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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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Theodora Kessaris, Technical Programs Branch, Air Transportation Division, Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591;
FAA Order 8900.1, Flight Standards Information Management System, was issued on September 13, 2007. This order consolidated and replaced FAA Orders 8300.1, 8400.1, and 8700.1, the FAA's guidance to inspectors. Included in FAA Order 8900.1 is guidance regarding FAA oversight of various designees authorized under 14 CFR part 183. Designees are private persons that the FAA Administrator has designated to act as his representative in examining, inspecting and testing persons and aircraft for the purpose of issuing airman, operating and aircraft certificates. Included in the list of persons the Administrator may designate to perform these functions on his behalf are Designated Aircraft Dispatch Examiners (DADEs). Pursuant to 14 CFR 183.25(f), these designees may accept applications for and conduct written and practical tests for issuing aircraft dispatcher certificates under part 65. In some instances, DADEs may be authorized to issue temporary aircraft
The provisions in 14 CFR part 183 do not establish qualification requirements for DADEs. In October 2008, the FAA published guidance for inspectors that addressed DADE qualifications and the FAA's oversight of DADEs. This guidance was not published for public comment. This proposed revision of the Order would clarify the 2008 guidance and include the following significant information:
• A DADE will not test outside of the geographic limits of the Certificate Holding District Office (CHDO) without prior permission from the CHDO.
This limitation is necessary to ensure proper oversight and monitoring of the administration of these tests by the appropriate FAA district office.
• A DADE will not be an employee of a 14 CFR part 65 course operator.
This limitation is necessary due to the potential for a conflict-of-interest which could occur based on the requirement under § 65.63(c)(1) for a course operator to maintain an 80% pass rate of its graduates, on the first testing attempt, as a condition for renewal of a course. The FAA is concerned that a DADE employed by such a course operator might not be objective when administering a test to an applicant who has graduated from the DADE's employer or affiliate.
• Time spent testing an applicant should be no more than 6 hours.
This time period is based on the national average which was verified by Aviation Safety Inspectors with oversight responsibility of DADEs. This time period takes into account the extensive requirements of the Aircraft Dispatcher Practical Test Standards (PTS), and the ability of a candidate for an aircraft dispatcher certificate to demonstrate his or her ability to manage a typical aircraft dispatcher's workload by completing each task in a timely manner.
• A DADE will not test more than one applicant for an aircraft dispatcher certificate at a time.
This limitation is intended to establish consistency with the FAA's already established policy for initial pilot certification.
• A DADE will not administer more than two Aircraft Dispatcher Practical Tests in a single day.
This limitation takes in to account the testing of a single applicant at a time, and an overall test time of approximately 6 hours per applicant, not including the time it takes to complete the application paper work. This policy is also consistent with that which is applicable to pilot testing.
While the FAA generally does not request comment on internal orders, the agency has established a docket for public comments regarding this guidance for inspectors in recognition of the interest of current DADEs and applicants for an aircraft dispatcher certificate under part 65. The agency will consider all comments received by December 8, 2011. Comments received after that date may be considered if consideration will not delay agency action on the review. A copy of the proposed order is available for review in the assigned docket for the Order at
Internal Revenue Service (IRS), Department of the Treasury.
Advance notice of proposed rulemaking.
The Treasury Department and IRS anticipate issuing regulations under section 414(d) of the Internal Revenue Code (Code) to define the term “governmental plan.” This document describes the rules that the Treasury Department and IRS are considering proposing relating to the determination of whether a plan is a governmental plan within the meaning of section 414(d) and contains an appendix that includes a draft notice of proposed rulemaking on which the Treasury Department and IRS invite comments from the public. This document applies to sponsors of, and participants and beneficiaries in, employee benefit plans that are determined to be governmental plans.
Written or electronic comments must be received by February 6, 2012.
Send submissions relating to the section 414(d) draft general regulations to: CC:PA:LPD:PR (REG-157714-06), room 5203, Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington DC, 20044. Submissions may be hand delivered Monday through Friday, between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-157714-06), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC.
Alternately, taxpayers may submit comments relating to the section 414(d) draft general regulations electronically via the Federal eRulemaking Portal at
Concerning the ANPRM, Pamela R. Kinard, at (202) 622-6060; concerning submission of comments, Richard A. Hurst, at
This document describes rules that the Treasury Department and IRS are considering proposing and contains a draft notice of proposed rulemaking (in the Appendix to this ANPRM) under section 414(d) of the Internal Revenue Code (Code). Under the draft notice of proposed rulemaking (in the Appendix to this ANPRM), the rules would provide general guidance relating to the determination of whether a retirement plan is a governmental plan within the meaning of section 414(d) (section 414(d) draft general regulations). The principles described in this ANPRM could also apply for purposes of certain parallel terms in sections 403(b) and 457 of the Code.
Section 414(d) of the Code provides that the term “governmental plan” generally means a plan established and maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing. See sections 3(32) and 4021(b)(2) of the Employee Retirement Income Security Act of 1974 (ERISA) for definitions of the term “governmental plan,” which govern respectively for purposes of title I and title IV of ERISA.
The term “governmental plan” also includes any plan to which the Railroad Retirement Act of 1935 or 1937 (49 Stat. 967, as amended by 50 Stat. 307) applies and which is financed by contributions
Section 414(d) was amended by the Pension Protection Act of 2006, Public Law 109-280 (120 Stat. 780) (PPA '06) to include certain plans of Indian tribal governments and related entities.
Neither section 414(d) of the Code, section 3(32) of ERISA, nor section 4021(b)(2) of ERISA define key terms relating to governmental plans, including the terms “established and maintained,” “political subdivision,” “agency,” and “instrumentality.” Currently, there are no regulations interpreting section 414(d). Revenue Ruling 89-49 (1989-1 CB 117), see § 601.601(d)(2), sets forth a facts and circumstances analysis for determining whether a retirement plan is a governmental plan within the meaning of section 414(d).
Governmental plans are subject to different rules than retirement plans of nongovernmental employers. Governmental plans are excluded from the provisions of titles I and IV of ERISA. In addition, governmental plans receive special treatment under the Code. These plans are exempt from certain qualification requirements and they are deemed to satisfy certain other qualification requirements under certain conditions. As a result, the principal qualification requirements for a tax-qualified governmental plan
• Be established and maintained by the employer for the exclusive benefit of the employer's employees or their beneficiaries;
• Provide definitely determinable benefits;
• Be operated pursuant to its terms;
• Satisfy the direct rollover rules of section 401(a)(31);
• Satisfy the section 401(a)(17) limitation on compensation;
• Comply with the statutory minimum required distribution rules under section 401(a)(9);
• Satisfy the pre-ERISA vesting requirements under section 411(e)(2);
• Satisfy the section 415 limitations on benefits, as applicable to governmental plans; and
• Satisfy the prohibited transaction rules in section 503.
State and local governments, political subdivisions thereof, and agencies or instrumentalities thereof are generally not permitted to offer cash or deferred arrangements under section 401(k). However, an ITG is permitted to offer a cash or deferred arrangement under section 401(k).
For further background, see the “Background” section of the preamble in the section 414(d) draft general regulations in the Appendix to this ANPRM under the headings, “Exclusion of Governmental Plans from ERISA,” “Exemption of Governmental Plans from Certain Qualified Plan Rules,” and “Exemption of Governmental Plans from Other Employee Benefit Rules Relating to Retirement Plans.”
Over the past several years, the IRS has been coordinating with the Department of Labor (DOL) and Pension Benefit Guaranty Corporation (PBGC) (the “Agencies”) on governmental plan determinations. Although the anticipated proposed regulations would only be applicable for purposes of section 414(d), the DOL and PBGC were consulted when drafting this proposal. DOL and PBGC agreed that it would be advantageous for the Agencies and the regulated community for there to be coordinated criteria for determining whether a plan is a governmental plan within the meaning of section 414(d) of the Code, section 3(32) of ERISA, and section 4021(b)(2) of ERISA. See the “Background” section of the preamble in the section 414(d) draft general regulations in the Appendix to this ANPRM under the heading, “Interagency Coordination on Governmental Plan Determinations.”
The Treasury Department and the IRS have determined to seek public comment on the draft proposed regulations in the Appendix to this ANPRM in advance of issuing a notice of proposed rulemaking. In light of the interaction of the governmental plan definitions in the Code and ERISA, a copy of the comments will be forwarded to DOL and PBGC.
Attached to the Appendix to this ANPRM is a draft notice of proposed rulemaking. The draft regulations include proposed rules, a preamble, and a request for comments. The Treasury Department and IRS invite the public to comment on the rules that the Treasury Department and IRS are considering proposing, which would generally define the term “governmental plan” within the meaning of section 414(d), as well as other key related terms, including “State,” “political subdivision of a State,” and “agency or instrumentality of a State or political subdivision of a State.”
In determining whether an entity is an agency or instrumentality of the United States or an agency of instrumentality of a State or political subdivision of a State, the anticipated guidance would provide a facts and circumstances analysis. The factors used in these analyses are drawn from the factors historically used in governmental plan determinations, including Rev. Ruls. 57-128 and 89-49. The anticipated guidance would provide several examples illustrating the application of the facts and circumstances tests. See the “Explanation of Provisions” section in the section 414(d) draft general regulations in the Appendix to this ANPRM under the headings, “Definitions of the United States and agency or instrumentality of the United States” and “Definition of agency or instrumentality of a State or a political subdivision of a State.” See § 601.601(d)(2).
The anticipated proposed regulations would include numerous factors for determining whether an entity is an agency or instrumentality of a State or a political subdivision of a State. The section 414(d) draft proposed regulations in the Appendix to this ANPRM would categorize these factors
The anticipated proposed regulations do not address the special rules that apply in determining whether a plan of an Indian tribal government is a governmental plan within the meaning of section 414(d). That topic would be reserved in the proposed regulations and is addressed in an ANPRM (REG-133223-08) that is being published elsewhere in this issue of the
The anticipated proposed regulations would provide rules for determining whether a governmental entity has established and maintained a plan for purposes of section 414(d). The anticipated proposed regulations might provide that a plan is established and maintained for the employees of a governmental entity if: (1) The plan is established and maintained by an employer within the meaning of § 1.401-1(a)(2), (2) the employer is a governmental entity, and (3) the only participants covered by the plan are employees of that governmental entity. The anticipated proposed regulations might also provide rules covering circumstances involving a change in status of an entity (that is, when a private entity becomes a governmental entity or when a governmental entity becomes a private entity) due to an acquisition or asset transfer. See the “Explanation of Provisions” section in the section 414(d) draft general regulations in the Appendix to this ANPRM under the heading, “Requirements for establishing and maintaining a section 414(d) governmental plan.”
Recognizing that the guidance might affect numerous governmental plan participants and their beneficiaries, the anticipated proposed regulations request comments on transition rules, including transitional relief for governmental plans that permitted participation of a small number of former employees in their plans. See the “Comments and Public Hearing” section in the preamble of the section 414(d) draft general regulations that is located in the Appendix to this ANPRM.
Before the notice of proposed rulemaking is issued, consideration will be given to any written comments that are submitted timely (preferably a signed original and eight (8) copies) to the IRS. All comments will be available for public inspection and copying. Copies of the comments will be provided to the DOL and PBGC.
The IRS and Department of Treasury plan to schedule a public hearing on the ANPRM. That hearing will be scheduled and announced at a later date. In addition to a public hearing, the Treasury Department and IRS anticipate scheduling “Town Hall” meetings in order to obtain comments from the public on the section 414(d) draft general regulations. It is expected that these “Town Hall” meetings will take place in different locations across the country. Participants will be encouraged to pre-register for the meetings. Information relating to these “Town Hall” meetings, including dates, times, locations, registration, and the procedures for submitting written and oral comments, will be available on the IRS Web site relating to governmental plans at
The principal author of this advance notice of proposed rulemaking is Pamela R. Kinard, Office of the Chief Counsel (Tax-exempt and Government Entities), however, other personnel from the IRS and Treasury Department participated in its development.
The following is draft language for a notice of proposed rulemaking that would set forth rules relating to the determination of whether a plan is a governmental plan within the meaning of section 414(d). The IRS and Treasury release this draft language in order to solicit comments from the governmental plans community:
This document contains proposed regulations under section 414(d) of the Internal Revenue Code (Code). These regulations, when finalized, would provide guidance relating to the determination of whether a retirement plan is a governmental plan within the meaning of section 414(d). The definition of a governmental plan under section 414(d) applies for purposes of part I of subchapter D of chapter 1 of subtitle A (Income Taxes) of the Code (sections 401 through 420) and certain other Code provisions that refer to section 414(d) (such as sections 72(t)(10), 501(c)(25)(C), 4975(g)(2), 4980B(d)(2), 9831(a)(1), and 9832(d)(1)). It is expected that the principles set forth in these regulations would generally also apply for purposes of sections 403(b) and 457.
Both the Code and the Employee Retirement Income Security Act of 1974 (ERISA) define the term “governmental plan.” Section 414(d) of the Code provides that the term “governmental plan” generally means a plan established and maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing. See sections 3(32) and 4021(b)(2) of ERISA for parallel definitions of the term
The term “governmental plan” also includes any plan to which the Railroad Retirement Act of 1935 or 1937 (49 Stat. 967, as amended by 50 Stat. 307) applies and which is financed by contributions required under that Act and any plan of an international organization which is exempt from taxation by reason of the International Organizations Immunities Act, Public Law 79-291 (59 Stat. 669). Section 414(d) was amended by the Pension Protection Act of 2006, Public Law 109-280 (120 Stat. 780) (PPA '06) to include certain plans of Indian tribal governments.
These proposed regulations are only applicable for purposes of section 414(d), and not for any other purpose under the Code.
• Section 72(t)(10)(A) (exception to the early withdrawal tax for certain distributions from a defined benefit governmental plan);
• Section 457(e)(17) (special rules for: (1) Direct trustee-to-trustee transfers from a section 457 deferred compensation plan to a section 414(d) governmental plan in order to purchase permissive service credit under section 414(n)(3)(A) or (2) the repayments of cashouts under governmental plans);
• Section 501(c)(25)(C)(ii) (exempting section 414(d) governmental plans from taxation);
• Section 503(a)(1) (applying the prohibited transactions rules in section 503 to governmental plans as defined in section 4975(g)(2))
• Section 818(a)(6)(A) (defining the term “pension plan contract”);
• Section 1400Q(d)(2)(A)(ii) (special timing rule for section 414(d) governmental plans to make certain conforming amendments);
• Section 4972(d)(1)(B) (exempting section 414(d) governmental plans from the excise tax on nondeductible contributions to a qualified employer plan);
• Section 4975(g)(2) (exempting section 414(d) governmental plans from the prohibited transaction rules of section 4975);
• Section 4980(c)(1)(B) (exempting section 414(d) governmental plans from the tax on the reversion of qualified plan assets to an employer under section 4980);
• Section 4980B(d)(2) (exempting section 414(d) governmental plans from the COBRA requirements under section 4980B);
• Section 4980F(f)(2) (exempting section 414(d) governmental plans from the requirement to provide a notice required under section 204(h) of ERISA);
• Section 6057(c)(2) (providing rules relating to the voluntary submission of annual registration statements by section 414(d) governmental plans); and,
• Sections 9831(a)(1) and 9832(d)(2) (exempting section 414(d) governmental plans from the group health plan requirements).
Currently, there are no regulations interpreting section 414(d). Neither section 414(d) of the Code nor ERISA defines key terms relating to governmental plans, including the terms “established and maintained,” “political subdivision,” “agency,” and “instrumentality.”
Executive Order 13132 requires that Federal departments and agencies engage in consultation procedures in certain circumstances where regulations are issued which have a substantial direct effect on States. While these regulations when issued as final regulations would not have such a substantial direct effect, the IRS and Treasury Department have followed similar procedures, including issuance not only of these proposed regulations, but also an advance notice of these regulations which was published (date to be provided) in the
Historically, courts have used the test in
In determining whether an entity is an agency or instrumentality of the United States, courts either apply a facts and circumstances analysis or look to the relationship between the entity and its employees. In
However, in
Revenue Ruling 57-128 provides guidance on when an entity is a governmental instrumentality for purposes of the exemption from employment taxes under sections 3121(b)(7) and 3306(c)(7). The revenue ruling lists the following factors to be considered in determining whether an organization is an instrumentality of one or more States or political subdivisions thereof: (1) Whether the organization is used for a governmental purpose and performs a governmental function; (2) whether performance of its function is on behalf of one or more States or political subdivisions; (3) whether there are any private interests involved, or whether the States or political subdivisions involved have the powers and interests of an owner; (4) whether control and supervision of the organization is vested in public authority or authorities; (5) whether express or implied statutory authority or other authority is necessary for the creation and/or use of such an instrumentality, and whether such authority exists; and (6) the degree of the organization's financial autonomy and the source of its operating expenses.
Revenue Ruling 89-49 (1989-1 CB 117), see § 601.601(d)(2), provides guidance for determining whether a retirement plan maintained by an organization is a governmental plan within the meaning of section 414(d). The revenue ruling lists several factors for determining whether a sponsoring organization is an agency or instrumentality of the United States or any State or political subdivision thereof. While the factors in Rev. Rul. 89-49 are similar to the factors listed in Rev. Rul. 57-128, Rev. Rul. 89-49 focuses more on the degree of control that the Federal or State government has over the organization's everyday operations. Other factors considered include: whether there is specific legislation creating the organization; the source of funds for the organization; the manner in which the organization's trustees or operating board are selected; and whether the applicable government unit considers the employees of the organization to be employees of the applicable government unit. Rev. Rul. 89-49 provides that satisfaction of one or all of the factors is not necessarily determinative of whether an organization is a governmental entity. See § 601.601(d)(2)(ii)(
In Rev. Rul. 89-49, citizens of a municipality organized a volunteer fire company. The company was incorporated under its State laws as a nonprofit corporation, and the company was managed under the exclusive control of a board of trustees elected by the volunteer firefighters. Area municipalities, including the municipality that created the company, entered into contracts with the company to receive fire protection services. Under the contracts, it was agreed that the operations of the volunteer fire company would be under the exclusive control of the board of trustees. While the municipalities made payments for fire protection services to the volunteer fire company pursuant to these contracts, the municipalities did not contribute to the company's retirement plan, and the employees of the company were not considered employees of the State or any of the participating municipalities. The ruling concludes that the retirement plan established and maintained by the volunteer fire company is not a governmental plan within the meaning of section 414(d) because the degree of control that the participating municipalities exert over the volunteer fire company is minimal.
Section 4(b)(1) of ERISA provides that title I of ERISA does not apply to an employee benefit plan that is a governmental plan as defined in section 3(32) of ERISA. Section 3(32) of ERISA generally provides that the term “governmental plan” means a plan established or maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing.
Section 4021(b)(2) of ERISA provides that title IV of ERISA does not apply to any plan established and maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing, or to which the Railroad Retirement Act of 1935 or 1937 applies and which is financed by contributions required under that Act. Similar to section 3(32) of ERISA, section 4021(b) of ERISA was amended by section 906 of PPA '06 to include certain plans of Indian tribal governments in the definition of governmental plan for purposes of section 4021(b) of ERISA.
Neither the DOL nor the PBGC has issued regulations interpreting the terms of sections 3(32) and 4021(b) of ERISA. Both agencies have, however, provided guidance for specific entities in the form of administrative determinations, and advisory opinions or other opinion letters. The IRS, the Department of Labor (DOL), and the Pension Benefit Guaranty Corporation (PBGC) have generally applied a facts and circumstances approach in providing governmental plan determinations.
Governmental plans under Code section 414(d) are exempt from certain qualification requirements and are deemed to satisfy certain other qualification requirements under certain conditions. For example, the nondiscrimination and minimum participation rules do not apply to governmental plans. Section 1505 of the Taxpayer Relief Act of 1997, Public Law 105-34 (111 Stat. 788, 1063) (TRA '97), amended sections 401(a)(5)(G) and 401(a)(26)(G) of the Code to provide that the minimum participation standards and nondiscrimination requirements of section 410 and the additional participation requirements under section 401(a)(26)(G) do not apply to State or local governmental plans.
Section 861 of PPA '06 exempts all governmental plans (as defined in section 414(d)) from the nondiscrimination and minimum participation requirements of sections 401(a)(5)(G) and 401(a)(26)(G) of the Code, as well as the nondiscrimination and participation requirements applicable to qualified cash or deferred arrangements under section 401(k)(3)(G) of the Code.
In addition to the nondiscrimination requirements, the Code provides other exemptions for governmental plans:
• Section 401(a)(10)(B)(iii), which provides that the top heavy requirements of section 416 do not apply to a governmental plan.
• Section 410(c)(1)(A), which provides that the minimum participation provisions of section 410 do not apply to a governmental plan.
• Section 411(e), which provides that a governmental plan is treated as satisfying the requirements of section 411 if the plan meets the pre-ERISA vesting requirements.
• Section 412(e)(2)(C), which provides that the minimum funding standards of section 412 do not apply to a governmental plan.
• Section 417, which provides rules relating to qualified joint and survivor annuities and qualified preretirement survivor annuities.
Section 415 also provides a number of special rules for governmental plans. The special rules include section 415(b)(11) (the 100 percent of a participant's average high 3 compensation limitation does not apply), section 415(b)(2)(C) (the reduced limitation to the annual benefit payable beginning before age 62 and the reduction in the dollar limitation to the annual benefit payable for participation or services of less than 10 years do not apply to disability or survivor benefits received from a governmental plan), section 415(m) (benefits provided under a qualified governmental excess benefit arrangement are not taken into account in determining the section 415 benefit limitations under a section 414(d) governmental plan), and section 415(n) (permissive service credit).
As a result, the principal qualification requirements for a tax-qualified governmental plan
• Be established and maintained by the employer for the exclusive benefit of the employer's employees or their beneficiaries,
• Provide definitely determinable benefits,
• Satisfy the direct rollover rules of sections 401(a)(31) and 402(f),
• Be operated pursuant to its terms,
• Satisfy the section 401(a)(17) limitation on compensation,
• Comply with the statutory minimum required distribution rules under section 401(a)(9),
• Satisfy the pre-ERISA vesting requirements under section 411(e)(2),
• Satisfy the section 415 limitations on benefits, as applicable to governmental plans, and
• Satisfy the prohibited transaction rules in section 503.
The Code and regulations also provide that plans of governmental entities are treated differently than plans of non-governmental entities with respect to certain requirements for section 403(b) plans and eligible section 457(b) plans, including:
• Section 403(b)(1)(A)(ii), which provides that the exclusion allowance under section 403(b)(1) applies to employees who perform services for a public school of a State, a political subdivision of a State, or an agency or instrumentality of any one or more of the foregoing.
• Section 403(b)(12)(C), which provides that the nondiscrimination requirements of section 403(b)(12) (other than the compensation limitations of section 401(a)(17)) do not apply to a State or local governmental plan within the meaning of section 414(d).
• Section 457(f)(2)(E), under which section 457(f) (relating to nonqualified deferred compensation) does not apply to a qualified governmental excess benefit arrangement under section 415(m).
• Section 457(e)(1)(B), which includes as an eligible employer a State, political subdivision, or agency or instrumentality thereof and any tax-exempt organization other than a governmental unit.
• Section 457(g), which provides that a deferred compensation plan maintained by a State, political subdivision of a State, or any agency or instrumentality thereof is not treated as an eligible section 457(b) plan unless the assets and income of the plan are held in trust for the exclusive benefit of plan participants and beneficiaries.
• Section 402(c)(8)(B)(v), which provides that an eligible section 457(b) governmental plan is an eligible retirement plan for purposes of the rollover rules under section 402(c), so that payments from an eligible section 457(b) governmental plan can be rolled over to another eligible retirement plan, such as a qualified plan or an IRA, and payments from an eligible retirement plan can be rolled over into an eligible section 457(b) governmental plan.
The legislative history of ERISA and its predecessor bills indicate that there were two reasons for the governmental plan exemption: (1) Federalism concerns; and (2) the taxing power of State and local governments was thought to offer sufficient protection for participants in public plans.
While Congress was concerned about pension protection for public as well as private employees, governmental plans have been excluded from many of the qualification requirements because, in addition to federalism concerns, Congress believed that “the ability of governmental bodies to fulfill their obligations to employees through their taxing powers is an adequate substitute for termination insurance.”
Historically, the IRS, DOL, and PBGC (the Agencies) have informally conferred prior to making determinations on governmental plan status in individual cases. In Notice 2005-58 (2005-2 CB 295), see § 601.601(d)(2), the Treasury Department and the IRS stated their intention of publishing guidance regarding governmental plans under section 414(d). The Agencies have become increasingly concerned with the growing number of requests for governmental plan determinations from plan sponsors whose relationships to States or political subdivisions thereof are increasingly remote and whose arguments for concluding that their plans are governmental plans raise novel issues. The use of differing approaches by the courts and the Agencies has resulted in uncertainty as entities with organizational, regulatory, and contractual connections with States or political subdivisions of States try to ascertain which statutory and regulatory requirements apply to their retirement plans. These proposed regulations are intended to address this issue by establishing coordinated criteria for determining whether a plan is a governmental plan within the meaning of section 414(d) of the Code. Although these proposed regulations are only applicable for purposes of section 414(d), the DOL and the PBGC were consulted in developing this proposal. The DOL and the PBGC agreed that it would be advantageous for the Agencies and other affected parties to have coordinated criteria for determining whether a plan is a governmental plan within the meaning of section 414(d) of the Code, section 3(32) of title I of ERISA, and section 4021(b) of title IV of ERISA. In that regard, comments are requested on any issues arising from these proposed regulations in light of the interaction of the governmental plan definition in the Code with the governmental plan definitions in section 3(32) of title I of ERISA and section 4021(b) of title IV of ERISA. Copies of the comments on these regulations will be forwarded to the DOL and the PBGC.
These proposed regulations would generally define the term “governmental plan” within the meaning of section 414(d) of the Code. These proposed regulations would also define other key terms relating to the general definition of “governmental plan,” including the definitions of “State,” “political subdivision of a State,” and “agency or instrumentality of a State or political subdivision of a State.” While these terms are commonly used in other Code sections, the definitions in these proposed regulations are only
As stated, the regulations under section 414(d) would only define the term “agency or instrumentality of the United States” and “agency or instrumentality of a State or political subdivision of a State” for purposes of determining whether a plan is a governmental plan under section 414(d). Thus, the rules in these proposed regulations would not apply for purposes of defining the term “instrumentality,” under any other provisions of the Code.
In addition, these regulations do not address certain issues relating to governmental entities, including when an entity is so closely related to a State that it constitutes an “integral part” of a State.
These proposed regulations reflect the statutory definition of the term “governmental plan” as a plan established and maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of the foregoing. Within this definition, there are several key terms relating to governmental plans, the definitions of which are set forth in these proposed regulations. As mentioned in the “Background” section of this preamble, section 414(d) also includes special rules relating to the Railroad Retirement Act of 1935 or 1937, the International Organizations Immunities Act, and plans of Indian tribal governments. These proposed regulations do not address the term “governmental plan” as it relates to the special provisions in section 414(d) relating to the Railroad Retirement Act of 1935 or 1937, or the International Organizations Immunities Act. The special rules for Indian tribal governments are reserved in these proposed regulations and are in a separate notice of proposed rulemaking, which is being published elsewhere in the Rules and Regulations portion of this issue in the
These proposed regulations would define the term “United States,” for purposes of the governmental plan definition under section 414(d), as having the same meaning set forth in section 7701(a)(9). Section 7701(a)(9) provides that the term “United States,” when used in a geographical sense, includes only the States and the District of Columbia.
Whether an entity is an “agency or instrumentality of the United States” is determined based on the specific purpose for which the designation is sought and is decided by determining if Congress intended the entity to be treated as a Federal entity for the specific purpose.
The proposed regulations provide that, in making a determination of whether an entity is an “agency or instrumentality of the United States,” the factors to be considered include whether:
• The entity performs or assists in the performance of a governmental function.
• There are no private interests involved, or the Government of the United States has all of the powers and interests of an owner. In determining whether an entity that holds stock has a private interest, stock will not be considered a private interest if the stock of the corporation is not acquired for investment purposes or for purposes of control.
• The control and supervision of the entity is vested in the Government of the United States. Control must be more than the government's extensive Federal regulation of an industry.
• The entity is exempt from Federal, State, and local tax by an Act of Congress.
• The entity is created by the United States Government pursuant to a specific enabling statute that prescribes the purposes, powers, and manner in which the entity is to be established and operated.
• The entity receives financial assistance from the Government of the United States. However, an entity is not a governmental entity merely because it receives funds from the Government of the United States under a contract to provide a governmental service.
• The entity is determined to be an agency or instrumentality of the United States by a Federal court.
• Other governmental entities recognize and rely on the entity as an arm of the Government of the United States.
• The entity's employees are treated in the same manner as Federal employees for purposes other than providing employee benefits (for example, the entity's employees are granted civil service protection).
These proposed regulations also provide an example, illustrating the application of the facts and circumstances test to a particular entity—a Federal credit union. As announced in previous guidance, one purpose of these regulations is to address whether a Federal credit union is a governmental entity for purposes of determining whether the Federal credit union can maintain an eligible nonqualified deferred compensation plan. Notice 2005-58 addresses certain income tax issues with respect to
The proposed regulations define the term “State” as any State of the United States and the District of Columbia. This definition, which is based on the definition of “State” in section 7701(a)(10), is different from the definition of “State” under section 3(10) of ERISA, which defines, in relevant part, the term “State” as any State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, America Samoa, Guam, and Wake Island.
