrity of the MLG attachment. Installation of these bushes constitutes terminating action for the repetitive inspection requirements of the existing EASA AD 2010-0250 for A300B4/C4/F4 and A300-600 aeroplanes, and AD 2007-0195 for A310 aeroplanes.
For the reasons described above, this new AD requires installation of bushes with increased interference fit in the gear rib 5 aft bearing forward lug.
Airbus has issued the following service bulletins:
• Airbus Mandatory Service Bulletin A300-57-0249, Revision 02, dated June 18, 2010 (for Airbus Model A300 B4-2C, B4-103, and B4-203 airplanes).
• Airbus Service Bulletin A300-57-6106, Revision 02, dated June 18, 2010 (for Airbus Model A300-600 series airplanes).
• Airbus Mandatory Service Bulletin A310-57-2090, Revision 02, dated June 18, 2010 (for Airbus Model A310 series airplanes).
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
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 December 23, 2011.
(b) This AD affects AD 2007-03-18, Amendment 39-14929 (72 FR 5919, February 8, 2007); and AD 2008-17-02, Amendment 39-15640 (73 FR 47032, dated August 13, 2008).
(c) This AD applies to airplanes, certified in any category, as specified in paragraphs (c)(1), (c)(2), and (c)(3) of this AD.
(1) Airbus Model A300 B4-2C, B4-103, and B4-203 airplanes; all serial numbers; except airplanes where the main landing gear (MLG) rib 5 forward lugs of the left hand (LH) and right hand (RH) wing have been repaired by installation of oversized interference fit bushes per Airbus Repair Instruction R57240221, or those where the LH and RH wing have had Airbus Mandatory Service Bulletin A300-57-0249 embodied in service.
(2) Airbus Model A300 B4-601, B4-603, B4-620, and B4-622 airplanes; Airbus Model A300 B4-605R and B4-622R airplanes; Airbus Model A300 F4-605R and F4-622R airplanes; and Airbus Model A300 C4-605R Variant F airplanes; all serial numbers; except airplanes where the MLG rib 5 forward lugs of the LH and RH wing have been repaired by installation of oversized interference fit bushes per Airbus Repair Instruction R57240221, or those where the LH and RH wing have had Airbus Service Bulletin A300-57-6106 embodied in service.
(3) Airbus Model A310-203, -204, -221, -222, -304, -322, -324, and -325 airplanes; all serial numbers; except airplanes where the MLG rib 5 forward lugs of the LH and RH wing have been repaired by installation of oversized interference fit bushes per Airbus Repair Instruction R57249121, or those where the LH and RH wing have had Airbus Mandatory Service Bulletin A310-57-2090 embodied in service.
(d) Air Transport Association (ATA) of America Code 57: Wings.
(e) The mandatory continuing airworthiness information (MCAI) states:
During a routine visual inspection on two A310 in-service aeroplanes, cracks were found in the wing MLG rib 5 aft bearing forward lug. Laboratory examination of the cracked ribs confirmed that the cracks were the result of pitting corrosion in the forward lug hole. Also on both aeroplanes, medium to heavy corrosion was found in the forward lugs on the opposite wing after removal of the bushes. * * *. This situation, if not corrected, could affect the structural integrity of the MLG attachment [which could result in the collapse of the MLG].
(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 months after the effective date of this AD, install new bushes with increased interference fit in the gear rib 5 aft bearing forward lug on the RH and LH wing, in accordance with the Accomplishment Instructions of the applicable service bulletins specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD; except as specified in paragraph (h) of this AD.
(1) Airbus Mandatory Service Bulletin A300-57-0249, Revision 02, dated June 18, 2010 (for Model A300 B4-2C, B4-103, and B4-203 airplanes);
(2) Airbus Service Bulletin A300-57-6106, Revision 02, dated June 18, 2010 (for Model A300-600 series airplanes); and
(3) Airbus Mandatory Service Bulletin A310-57-2090, Revision 02, dated June 18, 2010 (for Airbus Model A310 series airplanes).
(h) If one wing had rib 5 forward lugs of the MLG repaired by installing oversized interference fit bushes in accordance with Airbus Repair Instruction R57240221 or Airbus Repair Instruction R57249121, as applicable to the airplane model, then installing new bushes with increased interference fit in the aft bearing forward lug of the gear rib, as specified in paragraph (h) of this AD, is required for the opposite wing only.
(i) Installation of new bushes, as specified in paragraph (h) of this AD, is terminating action for the repetitive inspections required AD 2007-03-18, Amendment 39-14929 (72 FR 5919, February 8, 2007); and AD 2008-17-02, Amendment 39-15640 (73 FR 47032, dated August 13, 2008).
(j) Installations accomplished before the effective date of this AD, according to the applicable service bulletins specified paragraphs (j)(1), (j)(2), and (j)(3) of this AD, are considered acceptable for compliance with the corresponding installations specified in this AD.
(1) Airbus Service Bulletin A300-57-0249, dated May 22, 2007; or Airbus Service Bulletin A300-57-0249, Revision 01, dated December 19, 2007 (for Model A300 B4-2C, B4-103, and B4 203 airplanes);
(2) Airbus Service Bulletin A300-57-6106, May 22, 2007; or Airbus Service Bulletin A300-57-6106, Revision 01, January 28, 2008 (for Model A300-600 series airplanes); and
(3) Airbus Service Bulletin A310-57-2090, dated May 22, 2007; or Airbus Service Bulletin A310-57-2090, Revision 01, dated December 19, 2007 (for Model A310 series airplanes).
This AD differs from the MCAI and/or service information as follows: No differences.
(k) The following provisions also apply to this AD:
(1)
(2)
(l) Refer to MCAI European Aviation Safety Agency Airworthiness Directive 2010-0251, dated November 29, 2010; Airbus Mandatory Service Bulletin A300-57-0249, Revision 02, dated June 18, 2010; Airbus Service Bulletin A300-57-6106, Revision 02, dated June 18, 2010; and Airbus Mandatory Service Bulletin A310-57-2090, Revision 02, dated June 18, 2010; for related information.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of availability; request for comment.
This document announces the availability of a revised section of FAA Order 8900.1, regarding the qualification, authority, and limitations of Designated Aircraft Dispatcher Examiners (DADEs). This section provides guidance to FAA employees on the responsibilities, qualifications, and oversight of DADEs under 14 CFR part 183. Under this proposed revision, the FAA is clarifying its policy regarding the qualifications, privileges, and limitations of these designees, in addition to establishing guidelines for DADEs when testing applicants for an Aircraft Dispatcher Certificate. Upon review of the comments and any necessary revision, this Order would cancel and replace FAA Order 8900.1, Volume 5, Chapter 5, Section 10, and Volume 13, Chapter 3, Sections 1-4, issued September 13, 2007.
Written comments must be received on or before December 8, 2011.
Send comments identified by docket number FAA-2011-1149 using any of the following methods:
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