The term “political subdivision of a State” is defined in these proposed regulations as a regional, territorial, or local authority, such as a county or municipality (including a municipal corporation), that is created or recognized by State statute to exercise sovereign powers.
The term “political subdivision of a State” has been used for purposes other than section 414(d), including the NLRA and section 103.
These proposed regulations would provide guidance on determining whether an entity is an “agency or instrumentality of a State or a political subdivision of a State.” These regulations would provide that the determination is based on a facts and circumstances test. The proposed regulations provide that numerous factors have been applied by the IRS in determining whether an entity is an agency or instrumentality of a State or a political subdivision of a State. Satisfaction of one or more of the factors is not necessarily determinative of whether an organization is a governmental entity. One factor that is not weighed by the IRS is the way the entity refers to itself. For example, the mere fact that an entity is called the “Educational Service Agency of City A” would not be a factor in determining whether the entity is an agency or instrumentality of City A.
Major factors for determining whether an entity is an agency or instrumentality of a State or political subdivision of a State are whether:
• The entity's governing board or body is controlled by a State or political subdivision.
• The members of the governing board or body are publicly nominated and elected.
• The entity's employees are treated in the same manner as employees of the State (or political subdivision thereof) for purposes other than providing employee benefits (for example, the entity's employees are granted civil service protection).
• A State (or political subdivision thereof) has fiscal responsibility for the general debts and other liabilities of the entity (including funding responsibility for the employee benefits under the entity's plans).
• In the case of an entity that is not a political subdivision, the entity is delegated, pursuant to a statute of a State or political subdivision, the authority to exercise sovereign powers of the State or political subdivision (such as, the power of taxation, the power of eminent domain, and the police power).
It is expected that, in applying the factor relating to whether the entity's governing board or body is controlled by a State or political subdivision, the control cannot be a mere legal possibility. Examples of situations in which the control factor might be a mere legal possibility are cases in which there are a number of tiers of intervening corporations between the entity and the State, and cases in which the legal power to control is shared among so many governing entities that none of them can be said to be responsible in the event of a failure to exercise control. In addition, since these two factors are interrelated, an entity that would satisfy the control factor would not be expected to satisfy the factor relating to whether members of the governing board or body are publicly elected or nominated. Alternatively, an entity that would satisfy the factor relating to whether members of the governing board or body are publicly elected or nominated would not be expected to satisfy the control factor.
Other factors for determining whether an entity is an agency or instrumentality of a State or political subdivision of a State are whether:
• The entity is created by a State government or political subdivision pursuant to a specific enabling statute that prescribes the purposes and powers of the entity, and the manner in which the entity is to be established and operated.
• The entity is directly funded through tax revenues or other public sources.
• The entity is treated as a governmental entity for Federal employment tax or income tax purposes (for example, whether the entity has the authority to issue tax-exempt bonds under section 103(a) of the Code) or under other Federal laws.
• The entity's operations are controlled by a State or political subdivision.
• The entity is determined to be an agency or instrumentality of a State or political subdivision thereof for purposes of State law. For example, the entity is subject to open meetings laws or the requirement to maintain public records that apply only to governmental entities, or the State attorney general represents the entity in court under a State statute that only permits representation of State entities.
• The entity is determined to be an agency or instrumentality of a State or political subdivision thereof by a State or Federal court for purposes other than section 414(d).
There are two additional factors to be considered. First, if a party other than a State (or political subdivision, agency, or instrumentality thereof) has an ownership interest, or other similar interests, in the entity, this factor would indicate that the entity is not an agency or instrumentality of a State or political subdivision thereof (however, an entity would not necessarily be considered an agency or instrumentality of a State or political subdivision thereof merely because there is no private ownership in the entity or the entity serves a governmental purpose). Second, if an entity does not serve a governmental purpose, this factor would indicate that it is not an agency or instrumentality of a State (or political subdivision thereof).
The proposed regulations include a variety of examples to illustrate whether an entity is an agency or instrumentality of a State or political subdivision thereof. Many of these examples are drawn from prior judicial opinions, as well as the Agencies' determinations.
The proposed regulations would provide that a plan is established and maintained for the employees of a governmental entity if the following requirements are satisfied: (1) The plan is established and maintained by an employer within the meaning of § 1.401-1(a)(2) of the Income Tax Regulations;
The proposed regulations would provide rules for changes in status of an entity from a private entity to a governmental entity and from a governmental entity to a private entity. As mentioned in the “Background” section of this preamble, the qualification requirements for a private qualified plan differ substantially from those of a governmental qualified plan. The issue of whether a plan of a private employer that later becomes a governmental entity can be a governmental plan raises a question regarding the interaction among the three definitions of the term “governmental plan” in ERISA. Section 414(d) of the Code defines the term “governmental plan” as “a plan established and maintained by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of the foregoing.” In title IV of ERISA, section 4021(b)(2) provides that any plan “established and maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of the foregoing” is exempt from coverage by ERISA. In title I of ERISA, section 3(32) defines a governmental plan as “a plan established or maintained by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of the foregoing.” While the definitions in title II of ERISA (Code) and title IV of ERISA (PBGC provisions) use the language “established and maintained” by a governmental employer, the title I definition uses the language “established or maintained.”
This difference in statutory language was addressed in
The
“If a plan is required to have been both established and maintained by a governmental entity in order to qualify for exemption, then a plan which was established by a private entity but subsequently taken over by a governmental body would continue to be subject to ERISA. This outcome conflicts with the federalism-based concerns which led Congress to exempt governmental plans in the first place.”
The
The
“In any event, even if we agreed with Rose that the correct interpretation of [section 3(32) of ERISA] was established and maintained, we would still not conclude that the LIRR Plan was covered by ERISA, because the Plan was in fact established and maintained by the LIRR.”
The court concluded that a broad reading of the term “established”—whereby a plan not previously established under ERISA may become a plan established under ERISA without the preexisting one having been formally “terminated”—is more consistent with the legislative intent behind the governmental plan exemption.
For reasons similar to those presented by the
In the case of a change in status from a private plan to a governmental plan, comments are requested on whether, and if so how, these regulations should address rights and obligations that accrued prior to the conversion to a governmental plan, including the responsibility of the former private plan sponsor (or former private plan) for benefits that accrued prior to the conversion. Any comments that address the potential impact of the proposed regulation's approach on rights and responsibilities under title I and title IV of ERISA will be forwarded to the DOL and the PBGC.
Similarly, the regulations would provide that if a governmental employer ceases to be a governmental entity, the plan will be treated as being established by a private employer thereafter (including all of the plan's assets and liabilities attributable to service before and after the date of the change). Such a change would occur either where the employer entity ceases to be a governmental entity (such as a spin-off of a corporation) or where the employees become employees of a different entity (such as in an asset transfer). Thus, for example, the entity in either case would no longer satisfy the requirement that the employer be a governmental entity. If such a change occurs, the plan must comply with the requirements for a governmental plan up to the change and then comply with all the requirements for a private plan for periods after the date of the change. (See also the related discussion under the heading, “Comments and Public Hearing.”)
In the case of a formerly governmental plan becoming a private plan, the plan and plan sponsor may secure certain advantages, such as PBGC coverage or ERISA preemption, not available to governmental plans and governmental sponsors. However, nothing in these proposed income tax regulations should be construed to mean that, with respect to a transaction such as an asset sale, in which assets and liabilities of a governmental plan are transferred to a private plan, the assumption of benefit liabilities accrued prior to the transfer to the private plan relieves the former governmental employer (or former governmental plan) from responsibility for those benefits.
As previously stated, the proposed regulations would provide that if a governmental employer ceases to be a governmental entity, the plan will be treated as being established by a private employer on the date of the change. The proposed regulations would provide an exception to this general rule when there is a change in status from a governmental entity to a private entity under certain circumstances. Specifically, if a governmental plan ceases to be maintained by a governmental employer, the plan will nevertheless be treated as continuing to be a governmental plan if the benefits held under the governmental plan are frozen and a governmental entity assumes responsibility for the plan. While the frozen plan would continue to be treated as a governmental plan, the plan would be permitted (but not required) to provide participating employees with credit for service with the new employer for purposes of vesting, final pay adjustments, entitlements to benefits such as early retirement benefits, and similar service credit other than benefit accrual credit.
Further, certain types of plans are limited under the Code to specific types of employers, including limitations that apply differently depending on whether or not the employer is or is not a governmental entity. These limitations on employer eligibility raise special problems for cases in which an entity becomes or ceases to be a governmental employer. For example, because a qualified cash or deferred arrangement under section 401(k) generally cannot be maintained by a State or local government or political subdivision, or any agency or instrumentality thereof,
It is expected that these proposed regulations would not be applicable earlier than for plan years beginning after the date of the publication of the Treasury decision adopting these rules as final regulations in the
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. In addition, because no collection of information is imposed on small entities, the provisions of the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply, and therefore, a Regulatory Flexibility Analysis is not required. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking will be submitted to the Small Business Administration for comment on its impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The Treasury Department and the IRS specifically request comments on the clarity of the proposed rules and how they can be made easier to understand. All comments will be available for public inspection and copying.
These proposed regulations would provide that a determination of whether an entity is an agency or instrumentality of a State or a political subdivision thereof is based on a facts and circumstances analysis. Under the proposed regulations, the factors to be applied would be ranked into main factors and other factors.
The factors identified in this bright line test might be whether: (1) A majority of the entity's governing board or body are either controlled by a State or political subdivision thereof or elected through periodic, publicly held elections (with the nominees elected by the voters); and (2) a State or political subdivision thereof has the fiscal responsibility for the general debts and other liabilities of the entity, including the entity's employee benefit plans. This standard might be available only if the entity was created by a State government or political subdivision pursuant to a specific enabling statute that prescribes the purposes, powers, and manner in which the entity is to be established and operated.
Apart from the special rules relating to plan coverage for employees of a labor union or plan under section 413(b)(8), these proposed regulations do not include special rules addressing existing practices under which a small number of private employees participate in a plan that would otherwise constitute a governmental plan under section 414(d). Comments are requested on whether an exception should be provided in such cases. Parameters that could be taken into account for such a special rule include the following: (1) Whether the private employees were previously employees of the sponsoring governmental entity; (2) whether the private employees were previously participants in the governmental plan; (3) whether the number or percentage of such former employees who participate in the governmental plan is de minimis (and, if so, what constitutes a de minimis number or percentage); (4) whether the coverage is pursuant to pre-existing plan provisions; (5) whether the private employer performs a governmental function and has been officially designated as a State entity for plan participation purposes; and (6) whether the employer is ineligible to sponsor the particular type of governmental plan (for example, whether a private employer is a tax-exempt organization under section 501(c)(3) that can sponsor a section 403(b) plan, and whether the private employer sponsors or has sponsored plans that cannot be sponsored by a State governmental entity, such as a cash or deferred arrangement under section 401(k) or an unfunded section 457(b) plan of a tax-exempt entity (described in section 457(e)(1)(B)).
If any special rule for such circumstances were to be included in the final regulation, there would be a number of related issues. These issues would include how to address the status of such a plan as a governmental multiple employer plan. Other issues might include how section 414(h) governmental pick-up plans should be treated, differences resulting from the application of federal employment taxes to a private employer participating in a governmental multiple employer plan, the application of the minimum funding rules with respect to a private employer participating in a governmental multiple employer plan, how the prohibited transaction rules of section 4975 would apply with respect to a private employer participating in a governmental multiple employer plan, how the special benefit limitation rules of section 415 would apply to private plan participants in the governmental plan; and what treatment should apply where the plan was
If the final regulations do not provide any special rule for cases in which a governmental plan continues to cover private employees who were formerly governmental employees, it is expected that a reasonable transition period following publication of the final regulations will be provided. Comments are requested on what transitional relief should be provided to a governmental plan that covers private employees who were formerly governmental employees and continue to participate in the plan that would otherwise constitute a governmental plan under section 414(d) (such as the governmental plan spinning off a portion of the assets and liabilities of the plan with respect to the former employees as a separate non-governmental plan). Comments are also requested on whether this method of correction might also be appropriate in situations such as described in
The final regulations may also provide transitional relief for entities that previously operated as if they were governmental entities eligible to participate or sponsor governmental plans but later were determined to be private entities under the regulations. Comments are requested on what transitional relief should be provided to an entity that is later determined to be a private entity. The Treasury Department and the IRS anticipate that there will be a reasonable transition period following the final regulations for a plan to revise its arrangements in order to avoid the adverse tax consequences of failing to comply with all the requirements of a private retirement plan.
A public hearing has been scheduled for (date to be provided when proposed regulations are published), beginning at 10 a.m. in the Auditorium, Internal Revenue Building, 1111 Constitution Avenue NW., Washington DC. Due to building security procedures, visitors must enter at the main entrance located at 1111 Constitution Avenue NW. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments must submit written or electronic comments and an outline of the topics to be discussed and time to be devoted to each topic (signed original and eight (8) copies) by (date to be provided when proposed regulations are published). A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving comments has passed. Copies of the agenda will be available free of charge at the hearing.
The principal author of these proposed regulations is Pamela R. Kinard, Office of Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities), Internal Revenue Service. However, personnel from other offices of the IRS and Treasury participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
(a)
(2)
(3)
(b)
(c)
(2)
(i) The entity performs or assists in the performance of a governmental function.
(ii) There are no private interests involved, or the Government of the United States has all of the powers and interests of an owner. In determining whether an entity that holds stock has a private interest, stock will not be considered a private interest if the stock of the corporation is not acquired for investment purposes or for purposes of control.
(iii) The control and supervision of the entity is vested in the Government of the United States. Control must be more than the government's extensive Federal regulation of an industry.
(iv) The entity is exempt from Federal, State, and Local tax by an Act of Congress.
(v) The entity is created by the United States Government pursuant to a specific enabling statute that prescribes
(vi) The entity receives financial assistance from the Government of the United States. However, an entity is not a governmental entity merely because it receives funds from the Government of the United States under a contract to provide a governmental service.
(vii) The entity is determined to be an agency or instrumentality of the United States by a Federal court.
(viii) Other governmental entities recognize and rely on the entity as an arm of the Government of the United States.
(ix) The entity's employees are treated in the same manner as Federal employees for purposes other than providing employee benefits (for example, the entity's employees are granted civil service protection).
(3)
(i)
(ii)
(d)
(e)
(1) A regional, territorial, or local authority, such as a county or municipality (such as, a municipal corporation), that is created or recognized by State statute to exercise sovereign powers (which generally means the power of taxation, the power of eminent domain, and the police power); and
(2) The governing officers either are appointed by State officials or publicly elected.
(f)
(2)
(A) The entity's governing board or body is controlled by a State (or political subdivision thereof). For example, an entity's governing board or body is controlled by a State (or political subdivision thereof) if the public officials of the State (or political subdivision thereof) have the power to appoint, and to remove and replace, a majority of the entity's governing board or body. This factor is not satisfied if the power to control is materially restricted (for example, if any board member of the entity can be replaced only with an individual chosen from a list of designees selected by the other members of the governing board or body);
(B) The members of the governing board or body are publicly nominated and elected;
(C) A State (or political subdivision thereof) has fiscal responsibility for the general debts and other liabilities of the entity, including responsibility for the funding of benefits under the entity's employee benefit plans;
(D) The entity's employees are treated in the same manner as employees of the State (or political subdivision thereof) for purposes other than providing employee benefits (for example, the entity's employees are granted civil service protection); and
(E) In the case of an entity that is not a political subdivision, the entity is delegated the authority to exercise sovereign powers (which generally means the power of taxation, the power of eminent domain, and police powers) of the State (or political subdivision thereof) and the delegation of authority is pursuant to a statute of a State (or political subdivision thereof).
(ii)
(A) The entity's operations are controlled by a State (or political subdivision thereof);
(B) The entity is directly funded through tax revenues or other public sources. However, this factor is not satisfied if an entity that is not otherwise an agency or instrumentality is paid from public funds under a contract to provide a governmental service or is funded through grants by the State or Federal government;
(C) The entity is created by a State government or political subdivision of a State pursuant to a specific enabling statute that prescribes the purposes, powers, and manners in which the entity is to be established and operated. However, a nonprofit corporation that is incorporated under a State's general corporation laws is not created under a specific enabling statute;
(D) The entity is treated as a governmental entity for Federal employment tax or income tax purposes (such as, the authority to issue tax-exempt bonds under section 103(a)) or under other Federal laws;
(E) The entity is determined to be an agency or instrumentality of a State (or political subdivision thereof) for purposes of State laws. For example, the entity is subject to open meetings laws or the requirement to maintain public records that apply only to governmental entities, or the State attorney general represents the entity in court under a State statute that only permits representation of State entities;
(F) The entity is determined to be an agency or instrumentality of a State (or political subdivision thereof) by a State or Federal court;
(G) A State (or political subdivision thereof) has the ownership interest in the entity and no private interests are involved; and
(H) The entity serves a governmental purpose.
(3)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(iii)
(iv)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(g)
(h)
(i) [Reserved].
(j)
(k)
(i) The plan is established and maintained for employees by an employer, within the meaning of § 1.401-1(a)(2);
(ii) The employer is a governmental entity; and
(iii) The participants covered by the plan are employees of that governmental entity.
(2)
(ii)
(B)
(
(
(C)
(3)
(4)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(l)
Internal Revenue Service (IRS), Department of the Treasury.
Advance notice of proposed rulemaking.
The Treasury Department and IRS anticipate issuing regulations under section 414(d) of the Internal Revenue Code (Code) to define the term “governmental plan.” This document describes the rules the Treasury Department and IRS are considering proposing relating to the determination of whether a plan of an Indian tribal government is a governmental plan within the meaning of section 414(d) and contains an appendix that includes a draft notice of proposed rulemaking on which the Treasury Department and IRS invite comments from the public. This document applies to sponsors of, and participants and beneficiaries in, employee benefit plans of Indian tribal governments.
Written or electronic comments must be received by February 6, 2012.
Send submissions relating to the section 414(d) draft ITG regulations to: CC:PA:LPD:PR (REG-133223-08), Room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington DC 20044. Submissions may be hand delivered Monday through Friday, between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-133223-08), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC.
Alternately, taxpayers may submit comments relating to the section 414(d) draft ITG regulations located in the Appendix to this ANPRM electronically via the Federal eRulemaking Portal at
Concerning the ANPRM, Pamela R. Kinard, at (202) 622-6060; concerning submission of comments, Richard Hurst, at (202) 622-7180 (not toll-free numbers).
This document describes rules that the Treasury Department and IRS are considering proposing and contains a draft notice of proposed rulemaking (in the Appendix to this ANPRM) under section 414(d) of the Internal Revenue Code (Code). Under the draft notice of proposed rulemaking (in the Appendix to this ANPRM), the rules would provide guidance relating to the determination of whether a plan of an Indian tribal government, a subdivision of an Indian tribal government, or an agency or instrumentality of either (ITG) is a governmental plan within the meaning of section 414(d) of the Code (section 414(d) draft ITG regulations).
Section 414(d) of the Code provides that the term “governmental plan” generally means a plan established and maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing. See sections 3(32) and 4021(b)(2) of the Employee Retirement Income Security Act of 1974 (ERISA) for definitions of the term “governmental plan,” which govern respectively for purposes of title I and title IV of ERISA.
The term “governmental plan” also includes any plan to which the Railroad Retirement Act of 1935 or 1937 (49 Stat. 967, as amended by 50 Stat. 307) applies and which is financed by contributions required under that Act and any plan of an international organization which is exempt from taxation by reason of the International Organizations Immunities Act (59 Stat. 669). See section 414(d)(2) of the Code.
Section 414(d) was amended by the Pension Protection Act of 2006, Public Law 109-280 (120 Stat. 780) (PPA '06) to include certain plans of Indian tribal governments and related entities.
Neither section 414(d) of the Code, section 3(32) of ERISA, nor section 4021(b)(2) of ERISA define key terms relating to governmental plans, including the terms “established and maintained,” “political subdivision,” “agency,” and “instrumentality.” Currently, there are no regulations interpreting section 414(d). Revenue Ruling 89-49 (1989-1 CB 117), see § 601.601(d)(2), sets forth a facts and circumstances analysis for determining whether a retirement plan is a governmental plan within the meaning of section 414(d).
Governmental plans are subject to different rules than retirement plans of nongovernmental employers. Governmental plans are excluded from the provisions of titles I and IV of ERISA. In addition, governmental plans receive special treatment under the Code. These plans are exempt from certain qualification requirements and they are deemed to satisfy certain other qualification requirements under certain conditions. As a result, the principal qualification requirements for a tax-qualified governmental plan
• Be established and maintained by the employer for the exclusive benefit of the employer's employees or their beneficiaries;
• Provide definitely determinable benefits;
• Be operated pursuant to its terms;
• Satisfy the direct rollover rules of section 401(a)(31);
• Satisfy the section 401(a)(17) limitation on compensation;
• Comply with the statutory minimum required distribution rules under section 401(a)(9);
• Satisfy the pre-ERISA vesting requirements under section 411(e)(2);
• Satisfy the section 415 limitations on benefits, as applicable to governmental plans; and
• Satisfy the prohibited transaction rules in section 503.
Notice 2006-89 (2006-2 CB 772) and Notice 2007-67 (2007-35 IRB 465), see § 601.601(d)(2), summarize the changes made by section 906(a)(1) of PPA '06 and provide transitional relief to ITGs under a reasonable and good faith standard to comply with such changes. The notices provide that until such guidance is issued, a plan established and maintained by an ITG for its employees is treated as satisfying the requirements of section 906(a)(1) of PPA '06 to be a governmental plan under section 414(d) of the Code if it complies with those requirements based on a reasonable and good faith interpretation of section 414(d). For further background, see the “Background” section of the preamble of the section 414(d) draft ITG regulations in the Appendix to this ANPRM under the headings, “Notices Issued by the IRS Relating to ITG Retirement Plans under PPA '06.”
The Treasury Department and the IRS participated in a series of telephone listening meetings with the ITG community following the passage of PPA '06. The attached draft notice of proposed rulemaking in the Appendix to this ANPRM takes into account comments provided through a number of informative and cooperative comments received in response to Notices 2006-89 and 2007-67 and open and direct consultations with the Indian tribal community. Those comments received from Notices 2006-89 and 2007-67 and during the consultations were considered in drafting the proposed rulemaking.
The Treasury Department and the IRS have determined to seek public comment and consult with ITGs on the draft proposed regulations in advance of issuing a notice of proposed rulemaking. In light of the interaction of the governmental plan definitions in the Code and ERISA, a copy of the comments will be forwarded to DOL and PBGC.
Attached to the Appendix to this ANPRM is a draft notice of proposed rulemaking. These draft regulations include proposed rules, a preamble, and a request for comments. The Treasury Department and IRS invite the public to comment on the rules that the Treasury Department and IRS are considering proposing, which would set forth special rules relating to retirement plans of ITGs.
A plan established and maintained by an ITG is a governmental plan under section 414(d), as amended by section 906 of PPA '06, only if all of its participants are employees substantially all of whose services are in the performance of essential governmental functions (but not in the performance of commercial activities whether or not an essential governmental function). Therefore, the rules under the section 414(d) draft general regulations (in the Appendix to the ANPRM that is being published elsewhere in this issue of the
Under the section 414(d) draft ITG regulations (in the Appendix to this ANPRM), whether a plan of an ITG is a governmental plan or a nongovernmental plan within the meaning of section 414(d) would be based, in part, on: (1) A determination of which activities are commercial activities and (2) a determination of whether employees of the ITG covered by the plan are employees who perform substantial services in commercial activities of the ITG (and are thus commercial employees).
The anticipated proposed regulations would provide that certain specific activities are deemed to be governmental or commercial for purposes of section 414(d). Under the anticipated proposed regulations, commercial activities would be operations involving a hotel, casino, service station, convenience store, or marina. These activities are examples that were identified as commercial activities in Notices 2006-89 and 2007-67, as well as in the Joint Committee on Taxation Technical Explanation to section 906 of PPA '06. The section 414(d) draft ITG regulations in the Appendix to this ANPRM would provide that governmental activities include activities related to the building and maintenance of public roads, sidewalks, and buildings, activities related to public work projects (such as schools and government buildings), and activities that are subject to a treaty or special rules that pertain to trust land ownership and use. See § 601.601(d)(2).
In addition to listing certain specified activities, the anticipated proposed regulations would provide a facts and circumstances test for determining whether an activity is a governmental or commercial activity. See the “Explanation of Provisions” section in the section 414(d) draft ITG regulations in the Appendix to this ANPRM under the heading, “Governmental and Commercial Activities.” The anticipated proposed regulations would also provide examples illustrating the application of the facts and circumstances tests to particular activities.
The anticipated proposed regulations would also provide rules for determining whether employees covered by an ITG plan are employees who perform substantial services in activities that are governmental. For this purpose, the determination of whether an employee's services are for governmental or commercial activities would generally be based on the employee's assigned duties and responsibilities. See the “Explanation of Provisions” section in the section 414(d) draft ITG regulations in the Appendix to this ANPRM under the headings, “Determination of Governmental ITG Employees” and “Determination of Commercial ITG Employees.”
The anticipated proposed regulations do not address the broader issue of whether a retirement plan is a governmental plan within the meaning of section 414(d). That topic is addressed in the advance notice of proposed rulemaking relating generally to the definition of governmental plan that is being published elsewhere in this issue of the
Before a notice of proposed rulemaking is issued, consideration will be given to any written comments that are submitted timely (preferably a signed original and eight (8) copies) to the IRS. All comments will be available for public inspection and copying. Copies of the comments will be provided to the DOL and PBGC.
Comments are also requested on whether, as an alternative to issuing proposed regulations, the Department of the Treasury and IRS should publish a notice that reflects some or all of the rules in the draft proposed regulations and that also modifies the rule in Notice 2007-67 concerning when a mixed ITG is required to be amended to be two different plans, one for governmental employees and another for commercial employees. If so, the notice would include a significant transitional period for compliance similar to the transition period that would be expected to apply for regulations (such as not being effective until plan years that begin at least 18 months after publication of the notice). The Department of the Treasury and IRS invite comments on whether this method of guidance would be preferable to the issuance of regulations.
The IRS and Department of the Treasury plan to schedule a public hearing on the ANPRM. That hearing will be scheduled and announced at a later date. In addition to a public hearing, the Treasury Department and IRS anticipate scheduling consultation listening meetings in order to obtain comments from tribal governments on the section 414(d) draft ITG regulations. It is expected that these meetings will take place in different locations across the country. Participants will be encouraged to pre-register for the meetings. Information relating to these meetings, including dates, times, locations, registration, and the procedures for submitting written and oral comments, will be available on the IRS Web site relating to governmental plans at
In the Appendix to this ANPRM is a draft notice of proposed rulemaking. These draft regulations include proposed rules, a preamble, and a request for comments. The Treasury Department and the IRS invite the public to comment on the rules under consideration, which would set forth special rules relating to retirement plans of ITGs. This solicitation of comments is in furtherance of the objective of Executive Order 13175 under which Treasury consults with tribal officials in the development of Federal policies that may have tribal implications. The IRS and Treasury Department will consult with Indian tribes through the normal comment process in the
The principal author of this advance notice of proposed rulemaking is Pamela R. Kinard, Office of the Chief Counsel (Tax-exempt and Government Entities), however, other personnel from the IRS and Treasury Department participated in its development.
The following is draft language for a notice of proposed rulemaking that would set forth rules relating to the determination of whether a plan of an Indian tribal government is a governmental plan within the meaning of section 414(d). The IRS and Treasury release this draft language in order to solicit comments from the governmental plans community:
This document contains proposed regulations under section 414(d) of the Internal Revenue Code (Code). These regulations, when finalized, would provide guidance relating to the determination of whether a plan of an Indian tribal government or other entities related to an Indian tribal government is a governmental plan within the meaning of section 414(d). The definition of a governmental plan
Both the Code and the Employee Retirement Income Security Act of 1974 (ERISA) define the term “governmental plan.” Prior to the Pension Protection Act of 2006, Public Law 109-280 (120 Stat. 780) (PPA '06), section 414(d) of the Code provides that the term “governmental plan” means a plan established and maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing. Sections 3(32) and 4021(b)(2) of ERISA have parallel definitions of the term “governmental plan.” The term “governmental plan” also includes any plan to which the Railroad Retirement Act of 1935 or 1937 (49 Stat. 967, as amended by 50 Stat. 307) applies and which is financed by contributions required under that Act and any plan of an international organization which is exempt from taxation by reason of the International Organizations Immunities Act Public Law 79-291 (59 Stat. 669).
Section 906(a) of PPA ’06 amended section 414(d) of the Code (and the parallel provisions in sections 3(32) and 4021(b)(2) of ERISA) to include in the definition of “governmental plan” certain plans of an Indian tribal government, a subdivision of an Indian tribal government, or an agency or instrumentality thereof. Specifically, under section 906(a)(1) of PPA '06, the term “governmental plan” includes a plan which is established and maintained for its employees by an Indian tribal government (as defined in section 7701(a)(40)), a subdivision of an Indian tribal government (determined in accordance with section 7871(d)), or an agency or instrumentality of either (ITG), and all of the participants of which are employees of such entity substantially all of whose services as such an employee are in the performance of essential governmental functions but not in the performance of commercial activities (whether or not an essential governmental function). Section 906(c) of PPA '06 provides that the amendments made by section 906 of PPA ’06 apply to any year beginning on or after the date of enactment, which is August 17, 2006.
In its Technical Explanation
Governmental plans under Code section 414(d), including governmental ITG plans, receive special treatment with respect to certain qualification rules. Such plans are exempt from certain qualification requirements and are deemed to satisfy certain other qualification requirements under certain conditions. For example, the nondiscrimination and minimum participation rules do not apply to governmental plans.
• Section 401(a)(10)(B)(iii), which provides that the top-heavy requirements of section 416 do not apply to a governmental plan.
• Section 410(c)(1)(A), which provides that the minimum participation provisions of section 410 do not apply to a governmental plan.
• Section 411(e), which provides that a governmental plan is treated as satisfying the requirements of section 411 if the plan meets the pre-ERISA vesting requirements.
• Section 412(e)(2)(C), which provides that the minimum funding standards of section 412 do not apply to a governmental plan.
• Section 417, which provides rules relating to qualified joint and survivor annuities and qualified preretirement survivor annuities.
Section 415 also provides a number of special rules for governmental plans. The special rules include section 415(b)(11) (under which governmental pensions are not limited to 100% of a participant's average high 3 compensation), section 415(b)(2)(I) (the reduced limitation to the annual benefit payable beginning before age 62 and the reduction in the dollar limitation to the annual benefit payable for participation or services of less than 10 years do not apply to disability or survivor benefits received from a governmental plan), section 415(m) (benefits provided under a qualified governmental excess benefit arrangement are not taken into account in determining the section 415 benefit limitations under a section 414(d) governmental plan), and section 415(n) (permissive service credit).
As a result, the principal qualification requirements for a tax-qualified governmental plan
• Be established and maintained by the employer for the exclusive benefit of the employer's employees or their beneficiaries;
• Provide definitely determinable benefits;
• Be operated pursuant to its terms;
• Satisfy the direct rollover rules of sections 401(a)(31) and 402(f);
• Satisfy the section 401(a)(17) limitation on compensation;
• Comply with the statutory minimum required distribution rules under section 401(a)(9);
• Satisfy the pre-ERISA vesting requirements under section 411(e)(2);
• Satisfy the section 415 limitations on benefits, as applicable to governmental plans; and
• Satisfy the prohibited transaction rules in section 503.
State and local governments, political subdivisions thereof, and agencies or instrumentalities thereof are generally not permitted to offer cash or deferred arrangements under section 401(k).
Section 7871 provides special rules for Indian tribal governments. Section 7871(a)(4) provides that an Indian tribal government is to be treated as a State for purposes of section 103, relating to tax-exempt bonds.
On August 9, 2006, an advance notice of proposed rulemaking under section 7871 was published in the
Notice 2006-89 (2006-2 CB 772) and Notice 2007-67 (2007-35 IRB 467), see § 601.601(d)(2), summarize the changes made by section 906(a)(1) of PPA '06 and provide transitional relief to ITGs under a reasonable and good faith standard to comply with such changes. The notices provide that, until such guidance is issued, a plan established and maintained by an ITG for its employees is treated as satisfying the requirements of section 906(a)(1) of PPA '06 to be a governmental plan under section 414(d) of the Code if it complies with those requirements based on a reasonable and good faith interpretation of section 414(d). The notices further provide that it is not a reasonable and good faith interpretation of section 414(d) for an ITG plan to claim to be a governmental plan within the meaning of section 414(d) if employees participating in the plan perform services for a hotel, casino, service station, convenience store, or marina operated by an ITG.
In Notices 2006-89 and 2007-67, the Treasury Department and IRS announced that regulations would be proposed to provide guidance on section 414(d), including changes made to section 414(d) by section 906 of PPA '06, and to provide transitional relief pending the issuance of these regulations. Comments were requested on issues relating to section 906 of PPA '06, including transitional issues not addressed in the notice.
The transitional relief provided to plans of ITGs under Notices 2006-89 and 2007-67 continues up to the date that is six months after the date that guidance is issued under section 414(d) of the Code, as amended by section 906 of PPA '06 (extended date). For ITG plans that provide benefits both to employees substantially all of whose work is in essential governmental functions that are not commercial activities (governmental ITG employees) and to employees who perform services substantially in the performance of commercial activities (commercial ITG employees), the Notices provide that the ITG plan will be treated as satisfying the reasonable, good faith standard if certain steps are taken, which include adopting a separate plan covering commercial ITG employees effective as of the beginning of the first plan year beginning on or after August 17, 2006, the enactment of PPA '06. The commercial ITG plan, beginning on the same effective date, must comply with the qualification requirements for plans that are not governmental plans.
These proposed regulations would provide guidance relating to ITG plans under section 414(d). The transitional relief provided under Notices 2006-89 and 2007-67 would end six months after the effective date of the final regulations published in the
The transitional relief in Notices 2006-89 and 2007-67 is conditioned on the ITG plans involved not being amended, for periods before the extended date, to reduce benefits unless the reduction does not distinguish between reductions for commercial ITG employees and governmental ITG employees or the reduction for commercial ITG employees is the minimum amount necessary to satisfy any requirement under the Code. If any reduction occurs that does not satisfy these conditions, the transitional relief provided under Notices 2006-89 and 2007-67 ends on the date that the reduction goes into effect.
Executive Order 13175 requires that Federal departments and agencies engage in consultation procedures in certain circumstances where regulations are issued which have substantial direct effects with respect to the Federal government and Indian tribes. While these regulations when issued as final regulations would not have such substantial direct effects, the IRS and Treasury Department have followed similar procedures. Further, the Treasury Department and the IRS participated in a series of telephone listening meetings with the ITG community following the passage of PPA '06 and these proposed regulations also take into account the comments that were provided in response to Notices 2006-89 and 2007-67, including the related open and direct consultations with the Indian tribal community.
The few court cases that discuss section 906 of PPA '06 primarily relate to welfare benefit plans. One reason for the legislative change to section 414(d) of the Code and section 3(32) of ERISA is “to clarify the legal ambiguity regarding the status of employee benefit plans established and maintained by tribal governments.”
The court, in
These proposed regulations would provide special rules for purposes of the definition of a “governmental plan” under section 414(d) of the Code, as it relates to plans of ITGs. The Treasury Department and IRS also expect to issue separate proposed regulations under section 414(d) to define a governmental plan for purposes other than the special rules applicable to ITGs. However, these proposed regulations relating to ITGs would provide Indian tribal governments with guidance in determining whether an ITG plan is a governmental ITG plan or a commercial ITG plan. As discussed in the background of this preamble, under the heading “Exemption of Governmental ITG Plans from Certain Qualified Plan Rules,” governmental plans receive special treatment with respect to certain qualification rules. Thus, the determination of whether an ITG plan is a governmental ITG plan is essential in ensuring compliance with the qualified plan rules because an ITG must be able to ascertain which of its plans are governmental plans under section 414(d) and which of its plans must comply with the requirements for a plan that is not a governmental plan. These proposed regulations take into account comments received in response to Notices 2006-89 and 2007-67 and a number of open and direct consultations with the Indian tribal community. Those comments received from Notices 2006-89 and 2007-67 and during the consultations were considered in drafting these proposed regulations.
As discussed earlier in the background section of this preamble, a governmental plan, as it relates to ITGs, may include a plan established and maintained by an ITG, but such a plan is a governmental plan under section 414(d) only if all of its participants are employees substantially all of whose services are in the performance of essential governmental functions (but not in the performance of commercial activities whether or not an essential governmental function). Key to determining whether a plan of an ITG is a governmental plan within the meaning of section 414(d) is the determination of the terms “essential governmental function” and “commercial activity.”
These proposed regulations would use the concepts of “governmental activity” and “commercial activity,” instead of the terms “essential governmental function” and “commercial activity.” The terms “governmental activity” and “commercial activity” would apply only for purposes of the governmental plan rules under section 414(d) and not for any other purpose under the Code, including section 7871. The use of these terms is meant to provide guidance on the requirements of section 414(d) with respect to ITG plans, while maintaining flexibility and without directly impacting future guidance on section 7871.
These proposed regulations would define a governmental ITG plan as any plan that is established and maintained by an Indian tribal government, a subdivision of an Indian tribal government, or an agency or instrumentality of either, and all of its participants are employees substantially all of whose services are in the performance of governmental activities. The regulations would define a commercial ITG plan as a plan covering any ITG employees who perform substantial services in a commercial activity, such as a hotel, casino, service station, convenience store, or marina, which are examples of commercial activities that are listed in the Joint Committee on Taxation Technical Explanation to section 906 of PPA `06.
Under the proposed regulations, whether a plan of an ITG is a commercial plan or a governmental plan within the meaning of section 414(d) is based in part on (1) a determination of which activities are commercial activities and (2) a determination of whether employees of the Indian tribal government covered by the plan are employees who perform substantial services in commercial activities (and are thus commercial employees).
Under the first step, the proposed regulations would provide guidance for determining whether an activity operated by an ITG is a governmental activity or a commercial activity for purposes of section 414(d). This is achieved by listing certain specific activities that are deemed to be governmental or commercial for purposes of section 414(d). Specific governmental activities would include the following: (1) Activities that are related to public infrastructure, such as the building and maintaining of public roads and buildings; (2) activities that involve providing criminal protection services to the public (such as police and fire departments) or providing civil or public administrative service (such as providing public housing and operating public schools and hospitals, as well as managing the ITG's civil service system); and (3) activities subject to a treaty or special rules that pertain to trust land ownership and use. Under the regulations, operations involving a hotel, casino, service station, convenience store, and marina would be commercial activities. As discussed above, these activities are examples that are identified as commercial activities in Notices 2006-89 and 2007-67, as well as in the Joint Committee on
In addition to listing certain specified activities, the proposed regulations would provide a facts and circumstances test for determining whether an activity is a governmental or commercial activity. The proposed regulations provide that, in making a determination of whether an activity is a governmental activity, the factors to be considered include whether—
• The activity provides a public benefit to members of the Indian tribal government (not treating the generation of profits from commercial acts as providing a public benefit); and
• The absence of one or more of the relevant factors listed for a commercial activity as provided in these proposed regulations.
The proposed regulations also provide that, in making a determination of whether an activity is a commercial activity, the factors to be considered include whether—
• The activity is a type of activity that is operated to earn a profit;
• The activity is a type of activity that is typically performed by private businesses; and
• The activity is a type of activity where the customers are substantially from outside of the Indian tribal community, including whether the activity is located or conducted outside of Indian tribal land.
These proposed regulations also provide examples illustrating the application of the facts and circumstances tests to particular activities. Some examples of activities of an Indian tribal government that are commercial might include: (1) Operating a bank for a profit, serving tribal and non-tribal customers; (2) operating a trucking business for a profit; and (3) operating a factory producing goods for sale primarily to non-tribal customers. Conversely, examples of activities of an Indian tribal government that are governmental could include: (1) A community swimming pool on tribal land used primarily by tribal members; and (2) the operation of a cultural center and a museum on tribal land.
The proposed regulations would also delegate to the Commissioner of Internal Revenue the authority to publish guidance under section 414(d) that the Commissioner determines to be necessary or appropriate with respect to determining whether a plan of an Indian tribal government is a commercial ITG plan because the tribe's employees are performing services in an activity that the Commissioner determines to be a commercial activity. Any such guidance would be published in the form of revenue rulings, notices, or other guidance published in the Internal Revenue Bulletin (see § 601.601(d)(2)).
These proposed regulations would also provide rules for the second step, namely determining whether employees covered by an ITG plan are employees who perform substantially all of their services in activities that are governmental. For this purpose, the determination of whether an employee's services are for governmental or commercial activities would generally be based on the employee's assigned duties and responsibilities. In making this determination, the rules in these regulations would not require that a plan keep track of the individual hours worked by any employee or that the compensation of any particular employee be traced through the hours worked by that employee. The proposed regulations would provide that an employee whose assigned duties and responsibilities are in the performance of a governmental activity is treated as performing substantially all of his or her services in a governmental activity, and not treated as performing services for a commercial activity, even though the performance of those services for the governmental activity may temporarily involve significant time working in the commercial activity. For example, the chief financial officer (CFO) for an ITG may be expected to spend a substantial amount of time working on the financing for any casino, marina, or hotel to be built on the ITG's tribal lands, but, despite temporarily working in a commercial activity, the proposed regulations would provide that the CFO is a governmental employee of the ITG all of whose services are in that capacity.
The proposed regulations set forth rules for determining an employee's assigned duties and responsibilities, and thus when his or her services are substantially in the performance of a governmental or commercial activity. The analysis would start with the location of the employee's services in relation to the activity. The regulations provide that if a commercial activity has a specific location that is identifiable and is not associated with a governmental activity, any employee performing services at the location of activity is a commercial employee. One example is a security guard whose work is providing security services at a location which is an Indian tribal casino. In the case of an employee who works at a location other than a location where a commercial activity is being performed, the result would depend on the employee's assigned duties and responsibilities.
Another key part of the analysis is who pays the employee. If an employee is on the payroll of an ITG entity that is engaged in a commercial activity, the employee's assigned duties and responsibilities are treated as being for a commercial activity and, thus, the employee is a commercial ITG employee. For example, if a cashier is on the payroll of a convenience store (which is a commercial activity) owned by an ITG, the cashier is a commercial ITG employee. However, in the case of an employee who is not on a payroll of an ITG that engages in a commercial activity, the result would depend on the employee's assigned duties and responsibilities.
Where an employee neither works at a location where a commercial activity is being performed nor is on the payroll of a commercial entity, the result would depend on the employee's assigned duties and responsibilities, taking into account the facts and circumstances. Thus, for example, a bookkeeper located in a governmental building and paid through the general payroll of the ITG would nevertheless be a commercial employee if the facts and circumstances indicate that his or her assigned duties and responsibilities are to maintain the books and records for a hotel owned and operated by an ITG.
The statutory language in section 414(d) makes it clear that a plan is not a governmental ITG plan if it covers any employee who is a commercial ITG employee. There is no de minimis exception relating to this rule under section 414(d). In light of these circumstances, an ITG may choose to use caution when covering employees in a governmental plan. If, after applying the rules, an ITG plan sponsor is not certain whether an employee is a governmental ITG or commercial ITG employee, the ITG may choose to provide coverage for the employee in its commercial ITG plan in order to ensure the preservation of the status of the governmental ITG plan. Coverage of a governmental employee in a commercial plan would not adversely affect the qualified status of the commercial plan.
The proposed regulations provide that, in general, an ITG plan will not be treated as failing to satisfy the assignment of employee rules if the plan complies with those rules under a
Under these rules, there may be cases in which an employee is transferred from one ITG employer to another. An employee may also perform substantially all of his or her services in the performance of a governmental activity and later the employee's assigned duties and responsibilities may change, so that the employee is subsequently performing substantially all of his or her duties in the performance of a commercial activity. In addition, an employee may work two separate and distinct jobs, one in a commercial activity of an ITG and another in a governmental activity of an ITG (for example, an ITG employee who works as a full-time police officer and also works at the front desk in the lobby of a hotel over the weekends). For all of these scenarios, assuming the ITG maintains separate plans for its governmental and commercial employees, the ITG should assign the employee to either plan based on prorating service credits and allocating compensation between the governmental and commercial activities.
These proposed regulations do not address the rules under which, for purposes of sections 401, 408(k), 408(p), 410, 411, 415, and 416, all employees of all corporations that are members of a controlled group of corporations are treated as employed by a single employer for purposes of these controlled group rules. Note that, under current guidance, a reasonable, good faith interpretation standard applies with respect to governments. See Notice 89-23 (1989-1 CB 654) and Notice 96-64 (1996-2 CB 229), see § 601.601(d)(2) of this chapter.
The proposed regulations would apply to plan years beginning 6 months after publication of these regulations as final regulations. For plan years after the statutory effective date of the PPA '06 amendment of section 414(d) and prior to the effective date of these regulations as final regulations, a plan of an ITG would be treated as a governmental plan for purposes of section 414(d), providing that a reasonable, good faith effort is made to ensure that the plan satisfy the conditions for being a governmental plan under section 414(d), taking into account relevant guidance, including Notices 2006-89 and 2007-67. To the extent that a plan of an Indian tribal government complies with the requirements under either the notices or the proposed regulations, the plan will be treated as making a reasonable, good faith effort to satisfy the requirements of section 414(d).
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. In addition, because no collection of information is imposed on small entities, the provisions of the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply, and therefore, a Regulatory Flexibility Analysis is not required. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking will be submitted to the Small Business Administration for comment on its impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The Treasury Department and the IRS specifically request comments on the clarity of the proposed rules and how they can be made easier to understand. Comments are specifically requested on whether a correction mechanism under the Employee Plans Compliance Resolution System (EPCRS), as set forth in Rev. Proc. 2008-50 (2008-35 IRB 464), see § 601.601(d)(2), might be helpful for cases in which an employee substantially all of whose services are not in the performance of a governmental activity has nevertheless inadvertently become a participant in a plan purporting to be a governmental plan. For example, assuming the various conditions for self correction have been satisfied (see section 4.09 of Rev. Proc. 2008-50, which provides that the failure must be an operational failure which occurred by mistake or oversight, even though the plan had established practices and procedure to ensure qualification, and which is promptly corrected), the plan's assets and liabilities with respect to the employee might be transferred to a similar plan covering commercial employees under which the employee would accrue benefits up to the level that would have applied if he or she had participated in that commercial plan during the period when he or she was a commercial employee. All comments will be available for public inspection and copying.
A public hearing has been scheduled for (date to be provided when proposed regulations are published), beginning at 10 a.m. in the Auditorium, Internal Revenue Building, 1111 Constitution Avenue NW., Washington, DC. Due to building security procedures, visitors must enter at the main entrance, located at 1111 Constitution Avenue NW. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments must submit written or electronic comments and an outline of the topics to be discussed and time to be devoted to each topic (signed original and eight (8) copies) by (date to be provided when proposed regulations are published). A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving comments has passed. Copies of the agenda will be available free of charge at the hearing.
The principal author of these proposed regulations is Pamela R. Kinard, Office of Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities), Internal Revenue Service. However, personnel from other offices of the IRS and
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
(g)
(2)
(3)
(4)
(5)
(6)
(A) Activities that are related to the building and maintaining of public roads; public sidewalks, public buildings, and related areas, such as parking lots.
(B) Activities that are related to public sewer and drainage facilities, and related facilities such as a waste-water treatment plant.
(C) Activities relating to public works projects, such as schools and government buildings.
(D) Activities relating to public utilities, such as electricity and other power sources, including the development of newer and emerging technologies.
(E) Activities related to providing criminal protection services, such as police and fire departments, providing civil and public administrative services, such as operating and managing public housing, libraries, judiciary buildings, and administrative buildings, teaching in and managing public schools, managing and providing services at public hospitals and health clinics, operating the government's civil service system, and other related public services.
(F) Activities subject to a treaty or special rules that pertain to trust land ownership and use.
(ii)
(A) Whether the activity provides a public benefit to members of the Indian tribal government; and
(B) Whether there is the absence of one or more of the relevant factors listed for a commercial activity as provided in paragraph (g)(7) of this section.
(iii)
(i)
(ii)
(i)
(ii)
(7)
(A) Activities relating to the operation of a hotel.
(B) Activities relating to the operation of a casino.
(C) Activities relating to the operation of a service station.
(D) Activities relating to the operation of a convenience store.
(E) Activities relating to the operation of a marina.
(ii)
(A) Whether the activity is a type of activity that is operated to earn a profit.
(B) Whether the activity is a type of activity that is typically performed by private businesses.
(C) Whether the activity is a type of activity where the customers are substantially from outside of the Indian tribal community, including whether the activity is located or conducted outside of Indian tribal land.
(iii)
(iv)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(8)
(ii)
(iii)
(iv)
(v)
(vi)
(i)
(ii)
(i)
(ii)
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Notice of proposed rulemaking.
The Alcohol and Tobacco Tax and Trade Bureau (TTB) proposes to establish the approximately 198-square mile “Middleburg Virginia” viticultural area in Loudoun and Fauquier Counties in northern Virginia. TTB designates viticultural areas to allow vintners to better describe the origin of their wines and to allow consumers to better identify wines they may purchase. TTB invites comments on this proposed addition to its regulations.
TTB must receive written comments on or before January 9, 2012.
You may send comments on this notice to one of the following addresses:
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See the Public Participation section of this notice for specific instructions and requirements for submitting comments, and for information on how to request a public hearing.
You may view copies of this notice, selected supporting materials, and any comments TTB receives about this proposal at
Elisabeth C. Kann, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW., Box 12, Washington, DC 20005;
Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act requires that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels, and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the regulations promulgated under the FAA Act.
Part 4 of the TTB regulations (27 CFR part 4) allows the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission of petitions for the establishment or modification of American viticultural areas and lists the approved American viticultural areas.
Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features as described in part 9 of the regulations and a name and a delineated boundary as established in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to its geographic origin. The establishment of viticultural areas allows vintners to describe more accurately the origin of their wines to
Section 4.25(e)(2) of the TTB regulations outlines the procedure for proposing an American viticultural area and provides that any interested party may petition TTB to establish a grape-growing region as a viticultural area. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes standards for petitions for the establishment or modification of American viticultural areas. Such petitions must include the following:
• Evidence that the area within the proposed viticultural area boundary is nationally or locally known by the viticultural area name specified in the petition;
• An explanation of the basis for defining the boundary of the proposed viticultural area;
• A narrative description of the features of the proposed viticultural area that affect viticulture, such as climate, geology, soils, physical features, and elevation, that make it distinctive and distinguish it from adjacent areas outside the proposed viticultural area boundary;
• A copy of the appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed viticultural area, with the boundary of the proposed viticultural area clearly drawn thereon; and
• A detailed narrative description of the proposed viticultural area boundary based on USGS map markings.
In August 2008, TTB first received a petition from Rachel E. Martin, executive vice president of Boxwood Winery in Middleburg, Virginia, proposing the establishment of the “Middleburg Virginia” American viticultural area in portions of Loudoun and Fauquier Counties in northern Virginia. The petition states that the proposed viticultural area derives its name from the Town of Middleburg, Virginia, and it is bounded by the Potomac River to the north and by mountains to the east, south, and west. The 2008 petition notes that the proposed viticultural area covers approximately 190-square miles (121,600 acres) and contains 229 acres of commercial vineyards and 12 wineries.
In July 2009, Ms. Martin submitted to TTB a modification to the proposed Middleburg Virginia viticultural area boundary line in order to include several additional vineyards within the proposed area. The modification increased the proposed viticultural area by 1,920 acres in the Burnt Mill Run area, east of Zulla, on the USGS Rectortown map. According to the petitioner, the additional acreage has the same distinguishing features as the originally proposed viticultural area. With the petitioner's modified boundary line, the proposed Middleburg Virginia viticultural area contains 251 acres of commercial grape growing in 10 vineyards and 14 wineries. With the petitioner's agreement, TTB also made several small modifications to the originally-proposed boundary line in order to better match the provided maps with the petition's narrative boundary description. These changes were made in the vicinity of the town of Marshall and Little Cobbler Mountain and then near the hamlet of Airmont along Route 734. TTB estimates that the proposed Middleburg Virginia viticultural area, as described in below, covers approximately 198-square miles (or 126,720 acres). TTB also notes that the proposed viticultural area does not overlap or otherwise affect any established or proposed American viticultural area.
Unless otherwise noted, all information and data contained in the below sections are from the petition for the proposed Middleburg Virginia viticultural area and its supporting exhibits.
The Town of Middleburg is located in southern Loudoun County along U.S. Route 50, to the immediate north of Fauquier County and to the west of Washington, DC, according to maps submitted with the petition. The Town of Middleburg was established in 1787 by Leven Powell, who was a soldier and statesman (“Colonel John Leven Powell Returns to Middleburg,” Audrey Windsor Bergner, Middleburg Press, 1995). Originally named “Chinn's Crossroads” after Joseph Chinn, Lt. Col. Powell renamed the town Middleburg, most likely because it was the midpoint on the trade route between the seaport of Alexandria, Virginia, and inland Winchester, Virginia (
The petitioner submitted several documents as evidence of the Middleburg name and its association with the proposed viticultural area. In one magazine, the Middleburg area is cited as an internationally renowned equestrian center (“The Chronicle of the Horse,” June 20, 2008). In addition, a June 2011 article from Washingtonian Magazine that was submitted by the petitioner as a supplemental exhibit features the Middleburg region in an article entitled “Best of Middleburg,” which includes a “Grape Adventures” section that highlights some of the wineries located within the proposed Middleburg Virginia viticultural area (“Best of Middleburg—Grape Adventures,” Lydia Strohl, Washingtonian Magazine, June 2011). Further, two local monthly newspapers for the Middleburg area, Middleburg Eccentric and Middleburg Life, contain various news articles, event listings, advertisements, and real estate listings for locations within the proposed Middleburg Virginia viticultural area.
Tourism guides for the region also contain references to places throughout the proposed Middleburg Virginia viticultural area. One visitors' guide contains information about special events, day trips, lodging, dining, and shopping in the greater Middleburg area, which includes areas outside the Town of Middleburg that are located within the proposed viticultural area (“Visitor's Guide to Middleburg, Virginia,” revised in 2006). Another visitor's guide for the Middleburg region contains photographs of historical buildings, touring information, and a map of the Middleburg area (“Destination Middleburg—A Walking Tour into the Past,” Middleburg Beautification and Preservation, Inc., October 2001). TTB adds that the official tourism Web site for the Commonwealth of Virginia lists a variety of places to visit, dine, and stay that are located throughout the proposed Middleburg Virginia viticultural area under its listing for “Middleburg” (available at
As noted above, the proposed Middleburg Virginia viticultural area is located entirely within the Commonwealth of Virginia in portions of Loudoun and Fauquier Counties. The USGS maps show that the shared Loudoun-Fauquier County boundary line runs west-northwest to east-southeast through the proposed viticultural area, south of the Town of Middleburg. The Potomac River, which separates Maryland from Virginia, forms the northern portion of the proposed viticultural area's boundary line. The proposed eastern, southern, and western portions of the boundary line are based on geographical features that mark the transition from wooded, rolling hills with many creeks to more mountainous areas, specifically, Catoctin and Bull Run Mountains to the east, Watery,
The distinguishing features of the proposed Middleburg Virginia viticultural area are its climate, topography, geology, and soils.
The geographical location and terrain of the proposed Middleburg Virginia viticultural area result in a unique microclimate within the larger northern Virginia region. Climatic data for the 2005 and 2006 average growing seasons (April 1 to October 31) for the proposed viticultural area distinguish it from the surrounding regions (data compiled by the petitioner from the National Oceanic and Atmospheric Administration, U.S. Meteorological Department, and Weather Underground,
As shown by the maximum and minimum temperatures in the above table, the proposed Middleburg Virginia viticultural area has both cooler highs and warmer lows than the surrounding regions during the growing season. As a result, the proposed viticultural area has a more moderated growing season climate than the surrounding areas. TTB notes that the moderated growing season temperatures contribute to developing consistent grape growth and achieving maturity for harvest before the onset of freezing temperatures. The proposed Middleburg Virginia viticultural area is generally cooler than the surrounding areas in Virginia as evidenced by its lower number of growing degree days, according to the above table.
The table also shows that the average total precipitation for the proposed Middleburg Virginia viticultural area growing season is 25.55 inches, which is greater than the growing season precipitation totals for the surrounding Hagerstown, Winchester, Culpeper, Leesburg, Dulles, and Manassas areas, at 16.60, 19.92, 21.03, 18.78, 30.38, and 17.36 inches, respectively. Based on the data in the table, the Middleburg Virginia viticultural area receives significantly more growing season precipitation than the surrounding areas except for the Dulles area the east, which receives almost 5 inches more precipitation during the growing season.
The table further shows that the wind speed average for the proposed Middleburg Virginia viticultural area is 2.25 miles per hour (mph), which is significantly less than the wind speed averages for the surrounding Hagerstown, Winchester, Leesburg, Dulles, and Manassas areas, at 6.5, 3.5, 3.0, 6.0, and 2.6 mph, respectively (although it is greater than the wind speed average for the Culpeper area to the south, at 1.5 mph). The moderate winds in the proposed viticultural area, which consist of gentle western breezes from the Ashby Gap in the Blue Ridge Mountains, dissipate the morning fog, lessen the effect of frost, and reduce mildew during the growing season.
The terrain of the proposed Middleburg Virginia viticultural area generally contains rolling hills, woods, and many creeks. It is located within the Blue Ridge Anticlinorium, between the Blue Ridge Mountains to the west and the Catoctin and Bull Run Mountains to the east. As shown on the USGS maps, elevations within the proposed viticultural area range from 220 feet (along the Potomac River shoreline, which forms the northern portion of the proposed boundary line) to 1,470 feet (at the peak of Naked Mountain in the southwest corner of the proposed viticultural area). According to the USGS maps, the southern portion of the proposed viticultural area trends southeast to southwest toward the foothills of the Blue Ridge Mountains and gradually gains in elevation.
As shown on the USGS maps submitted with the petition, the steep slopes of the 600- to 890-foot Catoctin Mountain ridge are located to the east of the proposed boundary line of the Middleburg Virginia viticultural area. The 700- to 1,370-foot Bull Run Mountains are located to the southeast, which contrast with the 450- to 550-foot gently mounded hills, rolling terrain, and spring-fed ponds and lakes within the proposed viticultural area, according to the USGS maps.
The USGS maps also show that the 900- to 1,340-foot Watery Mountains are located to the south of the boundary line of the proposed viticultural area. By contrast, the land formations within the southern portion of the proposed viticultural area are less undulating, a feature that is important for a vineyard site, according to Alex Blackburn, the certified soil scientist who compiled the soils data for the petition (see “Soils,” below).
The Little Cobbler, Red Oak, and Hard Scrapple Mountains, which are heavily wooded with steep slopes ranging in elevation from 800 to 1,300 feet, are located to the southwest of the proposed viticultural area. This area is not recommended for grape growing because of erosion hazards and the difficulty of cultivation along the sleep slopes of the region, according to Mr. Blackburn.
According to the USGS maps, the steep terrain and ridgelines of the 1,200- to 1,800 foot Blue Ridge Mountains are located to the west of the proposed boundary line. The higher elevations and mountainous terrain of the Blue
The Potomac River is immediately to the north of the northern portion of the proposed boundary line, flowing eastward into the Chesapeake Bay, as indicated on the USGS maps. North of the Potomac River, the terrain in Maryland is similar to that of the proposed viticultural area.
A geology map submitted with the petition shows that the proposed Middleburg Virginia viticultural area is underlain predominantly by fractured granite and gneiss bedrock with scattered, small greenstone dykes (“Middleburg Virginia AVA Geology and Soil Association Map,” Loudoun County Department of Building and Development, National Resources Division, and the Fauquier County GIS Department, undated). According to the Mr. Blackburn, the granite and gneiss bedrock underlying the proposed Middleburg Virginia viticultural area produce soils that are generally lower in natural fertility and water availability, which reduces problems related to vine vigor and produces better fruit quality. The boundary line of the proposed Middleburg Virginia viticultural area largely follows the distinctive geology of the area, which contrasts to the geology of the surrounding regions.
The Potomac River and Maryland are located to the north of the proposed Middleburg Virginia viticultural area. In Maryland, the intrusions of greenstone resembling Catoctin greenstone are more numerous than those in the granites and gneisses in the proposed viticultural area. The greenstone intrusions to the north are so numerous that they more closely resemble the Catoctin greenstone formation that is located to the east, southeast, and west of the proposed viticultural area.
The regions to the east of the proposed Middleburg Virginia viticultural area are dominated by the Catoctin Formation, which consists of mostly greenstone and charnokytes, and also some acidic quartzite. The Catoctin Formation continues to the Antietam Formation, which underlies the Bull Run Mountains. To the southeast of the proposed viticultural area, the bedrock consists of schist and phylites (ibid.). An area of the same granite and gneiss bedrock formations as those within the proposed viticultural area lies to the southwest of the proposed boundary line, although those areas are at higher elevations and are not well-suited for grape growing.
To the west of the proposed Middleburg Virginia viticultural area, granites and gneisses continue to units of the Catoctin Formation, both of which form the Blue Ridge Mountains. The Ridge and Valley province, consisting of folded sedimentary rocks, begins on the western side of the Blue Ridge Mountains.
The soils evidence in the petition was documented by Mr. Blackburn, with contributions from Jim Sawyer, Head Soil Specialist, Fauquier County, Virginia, and Frederick M. Garst, GIS Specialist, USDA-NRCS, Harrisonburg, Virginia. The table below, which is based on that documentation, compares the extent of the dominant soils of the proposed Middleburg Virginia viticultural area both within and outside of the proposed viticultural area.
As indicated in the above table and in a map included with the petition, the Purcellville-Tankerville-Middleburg and the Tankerville-Philomont soil associations are the dominant soil associations in the proposed viticultural area. These soils formed in the granite and gneiss bedrock of the proposed viticultural area, with some occasional greenstone dyke. Messrs. Sawyer and Garst noted that the dominant soil characteristics and prevalent geological properties distinguish the proposed Middleburg Virginia viticultural area from the surrounding areas.
The Purcellville soils are very deep and well-drained, with moderate available water capacity, or water available to plants. Tankerville soils are moderately deep and well-drained to excessively drained, with a lower available water capacity than Purcellville soils. Philomont soils, formed in relatively coarser granite than that in which Purcellville and Tankerville soils formed, are very deep and well-drained, with low available water capacity. Compared to the surrounding areas, the soils in the proposed viticultural area are generally lower in natural fertility and in available water capacity. According to Mr. Blackburn, these four soils are among the best in the Blue Ridge Physiographic Province for fruit production, and grapevines grown in these soils have better quality fruit with few vigor problems. However, vineyard blocks containing these soils must be sited on specific landforms with good natural drainage that are not easily erodible or susceptible to frost.
The soils of lesser extent in the proposed Middleburg Virginia viticultural area include Mongle, Codorus, and Hatboro soils (13 percent of the total land area); Swampoodle and Purcellville soils (11 percent); and Eubanks soils (6.5 percent). The Mongle, Codorus, Hatboro, and Swampoodle soils are moderately well-drained to very poorly drained and are located in flood plains or other low-lying areas that are generally unsuited to grape production. The Eubanks soils are very deep and well-drained, with moderate available water capacity.
Most of the soils outside of the proposed viticultural area are different because they formed in rocks that are different from those in the proposed Middleburg Virginia viticultural area. To the north, in Maryland, the soils formed in bedrock with increased greenstone intrusions. The greenstone intrusions affect soil fertility and
Thus, as compared to the soils in the proposed viticultural area, the soils in the surrounding areas would require different vineyard management, produce different yields, and result in different vine growth and fruit quality.
TTB concludes that the petition to establish the approximately 190-square mile “Middleburg Virginia” viticultural area merits consideration and public comment as invited in this notice.
See the narrative boundary description of the petitioned-for viticultural area in the proposed regulatory text published at the end of this notice.
The petitioner provided the required maps, and TTB lists them below in the proposed regulatory text.
Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. If TTB establishes this proposed viticultural area, its name, “Middleburg Virginia,” will be recognized as a name of viticultural significance under 27 CFR 4.39(i)(3). The text of the proposed regulation clarifies this point. Consequently, wine bottlers using “Middleburg Virginia” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use the viticultural area's name as an appellation of origin.
On the other hand, TTB does not believe that any single part of the proposed viticultural area name standing alone, that is, “Middleburg” or “Virginia,” would have viticultural significance in relation to this proposed viticultural area because: (1) According to Geographic Names Information Service, the “Middleburg” area name refers to 73 locations in 14 States, including 22 populated places within the United States, so TTB believes that a determination of “Middleburg” as a term of viticultural significance could lead to consumer and industry confusion and should be avoided; and (2) “Virginia,” standing alone, is locally and nationally known as referring to the Commonwealth of Virginia, which is already a term of viticultural significance as a state-wide appellation of origin under 27 CFR 4.25(a)(1)(ii), which provides that a State is an American appellation of origin, and 27 CFR 4.39(i)(3), which states that “[a] name has viticultural significance when it is the name of a state * * *.” Therefore, the proposed part 9 regulatory text set forth in this document specifies only “Middleburg Virginia” as a term of viticultural significance for purposes of part 4 of the TTB regulations.
For a wine to be eligible to use a viticultural area name as an appellation of origin or a term of viticultural significance in a brand name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name or term, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible to use the viticultural area name as an appellation of origin and that name or other term of viticultural significance appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the viticultural area name or other term of viticultural significance appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label.
Different rules apply if a wine has a brand name containing a viticultural area name or other term of viticultural significance that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.
TTB invites comments from interested members of the public on whether TTB should establish the proposed viticultural area. TTB is also interested in receiving comments on the sufficiency and accuracy of the name, boundary, climatic, and other required information submitted in support of the petition. Please provide any available specific information in support of your comments.
Because of the potential impact of the establishment of the proposed Middleburg Virginia viticultural area on wine labels that include the words “Middleburg Virginia” as discussed above under Impact on Current Wine Labels, TTB is also particularly interested in comments regarding whether there will be a conflict between the proposed viticulturally significant terms and currently used brand names. If a commenter believes that a conflict will arise, the comment should describe the nature of that conflict, including any anticipated negative economic impact that approval of the proposed viticultural area will have on an existing viticultural enterprise. TTB is also interested in receiving suggestions for ways to avoid conflicts, for example by adopting a modified or different name for the viticultural area.
You may submit comments on this notice by using one of the following three methods:
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Please submit your comments by the closing date shown above in this notice. Your comments must reference Notice No. 123 and include your name and mailing address. Your comments also must be made in English, be legible, and be written in language acceptable for public disclosure. TTB does not acknowledge receipt of comments, and TTB considers all comments as originals.
If you are commenting on behalf of an association, business, or other entity, your comment must include the entity's name as well as your name and position
You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine whether to hold a public hearing.
All submitted comments and attachments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider to be confidential or that is inappropriate for public disclosure.
On the Federal e-rulemaking portal, Regulations.gov, TTB will post, and the public may view, copies of this notice, selected supporting materials, and any electronic or mailed comments TTB receives about this proposal. A direct link to the Regulations.gov docket containing this notice and the posted comments received on it is available on the TTB Web site at
You and other members of the public may view copies of this notice, all related petitions, maps and other supporting materials, and any electronic or mailed comments TTB receives about this proposal by appointment at the TTB Information Resource Center, 1310 G Street NW., Washington, DC 20005. You may also obtain copies at 20 cents per 8.5- × 11-inch page. Contact TTB's information specialist at the above address or by telephone at (202) 453-2270 to schedule an appointment or to request copies of comments or other materials.
TTB certifies that this proposed regulation, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.
This proposed rule is not a significant regulatory action as defined by Executive Order 12866. Therefore, it requires no regulatory assessment.
Elisabeth C. Kann of the Regulations and Rulings Division drafted this notice.
Wine.
For the reasons discussed in the preamble, TTB proposes to amend title 27, chapter I, part 9, Code of Federal Regulations, as follows:
1. The authority citation for part 9 continues to read as follows:
27 U.S.C. 205.
2. Subpart C is amended by adding § 9.____ to read as follows:
(a)
(b)
(1) Harpers Ferry Quadrangle, West Virginia-Virginia-Maryland, 1996;
(2) Point of Rocks Quadrangle, Maryland-Virginia, 1970, photoinspected 1981;
(3) Waterford Quadrangle, Virginia-Maryland, 1970, photorevised 1984;
(4) Purcellville Quadrangle, Virginia-Loudoun Co., 1970, photorevised 1984;
(5) Lincoln Quadrangle, Virginia-Loudoun Co., 1970, photoinspected 1981;
(6) Middleburg Quadrangle, Virginia, 1968, photorevised 1978, photoinspected 1981;
(7) Rectortown Quadrangle, Virginia, 1970, photoinspected 1981;
(8) Marshall Quadrangle, Virginia-Fauquier Co., 1970, photorevised 1983;
(9) Orlean Quadrangle, Virginia, 1970, photorevised 1983;
(10) Upperville Quadrangle, Virginia, 1970, photorevised 1983;
(11) Linden Quadrangle, Virginia, 1994;
(12) Ashby Gap Quadrangle, Virginia, 1970, photorevised 1978, photoinspected 1981; and
(13) Bluemont Quadrangle, Virginia, 1970, photorevised 1979; photoinspected 1981.
(c)
(1) The beginning point is on the Harpers Ferry map at the intersection of the easternmost boundary line of the Harpers Ferry National Historical Park and the south bank of the Potomac River in Loudoun County, Virginia. From the beginning point, follow the south bank of the Potomac River easterly (downstream) for approximately 8.2 miles, crossing onto the Point of Rocks map, to the mouth of Catoctin Creek; then
(2) Proceed southwesterly (upstream) along the meandering Catoctin Creek for approximately 4 miles to State Route 663 (locally known as Taylorstown Road) at Taylorstown; then
(3) Proceed easterly on State Route 663 for approximately 0.1 mile to State Route 665 (locally known as Loyalty Road) in Taylorstown; then
(4) Proceed southerly on State Route 665 for approximately 5.4 miles, crossing onto the Waterford map, to State Route 662 on the south side of Waterford; then
(5) Proceed southerly on State Route 662 for approximately 2.5 miles to State Route 9 (locally known as Charles Town Pike) near Paeonian Springs; then
(6) Proceed southerly on State Route 9 (Charles Town Pike) for approximately 0.7 mile, crossing over State Route 7 (locally known as Harry Byrd Highway), to State Business Route 7 (locally known as E. Colonial Highway); then
(7) Proceed westerly on State Business Route 7 (E. Colonial Highway) for approximately 0.4 mile to the road's intersection with the continuation of State Route 662 (locally known as Canby Road); then
(8) Proceed southerly on State Route 662 (Canby Road) for approximately 4 miles, crossing over the southwest corner of the Purcellville map onto the Lincoln map, to State Route 729; then
(9) Proceed southwesterly on State Route 729 for approximately 2.8 miles to the State Route 729 bridge at North Fork Creek; then
(10) Proceed southeasterly (downstream) along the meandering North Fork Creek for approximately 4 miles to the confluence of North Fork Creek with Goose Creek; then
(11) Proceed southwesterly (upstream) along the meandering Goose Creek for approximately 5.6 miles to State Route 734 at Carters Bridge; then
(12) Proceed southeasterly on State Route 734 for approximately 2.4 miles, crossing onto the Middleburg map, to State Route 629; then
(13) Proceed southerly on State Route 629 for approximately 1 mile to the road's intersection with U.S. Route 50 at BM 341 at Dover, then continue in a straight line due south for approximately 150 feet to the Little River; then
(14) Proceed southwesterly (upstream) along the meandering Little River for approximately 8 miles to the State Route 626 bridge at Halfway; then
(15) Proceed northwesterly on State Route 626 for approximately 0.3 mile to State Route 706, and then continue northwesterly on State Route 706 for approximately 1.6 miles, crossing onto the Rectortown map, to Burnt Mill Run; then
(16) Proceed west-southwesterly (upstream) along Burnt Mill Run for approximately 0.4 mile to State Route 705; then
(17) Proceed south-southwesterly on State Route 705 for approximately 0.5 mile to State Route 715; then
(18) Proceed west-northwesterly on State Route 715 for approximately 0.4 mile to State Route 709 at Zulla; then
(19) Proceed south-southwesterly on State Route 709 for approximately 4.6 miles, crossing onto the Marshall map, to Interstate Highway 66 (0.6 mile south of Brookes Corner); then
(20) Proceed west-northwesterly on Interstate Highway 66 for approximately 4.0 miles, crossing onto the Orlean map, to State Route 732 (locally known as Ramey Road); then
(21) Proceed westerly on State Route 732 approximately 2 miles to State Route 731 (locally known as Ashville Road) near Ashville; then
(22) From the intersection of State Routes 732 and 731, proceed northwesterly in a straight line, crossing onto the Upperville map, to the marked 1,304-foot peak on Little Cobbler Mountain, then northerly in a straight line to the marked 1,117-foot peak on Little Cobbler Mountain, and then continue northerly in a straight line to the marked 771-foot peak near the northern end of Little Cobbler Mountain; then
(23) Proceed west in a straight line for approximately 2.7 miles to the 595-foot elevation point on State Route 724, southeast of Markham, and continue west in a straight line for approximately 3.1 miles, crossing onto the Linden map, to the point where the line meets the intersection of State Route 726 and an unnamed side road (near a cemetery), approximately 0.7 mile southwest of the intersection of State Route 726 and State Route 55 (near Belle Meade); then
(24) Proceed northeasterly along State Route 726 for approximately 0.7 mile to State Route 55; then
(25) Proceed east-northeast in a straight line for approximately 1.7 miles to the point where the line meets State Route 688 at BM 629 in Wildcat Hollow; then
(26) Proceed northerly and then northeasterly on State Route 688 for approximately 5.5 miles, crossing over and back between the Linden and Upperville maps and then continuing on the Upperville map, to the road's intersection with U.S. Route 17; then
(27) Proceed northerly on U.S. Route 17 for approximately 2.0 miles, crossing onto the Ashby Gap map, to U.S. Route 50 (just east of Paris); then
(28) Proceed east-northeasterly in a straight line for approximately 1.5 miles to the marked 797-foot elevation point located along State Route 618 at a fork in the road approximately 0.65 miles north of U.S. Route 50; then
(29) Proceed southeasterly in a straight line for approximately 0.9 mile to U.S. Route 50 at BM 625, which is located at a bridge over an unnamed branch of Panther Skin Creek; then
(30) Proceed south-southeasterly in a straight line for approximately 2.9 miles, crossing onto the Upperville map, to the intersection of State Routes 712 and 710 at Kerfoot; then
(31) Proceed southeasterly on State Route 710 for approximately 2.5 miles, crossing onto the Rectortown map, to the State Route 710 bridge over Goose Creek; then
(32) Proceed northeasterly (downstream) along the meandering Goose Creek for approximately 10.9 miles to State Route 626 at Bentons Bridge; then
(33) Proceed northwesterly on State Route 626 for approximately 4.0 miles, crossing onto the Bluemont map, to State Route 630 at Unison; then
(34) Proceed northeasterly on State Route 630 for approximately 0.75 mile to Dog Branch; then
(35) Proceed northwesterly along Dog Branch for approximately 1.75 miles to State Route 719; then
(36) Proceed north-northeasterly on State Route 719 for approximately 2 miles to State Route 734 at Airmont; then
(37) Proceed east-southeasterly on State Route 734 for approximately 0.7 mile to State Route 735; then
(38) Proceed northeasterly on State Route 735 for approximately 2 miles to State Route 725; then
(39) Proceed north-northeasterly in a straight line for approximately 4.4 miles, crossing over the northwest corner of the Lincoln map and then onto the Purcellville map, to the intersection of State Routes 711 and 690, (northwest of Purcellville); then
(40) Proceed north-northeasterly on State Route 690 for approximately 3.1 miles to State Route 9, then proceed east on State Route 9 for approximately 0.2 mile to the continuation of State Route 690, then proceed northerly on State Route 690 for approximately 5.3 miles, crossing onto the Harpers Ferry map, to the road's intersection with the 600-foot elevation line immediately south of the road's marked 592-foot elevation point (located 0.75 mile east-northeast of the radio facilities at the 1,424-foot peak of Short Hill Mountain); then
(41) Proceed northerly along the 600-foot elevation line for approximately 4 miles to the intersection of the 600-foot elevation line with the Harpers Ferry National Historical Park south boundary, approximately 0.2 mile south of the point where the Washington and Frederick Counties, Maryland, boundary line intersects with the south bank of the Potomac River; then
(42) Proceed east and north approximately 0.75 mile along the Harpers Ferry National Historical Park boundary line, returning to the south bank of the Potomac River and the beginning point.
Financial Crimes Enforcement Network (“FinCEN”), Treasury.
Notice of proposed rulemaking.
FinCEN, a bureau of the Department of the Treasury (“Treasury”), is issuing proposed rules defining certain housing government sponsored enterprises as financial institutions for the purpose of requiring them to establish anti-money laundering programs and report suspicious activities pursuant to the Bank Secrecy Act. The proposal to require these organizations to establish anti-money laundering programs and report suspicious activities is intended to help prevent fraud and other financial crimes.
Written comments on this notice of proposed rulemaking (“NPRM”) must be submitted on or before January 9, 2012.
You may submit comments, identified by Regulatory Identification Number (RIN) 1506-AB14, by any of the following methods:
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The FinCEN regulatory helpline at (800) 949-2732 and select Option 6.
The Bank Secrecy Act (“BSA”)
The BSA defines the term “financial institution.”
With the enactment of 31 U.S.C. 5318(g) in 1992,
The Secretary may require any financial institution, and any director, officer, employee, or agent of any financial institution, to report any suspicious transaction relevant to a possible violation of law or regulation.
As amended by the USA PATRIOT Act, the BSA requires financial institutions to establish AML programs that include, at a minimum: (1) The development of internal policies, procedures, and controls; (2) the designation of a compliance officer; (3) an ongoing employee training program; and (4) an independent audit function to test programs.
FinCEN has promulgated AML program and Suspicious Activity Report (“SAR”) regulations for a number of financial institutions. These financial institutions include banks, brokers or dealers in securities, mutual funds, insurance companies, futures commission merchants and introducing brokers in commodities, money services businesses, and casinos.
FinCEN has placed efforts to combat mortgage fraud and related criminal activity as one of its highest priorities in recent years. FinCEN's efforts have included the analysis of SARs and other data reported to FinCEN, often together with other data sets and information available to the Government, to support and inform regulatory and law enforcement investigations, proceedings and prosecutions at the Federal, State and local levels. Since 2006, FinCEN has published a broad range of information focused on mortgage fraud in order to advise on trends and patterns, and to provide indicators to help the financial industry protect itself against fraud and other financial crime.
Fraud in the residential mortgage markets may occur in a variety of situations, affecting a variety of actors. Fraud may occur at the loan origination stage, involving material misrepresentations or omissions, false statements, straw buyers, false appraisals, identity theft, etc.
FinCEN continues to support broader Administration efforts to combat mortgage fraud and mitigate vulnerabilities to abuse. On April 6, 2009, Treasury Secretary Geithner, together with the Attorney General, Housing and Urban Development Secretary and others, announced a multi-agency crackdown targeting loan modification fraud and foreclosure rescue scams; this included a new FinCEN-led effort to “marshal information about possible fraudulent actors, drawing upon a variety of data available to law enforcement, regulatory agencies, and the consumer protection community, for the purpose of identifying and proactively referring potential criminal targets to participating law enforcement authorities.”
In November 2009, President Obama established the Financial Fraud Enforcement Task Force (“FFETF”) to hold accountable those who helped bring about the last financial crisis, and to prevent another crisis from happening.
By this NPRM, FinCEN proposes AML program and SAR requirements for the Federal National Mortgage Association (“Fannie Mae”), the Federal Home Loan Mortgage Corporation (“Freddie Mac”), and the Federal Home Loan Banks (“Banks”) (collectively, the “Housing Government Sponsored Enterprises” or “Housing GSEs”). FinCEN believes that the proposed regulations would augment FinCEN's initiatives in this area.
The Federal Housing Finance Regulatory Reform Act of 2008 (the “Reform Act”)
FHFA has regulatory authority over Fannie Mae, Freddie Mac and the Banks (collectively referred to in FHFA regulations as the “regulated entities”), and over the Office of Finance of the Federal Home Loan Bank System.
Fannie Mae and Freddie Mac were chartered by Congress primarily to establish secondary market facilities for residential mortgages.
The Federal Home Loan Banks were organized under the Federal Home Loan Bank Act (“Bank Act”).
This NPRM would define financial institution for certain purposes of the BSA to include the Housing GSEs. Specifically, this NPRM proposes SAR requirements and AML program requirements.
The BSA does not expressly enumerate any of the Housing GSEs among the entities defined as “financial institutions” under the BSA.
The Housing GSEs work closely with other BSA-defined financial institutions—in fact the majority of their members or servicers are commercial banks, thrifts, credit unions and insurance companies. Many of the products and services offered by the Housing GSEs can be viewed as substitutes for or related to products and services offered by commercial banks and nonbank financial institutions included in the statutory definition under 31 U.S.C. 5312(a)(2).
The main role of the Housing GSEs is to support the primary mortgage market and affordable housing programs through the purchase, guarantee and securitization of mortgage loans, and the extension of loans (known as “advances” in the Federal Home Loan Bank System) secured primarily by mortgage loans and real estate related assets. Typically, a significant portion of these mortgage loans are made by
FinCEN believes, as discussed above, that the Housing GSEs engage in activities that are “similar to, related to, or a substitute for” financial services that are provided by other BSA-defined financial institutions. For this reason, FinCEN is proposing to exercise its authority under 31 U.S.C. 5312(a)(2)(Y) to define these entities as financial institutions. As explained more fully below, this rulemaking would define Housing GSEs as financial institutions for the purpose of requiring them to establish AML programs and file SARs. This NPRM is supported by the FHFA, their primary regulator.
While this NPRM proposes to define the Housing GSEs as “financial institutions” under our BSA authority, the Housing GSEs will not be considered “Financial Institutions” within the regulatory meaning of the term under FinCEN's regulations at 31 CFR 1010.100(t). Placement within the regulatory definition of “Financial Institution” would trigger other recordkeeping and reporting requirements that FinCEN does not consider appropriate for the Housing GSEs at this time. The term Housing Government Sponsored Enterprise is proposed to be added as a new defined term at 31 CFR 1010.100(lll).
In light of FinCEN's efforts to combat mortgage fraud, money laundering and terrorist financing, and the anticipated value of adding information to FinCEN's database to support law enforcement, FinCEN requests comment about whether there are other types of mortgage related businesses and professions that might encounter similar risks and vulnerabilities to those presented by the Housing GSEs. Specifically, FinCEN requests comment on whether there are other entities that engage in mortgage related activities that are “similar to, related to, or a substitute for” financial services that are provided by BSA-defined financial institutions that should be defined as financial institutions under the BSA in subsequent rulemakings; for example: Private mortgage insurers and reinsurers, mortgage servicers, and other types of businesses in the primary and secondary mortgage markets.
FinCEN also requests comments about whether it would be appropriate to include in a Final Rule any provisions that account for the differences in the business, operation and mission of the Banks and Fannie Mae and Freddie Mac.
Under the rules proposed by this NPRM, the Housing GSEs would be required to file SAR forms directly with FinCEN, as do other financial institutions subject to SAR filing regulations. FinCEN expects that the transition to compliance with FinCEN's regulation will not be difficult or costly, because the Housing GSEs already have policies, procedures and training programs in place to comply with the FHFA's current fraud reporting regulation, which is very similar to the proposed SAR reporting regulation.
As part of a final rule adopted on January 27, 2010, FHFA issued new fraud reporting regulations, codified at 12 CFR part 1233, “Reporting of Fraudulent Financial Instruments.”
Accordingly, FinCEN believes that most, if not all, of the Housing GSEs should already have anti-fraud programs in place that would satisfy most of FinCEN's AML program and SAR regulatory requirements. The only additional actions that may be required to comply with the proposed regulations (in addition to reporting a wider range of suspected financial crime than is currently required) would be minor modifications to existing policies and procedures to formalize and implement two of FinCEN's regulatory requirements that are not expressly required under the FHFA's regulations; specifically: (1) The appointment of a compliance officer to monitor for compliance with FinCEN's regulations, and (2) periodic independent testing to monitor for compliance. Housing GSEs that anticipate the need to submit a relatively low number of SAR forms may establish procedures to submit individual forms via FinCEN's established systems, so that the Housing GSE likely may be able to file SARs without reliance on, or changes to, their existing systems. FinCEN will issue guidance, if necessary, to clarify FinCEN's regulations and assist the Housing GSEs with compliance related matters.
Upon the designation of the Housing GSEs as “financial institutions” under the BSA, the Housing GSEs, as well as their directors, officers, and employees, and agents will become subject to the BSA's liability safe harbor for financial institutions that file SARs at 31 U.S.C. 5318(g)(3). This safe harbor is intended to encourage financial institutions to report suspicious activities, even if, as here, the proposed SAR regulation will likely require reporting of a wider range of suspected fraud, money laundering and financial crimes related to the products and services offered by the Housing GSEs than those entities are currently accustomed to report.
FinCEN further requests comment about whether there are other types of entities that engage in mortgage related activities that should be defined as financial institutions or loan or finance companies under the BSA in subsequent rulemakings, as part of FinCEN's incremental approach, discussed in more detail in the proposed rulemaking Anti-Money Laundering Program and Suspicious Activity Report Filing Requirements for Residential Mortgage Lenders and Originators,
Section 1010.100(lll) defines the key terms used in the proposed rules. The definitions reflect FinCEN's determination that AML program and SAR requirements should be applied to the Housing GSEs, which are defined as Regulated Entities under 12 U.S.C. 4502(20) subject to the general supervision and regulation of the FHFA. The definition of Housing Government Sponsored Enterprise includes: (1) The Federal National Mortgage Association; (2) the Federal Home Loan Mortgage Corporation; and (3) each Federal Home Loan Bank. The proposed definition does not include any entity-affiliated party
Section 1010.810(b)(10) delegates authority to examine the Housing GSEs for compliance with the requirements of these regulations to the FHFA. FHFA is the general regulator for the Housing GSEs and enforces its own statutes and regulations regarding safety and soundness. FHFA will be FinCEN's delegate for examination for compliance with these proposed regulations, and FinCEN will work with FHFA to coordinate and direct such delegated compliance examination activities. FinCEN will continue to retain enforcement authority under the BSA, including for the imposition of civil penalties for violations of the BSA and these regulations.
Section 1030.210(a) requires that each Housing GSE develop and implement an anti-money laundering program reasonably designed to prevent the Housing GSE from being used to facilitate money laundering or the financing of terrorist activities, and other financial crimes, including mortgage fraud. The program must be in writing and must be approved by senior management. A Housing GSE's written program also must be made available to FinCEN upon request.
Section 1030.210(b) sets forth the minimum requirements of a Housing GSE's AML program. Beyond these minimum requirements, however, the proposed rule is intended to give Housing GSEs the flexibility to design their programs to mitigate their own enterprise-specific risks. Section 1030.210(b)(1) requires the AML program to incorporate policies, procedures, and internal controls based upon the Housing GSE's assessment of the risks of money laundering, terrorism finance and other financial crimes associated with its products, customers, distribution channels, and geographic locations. As explained above, a Housing GSE's assessment of customer-related information is a key component to an effective AML program. Thus, a Housing GSE's AML program must ensure that the Housing GSE obtains all the information necessary to make its AML program effective. Such information includes, but is not limited to, relevant customer information on individual borrowers and the retail financial institutions who are the Housing GSEs customers. The specific means to obtain such information is left to the discretion of the Housing GSE, although FinCEN anticipates that the Housing GSE may need to amend existing agreements to ensure that the Housing GSE receives necessary customer information. We do not anticipate that this requirement will entail obtaining information not already received in the ordinary course of business by the Housing GSEs, particularly with regard to information on individual borrowers. For purposes of making the required risk assessment, a Housing GSE must consider all relevant information, including whether the retail financial institutions who are its customers are subject to AML program requirements under the BSA.
Policies, procedures, and internal controls also must be reasonably designed to ensure compliance with BSA requirements. Housing GSEs may conduct some of their operations through third parties. Some elements of the compliance program may best be performed by personnel of these entities, in which case it is permissible for a Housing GSE to delegate contractually the implementation and operation of those aspects of its AML program to such an entity and to rely on the compliance program of such third parties that are subject to an independent AML program requirement under the BSA. Any Housing GSE that delegates responsibility for aspects of its AML program to a third party, however, remains fully responsible for the effectiveness of the program, as well as ensuring that compliance examiners are able to obtain information and records relating to the AML program.
Section 1030.210(b)(2) requires that a Housing GSE designate a compliance officer to be responsible for administering the AML program. The person should be competent and knowledgeable regarding BSA requirements and money laundering and fraud issues and risks, and should be empowered with full responsibility and authority to develop and enforce appropriate policies and procedures. The role of the compliance officer is to ensure that (1) The program is implemented effectively; (2) the program is updated as necessary; and (3) appropriate persons are trained and educated in accordance with § 1030.210(b)(3).
Section 1030.210(b)(3) requires that a Housing GSE provide for education and training of appropriate persons. Employee training is an integral part of any AML program. In order to carry out their responsibilities effectively, employees of a Housing GSE (and of any third party not already receiving training as part of another AML program requirement) with responsibility under the program must be trained in the requirements of the rule and money laundering and fraud risks generally so that red flags associated with existing or potential customers can be identified. Such training may be conducted by outside or in-house seminars, and may include computer-based training. The nature, scope, and frequency of the education and training program of the Housing GSE will depend upon the employee functions performed. However, those with obligations under the AML program must be sufficiently trained to carry out their responsibilities effectively. Moreover, these employees should receive periodic updates and refreshers regarding the AML program.
Section 1030.210(b)(4) requires that a Housing GSE provide for independent testing of the program on a periodic basis to ensure that it complies with the requirements of the rule and that the program functions as designed. An outside consultant or accountant need not perform the testing and review. The review may be conducted by an officer, employee or group of employees, so long as the reviewer is not the designated compliance officer and does not report directly to the compliance officer. The frequency of the independent testing will depend upon the Housing GSE's assessment of risks posed by its operations. Any recommendations resulting from such testing should be implemented promptly or reviewed by senior management. A Housing GSE may rely on the testing performed by third parties that are subject to an independent AML program requirement.
Section 1030.210(c) states that compliance with the AML program requirements will be determined by
Section 1030.320(a) contains the rules setting forth the obligation of Housing GSEs to report suspicious transactions that are conducted or attempted by, at, or through a Housing GSE and involve or aggregate at least $5,000 in funds or other assets. It is important to recognize that transactions are reportable under this rule and 31 U.S.C. 5318(g) regardless of whether they involve currency. The $5,000 minimum amount is consistent with existing SAR filing requirements for other financial institutions.
Section 1030.320(a)(1) contains the general statement of the obligation to file reports of suspicious transactions. The obligation extends to transactions conducted or attempted by, at, or through a Housing GSE. The proposed rule also contains a provision in § 1030.320(a)(1) designed to encourage the reporting of transactions that appear relevant to violations of law or regulation, even in cases in which the rule does not explicitly so require; for example, in the case of a transaction falling below the $5,000 threshold in the proposed rule.
Section 1030.320(a)(2) specifically describes the four categories of transactions that require reporting. A Housing GSE is required to report a transaction if it knows, suspects, or has reason to suspect that the transaction (or a pattern of transactions of which the transaction is a part): (i) Involves funds derived from illegal activity or is intended or conducted to hide or disguise funds or assets derived from illegal activity; (ii) is designed, whether through structuring or other means, to evade the requirements of the BSA; (iii) has no business or apparent lawful purpose, and the Housing GSE knows of no reasonable explanation for the transaction after examining the available facts; or (iv) involves the use of the Housing GSE to facilitate criminal activity.
A determination as to whether a report is required must be based on all the facts and circumstances relating to the transaction and customer of the Housing GSE in question. Different fact patterns will require different judgments. Some examples of red flags associated with existing or potential customers are referenced in previous FinCEN reports on mortgage fraud.
Section 1030.320(a)(3) provides that the obligation to identify and to report a suspicious transaction rests with the Housing GSE involved in the transaction. However, where more than one Housing GSE, or another financial institution with a separate suspicious activity reporting obligation, is involved in the same transaction, only one report is required to be filed, provided it contains all relevant facts and each institution maintains a copy of the report and any supporting documentation.
The proposed rule is intended to require that a Housing GSE evaluate customer activity and relationships for fraud, money laundering and other financial crime risks, and design a suspicious transaction monitoring program that is appropriate for the particular Housing GSE in light of such risks.
Section 1030.320(b) sets forth the filing procedures to be followed by Housing GSEs making reports of suspicious transactions. Within 30 days after a Housing GSE becomes aware of a suspicious transaction (or within 60 days if no suspect has been identified), it must report the transaction by completing a SAR and filing it with FinCEN. Supporting documentation relating to each SAR is to be collected and maintained separately by the Housing GSE and made available upon request by FinCEN or any Federal, State, or local law enforcement agency, or any Federal regulatory authority that examines the Housing GSE for compliance with the BSA. Because FinCEN's SAR regulations provide that supporting documentation is deemed to be filed with the SAR, the regulatory authorities referenced in the previous sentence are consistent with those regulatory authorities to whom a SAR may be disclosed, as discussed in the rules of construction below. For situations requiring immediate attention, Housing GSEs are to telephone the appropriate law enforcement authority in addition to filing a SAR.
Section 1030.320(c) provides that filing Housing GSEs must maintain copies of SARs and the underlying related documentation for a period of five years from the date of filing. As indicated above, supporting documentation is to be made available to FinCEN and the specified law enforcement and regulatory authorities, upon request.
Section 1030.320(d)(1) reinforces the statutory prohibition against the disclosure by a financial institution of a SAR (regardless of whether the report would be required by the proposed rule or is filed voluntarily).
Section 1030.320(d)(2) incorporates the statutory prohibition against disclosure of SAR information, other than in fulfillment of their official duties consistent with the BSA, by government users of SAR data. The section also clarifies that official duties do not include the disclosure of SAR information in response to a request for non-public information
Section 1030.320(e) provides protection from liability for making reports of suspicious transactions, and for failures to disclose the fact of such reporting to the full extent provided by 31 U.S.C. 5318(g)(3). The protection afforded the GSEs in title 12 by FHFA explicitly requires “good faith,”
Section 1030.320(f) notes that compliance with the obligation to report suspicious transactions will be examined by FinCEN or its delegates, and provides that failure to comply with the rule may constitute a violation of the BSA and the BSA regulations.
Section 1030.320(g) provides that the new SAR requirement is effective when an anti-money laundering program required by the regulations is required to be implemented.
Section 1030.500 states generally that the Housing GSEs are covered by the special information procedures to detect money laundering and terrorist activity requirements set forth and cross referenced in sections 1030.520 (cross-referencing to 31 CFR 1010.520) and 1030.540 (cross-referencing to 31 CFR 1010.540). Sections 1010.520 and 101.540 implement sections 314(a) and 314(b)
The Regulatory Flexibility Act (5 U.S.C. 601
The proposed regulation pertains to the Housing GSEs. As a result, the proposed regulation does not contain any information collection requirement that requires the approval of the Office of Management and Budget under the Paperwork Reduction Act
Executive Orders 13563 and 12866 direct agencies to assess costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. It has been determined that the final rule is designated a “significant regulatory action” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.
Section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), Public Law 104-4 (March 22, 1995), requires that an agency prepare a budgetary impact statement before promulgating a rule that may result in expenditure by the state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If a budgetary impact statement is required, section 202 of the Unfunded Mandates Act also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule. Taking into account the factors noted above and using conservative estimates of average labor costs in evaluating the cost of the burden imposed by the proposed regulation, FinCEN has determined that it is not required to prepare a written statement under section 202.
Administrative practice and procedure, Banks, Banking, Brokers, Currency, Federal home loan banks, Foreign banking, Foreign currencies, Gambling, Investigations, Mortgages, Penalties, Reporting and recordkeeping requirements, Securities, Terrorism.
For the reasons set forth in the preamble, Chapter X of title 31 of the Code of Federal Regulations is proposed to be amended as follows:
1. The authority citation for part 1010 continues to read as follows:
12 U.S.C. 1829b and 1951-1959; 31 U.S.C. 5311-5314 and 5316-5332; title III, sec. 314 Pub. L. 107-56, 115 Stat. 307.
2. Amend § 1010.100 by adding new paragraph (lll) to read as follows:
(lll)
(i) The Federal National Mortgage Association;
(ii) The Federal Home Loan Mortgage Corporation; or
(iii) Each Federal Home Loan Bank.
(2) The term “housing government sponsored enterprise” does not include any “Entity-Affiliated Party,” as defined in 12 U.S.C. 4502(11).
3. Amend § 1010.810 by adding new paragraph (b)(10) to read as follows:
(b) * * *
(10) To the Federal Housing Finance Agency with respect to the housing government sponsored enterprises, as defined in § 1010.100(lll) of this part.
4. New part 1030 added to read as follows:
12 U.S.C. 1829b and 1951-1959; 31 U.S.C. 5311-5314 and 5316-5332; title III, sec. 314 Pub. L. 107-56, 115 Stat. 307.
Refer to § 1010.100 of this chapter for general definitions not noted herein.
Housing government sponsored enterprises are subject to the program requirements set forth and cross referenced in this subpart. Housing government sponsored enterprises should also refer to subpart B of part 1010 of this Chapter for program requirements contained in that subpart that apply to housing government sponsored enterprises.
(a)
(b)
(1) Incorporate policies, procedures, and internal controls based upon the housing government sponsored enterprise's assessment of the money laundering and terrorist financing risks associated with its products and services. Policies, procedures, and internal controls developed and implemented by a housing government sponsored enterprise under this section shall include provisions for complying with the applicable requirements of subchapter II of chapter 53 of title 31, United States Code and this part, and obtaining all relevant customer-related information necessary for an effective anti-money laundering program.
(2) Designate a compliance officer who will be responsible for ensuring that:
(i) The anti-money laundering program is implemented effectively;
(ii) The anti-money laundering program is updated as necessary; and
(iii) Appropriate persons are educated and trained in accordance with paragraph (b)(3) of this section.
(3) Provide for on-going training of appropriate persons concerning their responsibilities under the program. A housing government sponsored enterprise may satisfy this requirement by training such persons or verifying that such persons have received training by a competent third party with respect to the products and services offered by the housing government sponsored enterprise.
(4) Provide for independent testing to monitor and maintain an adequate program. The scope and frequency of the testing shall be commensurate with the risks posed by the housing government sponsored enterprise's products and services. Such testing may be conducted by a third party or by any officer or employee of the housing government sponsored enterprise, other than the person designated in paragraph (b)(2) of this section.
(c)
(d)
Housing government sponsored enterprises are subject to the reporting requirements set forth and cross referenced in this subpart. Housing government sponsored enterprises should also refer to subpart C of part 1010 of this Chapter for reporting requirements contained in that subpart that apply to housing government sponsored enterprises.
(a)
(2) A transaction requires reporting under this section if it is conducted or attempted by, at, or through a housing government sponsored enterprise, it involves or aggregates funds or other assets of at least $5,000, and the housing government sponsored enterprise knows, suspects, or has reason to suspect that the transaction (or a pattern of transactions of which the transaction is a part):
(i) Involves funds derived from illegal activity or is intended or conducted in order to hide or disguise funds or assets derived from illegal activity (including, without limitation, the ownership, nature, source, location, or control of such funds or assets) as part of a plan to violate or evade any Federal law or regulation or to avoid any transaction reporting requirement under Federal law or regulation;
(ii) Is designed, whether through structuring or other means, to evade any requirements of this chapter or any other regulations promulgated under the Bank Secrecy Act;
(iii) Has no business or apparent lawful purpose or is not the sort in which the particular housing government sponsored enterprise customer would normally be expected to engage, and the housing government sponsored enterprise knows of no reasonable explanation for the transaction after examining the available facts, including the background and possible purpose of the transaction; or
(iv) Involves use of the housing government sponsored enterprise to facilitate criminal activity.
(3) More than one housing government sponsored enterprise may have an obligation to report the same transaction under this section, and financial institutions involved in that same transaction may have separate obligations to report suspicious activity with respect to that transaction pursuant to other provisions of this chapter. In those instances, no more than one report is required to be filed by the housing government sponsored enterprise(s) and any financial institution(s) involved in the transaction, provided that the report filed contains all relevant facts, including the name of each housing government sponsored enterprise or financial institution involved in the transaction, the report complies with all instructions applicable to joint filings, and each institution maintains a copy of the report filed, along with any supporting documentation.
(b)
(2)
(3)
(4)
(5)
(c)
(d)
(1)
(ii)
(A) The disclosure by a housing government sponsored enterprise, or any director, officer, employee, or agent of a housing government sponsored enterprise of:
(B) The sharing by a housing government sponsored enterprise, or any director, officer, employee, or agent of the housing government sponsored enterprise, of a SAR, or any information that would reveal the existence of a SAR, within the housing government sponsored enterprise's corporate organizational structure for purposes consistent with Title II of the Bank Secrecy Act as determined by regulation or in guidance.
(2)
(e)
(f)
(g)
Refer to § 1010.330 of this Chapter for rules regarding the filing of reports relating to currency in excess of $10,000 received by housing government sponsored enterprises.
Housing government sponsored enterprises are subject to the recordkeeping requirements set forth and cross referenced in this subpart. Housing government sponsored enterprises should also refer to subpart D of part 1010 of this Chapter for recordkeeping requirements contained in that subpart that apply to housing government sponsored enterprises.
Housing government sponsored enterprises are subject to special information sharing procedures to deter money laundering and terrorist activity requirements set forth and cross referenced in this subpart. Housing government sponsored enterprises should also refer to subpart E of part 1010 of this Chapter for special information sharing procedures to deter money laundering and terrorist activity contained in that subpart that apply to housing government sponsored enterprises.
(a) Refer to § 1010.520 of this Chapter.
(b) [Reserved]
(a) Refer to § 1010.540 of this Chapter.
(b) [Reserved]
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve a State Implementation Plan (SIP) revision submitted by the Commonwealth of Virginia. The SIP revision adds a new chapter (9VAC5-45—Consumer and Commercial Products) in order to control volatile organic compounds (VOC) from portable fuel containers, consumer products, architectural and industrial (AIM) coatings, adhesives and sealants, and asphalt paving operations within the Northern Virginia and Fredericksburg VOC Emissions Control Areas. The SIP revision also includes new and revised documents incorporated by reference into the Virginia regulations (9VAC5-20-21—Documents Incorporated by Reference) in order to support the new and revised regulations. This action is being taken under the Clean Air Act (CAA).
Written comments must be received on or before December 8, 2011.
Submit your comments, identified by Docket ID Number EPA-R03-OAR-2011-0730 by one of the following methods:
A.
B.
C.
D.
Gregory Becoat, (215) 814-2036, or by email at
On March 18, 2010, the Virginia Department of Environmental Quality (VADEQ) submitted a revision to the Virginia SIP. The SIP revision consists of new and revised standards for the control of VOCs from certain types of consumer and commercial products in the Northern Virginia and Fredericksburg VOC Emissions Control Areas. The SIP revision also includes new and revised documents incorporated by reference into the Virginia regulations to support the new and revised regulations. The regulations will control emissions of VOCs, which will reduce the formation of ozone, and thereby protect public health and welfare.
The SIP revision amends Chapter 9VAC5-20-21—Documents Incorporated by Reference, in order to make administrative changes for clarity, style, format, and renumbering. The revision adds sections to 9VAC5-20-21 in order to incorporate by reference into the Virginia regulations the new and revised regulations. The Commonwealth of Virginia established a new chapter, 9VAC5-45—Consumer and Commercial Products (Chapter 45) in order to control VOC emissions from various consumer and commercial products within the Northern Virginia and Fredericksburg VOC Emissions Control Areas. The new chapter consists of general requirements that pertain to regulating consumer and commercial products, as well as, VOC content and emission limits for consumer and commercial products. Chapter 45 also contains the control technology, testing, monitoring, administrative, recordkeeping, and reporting requirements necessary to determine compliance with each of the applicable standards. This SIP revision establishes requirements to specify applicability to any product, owner, or other person subject to the provisions of Chapter 45, establish compliance with the standards in Chapter 45, establish emission tests for operations and products subject to the standards subject to the provisions of Chapter 45, specify monitoring requirements, and specify notification, records, and reporting requirements.
Chapter 45 establishes Article 1 and Article 2 in order to implement design, performance, and labeling standards for portable fuel containers and spouts before and after August 1, 2010 and to prohibit owners form manufacturing, distributing, and selling noncompliant products. The portable fuel containers and spouts requirements in this SIP revision establish (1) applicability to any person who sells, supplies, offers for sale, or manufactures for sale portable fuel containers and spouts within the Northern Virginia and Fredericksburg VOC Emissions Control Areas; (2) specify exemptions for any portable fuel container or spout manufactured, sold, supplied, or offered for sale within and used outside the Northern Virginia and Fredericksburg VOC Emissions Control Areas; (3) add definitions and terms; (4) specify performance standards for VOCs; (5) specify administrative requirements; (6) specify compliance procedures; (7) establish compliance schedules; (8) specify test methods and procedures; (9) specify monitoring applicability; and (10) specify notification, records, and reporting requirements. In addition, the SIP revision specifies certification and innovative products procedures for portable fuel containers and spouts manufactured after August 1, 2010.
The Commonwealth of Virginia establishes Article 3 and Article 4 in Chapter 45 in order to implement VOC content standards for certain individual consumer product categories before and after August 1, 2010 and to prohibit owners from manufacturing, distributing, advertising, or selling noncompliant products. This SIP revision adds regulations that establish (1) applicability to any consumer product that contains VOCs within the Northern Virginia and Fredericksburg VOC Emissions Control Areas; (2) specifies exemptions; (3) adds definitions and terms; (4) sets applicability to any person who sells, supplies, offers for sale, or manufactures consumer products that contains VOCs in excess of the specified limits; (5) specifies VOC content limits in percent VOCs by weight for consumer products with a specified compliance date; (6) establishes applicability for alternative control plan (ACP) for consumer products and criteria for innovative products exemption and requirements for waiver requests; and (7) specifies innovative products procedures. In addition, the regulations specify administrative requirements, compliance procedures, compliance schedules, test methods and procedures, monitoring applicability, and notification, records, and reporting requirements.
Chapter 45 adds Article 5 in order to control VOC emissions from AIM, implement VOC content standards, and prohibit owners from manufacturing, distributing, selling, and using noncompliant products. This SIP revision adds regulations that establish (1) applicability to any owner or person who supplies, sells, offers for sale, or manufactures any architectural coating within the Northern Virginia and Fredericksburg VOC Emissions Control Areas; (2) specifies exemptions; (3) adds definitions and terms; (4) specifies that no person or owner shall manufacture, blend, or repackage for sale, supply, sell, or offer for sale, or solicit for application or apply any architectural coating with VOC content in excess of the applicable limits; (5) establishes that the most restrictive VOC content limit shall apply to any coating that meets the definition of or is recommended for use for more than one of the coating categories specified; and (6) establishes requirements for various architectural and industrial maintenance coating types. In addition, the regulations specify administrative requirements, compliance procedures, compliance schedules, test methods and procedures, monitoring applicability, and notification, records, and reporting requirements.
This SIP revision also establishes Article 6 in Chapter 45 in order to control VOC emissions from adhesives, adhesive primers, sealants, and sealant primers, implement VOC content limits, and prohibit owners from manufacturing, distributing, selling, or
The adhesives and sealants requirements in this SIP revision set (1) applicability to any owner or person who supplies, sells, offers for sale, manufactures, uses, applies for compensation, solicits the use of, requires the use of, or specifies the application of, any adhesive, sealant, adhesive primer, or sealant primer that contains VOCs within the Northern Virginia and Fredericksburg VOC Emissions Control Areas; (2) set exemptions for specific products and compounds of adhesives, sealants, adhesive primers, or sealant primers; (3) add definitions and terms; (4) specify that no person or owner shall sell, supply, or offer for sale, or manufactured for sale any adhesive, sealant, adhesive primer or sealant primer with VOC content in excess of the limits specified; (5) specify requirements for owners or operators of a facility that uses or applies a surface preparation solvent or cleanup solvent or removes an adhesive, sealant, adhesive primer, sealant primer from the parts of spray application equipment; (6) specify requirements for proper storage and disposal, work practices, surface preparation and cleanup solvent composition; (7) provide for an alternative add-on control system requirement of at least 85 percent overall control efficiency (capture and destruction), by weight; (8) specify standards for visible emissions; specify administrative requirements; (9) specify compliance procedures and compliance schedules; (10) specify test methods and procedures; (11) specify monitoring applicability; (12) specify notification, records, and reporting requirements; (13) specify registration provisions; and (14) specify facility and control equipment maintenance or malfunction provisions.
Chapter 45 also adds Article 7 in order to control VOC emissions from asphalt paving operations, which prescribes the use of emulsified asphalt coatings except for the purpose of coating residential driveways and prohibit the mixing, storage, and application of noncompliant products. The SIP revision adds regulations that (1) establish applicability to any owner or person who manufactures, mixes, stores, uses, or applies any liquefied asphalt for paving operations within the Northern Virginia and Fredericksburg VOC Emissions Control Areas; (2) add definitions and terms; (3) specify no owner or person shall cause or permit the manufacture, mixing, storage, use, or application of liquefied asphalt for paving operations unless it is emulsified; specify exemptions; (4) specify standards for visible emissions; and (5) specify standards for fugitive dust/emissions. In addition, the regulations specify compliance procedures, test methods and procedures, monitoring provisions, and notification, records, and reporting requirements.
A detailed summary of EPA's review of and rationale for proposing to approve this SIP revision may be found in the Technical Support Document (TSD) for this action which is available on-line at
In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) that are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.
On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. * * *” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”
Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or
Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.
EPA is proposing to approve the Virginia SIP revision adding Chapter 45—Consumer and Commercial Products that consists of new and revised standards for the control of VOCs from portable fuel containers, consumer products, architectural and industrial coatings, adhesives and sealants, and asphalt paving operations in the Northern Virginia and Fredericksburg VOC Emissions Control Areas. EPA is also proposing to approve the Virginia SIP revision that includes new and revised documents incorporated by reference into the Virginia regulations (9VAC5-20-21—Documents Incorporated by Reference). EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule, pertaining to Virginia's control of VOCs from commercial and consumer products does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve a State Implementation Plan (SIP) revision package submitted by the State of Utah on September 29, 2011. The September 29, 2011 revision establishes rule R307-204 of the Utah Administrative Code (UAC). R307-204 contains smoke management requirements for land managers within the State of Utah as required by regulations for regional haze. The September 29, 2011 submittal supersedes and replaces R307-204 submitted as part of the State's December 12, 2003 Regional Haze (RH) SIP. The September 29, 2011 submittal also supersedes and replaces the State's May 8, 2006 submittal of R307-204.
EPA is also proposing to partially approve a SIP revision submitted by the State of Utah on May 26, 2011. Specifically, EPA is proposing to approve section XX.G of the State's RH SIP which contains the State's long-term strategy for fire programs as required by the regulations. The May 26, 2011 submittal supersedes and replaces SIP revisions to section XX.G of the RH SIP submitted by the State on December 12, 2003 and September 9, 2008. This action is being taken under section 110 of the Clean Air Act (CAA).
Comments must be received on or before December 8, 2011.
Submit your comments, identified by Docket ID No. EPA-R08-OAR-2011-0636, by one of the following methods:
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Laurel Dygowski, Air Program, U.S. Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 80202-1129, (303) 312-6144,
For the purpose of this document, we are giving meaning to certain words or initials as follows:
(i) The words or initials
(ii) The words
(iii) The initials
(iv) The words Utah and
What should I consider as I prepare my comments for EPA?
1.
2.
a. Identify the rulemaking by docket number and other identifying information (subject heading,
b. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
d. Describe any assumptions and provide any technical information and/or data that you used.
e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
f. Provide specific examples to illustrate your concerns, and suggest alternatives.
g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
h. Make sure to submit your comments by the comment period deadline identified.
Regional haze is visibility impairment that is produced by a multitude of sources and activities which are located across a broad geographic area and emit fine particles (PM
Data from the existing visibility monitoring network, the “Interagency Monitoring of Protected Visual Environments” (IMPROVE) monitoring network, show that visibility
In section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas
Successful implementation of the regional haze program will require long-term regional coordination among states, tribal governments and various federal agencies. As noted above, pollution affecting the air quality in Class I areas can be transported over long distances, even hundreds of kilometers. Therefore, to effectively address the problem of visibility impairment in Class I areas, states need to develop strategies in coordination with one another, taking into account the effect of emissions from one jurisdiction on the air quality in another.
Because the pollutants that lead to regional haze can originate from sources located across broad geographic areas, EPA has encouraged the states and tribes across the United States to address visibility impairment from a regional perspective. Five regional planning organizations (RPOs) were developed to address regional haze and related issues. The RPOs first evaluated technical information to better understand how their states and tribes impact Class I areas across the country, and then pursued the development of regional strategies to reduce emissions of particulate matter (PM) and other pollutants leading to regional haze.
The Western Regional Air Partnership (WRAP) RPO is a collaborative effort of state governments, tribal governments, and various federal agencies established to initiate and coordinate activities associated with the management of regional haze, visibility and other air quality issues in the western United States. WRAP member State governments include: Alaska, Arizona, California, Colorado, Idaho, Montana, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming. Tribal members include Campo Band of Kumeyaay Indians, Confederated Salish and Kootenai Tribes, Cortina Indian Rancheria, Hopi Tribe, Hualapai Nation of the Grand Canyon, Native Village of Shungnak, Nez Perce Tribe, Northern Cheyenne Tribe, Pueblo of Acoma, Pueblo of San Felipe, and Shoshone-Bannock Tribes of Fort Hall.
EPA's RHR provides two paths to address regional haze. One is 40 CFR 51.308 (Section 308), and requires states to perform source by source BART determinations and evaluate the need for other control strategy development. These strategies must be shown to make “reasonable progress” in improving visibility in Class I areas inside the state and in neighboring jurisdictions. The other path states may take to address regional haze is 40 CFR 51.309 (Section 309), and is an option for nine states termed the “transport region states” which includes: Arizona, California, Colorado, Idaho, Nevada, New Mexico, Oregon, Utah, and Wyoming, and the 211 Tribes located within those states. Section 309 requires states to adopt regional haze strategies that are based on recommendations from the Grand Canyon Visibility Transport Commission (GCVTC) for protecting the 16 Class I areas in the Colorado Plateau area
As discussed above, the GCVTC had numerous recommendations for protecting the 16 Class I areas of the Colorado Plateau that EPA adopted as part of the Section 309 RHR. This proposed action only addresses the requirements pertaining to programs related to fire of 40 CFR 51.309(d)(6). Pursuant to 40 CFR 51.309(d)(6), a state must show that its smoke management program and all federal or private programs for prescribed fire in the state have a mechanism in place for evaluating and addressing the degree of
States must include in their section 309 plan a statewide process for gathering the essential post-burn activity information to support emissions inventory and tracking systems. States must identify existing administrative barriers to the use of non-burning alternatives and adopt a process for continuing to identify and remove administrative barriers where feasible. The SIP must include an enhanced smoke management program, which means the smoke management program considers visibility and is based on the criteria of efficiency, economics, law, emission reduction opportunities, land management objectives, and reduction of visibility impairment. States must also adopt a process to establish annual emission goals to minimize emission increases from fire.
On December 12, 2003, the State of Utah submitted a RH SIP intended to meet all of the requirements under 40 CFR 51.309. This submittal adopted SIP section XX-
Section XX.G—
EPA will be taking action on the remainder of the December 12, 2003, September 9, 2008, and May 26, 2011 submittals at a later date.
Pursuant to 40 CFR 51.309(d)(6)(i), the State of Utah has evaluated all federal, state, and private prescribed fire programs in the State. The State based the evaluation on the potential of the programs to contribute to visibility impairment in the 16 mandatory Class I areas of the Colorado Plateau and how visibility protection from smoke is addressed in planning and operation of the programs. The State relied upon the WRAP report
Based on this evaluation, the State adopted R307-204
R307-204 has two requirements directed at minimizing fire emissions: use of emission reduction techniques
R307-204 requires land managers to submit burn plan information for approval from the executive secretary prior to ignition of any large burn in accordance with 40 CFR 51.309(d)(6)(ii). The pre-burn information must identify any sensitive receptor, including any Class I or non-attainment area within 15 miles, distance and direction of the sensitive receptor in degrees from the project site, and a map that shows the daytime and nighttime smoke path and down-drainage flow for a minimum of 15 miles from the burn site. This information, in addition to the fire prescription
Pursuant to R307-204-4(4), beginning in 2004 and annually thereafter, each land manager is required to submit to the executive secretary a list of areas treated using non-burning alternatives to fire during the previous calendar year, including the number of acres, the
Utah provides public information on current burning on a Web site at
Pursuant to R307-204, land managers shall monitor the effects of the prescribed fire on smoke sensitive receptors and on visibility in Class I areas. The method of monitoring, either visual or with instrumentation, is specified as part of the burn plan.
State staff conduct site inspections on prescribed fires that are close to Class I areas to verify compliance with the burn plan on an as-needed basis. The State generates reports after the inspection with the results of that inspection.
The State in conjunction with land managers will conduct an annual effectiveness review of the smoke management programs in the State. A formal progress report will be completed every five years as required by 40 CFR 51.309(d)(10)(ii).
The WRAP emission inventory shows that agricultural burning is a very small portion of total emissions in Utah. According to the WRAP inventory, Utah agriculture burning accounts for only .25% of Utah's total emissions of PM, PM
Pursuant to 40 CFR 51.309(d)(6)(ii) and R307-204, the State maintains a fire emissions inventory for volatile organic compounds, nitrogen oxides, elemental and organic carbon, and fine particulate. The fires in the State are tracked in the WRAP Fire Emission Tracking System (FETS). The FETS is a web-enabled database for planned and unplanned fire events. The FETS is a planning tool for daily smoke management coordination, and retrospective analyses such as emission inventories and regional haze air quality planning tasks (see
To meet the requirements of 40 CFR 51.309(d)(6)(ii), the State will work collaboratively with the Utah Farm Bureau Federation and Utah State University Extension to develop and implement an inventory and emissions tracking system for agricultural burning. A survey conducted in 2003 by the Utah State University Extension, in collaboration with the Utah Farm Bureau Federation, will be used by the State as a baseline for future emissions tracking activities. The State will conduct emission tracking activities on a periodic basis to determine if any significant changes have been made since the 2003 survey. Results from the periodic emission tracking activities will be provided in future progress reports to EPA required by 40 CFR 51.309(d)(10).
The State and land managers for fire will annually assess whether administrative barriers to the use of non-burning alternatives exist. If a specific administrative barrier is identified as a result of this annual evaluation, the State will investigate how this barrier may be removed, if feasible, and will work collaboratively with land managers to remove the barrier as required by 40 CFR 51.309(d)(6)(iii). An evaluation of the administrative barriers to the use of the non-burning alternatives, if any, will be included in the formal progress report to EPA every five years as required by 40 CFR 51.309(d)(10).
Pursuant to 40 CFR 51.309(d)(6)(iv), the State has determined that all smoke management programs that operate within Utah are consistent with the
R307-204 requires the State to establish annual emission goals in accordance with 40 CFR 51.309(d)(6)(v). Pursuant to the State's ESMP, the annual emission goals will seek to minimize emission increases in fire, excluding wildfire, to the maximum extent feasible.
Based on our analysis and evaluation of section XX.G of the Utah May 26, 2011 SIP submittal and R307-204 of the September 29, 2011 submittal, EPA concludes that the State has met all of the requirements of 40 CFR 51.309(d)(6).
EPA is proposing to approve a SIP revision submitted by the State of Utah on September 29, 2011. The September 29, 2011 revision establishes rule R307-204 of the Utah Administrative Code (UAC). R307-204 contains smoke management requirements for land managers within the State of Utah as required by 40 CFR 51.309(d)(6) for regional haze. The September 29, 2011 submittal supersedes and replaces R307-204 submitted as part of the State's December 12, 2003 regional haze SIP. The September 29, 2011 submittal also supersedes and replaces the State's May 8, 2006 submittal of R307-204. EPA is also proposing to partially approve a SIP revision submitted by the State of Utah on May 26, 2011. Specifically, EPA is proposing to approve section XX.G of the State's Regional Haze (RH) SIP which contains the State's long-term strategy for fire programs as required by 40 CFR 51.309(d)(6). The May 26, 2011 submittal supersedes and replaces SIP revisions to section XX.G of the RH SIP submitted by the State on December 12, 2003 and September 9, 2008.
Under the CAA, 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 CAA. Accordingly, this proposed action merely approves some state law as meeting Federal requirements and disapproves other state law because it does not meet Federal requirements; this proposed action does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and,
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Federal Communications Commission.
Proposed rule.
This document sets forth a proposal to amend the FM Table of Allotments. The Commission requests comment on a petition filed by Threshold Communications, proposing to amend the Table of Allotments by substituting Channel 235C1 for vacant Channel 249C1, at Altamont, Oregon. The proposal is part of a contingently filed “hybrid” application and rule making petition. Channel 235C1 can be allotted at Altamont in compliance with the Commission's minimum distance separation requirements with a site restriction of 32.3 km (20.1 miles) east of Altamont, at 42-07-04 North Latitude and 121-21-50 West Longitude.
The deadline for filing comments is December 5, 2011. Reply comments must be filed on or before December 20, 2011.
Federal Communications Commission, 445 12th Street SW., Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve counsel for petitioner as follows: Donald E. Martin, Esq., Donald E. Martin, P.C., Post Office Box 8433, Falls Church, Virginia 22041.
Deborah A. Dupont, Media Bureau (202) 418-7072.
This is a synopsis of the Commission's
The Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding. Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments,
Radio.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:
1. The authority citation for part 73 continues to read as follows:
47 U.S.C. 154, 303, 334, 336 and 339.
2. Section 73.202(b), the Table of FM Allotments under Oregon, is amended by deleting 249C1 and adding 235C1 at Altamont.
Federal Communications Commission.
Dismissal.
The Audio Division, at the request of Qantum of Ft. Walton Beach License Company, LLC, proponent of a petition for reconsideration of the Memorandum Opinion and Order in this proceeding, dismisses the petition for reconsideration and terminates the proceeding.
Deborah Dupont, Media Bureau, (202) 418-7072.
This is a synopsis of the Commission's
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to revise the definition of “hybrid” as it relates to birds protected under the Migratory Bird Treaty Act. At present, the definition applies only to hybrids of two species on the list of migratory birds at 50 CFR 10.13. We propose to revise the definition to make it clear that it applies to the offspring of any species listed at 50 CFR 10.13.
Send comments on this proposal by February 6, 2012.
You may submit comments by either one of the following two methods:
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We will not accept email or faxes. We will post all comments on
Dr. George T. Allen at (703) 358-1825.
At present, at 50 CFR 21.3, the term “hybrid” is defined as the “offspring of birds listed as two or more distinct species in § 10.13 of subchapter B of this chapter, or offspring of birds recognized by ornithological authorities as two or more distinct species listed in § 10.13 of subchapter B of this chapter.” This means that, under the definition of “hybrid” birds at 50 CFR 21.3, the only hybrid migratory birds that are protected by our regulations under the Migratory Bird Treaty Act (MBTA; 16 U.S.C. 703-712) are birds that are the offspring of two species already protected under the MBTA.
This definition has created difficulties because it differs from the longstanding Service application of “hybrid” to falconry and raptor propagation birds, in particular. “Hybrid” was not defined prior to 2008, when the falconry regulations were substantially revised (73 FR 59448-59477, October 8, 2008). We defined “hybrid” in 50 CFR 21.3 in a manner that conflicts with the use of the term in other regulations.
To ensure that all appropriate hybrid migratory birds receive protection under our regulations implementing the MBTA, we are proposing a change to the definition of “hybrid.” The proposed definition change would make it clear that the offspring of any species listed at 50 CFR 10.13 is protected under the MBTA, regardless of how many generations that bird is removed from the wild. The proposed definition would also be consistent with the definition of “migratory bird” at 50 CFR 10.12, and with the definition of “hybrid” at 50 CFR 23.5 of the regulations implementing the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The definition of “migratory bird” in 50 CFR 10.12 is: “Migratory bird means
The proposed definition would also be consistent with the purpose of the MBTA (16 USC 701): The object and purpose of this Act is to aid in the restoration of such birds in those parts of the United States adapted thereto where the same have become scarce or extinct,
Similarly, if the Service did not have authority to regulate hybrids in which one parent was not listed on § 10.13, then it would have no authority to regulate hybrids with a “prohibited raptor.” In the 2008 revisions of the falconry regulations, the Service recently allowed possession of hybrids (50 CFR 21.29(c)(3)(i)(E)), except for hybrids of certain species: “You may possess a raptor of any Falconiform or Strigiform species, including wild, captive-bred,
Lastly, the change is consistent with the Service's broad interpretation of hybrid species. As early as 1983 (48 FR 31600, July 8, 1983), the Service recognized that CITES and the MBTA cover hybrid species. The Service responded to comments that hybrids birds (and captive-bred birds) are not included within the terms of the MBTA, and the commenters implied that coverage of such birds in such regulations is an unlawful expansion of the MBTA. However, regulations governing captive-bred birds have been held to be within the Secretary's authority under the MBTA (
We request comments on this proposed rule. You may submit your comments and supporting materials by one of the methods listed in the
If you submit a comment via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection at
The Office of Management and Budget (OMB) has determined that this proposed rule is not significant under Executive Order 12866 (E.O. 12866). OMB bases its determination upon the following four criteria.
(a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of government.
(b) Whether the rule will create inconsistencies with other Federal agencies' actions.
(c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
(d) Whether the rule raises novel legal or policy issues.
Under the Regulatory Flexibility Act (5 U.S.C. 601
SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide the statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities. If adopted, there would no be costs associated with this proposed regulation change because the Service's Office of Law Enforcement has treated hybrids as protected, as is consistent with CITES. We have determined that because this proposed regulation change would not have a significant economic impact on a substantial number of small entities, a regulatory flexibility analysis is not required.
This rule is not a major rule under the SBREFA (5 U.S.C. 804(2)). It would not have a significant impact on a substantial number of small entities.
a. This rule would not have an annual effect on the economy of $100 million or more.
b. This rule would not cause a major increase in costs or prices for consumers, individual industries, Federal, State, Tribal, or local government agencies, or geographic regions.
c. This rule would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
a. This rule would not affect small governments. A small government agency plan is not required. Amending the definition of “hybrid” at 50 CFR 21.3 would not affect small government activities.
b. This rule would not produce a Federal mandate of $100 million or greater in any year. This proposal is not a significant regulatory action.
This proposed rule does not contain a provision for taking of private property. In accordance with Executive Order 12630, a takings implication assessment is not required.
This rule does not have sufficient Federalism effects to warrant preparation of a Federalism assessment
In accordance with Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.
This proposed rule does not contain any new information collections or recordkeeping requirements for which approval from the Office of Management and Budget (OMB) is required under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
We have analyzed this proposed rule in accordance with the National Environmental Policy Act (NEPA), 42 U.S.C. 432-437(f), and Part 516 of the U.S. Department of the Interior Manual (516 DM). The proposed regulation change would have no environmental impact.
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations With Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have determined that there are no potential effects on Federally recognized Indian Tribes from the proposed regulation change. The proposed regulation change would not interfere with Tribes' abilities to manage themselves or their funds, or to regulate migratory bird activities on tribal lands.
This proposed rule would not affect energy supplies, distribution, or use. This action would not be a significant energy action, and no Statement of Energy Effects is required.
Section 7 of the Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 1531
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
Exports, Hunting, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife.
For the reasons described in the preamble, we propose to amend subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
1. The authority for part 21 continues to read as follows:
Migratory Bird Treaty Act, 40 Stat. 755 (16 U.S.C. 703); Public Law 95-616, 92 Stat. 3112 (16 U.S.C. 712(2)); Public Law 106-108, 113 Stat. 1491, Note following 16 U.S.C. 703.
2. Amend § 21.3 by revising the definition of “hybrid” to read as follows:
Fish and Wildlife Service, Interior.
Request for comments.
We, the U.S. Fish and Wildlife Service (USFWS), are requesting public comments to guide the preparation of a Supplemental Environmental Impact Statement or Environmental Assessment on the development of revised regulations governing the management of double-crested cormorants. Under current regulations, cormorant damage management activities are conducted annually at the local level by individuals or agencies operating under USFWS depredation permits, the existing Aquaculture Depredation Order, or the existing Public Resource Depredation Order. The depredation orders are scheduled to expire on June
Electronic comments on this notice via
You may submit comments by either one of the following methods:
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We will not accept email or faxes. We will post all comments on
Terry Doyle, Wildlife Biologist, Division of Migratory Bird Management, 703-358-1799.
We seek comments to help us determine future national policy for effective management of double-crested cormorant (DCCO,
The analysis will be prepared in cooperation with the U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Wildlife Services (APHIS-WS). The decision to prepare a Supplemental Environmental Impact Statement or Environmental Assessment will be based on responses to this notice and: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321
Double-crested cormorant populations, especially those breeding in the Great Lakes States and provinces and wintering in the southeastern United States, have increased rapidly since the mid-1970s, and may have reached or exceeded carrying capacity in the Great Lakes. Before that time, DCCOs were considered a rare breeder in the Great Lakes, with the first confirmed nesting documented in 1913 (Wires and Cuthbert 2006). The reasons for the rapid expansion are unknown, but likely involved several factors, including U.S. Federal protection under the MBTA in 1972, the elimination of DDT, the expansion of the aquaculture industry and construction of reservoirs in the Southeast, and alterations of the Great Lakes fish communities.
By the mid 1990s, DCCO populations were perceived to have a negative impact on the aquaculture industry and on natural resources at many locations across North America. Double-crested cormorants have been implicated in several human-DCCO conflict issues including depredation of aquaculture stocks and local sport and commercial fisheries, as well as conflicts with other conservation interests such as damage to sensitive vegetation and other colonial nesting bird species (Fielder 2010, Glahn and Brugger 1995, Hebert et al. 2005, Rudstam et al. 2004, Somers et al. 2007).
In certain areas, evidence suggests that DCCOs have contributed to declines in walleye, yellow perch, and smallmouth bass, whereas in other areas no such evidence exists for the decline of sport fishery stocks (Seefelt and Gillingham 2006). The implication of DCCOs as a causative factor in these declines is confounded, however, by uncertainties regarding the effect of other ecosystem changes (e.g., exotic species introductions, lower nutrient loading, or decreases in alternate prey) and how these changes interact with each other and with DCCO population dynamics.
The USFWS has statutory authority to manage migratory bird populations in the United States, under the MBTA (16 U.S.C. 703-712) and the Conventions with Canada (1916 as amended in 1996), Mexico (1936 as amended in 1972), Japan (1972), and Russia (1976). We have interstate regulatory authority over cormorants and permit take by individuals and agencies. All the Conventions, except the one with Mexico, specifically mention allowing the lethal take of birds and eggs to protect injury to agricultural interests, persons, or property. The Federal regulation at 50 CFR 21.1 provides limited exceptions to protections afforded by the MBTA, such as the establishment of depredation orders.
In response to rapidly increasing wintering populations in the southeastern United States, breeding populations of DCCOs in the Great Lakes region, and concerns about potential impacts, we adopted two depredation orders that facilitate the control of depredating DCCOs. The Aquaculture Depredation Order (AQDO) was established in 1998 to assist with the control of DCCOs at aquaculture facilities in 13 States. In 2003, we modified the AQDO and established a Public Resource Depredation Order (PRDO) to protect additional public resources including fish, wildlife, plants, and their habitats from DCCO impacts in 24 States (USFWS 2003). Both depredation orders were recently authorized to remain in effect through June 2014 (USFWS 2009a and USFWS 2009b). Prior to establishment of the depredation orders, depredation permits were the primary tool used to resolve DCCO conflicts. Permits are still used to resolve conflicts related to human health and safety and economic losses to private property in all States,
Double-crested cormorants in the United States are managed at selected sites on the breeding and wintering grounds and during migration to alleviate damage and lessen economic, social, and ecological conflicts. Management actions are conducted locally each year and include various forms of harassment, shooting, nest and egg destruction, and egg oiling. Under the PRDO, agencies (State fish and wildlife agencies, Federally recognized Tribes, and APHIS-WS) submit annual written proposals to the USFWS Regional Migratory Bird Permit Office (RMBPO) describing the locations and levels of proposed management actions. The Regional Director may prevent any activities that pose a threat to the long-term sustainability of DCCOs or any other migratory bird species. Often, decisions are made through interactive communications between the action agencies and USFWS. In some cases, USFWS asks action agencies to clarify their request or provide additional rationale for a decision. Inter-agency coordination also occurs through the NEPA process when environmental assessments are developed for DCCO management within individual States.
No such interaction occurs under the AQDO. However, aquaculture producers may operate under the AQDO only in conjunction with an established nonlethal harassment program as certified by APHIS-WS as outlined in WS Directive 2.330. This certification is documented on WS Form 37, which APHIS-WS is required to share with the USFWS when requested. Aquaculture producers submit an annual report of take by location and date, as does APHIS-WS for take at roosts in the vicinity of aquaculture facilities.
We retain the authority to revoke privileges to operate under the PRDO or AQDO if we believe the depredation orders have not been adhered to, or if the long-term sustainability of DCCO populations is threatened. Since 2004, total annual take of DCCOs in the United States has averaged 27 percent of the amount projected in the 2003 FEIS, for depredation permits, expanded AQDO, and PRDO (USFWS 2003).
We have identified the following objectives that will be used to evaluate the alternatives. We identified three fundamental objectives:
(1) To meet our legal obligations under the MBTA, Bald and Golden Eagle Protection Act (BGEPA) (16 U.S.C. 668), Endangered Species Act (ESA) (16 U.S.C. 1531
(2) To minimize conflicts related to DCCO impacts and resultant management actions; and
(3) To minimize the costs of implementing regulations.
Each alternative will be measured against the following criteria, or means objectives, to determine how it facilitates achieving the fundamental objectives:
(1) Maintain sustainable DCCO populations;
(2) Minimize negative impacts to other migratory birds and threatened and endangered species;
(3) Maximize the ability to manage DCCO conflicts;
(4) Maximize the social acceptance of DCCO management actions;
(5) Minimize the cost of implementation by action agencies; and
(6) Minimize the cost of USFWS oversight.
We considered several alternative management actions in the 2003 EIS (USFWS 2003) including:
(1) No Action;
(2) Non-lethal Management;
(3) Increased Local Damage Control;
(4) Public Resource Depredation Order;
(5) Regional Population Reduction; and
(6) Regulated Hunting.
That environmental review resulted in the selection of the alternative establishing the PRDO and modifying the AQDO (USFWS 2003). In addition to considering the management alternatives identified above, the following actions may be included and addressed in the new NEPA analysis:
(1) Renewing the depredation orders as currently written (with or without an expiration date);
(2) Modifying the current depredation orders;
(3) Allowing the depredation orders to expire; or
(4) Adopting a different alternative that may or may not have been considered in the 2003 EIS.
We seek comments and suggestions from the public, concerned government agencies, Tribes, industry, the scientific community, and other interested parties regarding the problem, objectives, and alternatives that we have described and identified. Explaining your reasons will help us evaluate your comments. Of particular interest are answers to the following questions:
(1) Have we accurately described the problem? If not, how could it be better described?
(2) Are there fundamental or means objectives regarding DCCO management missing from the list above that we should consider?
(3) Should the current fundamental or means objectives be modified? If so, how?
(4) How would you rank the relative importance of the identified fundamental and means objectives? Please provide your rationale.
(5) Are there any other alternatives that should be evaluated? If so, please describe them in sufficient detail so that they can be evaluated.
(6) Should any of the identified alternatives be modified? If so, how?
(7) How would you rank the preliminary list of alternatives? Please provide your rationale.
As examples of the level of detail needed to evaluate alternatives, we present the specifics of two alternatives that will likely be evaluated: The current and an alternative version of both the AQDO and PRDO. In many cases, the alternative versions attempt to resolve ambiguities in existing regulations.
In addition, APHIS-WS and some State fish and wildlife agencies have continued to express interest in the Regional Population Regulation alternative (formerly referred to as Regional Population Reduction), though we considered and rejected that alternative in the 2003 EIS. To assist us in further evaluating that alternative, we are requesting information that will help us answer the following questions:
(1) Define “regional.”
a. What scale?
b. What geographic area?
(2) How will population objectives be established?
a. Breeding population?
b. Wintering population?
(3) How will birds breeding in Canada be incorporated?
(4) How will allowable take be allocated by State?
(5) How will allocated take be distributed, and how will this affect take by aquaculture producers?
(6) Where does the funding come from to implement this alternative?
(7) What are the implications of taking birds that are not directly causing damage? Does this alternative just shift the public pressure to the national level?
(8) What are the implications if this alternative does not have the desired effect and local conflicts continue to occur?
You may submit your comments and supporting materials only by one of the methods listed in the
If you submit a comment via
Comments and materials we receive, as well as supporting documentation we used in preparing this notice, will be available for public inspection at
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes to implement the Comprehensive Ecosystem-Based Amendment 2 (CE-BA 2) to implement the following South Atlantic fishery management plan (FMP) amendments: Amendment 1 to the FMP for Pelagic
Written comments on this proposed rule must be received no later than 5 p.m., Eastern time, on November 25, 2011.
You may submit comments, identified by NOAA-NMFS-2011-0219, by any one of the following methods:
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To submit comments through the Federal e-Rulemaking Portal:
Comments received through means not specified in this rule will not be accepted.
Electronic copies of CE-BA 2, which includes an environmental assessment, Regulatory Impact Review, Initial Regulatory Flexibility Act Analysis (IRFA), and a Fishery Impact Statement may be obtained from the Southeast Regional Office Web site at
Karla Gore, Southeast Regional Office, NMFS, telephone: (727) 824-5305, email:
The fisheries for CMP species; coral, coral reefs, and live/hard bottom habitats; pelagic
The 2006 revisions to the Magnuson-Stevens Act require that in 2011, FMPs for the fisheries determined by the Secretary of Commerce to not be subject to overfishing must establish ACLs for these species at a level that prevents overfishing from occurring, and does not exceed the fishing level recommendation of the respective Council's Scientific and Statistical Committee or other established peer review processes.
An ACL is the level of annual catch of a stock or stock complex that is set to prevent overfishing from occurring. Accountability measures (AMs) are used to ensure an ACL is not exceeded, and are used when the ACL is met or exceeded. ACLs may incorporate management and scientific uncertainty, and take into account the amount of data available and level of vulnerability to overfishing for each species.
If implemented, this rule would modify the fishery management unit for octocorals in the South Atlantic EEZ, establish an ACL of zero for the remaining octocorals, limit harvest of snapper-grouper species and CMP resources in the SMZs off South Carolina to the bag limit, and modify sea turtle and small tooth sawfish release gear specifications based on freeboard height of commercial South Atlantic snapper-grouper vessels. CE-BA 2 also proposes to designate new EFH and EFH-HAPCs to include the deepwater Marine Protected Areas (MPAs) for snapper-grouper species, designate Deepwater Coral HAPCs as EFH-HAPCs, and designate the top 33 ft (10 m) of the water column in the South Atlantic EEZ bounded by the Gulfstream as EFH for pelagic
This rule would modify the fishery management unit (FMU) for octocorals under the Coral FMP to include octocorals in the EEZ off North Carolina, South Carolina, and Georgia only. Federal management of octocorals in the EEZ off Florida would no longer be included under the Coral FMP. No entities have a valid Federal permit which is required to harvest octocorals in Federal waters, and the Council determined that Federal conservation and management of octocorals in the EEZ off Florida is no longer necessary. Florida's Fish and Wildlife Conservation Commission (FWC) is currently responsible for the majority of the management, implementation, and enforcement of the octocorals fishery, because the majority of octocoral harvest occurs in Florida state waters by Florida registered vessels. If this rule is implemented, Florida and the FWC would have the authority to extend management of octocorals into Federal waters. The Gulf Council has developed the Generic Annual Catch Limits/Accountability Measures Amendment (Generic ACL Amendment) which includes an action to remove octocorals from the FMP for Coral and Coral Reefs of the Gulf of Mexico. The availability of the Generic ACL Amendment was announced in the
This rule would specify an ACL of zero for the octocorals remaining in the FMU off Georgia, South Carolina, and North Carolina. Current regulations include a 50,000 colony quota for octocorals in the Gulf of Mexico (Gulf) and South Atlantic region and a prohibition to harvest octocorals in the EEZ north of Florida. Additionally, the Coral FMP prohibits harvest of coral reefs, and, specifically, stony corals, black corals, fire coral, hydrocorals and two species of seafans in the South Atlantic EEZ, and therefore these species have a functional ACL of zero. Additionally, the harvest prohibition serves as a functional AM to manage the ACL.
This rule would limit the harvest and possession of South Atlantic snapper-grouper species and CMP species in the SMZs off South Carolina to the recreational bag limit. Current regulations prohibit taking snapper-grouper in the SMZs off South Carolina with a powerhead, and this rule would also prohibit fishermen from harvesting commercial quantities of snapper-grouper and CMP species in these SMZs. This action responds to concerns from the recreational sector about the potential for commercial exploitation of these species in the SMZs off of South Carolina. Modifying management of the SMZs to restrict commercial fishing effort to the bag limit for snapper-grouper and CMP species would eliminate harvest of commercial quantities of snapper-grouper and CMP species and would ensure the original intent of the SMZs is realized.
This rule would modify the sea turtle and smalltooth sawfish release gear requirements. Fishermen have expressed concern that the current sea turtle handling and release gear requirements are intended for larger longline vessels using heavy tackle and are ineffective and unwieldy for smaller snapper-grouper hook-and-vessels. This action would modify the requirements based on freeboard height of the vessels. Fishermen would still be required to post and comply with the release guidelines outlined in the NMFS document entitled, “Careful Release Protocols for Sea Turtle Release with Minimal Injury,” however, the specifications of the release gear would be modified as follows: Vessels with a freeboard height of 4 ft (1.2 m) or less would be required to carry and use a short-handled dehooker for ingested and external hooks; long-nose or needle-nose pliers; bolt-cutters; monofilament line cutters; cushion/support device; a dipnet; and at least two types of mouth openers/mouth gags. Vessels with a freeboard height of greater than 4 ft (1.2 m), or any vessel using longline gear, would be required to carry and use a long-handled line cutter; a long-handled dehooker for ingested and external hooks; a short-handled dehooker for ingested and external hooks; a long-handled device to pull an “inverted V”; long-nose or needle-nose pliers; bolt-cutters; monofilament line cutters; cushion/support device; a dipnet; and at least two types of mouth openers/mouth gags. This equipment would need to meet the specifications described in proposed Appendix E to 50 CFR part 622 (which can be found at the end of this rule).
CE-BA 2 also proposes amending South Atlantic FMPs as needed to designate new or modify existing EFH and EFH-HAPCs. CE-BA 2 would amend the Snapper-Grouper FMP to designate the deepwater MPAs as EFH-HAPCs. These deepwater MPAs were previously established under Amendment 14 to the South Atlantic Snapper-Grouper FMP and include the Snowy Grouper Wreck MPA, Northern South Carolina MPA, Edisto MPA, Charleston Deep Artificial Reef MPA, Georgia MPA, North Florida MPA, St. Lucie Hump MPA, and East Hump MPA. The Coral FMP would be amended to designate deep-water coral HAPCs (CHAPCs) as EFH-HAPCs.
Additional background and rationale for the measures discussed above are contained in CE-BA 2. The availability of CE-BA 2 was announced in the
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this rule is consistent with CE-BA 2, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
This rule has been determined to be not significant for purposes of Executive Order 12866.
NMFS prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act, for this rule. The IRFA describes the economic impact that this rule, if adopted, would have on small entities. A copy of the full analysis is available from NMFS (see
The Magnuson-Stevens Act provides the statutory basis for this rule. No duplicative, overlapping, or conflicting Federal rules have been identified. The preamble of this rule provides a statement of the need for and objectives of this rule, and it is not repeated here.
This proposed action would apply to commercial vessels that harvest octocorals in Federal waters, harvest snapper-grouper in Federal waters throughout the South Atlantic, or harvest snapper-grouper or CMP species in the SMZs off South Carolina. A Federal permit is required to harvest octocorals and snapper-grouper in Federal waters. There are two types of Federal commercial snapper-grouper permits, an unlimited permit, which is transferable and allows the harvest of unlimited quantities of snapper-grouper species, unless constrained by single species trip limits, and a limited permit, which is not transferable and limits vessels to 225 lb (102 kg) of snapper-grouper per trip. For the species included in the CMP fishery, a Federal permit is required to harvest commercial quantities of king mackerel and Spanish mackerel (separate permits for each species).
No entities have a valid Federal permit required to harvest octocorals in Federal waters. On March 29, 2011, there were 598 non-expired or renewable unlimited snapper-grouper commercial permits and 138 limited snapper-grouper permits, or a total of 736 snapper-grouper commercial permits. Although unlimited permits are transferable, potentially resulting in more vessels operating in the fishery than the number of permits, the number of permits is assumed to represent the number of full-time equivalent vessels operating in the fishery. As a result, the number of permits is assumed equal to the number of vessels and the vessel is assumed to be the representative unit for an entity.
Similar information is not available for permits associated with vessels with home ports in South Carolina. However, over the period 2005-2009, the average annual number of vessels with home ports in South Carolina that possessed the appropriate Federal commercial permit was 38 vessels for king mackerel, 15 vessels for Spanish mackerel, and 72 vessels for snapper-grouper (unlimited and limited permits combined). Additional vessels from other states may also harvest finfish in the SMZs off South Carolina and may be affected by the proposed action but, for the purpose of this analysis, the majority of vessels that fish in the SMZs off South Carolina are assumed to come from South Carolina ports.
For the period 2005-2009, the total average annual ex-vessel revenues from all snapper-grouper harvests was approximately $13.8 million (2009 dollars), or approximately $16,000 per vessel (averaged over 847 vessels, which was the average annual number of vessels with snapper-grouper permits over this period; if averaged over the current number of permits, 736, based on the assumption that average annual revenues have been maintained despite declining participation in the fishery, the average per vessel increases to approximately $19,000). These totals do not include revenues from other species harvested by these vessels, but snapper-grouper are assumed to be the primary species harvested by these vessels. Although more recent data are not available, over the period 2003-2007, snapper-grouper accounted for approximately 61 percent of total revenues by vessels with snapper-grouper harvests. If this percentage is used to adjust the per-vessel averages of snapper-grouper revenues provided above to account for revenues from other species, the resultant averages increase to approximately $26,000 (847 vessels) and $31,000 (736 vessels).
The average annual revenue for vessels that fish in the SMZs off South Carolina is unknown. However, for the period 2005-2009, the total average annual ex-vessel revenues from all snapper-grouper harvests landed in South Carolina was approximately $3.6 million (2009 dollars), or approximately $50,000 per vessel (averaged over 72 vessels). As with the information on snapper-grouper harvests for the entire South Atlantic, these totals do not include revenues from other species harvested by these vessels, but snapper-grouper are assumed to be the primary species harvested by these vessels. If the average revenue per vessel is adjusted to account for revenues from other species using the percentage used in the previous paragraph (61 percent), then the average ex-vessel revenue per vessel would increase to approximately $82,000.
Similar information for South Carolina vessels harvesting CMP species is not available. However, for the entire South Atlantic, over approximately the same period (2004-2009; the king mackerel and Spanish mackerel fishing years do not follow the calendar year, so the data covered the fishing years 2004-2005 through 2008-2009, thereby encompassing part of 2004 and part of 2009), the total average annual ex-vessel revenues from all species for vessels harvesting king mackerel was approximately $23.3 million (2009 dollars), or approximately $32,000 per vessel. For vessels harvesting Spanish mackerel, the total average annual ex-vessel value was approximately $9.7 million (2009 dollars), or approximately $28,000 per vessel. Unlike in the
The Small Business Administration has established size criteria for all major industry sectors in the U.S. including fish harvesters. A business involved in fish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $4.0 million (NAICS code 114111, finfish fishing) for all its affiliated operations worldwide. Based on the average revenue estimates provided above, all commercial vessels expected to be directly affected by this rule are determined for the purpose of this analysis to be small business entities.
This rule would not establish any new reporting, record-keeping, or other compliance requirements.
As previously discussed, this rule, if implemented, would apply to all vessels with Federal commercial snapper-grouper permits that fish anywhere in the South Atlantic, and all vessels with Federal snapper-grouper, king mackerel, or Spanish mackerel permits that fish in the SMZs off South Carolina. Any expected direct effects of this rule on vessels with snapper-grouper permits that do not fish in the SMZs off South Carolina would be limited to the effects of the proposed regulation that would modify the protected species release gear requirements, which would maintain current requirements for vessels with more than 4 ft (1.2 m) freeboard height and lessen the requirements for vessels with freeboard height of 4 ft (1.2 m) or less, thereby effectively only changing the requirements for vessels with lower freeboard height. The number of vessels with Federal snapper-grouper permits with freeboard height of 4 ft (1.2 m) or less is unknown. Nevertheless, this component of the rule would allow voluntary change, rather than mandate specific change, and no explicit burden would be imposed on any entity. As a result, because of the voluntary nature of the regulation, a substantial number of entities would not be expected to be affected by this component of the rule.
This rule, if implemented, would be expected to primarily affect entities with the required Federal permit for snapper-grouper or CMP species that commercially fish in the SMZs off South Carolina. NMFS assumes the majority of such entities own vessels with home ports in South Carolina, though vessels with home ports in other states may also be affected if they fish in the SMZs off South Carolina. The number of potentially affected South Carolina vessels is estimated to be 38 vessels with a king mackerel permit, 15 vessels with a Spanish mackerel permit, and 72 vessels with a snapper-grouper permit. Although these totals encompass all appropriately permitted vessels with home ports in South Carolina, these totals represent less than 3 percent of the vessels with home ports in the South Atlantic states (all of Florida, Georgia, South Carolina, and North Carolina) with king mackerel commercial permits, less than 1 percent of the vessels with Spanish mackerel commercial permits, and less than 9 percent of the vessels with snapper-grouper permits. The total number of king mackerel and Spanish mackerel vessels with home ports in Florida included vessels in both the Gulf and South Atlantic regions. Assuming half of the Florida king mackerel and Spanish mackerel vessels are from home ports in the Gulf region and are excluded from the total to produce a more representative South Atlantic total, the number of affected vessels still encompasses only approximately 4 percent of South Atlantic vessels with king mackerel permits and less than 2 percent of South Atlantic vessels with Spanish mackerel permits. The number of affected vessels would also decline if not all South Carolina snapper-grouper or CMP vessels fish in the SMZs, which NMFS expects to be the case because of congestion and the belief that the problem of the harvest of commercial quantities of fish in the SMZs is largely limited to vessels using spear gear (hand spear or spear guns), which is not the dominant gear used by vessels in the snapper-grouper fishery. As a result, only a small number of vessels in the appropriate fleets would be expected to be directly affected by this rule.
Because no fishermen possess the required valid Federal permit needed to harvest octocorals in the EEZ and there are very few recorded octocoral harvests from the EEZ off Georgia, South Carolina, or North Carolina, the proposed regulations pertaining to octocoral would not be expected to have any economic affect on any small entities.
It is not possible with available data to determine the amount or value of commercial harvests in excess of the recreational bag limits that would be affected by the rule. Neither the vessels that fish in the SMZs nor the amount or value of harvest taken from the SMZs can be identified. Further, affected vessels may be able to compensate for reduced harvest from the SMZs with harvest from other areas, though the harvest cost would be expected to increase. Because it is not possible to address these issues with available data, it is not possible to determine if the proposed regulation would be expected to significantly reduce profits for any small entities. Due to the inability to determine either the number of vessels that would be affected by this component of the rule, though the discussion above suggests the number of affected vessels may not be substantial, or the magnitude of expected effects, public comment is solicited on the potential number of affected entities and magnitude of economic effects.
The proposed release gear requirements equate to status quo conditions for vessels in the snapper-grouper fishery with more than 4 ft (1.2 m) of freeboard height and a lessening of the requirements for vessels with 4 ft (1.2 m) or less freeboard height. Because all vessels in the snapper-grouper fishery are assumed to meet current requirements, no vessel would be compelled to make any new gear purchases. Any change in gear costs would be voluntary,
As previously discussed, the only action in this rule that may be expected to have a significant direct adverse economic effect on the profits of any small entities is the proposed limitation on harvest of snapper-grouper and CMP species in the SMZs off South Carolina to the recreational bag limit. Two alternatives to the proposed limitation were considered. The first alternative, the no action alternative, would not have placed any new restrictions on commercial harvests in the SMZs and, as a result, would be expected to reduce the economic impacts on small business entities. This alternative would not, however, achieve the Council's objectives of reducing user conflict, improving recreational fishing opportunities, allowing for equitable utilization by a larger number of fishermen, and protecting the reef communities from overly-efficient fishing practices.
The second alternative to the proposed action would have simply
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands.
For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:
1. The authority citation for part 622 continues to read as follows:
16 U.S.C. 1801
2. In § 622.1, paragraph (b), Table 1, the entry for “FMP for Coral, Coral Reefs, and Live/Hard Bottom Habitats of the South Atlantic Region” is revised and footnote 7 is added to read as follows:
(b) * * *
2. In § 622.10, paragraphs (c)(1)(ii) and (iii), are revised to read as follows:
(c) * * *
(1) * * *
(ii) Such owner or operator must also comply with the sea turtle bycatch mitigation measures, including gear requirements and sea turtle handling requirements, specified in Appendix E to this part.
(iii) Those permitted vessels with a freeboard height of 4 ft (1.2 m) or less must have on board and must use a dipnet, cushioned/support device, short-handled dehooker, long-nose or needle-nose pliers, bolt cutters, monofilament line cutters, and at least two types of mouth openers/mouth gags. This equipment must meet the specifications described in Appendix E to this part. Those permitted vessels with a freeboard height of greater than 4 ft (1.2 m) must have on board a dipnet, cushioned/support device, long-handled line clipper, a short-handled and a long-handled dehooker, a long-handled device to pull an inverted “V”, long-nose or needle-nose pliers, bolt cutters, monofilament line cutters, and at least two types of mouth openers/mouth gags. This equipment must meet the specifications described in Appendix E to this part.
3. In § 622.32, paragraph (b)(3)(viii) is added to read as follows:
(b) * * *
(3) * * *
(viii) Octocoral may not be harvested or possessed in or from the portion of the South Atlantic EEZ off North Carolina, South Carolina, and Georgia, and any octocoral collected must be released immediately with a minimum of harm.
4. In § 622.35, in paragraph (e)(2), the first entry in the table is revised to read as follows:
(e) * * *
(2) * * *
5. In § 622.42, paragraph (b) is revised to read as follows:
(b)
6. Appendix E is added to part 622 to read as follows:
A.
1.
(a)
(b)
2.
(a)
(b)
3.
(a)
(b)
4.
(a)
(b)
5.
(a)
(b)
6.
7.
(a)
(b)
8.
(a)
(b)
9.
(a)
(b) [Reserved]
10.
(a)
(b) [Reserved]
11.
(a)
(b) [Reserved]
12.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
B.
1.
(a) A boated turtle should be placed on a cushioned/support device, as specified in paragraph A.6. of this Appendix E, in an upright orientation to immobilize it and facilitate gear removal. Then, it should be determined if the hook can be removed without causing further injury. All externally embedded hooks should be removed, unless hook removal would result in further injury to the turtle. No attempt to remove a hook should be made if it has been swallowed and the insertion point is not visible, or if it is determined that removal would result in further injury. If a hook cannot be removed, as much line as possible should be removed from the turtle using monofilament cutters as specified in paragraph A.11. of this Appendix E, and the hook should be cut as close as possible to the insertion point before releasing the turtle, using bolt cutters as specified in paragraph A.10. of this Appendix E. If a hook can be removed, an effective technique may be to cut off either the barb, or the eye, of the hook using bolt
(b) [Reserved]
2.
(a) Non-boated turtles should be brought close to the boat and provided with time to calm down. Then, it must be determined whether or not the hook can be removed without causing further injury. All externally embedded hooks must be removed, unless hook removal would result in further injury to the turtle. No attempt should be made to remove a hook if it has been swallowed, or if it is determined that removal would result in further injury. If the hook cannot be removed and/or if the animal is entangled, as much line as possible must be removed prior to release, using a line cutter as specified in paragraph A.1. of this Appendix E. If the hook can be removed, it must be removed using a long-handled dehooker as specified in paragraphs A.2. and A.3. of this Appendix E. Without causing further injury, as much gear as possible must be removed from the turtle prior to its release. Refer to the careful release protocols and handling/release guidelines required in § 622.10(c)(1), and the handling and resuscitation requirements specified in § 223.206(d)(1) for additional information.
(b) [Reserved]
In connection with its investigation into three iron dust flash fires at the Hoeganaes facility in Gallatin, TN., the U.S. Chemical Safety and Hazard Investigation Board (CSB) announces that it will hold a public meeting on November 16, 2011, in Gallatin to collect additional information to aide in its ongoing investigation of the incidents. Two workers were killed in the first iron dust incident on January 31, 2011, and the second iron dust incident on March 29, 2011 injured another employee. The third incident, a hydrogen explosion and resulting iron dust flash fires, claimed three lives and injured two others on May 27, 2011. The meeting will begin at 6 p.m. at the EPIC Event Center, 392 and 394 West Main St., Gallatin, TN 37066.
The meeting is free and open to the public. Pre-registration is not required, but to assure adequate seating, attendees are encouraged to pre-register by emailing their names and affiliations to
At the meeting, CSB staff will discuss with the Board the results of their investigation to date into these incidents. In addition, a panel of outside experts and others will be invited to speak on a number of issues related to the investigation.
All staff presentations are preliminary and are intended solely to allow the Board to consider in a public forum various issues and factors involved in this case. No factual analyses, conclusions or findings presented by staff should be considered final.
After the conclusion of Hoeganaes case study discussion, the Board will conclude the public meeting by considering certain board business matters that have been calendared during board votes during FY 2011. Such matters involve the resolution of proposed status changes to recommendations made in the Imperial Sugar investigation, other board affairs issues, and consideration and vote on the CSB Human Capital Plan.
Please notify CSB if a translator or interpreter is needed, at least 5 business days prior to the public meeting. For more information, please contact the Chemical Safety and Hazard Investigation Board at (202) 261-7600, or visit our Web site at:
The Department of Commerce has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the emergency provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The Recovery Act mandates that funds distributed under its authority be subject to an unprecedented level of transparency and accountability. This includes an increased level of monitoring and oversight to ensure that Recovery Act funds are used for their authorized purposes; steps are in place to prevent waste, fraud or abuse; and BTOP projects avoid unnecessary delay and cost-overruns and meet targets and goals. In addition to increased levels of monitoring and oversight, BTOP projects must adhere to mandatory timelines requiring them to demonstrate that each project will be substantially completed within two years of the grant's issuance date. To enable NTIA to properly achieve these objectives and verify that BTOP projects are meeting established targets and goals within the mandated timeframes, NTIA has developed and utilized Performance Progress Reports (PPRs) to capture quarterly and annual reports for each project type (Infrastructure, Public Computer Center, and Sustainable Broadband Adoption). Each PPR provides updates on fundamental project milestones and key performance indicators that allow NTIA to measure project progress and ensure proper monitoring and compliance with program rules.
NTIA reviewed PPRs, submitted on September 30, 2011, and assessed the individual responses provided by BTOP grant recipients and concluded that several key questions on the existing annual Infrastructure PPR need to be clarified if NTIA is to receive the appropriate level of detail necessary to ensure BTOP projects are meeting established targets and goals within mandated timeframes. NTIA is also requesting updated mapping information in order to better monitor the current status and impact of broadband deployment in each of the funded project areas. The annual Infrastructure PPR will be revised to capture more detailed information related to: Community Anchor Institutions; Points of Presence; and Network Maps.
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance
Written comments and recommendations for the proposed information collection should be sent by November 30, 2011 to Nicholas Fraser, OMB Desk Officer, FAX number (202) 395-7285, or via the Internet at
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
United States (U.S.) commercial fishermen may file claims for compensation for losses of or damages to fishing gear or vessels, plus 50 percent of resulting economic losses, attributable to oil and gas activities on the U.S. Outer Continental Shelf. To obtain compensation, applicants must comply with requirements set forth in 50 CFR part 296. The requirements include a report within 15 days of the date the vessel first returns to port after the incident, to gain a presumption of eligible causation, and an application form.
The report form (NOAA Form 88-166) requests identifying information such as the claimant's name, address, phone number, and social security number. It also requests information pertaining to the casualty, such as the location of the obstruction, the date and time of the casualty, identification of the vessel involved, and the date the vessel first returned to port after the casualty.
The application (NOAA Form 88-164) consists of a property loss section and a section for economic loss. The property loss section requests the same identifying information contained in the initial report. It also requests information such as the amount and type of damage claimed, description of the casualty and likely causes, efforts to recover gear, description of proofs of ownership, estimates of repair or replacement costs, and identification of witnesses. The economic loss section requests information pertaining to economic loss and consequential damages resulting from the casualty. This includes the length of trips and income from those trips prior to the casualty, number of gear units lost, date replacement gear was ordered and received or the date repairs were commenced and completed. This section also requests information regarding consequential damages such as extra fuel consumption or claim preparation fees. The application also includes inventory schedules which lists the amounts of gear involved in the casualty, its purchase date, purchase cost, and repair or replacement cost. The application also includes an affidavit by which the claimant attests to the truthfulness of the claim.
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Bureau of the Census, Department of Commerce.
Notice of Determination.
The United States Department of Commerce's Bureau of the Census (Census Bureau) publishes this notice to announce that the Director of the Census Bureau has determined the need to conduct the 2011 Annual Retail Trade Survey (ARTS). ARTS covers employer firms with establishments located in the United States and classified in the Retail Trade and/or Accommodation and Food Services sectors as defined by the 2007 North American Industry Classification System (NAICS). Through this survey, the Census Bureau will collect data covering annual sales, annual e-commerce sales, year-end inventories held inside and outside the United States, total operating expenses, purchases, accounts receivables, and, for selected industries, merchandise line sales, and percent of e-commerce sales to customers located outside the United States. These data are collected to provide a sound statistical basis for the formation of policy by various government agencies. Results will be available for use for a variety of public and business needs such as economic and market analysis, company performance, and forecasting future demand.
The Census Bureau will provide report forms to businesses included in the survey. Additional copies are available upon written request to the Director, U.S. Census Bureau, Washington, DC 20233-0101.
Aneta Erdie, Service Sector Statistics Division, at (301) 763-4841 or by email at
Sections 182, 224, and 225 of Title 13 of the United States Code authorize the Census Bureau to take surveys that are necessary to produce current data on the subjects covered by the major censuses. As part of this authorization, the Census Bureau conducts the ARTS to provide continuing and timely national statistical data on retail trade, and accommodation and food services activity for the period between economic censuses. ARTS is a continuation of similar retail trade surveys conducted each year since 1951
A new sample of firms will be selected for the 2011 ARTS. It is expected that approximately 60-70% of the companies that are asked to report will be doing so for the first time (and, consequently, 60-70% of the prior sample will no longer be asked to report). In order to link estimates from the new and prior samples, we will be asking companies to provide data for 2011 and 2010. The ARTS for 2012 and those for subsequent years will request one year of data until a new sample is once again introduced.
Firms are selected for the ARTS survey using a stratified random sample based on industry groupings and annual sales size. We will provide report forms to the firms covered by this survey in January 2012, and will require their responses within 60 days after receipt. Firms' responses to the ARTS survey are required by law(Title 13 U.S.C. Sections 182, 224, and 225). The sample of firms selected will provide, with measurable reliability, statistics on annual sales, annual e-commerce sales, purchases, total operating expenses, accounts receivables, and year-end inventories held both inside and outside the United States for 2011.
The data collected in this survey will be similar to that collected in the past and within the general scope and nature of those inquiries covered in the economic census. These data are collected to provide a sound statistical basis for the formation of policy by various government agencies. Results will be available for use for a variety of public and business needs including economic and market analysis, company performance, and forecasting future demand.
Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a current valid Office of Management and Budget (OMB) control number. In accordance with the PRA, 44 U.S.C. 3501-3521, OMB has approved the Annual Retail Trade Survey under OMB Control Number 0607-0013.
Based upon the foregoing, I have directed that an annual survey be conducted for the purpose of collecting these data.
Bureau of Industry and Security, Department of Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before January 9, 2012.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Larry Hall, BIS ICB Liaison, (202) 482-4895,
This collection of information is required by the Export Administration Regulations and the Federal Advisory Committee Act. The Technical Advisory Committees (TACs) were established to advise and assist the U.S. Government on export control matters such as proposed revisions to export control lists, licensing procedures, assessments of the foreign availability of controlled products, and export control regulations. Under this collection, interested parties may submit a request to BIS to establish a new TAC. The Bureau of Industry and Security provides administrative support for these Committees.
Submitted electronically or on paper.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Import Administration, International Trade Administration, Department of Commerce.
Demitri Kalogeropoulos or Frances Veith, AD/CVD Operations, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230;
On July 28, 2010, the Department of Commerce (“Department”) published the initiation of the administrative review of the antidumping duty order on tapered roller bearings and parts thereof, finished or unfinished, (“TRBs”) from the People's Republic of China (“PRC”).
Pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“Act”), the Department shall make a final determination in an administrative review of an antidumping duty order within 120 days after the date on which the preliminary results are published. The Act further provides, however, that the Department may extend that 120-day period to 180 days if it determines it is not practicable to complete the review within the foregoing time.
The Department finds that it is not practicable to complete the final results of the 2009-2010 administrative review of TRBs from the PRC within the 120-day period. We find that we need additional time to fully analyze the complicated issues raised in the case and rebuttal briefs, specifically input consumption allocations and issues relating to a successor-in-interest determination. Therefore, in accordance with section 751(a)(3)(A) of the Act, the Department is extending the time period for completion of the final results of this review by 30 days to December 10, 2011. However, because December 10, 2011, falls on a Saturday, a non-business day, the final results will now be due no later than December 12, 2011, the next business day.
This notice is published in accordance with sections 751(a)(3)(A) and 777(i) of the Act.
National Oceanic and Atmospheric Administration (NOAA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before January 9, 2012.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Andy Collins, at (808)-694-3922 or
This request is for a revision and extension of a currently approved information collection. Mokupapapa Discovery Center (Center) is an outreach arm of Papahanaumokuakea Marine National Monument that reaches 60,000 people each year in Hilo, Hawai`i. The Center was created eight years ago to help raise support for the creation of a National Marine Sanctuary in the Northwestern Hawaiian Islands. Since that time, the area has been proclaimed a Marine National Monument and the main messages we are trying to share with the public have changed to better reflect the new monument status, UNESCO World Heritage status and the joint management by the three co-trustees of the Monument. We therefore are seeking to find out if people visiting our Center are receiving the new messages by conducting an optional exit survey which is the proposed revision to the collection.
Surveys will be conducted by in- person interview as people exit the Center. Interviewers will record responses on paper, and later transfer them to an electronic database.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Office of Elementary and Secondary Education, Department of Education.
Notice.
College Assistance Migrant Program (CAMP).
Notice inviting applications for new awards for fiscal year (FY) 2012.
Catalog of Federal Domestic Assistance (CFDA) Number: 84.149A.
These priorities are:
The applicant must be a “novice applicant” as defined in 34 CFR 75.225(a). A novice applicant is defined as one who has: (i) Never received a grant or a subgrant under the CAMP program; (ii) never been a member of a group application, submitted in accordance with 34 CFR 75.127-75.129, that received a grant under the CAMP program; and (iii) not had an active discretionary grant from the Federal government in the five years before the deadline date for applications under the CAMP program (January 18, 2012).
For applicants with an expiring CAMP project, the Secretary will consider the applicant's prior experience in implementing its expiring CAMP project, based on information contained in documents previously provided to the Department, such as annual performance reports, project evaluation reports, site visit reports, and the previously approved CAMP application.
Under this competition, we also are particularly interested in applications that address the following priorities.
These priorities are:
Projects that are designed to address one or more of the following priority areas:
(a) Providing students with increased access to rigorous and engaging coursework in STEM.
(b) Increasing the number and proportion of students prepared for postsecondary or graduate study and careers in STEM, with a specific focus on an increase in the number and proportion of students so prepared who are from groups traditionally underrepresented in STEM careers, including minorities, individuals with disabilities, and women.
Applicants could consider increasing participants' access to studies in STEM through such activities as counseling and tutoring in ways that motivate participants to pursue postsecondary education in the areas of STEM. Similarly, applicants could consider increasing students' preparedness for study and careers in STEM through activities such as referrals to STEM-oriented work study, exposure to academic programs and careers in STEM-related fields, and providing support services. These could include services to improve participants' academic skills and knowledge so that they may pursue studies and careers in STEM-related fields.
Applications that propose to engage faith-based and community organizations in the delivery of services under this program.
The regulations in 34 CFR part 86 apply to institutions of higher education (IHEs) only.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2013 from the list of unfunded applicants from this competition.
The Department is not bound by any estimates in this notice.
1.
2.
3.
1.
The application package content also can be viewed electronically at the following address:
If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll free, at 1-(800) 877-8339.
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2.
• A “page” is 8.5″ x 11″, on one side only, with 1” margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions. However, you may single space all text in charts, tables, figures, and graphs. Charts, tables, figures, and graphs presented in the application narrative count toward the page limit.
• Use a font that is either 12 point or larger or no aller than 10 pitch (characters per inch) throughout the entire application package.
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman or Arial Narrow) will not be accepted.
The 25-page limit for the project narrative does not apply to the cover sheet; the budget section, including the narrative budget justification; the assurances and certifications; and the one-page abstract. However, the page limit does apply to all of the application narrative section.
Our reviewers will not read any pages of your application narrative that exceed the 25-page limit.
Appendices must be limited to 20 pages and must include the following: Resumes, and job descriptions of key personnel. Job descriptions must include duties and minimum qualifications. Items in the appendices will only be used by the program office for the purpose of approving any future personnel changes.
3.
Applications for grants under this competition must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 7.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the Central Contractor Registry (CCR), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active CCR registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one business day.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow 2-5 weeks for your TIN to become active.
The CCR registration process may take five or more business days to complete. If you are currently registered with the CCR, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your CCR registration on an annual basis. This may take three or more business days to complete.
In addition, if you are submitting your application via Grants.gov, you must (1) Be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined at the following Grants.gov Web page:
7.
a.
Applications for grants under the College Assistance Migrant Program, CFDA number 84.149A must be submitted electronically using the Governmentwide Grants.gov Apply site at www.Grants.gov. Through this site, you will be able to download a copy of the application package, complete it offline, and then upload and submit your application. You may not email an electronic copy of a grant application to us.
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement and submit, no later than two weeks before the application deadline date, a written statement to the Department that you qualify for one of these exceptions. Further information regarding calculation of the date that is two weeks before the application deadline date is provided later in this section under
You may access the electronic grant application for the College Assistance Migrant Program at www.Grants.gov. You must search for the downloadable application package for this competition by the CFDA number. Do not include the CFDA number's alpha suffix in your search (
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: the Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a .PDF (Portable Document) format only. If you upload a file type other than a .PDF or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by email. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system; and
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Tara Ramsey, U.S. Department of Education, 400 Maryland Avenue SW., room 3E309, LBJ, Washington, DC 20202-6135. Fax: (202) 205-0089.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address:
U.S. Department of Education,Application Control Center,Attention: CFDA Number 84.149A,LBJ Basement Level 1,400 Maryland Avenue SW.,Washington, DC 20202-4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address:
U.S. Department of Education, Application Control Center, Attention: CFDA Number 84.149A, 550 12th Street SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
2.
In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We identify administrative and national policy requirements in the
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
4.
Applicants must propose annual targets for these measures in their applications. The national target for GPRA measure 1 for FY 2012 is that 86 percent of CAMP participants will complete the first academic year of their postsecondary program. The national target for GPRA measure 2 for 2012 is that 85 percent of CAMP participants will continue their postsecondary education after completing the first academic year of college. The national targets for subsequent years may be adjusted based on additional baseline data. The panel readers will score related selection criteria on the basis of how well an applicant addresses these GPRA measures. Therefore, applicants will want to consider how to demonstrate a sound capacity to provide reliable data on GPRA measures, including the project's annual performance targets for addressing the GPRA performance measures, as is required by the Office of Management and Budget approved annual performance report that is included in the application package. All grantees will be required to submit, as part of their annual performance report, information with respect to these performance measures.
5.
Tara Ramsey, U.S. Department of Education, Office of Migrant Education, 400 Maryland Avenue SW., room 3E309, Washington, DC 20202-6135. Telephone Number: (202) 260-2063, or by email:
If you use a TDD, call the FRS, toll free, at 1-(800) 877-8339.
You may also access documents of the Department published in the
Office of Elementary and Secondary Education, Department of Education.
Notice.
High School Equivalency Program (HEP)
Notice inviting applications for new awards for fiscal year (FY) 2012.
Catalog of Federal Domestic Assistance (CFDA) Number: 84.141A.
Applications Available: November 8, 2011.
Deadline for Transmittal of Applications: January 18, 2012.
Deadline for Intergovernmental Review: March 20, 2012.
These priorities are:
The applicant must be a “novice applicant,” as defined in 34 CFR 75.225(a). A novice applicant is defined as one who has: (i) Never received a grant or a subgrant under the HEP program; (ii) never been a member of a group application, submitted in accordance with 34 CFR 75.127-75.129, that received a grant under the HEP program; and (iii) not had an active discretionary grant from the Federal government in the five years before the deadline date for applications under the HEP program (January 18, 2012).
For applicants with an expiring HEP project, the Secretary will consider the applicant's prior experience in implementing its expiring HEP project, based on information contained in documents previously provided to the Department, such as annual performance reports, project evaluation reports, site visit reports, and the previously approved HEP application.
Under this competition, we also are particularly interested in applications that address the following priorities.
These priorities are:
Projects that are designed to address one or more of the following priority areas:
(a) Providing students with increased access to rigorous and engaging coursework in STEM.
(b) Increasing the opportunities for high-quality preparation of, or professional development for, teachers or other educators of STEM subjects.
Applicants could consider activities to better prepare program participants to transition into postsecondary education, such as preparing students to pass the sections of college entrance examinations in STEM-related subjects or counseling and tutoring services designed to motivate participants to pursue postsecondary education in STEM-related fields. Similarly, for demonstrating professional development, applicants could propose how they intend to increase the opportunities for high-quality professional development for project instructors in mathematics and related GED instruction. Opportunities for increasing professional development of GED instructors of STEM-related subjects could include, for example, participation in training on intensive science teaching techniques presented by a professionally credentialed expert in science education.
Applications that propose to engage faith-based and community organizations in the delivery of services under this program.
The regulations in 34 CFR part 86 apply to IHEs only.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2013 from the list of unfunded applicants from this competition.
The Department is not bound by any estimates in this notice.
1.
2.
3.
1.
The application package content also can be viewed electronically at the
If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll free, at 1-(800)-877-8339.
Individuals with disabilities can obtain a copy of the application package in an accessible format (e.g., braille, large print, audiotape, or compact disc) by contacting the program contact person listed in this section.
2.
Requirements concerning the content of an application, together with the forms you must submit, are in the application package for this competition.Page Limit: The application narrative (Part IV of the application) is where you, the applicant, address the selection criteria that reviewers use to evaluate your application. Panel readers will award points only for an applicant's response to a given selection criterion that is contained within the section of the application designated to address that particular selection criterion. Readers will not review, or award points for responses to a given selection criterion that is located in any other section of the application or the appendices. You must limit the application narrative [Part IV] to no more than 25 pages, using the following standards:
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions. However, you may single space all text in charts, tables, figures, and graphs. Charts, tables, figures, and graphs presented in the application narrative count toward the page limit.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch) throughout the entire application package.
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman or Arial Narrow) will not be accepted.
The 25-page limit for the project narrative does not apply to the cover sheet; the budget section, including the narrative budget justification; the assurances and certifications; or the one-page abstract. However, the page limit does apply to all of the application narrative section.
Our reviewers will not read any pages of your application narrative that exceed the 25-page limit.
Appendices must be limited to 20 pages and must include the following: Resumes and job descriptions of key personnel. Job descriptions must include duties and minimum qualifications. Items in the appendices will only be used by the program office for the purpose of approving any future personnel changes.
3.
Applications for grants under this competition must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 7.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the Central Contractor Registry (CCR), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active CCR registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one business day.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow 2-5 weeks for your TIN to become active.
The CCR registration process may take five or more business days to complete. If you are currently registered with the CCR, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your CCR registration on an annual basis. This may take three or more business days to complete.
In addition, if you are submitting your application via Grants.gov, you must (1) be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined at the following Grants.gov Web page:
7.
a.
Applications for grants under the High School Equivalency Program, CFDA number 84.141A, must be submitted electronically using the Governmentwide Grants.gov Apply site at www.Grants.gov. Through this site, you will be able to download a copy of the application package, complete it offline, and then upload and submit your application. You may not email an electronic copy of a grant application to us.
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement and submit, no later than two weeks before
You may access the electronic grant application for HEP at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: The Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a .PDF (Portable Document) format only. If you upload a file type other than a .PDF or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by email. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;and
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Tara Ramsey, U.S. Department of Education, 400 Maryland Avenue SW., room 3E309, Washington, DC 20202-6135.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address:
U.S. Department of Education,Application Control Center,
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
2.
In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
4.
Applicants must propose annual targets for these measures in their applications. The national target for GPRA measure 1 for FY 2012 is that 69 percent of HEP program participants exiting the program having received a GED credential. The national target for GPRA measure 2 for FY 2012 is that 80 percent of HEP GED recipients will enter postsecondary education or training programs, upgraded employment, or the military. The national targets for subsequent years may be adjusted based on additional baseline data. The panel readers will score related selection criteria for applicants, in part, on the basis of how well an applicant addresses these GPRA measures. Therefore, applicants should consider their capacity to provide reliable data on these measures, including the project's annual performance targets for the GPRA measures, as required by the Office of Management and Budget approved annual performance report that is included in the application package. All
5.
Tara Ramsey, U.S. Department of Education, 400 Maryland Avenue SW., Room 3E309, LBJ, Washington, DC 20202-6135.
If you use a TDD, call the FRS, toll free, at 1-(800) 877-8339.
You may also access documents of the Department published in the
U.S. Department of Energy (DOE).
Notice and request for comments.
The Department of Energy (DOE) invites public comment on a proposed collection of information that DOE is developing for submission to the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 1995. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments regarding this proposed information collection must be received on or before January 9, 2012. If you anticipate difficulty in submitting comments within that period, contact the person listed in
Written comments may be sent to Monica Neukomm, EE-20/Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585 or by fax at (202) 586-9260 or by email at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Monica Neukomm, EE-20/Forrestal Building, 1000 Independence Avenue, SW., Washington, DC 20585,
This information collection request contains:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
Section 421 of the Energy Independence and Security Act of 2007 (42 U.S.C. 17081); Section 911 of the Energy Policy Act of 2005, as amended (42 U.S.C. 16191).
Department of Energy, Office of Science.
Notice of open meeting.
This notice announces a meeting of the DOE/NSF Nuclear Science Advisory Committee (NSAC). Federal Advisory Committee Act (Pub L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Thursday, December 1, 2011, 9 a.m.-5 p.m.
Hilton Washington DC North/Gaithersburg,620 Perry Parkway,Gaithersburg, Maryland 20877,(301) 977-8900.
Brenda L. May, U.S. Department of Energy;SC-26/Germantown Building, 1000 Independence Avenue SW., Washington, DC 20585-1290; Telephone: (301) 903-0536.
Thursday, December 1, 2011.
• Perspectives from Department of Energy and National Science Foundation
• Update from the Department of Energy and National Science Foundation's Nuclear Physics Office's
• Update on the Neutron Charge Subcommittee Report
• Public Comment (10-minute rule)
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
Take notice that the Commission received the following land acquisition reports:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following qualifying facility filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following land acquisition reports:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
Take notice that the Commission received the following land acquisition reports:
Take notice that the Commission received the following public utility holding company filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
Take notice that the Commission received the following land acquisition reports:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following land acquisition reports:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
This is a supplemental notice in the above-referenced proceeding of PPL Energy Supply, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is November 21, 2011.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding of Stream Energy Columbia, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is November 16, 2011.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding of Stream Energy New Jersey, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR Part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is November 21, 2011.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Environmental Protection Agency (EPA).
Notice of delegation of authority.
On August 29, 2011, EPA sent West Virginia a letter acknowledging that West Virginia's delegation of authority to implement and enforce NESHAP and NSPS had been updated, as provided for under the previously approved automatic delegation mechanisms. To inform regulated facilities and the public of West Virginia's updated delegation of authority to implement and enforce NESHAP and NSPS, EPA is making available a copy of EPA's letter to West Virginia through this notice.
On August 29, 2011, EPA sent West Virginia a letter acknowledging that West Virginia's delegation of authority to implement and enforce NESHAP and NSPS had been updated.
Copies of documents pertaining to this action are available for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103-2029. Copies of West Virginia's submittal are also available at the West Virginia Department of Environmental Protection, Division of Air Quality, 601 57th Street SE., Charleston, West Virginia 25304. Copies of West Virginia's notice to EPA that West Virginia has updated its incorporation by reference of federal NESHAP and NSPS, and of EPA's response, may also be found posted on EPA Region III's Web site at:
Ray Chalmers, (215) 814-2061, or by email at
West Virginia notified EPA that West Virginia has updated its incorporation by reference of federal NESHAP and NSPS to include many such standards, to the extent referenced in 40 CFR Parts 60, 61, and 63, as of June 1, 2010. EPA responded by sending West Virginia a letter acknowledging that West Virginia now has the authority to implement and enforce the NESHAP and NSPS as specified by West Virginia in its notice to EPA, as provided for under previously approved automatic delegation mechanisms. To inform regulated facilities and the public of West Virginia's updated delegation of authority to implement and enforce NESHAP and NSPS, EPA is making available a copy of EPA's letter to West Virginia through this notice. All notifications, applications, reports and other correspondence required pursuant to the newly delegated standards must be submitted to both the U.S. EPA Region III and to the West Virginia Department of Environmental Protection. A copy of the letter which EPA sent to West Virginia on August 29, 2011 follows:
The United States Environmental Protection Agency (EPA) has previously delegated to the State of West Virginia (West Virginia) the authority to implement and enforce various federal National Emissions Standards for Hazardous Air Pollutants (NESHAP) and New Source Performance Standards (NSPS), which are found at 40 C.F.R. Parts 60, 61 and 63.
In a letter dated July 11, 2011, West Virginia informed the EPA that West Virginia had updated its incorporation by reference of federal NESHAP and NSPS to include many such standards, to the extent referenced in 40 CFR Parts 60, 61, and 63, effective June 1, 2010. West Virginia noted that it understood that it was automatically delegated the authority to implement these standards. West Virginia committed to enforcing the standards in conformance with the terms of EPA's previous delegations of authority. West Virginia made only allowed wording changes.
West Virginia provided copies of the revised West Virginia Legislative Rules which specify the NESHAP and NSPS which West Virginia has adopted by reference. These revised Legislative Rules are entitled 45 CSR 34—“Emission Standards for Hazardous Air Pollutants,” and 45 CSR 16—“Standards of Performance for New Stationary Sources.” These revised rules have an effective date of June 16, 2011.
Accordingly, EPA acknowledges that West Virginia now has the authority, as provided for under the terms of EPA's previous delegation actions, to implement and enforce the NESHAP and NSPS standards which West Virginia has adopted by reference in West Virginia's revised Legislative Rules 45 CSR 34 and 45 CSR 16, both effective on June 16, 2011.
Please note that on December 19, 2008, in Sierra Club v. EPA,
Accordingly, EPA no longer allows sources the SSM exemption as provided for in the vacated provisions at 40 C.F.R. §§ 63.6(f)(1) and (h)(1), even though EPA has not yet formally removed the SSM exemption provisions from the General Provisions of 40 CFR Part 63. Because West Virginia incorporated 40 C.F.R. Part 63 by reference, West Virginia should also no longer allow sources to use the former SSM exemption from the General Provisions of 40 C.F.R. Part 63 due to the Court's ruling in Sierra Club vs. EPA.
EPA appreciates West Virginia's continuing NESHAP and NSPS enforcement efforts, and also West Virginia's decision to take automatic delegation of additional and more recent NESHAP and NSPS by adopting them by reference.
If you have any questions, please contact me or Ms. Kathleen Cox, Associate Director, Office of Permits and Air Toxics, at (215) 814-2173.
This notice acknowledges the update of West Virginia's delegation of authority to implement and enforce NESHAP and NSPS.
Farm Credit Administration.
Notice is hereby given, pursuant to the Government in the Sunshine Act (5 U.S.C. 552b(e)(3)), of the regular meeting of the Farm Credit Administration Board (Board).
The regular meeting of the Board will be held at the offices of the Farm Credit Administration in McLean, Virginia, on November 9, 2011, from 9 a.m. until such time as the Board concludes its business.
Dale L. Aultman, Secretary to the Farm Credit Administration Board, (703) 883-4009, TTY (703) 883-4056.
Farm Credit Administration, 1501 Farm Credit Drive, McLean, Virginia 22102-5090.
Parts of this meeting of the Board will be open to the public (limited space available), and parts will be closed to the public. In order to increase the accessibility to Board meetings, persons requiring assistance should make arrangements in advance. The matters to be considered at the meeting are:
* Session Closed-Exempt pursuant to 5 U.S.C. 552b(c)(8) and (9).
Federal Deposit Insurance Corporation (FDIC).
Notice of information collection to be submitted to OMB for review and approval under the Paperwork Reduction Act.
In accordance with requirements of the Paperwork Reduction Act of 1995 (“PRA”), 44 U.S.C. 3501
Comments must be submitted on or before December 8, 2011.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
•
•
•
•
All comments should refer to the relevant OMB control number. A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.
Leneta G. Gregorie, at the FDIC address above.
Depository institutions that provide periodic statements are required to include information about fees imposed, interest earned, and the annual percentage yield (APY) earned during those statement periods. It also contains rules about advertising deposit accounts. Although the FRB regulations require institutions to retain evidence of compliance with the disclosure requirements, the regulations do not specify the types of records that must be retained.
Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collection, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.
Federal Deposit Insurance Corporation (FDIC).
Notice of information collection to be submitted to OMB for review and approval under the Paperwork Reduction Act.
In accordance with requirements of the Paperwork Reduction Act of 1995 (“PRA”), 44 U.S.C. 3501
Comments must be submitted on or before December 8, 2011.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
•
•
•
•
All comments should refer to the relevant OMB control number. A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.
Leneta G. Gregorie, at the FDIC address above.
Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collection, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.
Federal Deposit Insurance Corporation.
Update listing of financial institutions in liquidation.
Notice is hereby given that the Federal Deposit Insurance Corporation (Corporation) has been appointed the sole receiver for the following financial institutions effective as of the Date Closed as indicated in the listing. This list (as updated from time to time in the
Federal Deposit Insurance Corporation.
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on the agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within ten days of the date this notice appears in the
By Order of the Federal Maritime Commission.
Federal Maritime Commission.
Notice of Inquiry.
The Federal Maritime Commission is issuing this Notice of Inquiry to solicit the public's views and information concerning factors that may cause or contribute to the shift of containerized cargo destined for U.S. inland points from U.S. to Canadian and Mexican seaports.
Comments are due on or before December 22, 2011.
Submit comments to: Karen V. Gregory, Secretary, Federal Maritime Commission, 800 North Capitol Street, NW., Washington, DC 20573-0001, or email non-confidential comments to:
Karen V. Gregory, Secretary, Federal Maritime Commission, 800 N. Capitol Street, NW., Washington, DC 20573-0001, (202) 523-5725,
The Federal Maritime Commission (FMC or Commission) has received requests from United States Senators Patty Murray and Maria Cantwell (both of Washington), Members of Congress
In recent years, there has been a steadily observed increase in the amount of U.S.-destined cargo moving through newly established west coast Canadian port Prince Rupert and the expanded Mexican port Lázaro Cárdenas. These same years saw investment in and promotion of Canadian and Mexican port and intermodal rail infrastructure, as well as changes to environmental requirements, security considerations, and customs inspection procedures.
The HMT has also been the subject of recent congressional interest. Originally enacted as part of the Comprehensive Water Resources Development Act of 1986, the HMT was devised to help fund harbor and channel maintenance by charging users of U.S. seaports at an
In order to prepare the fullest response possible, the Commission now invites comment and information from all members of the interested public (whether they be located in the United States or elsewhere), including public port authorities, private marine terminal operators, ocean common carriers, ocean transportation intermediaries, supply chain experts, providers of rail and trucking services, state, local, provincial or national governments, importers, exporters and beneficial cargo owners. Comments that are specific and provide supporting data are most helpful.
1. Describe the differences, if any, in taxes, fees, laws, regulations, cargo handling, customs processes, related terminal/port procedure, infrastructure, or intermodal services between U.S. and Canadian or Mexican ports that may come into consideration when determining how to route cargo destined for U.S. inland points. Please be as specific as possible.
2. Provide your opinion and supporting data regarding the reasons vessel-operating common carriers serving the U.S., Canada and Mexico may prefer to make Mexican or Canadian ports their first North American ports of call.
3. Describe why ocean transportation intermediaries or importers may prefer to route their customers' inland U.S.-destined cargo via a Mexican or Canadian port.
4. Describe and, if possible, quantify the advantages and disadvantages a beneficial cargo owner may face when considering whether to route inland U.S.-destined cargo via a Mexican or Canadian port. Specifically, what role, if any, does the assessment of the Harbor Maintenance Tax (HMT) have on that determination? What are the other considerations? If there is a cost advantage due to lower total transportation costs (ocean, truck, rail), please quantify those differences and describe the source of any such cost differentials.
5. Please quantify the effect, if any, the change in cargo routing has had on employment in the United States.
6. Describe what volume or other incentives, bonuses or discounts, if any, are offered by ports, common carriers, terminal operators, or other entities for cargo moved through Canadian or Mexican ports and where these may be available to the shipping public.
7. Describe the advantages and/or disadvantages current transportation services via Canadian or Mexican ports may offer to U.S. exporters.
8. State your view on actions that the U.S. Government can take to improve competitiveness of U.S. ports. Of those actions, what are the most important or pressing?
Non-confidential filings may be submitted in hard copy or by email as an attachment (preferably in Microsoft Word or PDF) addressed to
By the Commission.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is issuing an order under the Federal Food, Drug, and Cosmetic Act (the FD&C Act) permanently debarring Gayle Rothenberg, MD, from providing services in any capacity to a person that has an approved or pending drug product application. We base this order on a finding that Dr. Rothenberg was convicted of felonies under Federal law for conduct relating to the regulation of a drug product under the FD&C Act. Dr. Rothenberg was given notice of the proposed permanent debarment and an opportunity to request a hearing within the timeframe prescribed by regulation. Dr. Rothenberg failed to respond. Dr. Rothenberg's failure to respond constitutes a waiver of her right to a hearing concerning this action.
This order is effective November 8, 2011.
Submit applications for special termination of debarment to the Division of Dockets Management (HFA-305), Food and Drug Administration,
Kenny Shade,Office of Regulatory Affairs (HFC-230), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, (301) 796-4640.
Section 306(a)(2)(B) of the FD&C Act (21 U.S.C. 335a(a)(2)(B)) requires debarment of an individual if FDA finds that the individual has been convicted of a felony under Federal law for conduct relating to the regulation of any drug product under the FD&C Act.
On April 20, 2010, the U.S. District Court for the Southern District of Texas entered judgment against Dr. Rothenberg for one felony count of, with intent to defraud and mislead, misbranding a drug while held for sale after shipment in interstate commerce in violation of 21 U.S.C. 331(k), 333(a)(2), 352(i)(3) and 18 U.S.C. 2, and one felony count of intentionally and knowingly, in a matter within the jurisdiction of FDA, making a false statement to an agent of FDA in violation of 18 U.S.C. 1001.
FDA's finding that debarment is appropriate is based on the felony convictions referenced herein for conduct relating to the regulation of a drug product. The factual basis for this conviction is as follows: Dr. Rothenberg was a physician licensed by the State of Texas as a medical doctor with a specialty in the area of anesthesiology. Dr. Rothenberg served as the medical director and operated a medical clinic in the Southern District of Texas. The medical clinic provided and performed services related to the enhancement of the physical appearance of clients and included BOTOX injections.
From February to September 2004, Dr. Rothenberg and her office manager caused staff members to order a botulinum toxin type A (TRI-toxin) product from Toxin Research International, Inc. (TRI) that was not approved by FDA. Dr. Rothenberg informed staff members that a new BOTOX product would be used to treat patients. When the orders from TRI were received, the invoice accompanying the order as well as packaging and labeling on each vial indicated that the TRI-toxin was for research purposes only and not for human use. Dr. Rothenberg was aware that the product was not intended for human use; however, she performed injections and used the TRI-toxin on patients at her medical practice from February through September 2004. Dr. Rothenberg misrepresented to patients that they were receiving injections of authentic BOTOX and BOTOX Cosmetic when in fact she knew the patients were receiving injections of non-FDA approved TRI-toxin.
On January 20, 2005, agents of FDA traveled to Dr. Rothenberg's clinic and spoke to her about whether any TRI-toxin had been ordered and used on patients of the medical clinic. Dr. Rothenberg confirmed that the nonapproved product had been ordered but stated that it had only been administered to friends and family. On February 28, 2005, agents of FDA again traveled to Dr. Rothenberg's clinic and presented 10 invoices showing that the clinic had ordered the TRI-toxin. This time Dr. Rothenberg stated that the product had been used on patients without her knowledge and approval. Dr. Rothenberg indicated that approximately 210 patients received injections of the TRI-toxin during the period of February 4 and September 8, 2004. Agents of FDA reviewed billing statements from Dr. Rothenberg's clinic and determined that the clinic received approximately $98,000 from patients who received injections of the non-FDA approved TRI-toxin.
Dr. Rothenberg pleaded guilty to, with intent to defraud or mislead, misbranding a drug while held for sale after shipment in interstate commerce, in violation of Title 21 U.S.C. 331(k), 333(a)(2), 352(i)(3) and 18 U.S.C. 2, and to making a false statement to an agent of FDA in violation of 18 U.S.C. 1001.
As a result of her convictions, on August 22, 2011, FDA sent Dr. Rothenberg a notice by certified mail proposing to permanently debar her from providing services in any capacity to a person that has an approved or pending drug product application. The proposal was based on a finding, under section 306(a)(2)(B) of the FD&C Act, that Dr. Rothenberg was convicted of felonies under Federal law for conduct relating to the regulation of a drug product under the FD&C Act. The proposal also offered Dr. Rothenberg an opportunity to request a hearing, providing her 30 days from the date of receipt of the letter in which to file the request, and advised her that failure to request a hearing constituted a waiver of the opportunity for a hearing and of any contentions concerning this action. The proposal was received on August 30, 2011. Dr. Rothenberg failed to respond within the timeframe prescribed by regulation and has, therefore, waived her opportunity for a hearing and has waived any contentions concerning her debarment (21 CFR part 12).
Therefore, the Director, Office of Enforcement, Office of Regulatory Affairs, under section 306(a)(2)(B) of the FD&C Act, under authority delegated to the Director (Staff Manual Guide 1410.35), finds that Gayle Rothenberg has been convicted of felonies under Federal law for conduct relating to the regulation of a drug product under the FD&C Act.
As a result of the foregoing finding, Dr. Rothenberg is permanently debarred from providing services in any capacity to a person with an approved or pending drug product application under sections 505, 512, or 802 of the FD&C Act (21 U.S.C. 355, 360b, or 382), or under section 351 of the Public Health Service Act (42 U.S.C. 262), effective (see
Any application by Dr. Rothenberg for special termination of debarment under section 306(d)(4) of the FD&C Act should be identified with Docket No. FDA-2011-N-0444 and sent to the Division of Dockets Management (see
Publicly available submissions may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.
Food and Drug Administration, HHS.
Notice; reopening of comment period.
The Food and Drug Administration (FDA) is reopening until November 28, 2011, the comment period for the notice entitled “Draft Guidance for Industry and Food and Drug Administration Staff; 510(k) Device Modifications: Deciding When to Submit a 510(k) for a Change to an Existing Device; Availability,” that appeared in the
Submit either electronic or written comments by November 28, 2011.
Submit electronic comments on the draft guidance to
In the
FDA is reopening the comment period for the notice until November 28, 2011. The Agency believes that this will allow adequate time for interested persons to submit comments without significantly delaying action by the Agency.
Interested persons may submit to the Division of Dockets Management (see
Persons interested in obtaining a copy of the draft guidance may do so by using the Internet. A search capability for all Center for Devices and Radiological Health (CDRH) guidance documents is available at
30-Day Notice of Information Collection Under Review: Form I-817, Application for Family Unity Benefits; OMB Control No. 1615-0005.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. An information collection notice was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until December 8, 2011. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), and to the Office of Management and Budget (OMB) USCIS Desk Officer. Comments may be submitted to: USCIS, Chief, Regulatory Products Division, Office of the Executive Secretariat, 20 Massachusetts Avenue NW., Washington, DC 20529-2020. Comments may also be submitted to DHS via facsimile to (202) 272-0997 or via email at
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other
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(2)
(3)
(4)
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If you need a copy of the information collection instrument, please visit the Web site at:
We may also be contacted at: USCIS, Regulatory Products Division, 20 Massachusetts Avenue NW., Washington, DC 20529-2020; Telephone (202) 272-8377.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. An information collection notice was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until December 8, 2011. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), and to the Office of Management and Budget (OMB), USCIS Desk Officer. Comments may be submitted to: USCIS, Chief, Regulatory Products Division, 20 Massachusetts Avenue, Washington, DC 20529-2020. Comments may also be submitted to DHS via facsimile to (202) 272-0997 or via email at
When submitting comments by email please make sure to add OMB Control Number 1615-0052 in the subject box. Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques, or other forms of information technology,
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(2)
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If you need a copy of the information collection instrument, please visit the Web site at:
We may also be contacted at: USCIS, Regulatory Products Division, 20 Massachusetts Avenue, NW., Washington, DC 20529-2020, telephone number (202) 272-8377.
30-Day Notice of Information Collection Under Review: Form I-192, Application for Advance Permission to Enter as Nonimmigrant (Pursuant to 212(d)(3) of the Immigration and Nationality Act); OMB Control No. 1615-0017.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until December 8, 2011. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), and to the Office of Management and Budget (OMB) USCIS Desk Officer. Comments may be submitted to: USCIS, Chief, Regulatory Products Division, Office of the Executive Secretariat, 20 Massachusetts Avenue NW., Washington, DC 20529-2020. Comments may also be submitted to DHS via facsimile to (202) 272-0997 or via email at
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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(2)
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If you need a copy of the information collection instrument, please visit the Web site at:
We may also be contacted at: USCIS, Regulatory Products Division, 20 Massachusetts Avenue NW., Washington, DC 20529-2020;
30-Day Notice of Information Collection Under Review: Form N-336, Request for Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA); OMB Control No. 1615-0050.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. An information collection notice was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until December 8, 2011. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), and to the Office of Management and Budget (OMB), USCIS Desk Officer. Comments may be submitted to: USCIS, Chief, Regulatory Products Division, 20 Massachusetts Avenue, Washington, DC 20529-2020. Comments may also be submitted to DHS via facsimile to (202) 272-0997 or via email at
When submitting comments by email please make sure to add OMB Control Number 1615-0050 in the subject box. Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques, or other forms of information technology, e.g., permitting electronic submission of responses.
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If you need a copy of the information collection instrument, please visit the Web site at:
U.S. Customs and Border Protection (CBP), Department of Homeland Security.
60-Day Notice and request for comments; Extension of an existing collection of information: 1651-0022.
As part of its continuing effort to reduce paperwork and respondent burden, CBP invites the general public and other Federal agencies to comment on an information collection requirement concerning the Entry Summary (CBP Form 7501). This request for comment is being made pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13).
Written comments should be received on or before January 9, 2012, to be assured of consideration.
Direct all written comments to U.S. Customs and Border Protection, Attn: Tracey Denning, Regulations and Rulings, Office of International Trade, 799 9th Street NW., 5th Floor, Washington, DC 20229-1177.
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 799 9th Street NW., 5th Floor, Washington, DC 20229-1177, at (202) 325-0265.
CBP invites the general public and other Federal agencies to comment on proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13). The comments should address: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimates of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden including the use of automated collection techniques or the use of other forms of information technology; and (e) the annual costs burden to respondents or recordkeepers from the collection of information (a total capital/startup costs and operations and maintenance costs). The comments that are submitted will be summarized and included in the CBP request for Office of Management and Budget (OMB) approval. All comments will become a matter of public record. In this document CBP is soliciting comments concerning the following information collection:
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; Extension of an existing information collection: 1651-0051.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: Foreign Trade Zone Annual Reconciliation Certification and Record Keeping Requirement. This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended with no change to the burden hours. This document is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
Written comments should be received on or before December 8, 2011.
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
U.S. Customs and Border Protection (CBP) encourages the general public and affected Federal agencies to submit written comments and suggestions on proposed and/or continuing information collection requests pursuant to the Paperwork Reduction Act (Pub. L.104-13). Your comments should address one of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency/component, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies/components estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collections of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological techniques or other forms of information.
If additional information is required contact: Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 799 9th Street, NW., 5th Floor, Washington, DC 20229-1177, at (202) 325-0265.
Fish and Wildlife Service, Interior.
Notice of meeting.
The North American Wetlands Conservation Council will meet to select North American Wetlands Conservation Act grant proposals for recommendation to the Migratory Bird Conservation Commission. This meeting is open to the public, and interested persons may present oral or written statements.
The meeting will be held at the National Fish and Wildlife Foundation, 1133 15th St. NW., 11th Floor 1000, Washington, DC 20005.
Michael Kreger, Acting Council Coordinator, by phone at (703) 358-1784; by email at
In accordance with the North American Wetlands Conservation Act (Pub. L. 101-233, 103 Stat. 1968, December 13, 1989, as amended; NAWCA), the North American Wetlands Conservation Council (Council)—a State-private-Federal group—meets to consider wetland acquisition, restoration, enhancement, and management projects for recommendation to, and final funding approval by, the Migratory Bird Conservation Commission (Commission).
Project proposal due dates, application instructions, and eligibility requirements are available on the NAWCA Web site at
Proposals require a minimum of 50 percent non-Federal matching funds.
The Council will consider U.S. standard grant proposals at the meeting announced in
Interested members of the public may submit relevant information or questions for the Council to consider during the public meeting. If you wish to submit a written statement, so that the information may be made available to the Council for their consideration prior to this meeting, you must contact the Council Coordinator by the date above. Written statements must be supplied to the Council Coordinator in both of the following formats: One hard copy with original signature, and one electronic copy via email (acceptable file formats are Adobe Acrobat PDF, MS Word, MS PowerPoint, or rich text file).
Individuals or groups requesting to make an oral presentation at the meeting will be limited to 2 minutes per speaker, with no more than a total of 30 minutes for all speakers. Interested parties should contact the Council Coordinator by the date above, in writing (preferably via email; see
Summary minutes of the meeting will be maintained by the Council Coordinator at the address under
Bureau of Land Management, Interior.
Notice of Extension.
The Bureau of Land Management (BLM) published a Notice of Intent to Prepare a RMP Amendment and Associated Environmental Assessment for the Castle Rocks and Cedar Fields Areas in the
The comment period is extended to December 16, 2011.
You may submit comments on issues and planning criteria related to Castle Rocks and Cedar Fields Land Use Plan Amendments by any of the following methods:
•
•
•
For further information and/or to have your name added to our mailing list, contact Dennis Thompson, BLM Outdoor Recreation Planner, telephone (208) 677-6664; address 15 East 200 South, Burley, Idaho 83318; email
You may submit comments on issues and planning criteria for the Plan Amendments in writing to the BLM using one of the methods listed in the
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
40 CFR 1501.7, 43 CFR 1610.5-5
Bureau of Land Management, Interior.
Notice of intent.
In accordance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended, the Bureau of Land Management (BLM) Rock Springs Field Office, Rock Springs, Wyoming, intends to prepare an Environmental Impact Statement (EIS) for the Quaking Aspen Wind Energy Project (Quaking Aspen).
By this notice, BLM is: (1) Announcing the beginning of the scoping process to solicit public comments and identify potential issues related to the Quaking Aspen EIS; and (2) Segregating 3,698.35 acres of BLM-administered lands located within the Quaking Aspen right-of-way (ROW) application area from appropriation under the public land laws, including the 1872 Mining Law, but not the Mineral Leasing or Mineral Material Acts, for a period of 2 years from the date of publication of this notice.
This notice initiates: (1) The public scoping process for the EIS; and (2) The 2-year segregation period for the public lands within the Quaking Aspen ROW application area, effective as of November 8, 2011. The segregation will terminate as described below (see
You may submit comments on potential issues to be addressed in the Quaking Aspen EIS by any of the following methods:
•
•
Documents pertinent to this proposal may be examined at the BLM Rock Springs Field Office.
Lorraine Keith, Project Manager, telephone: (307) 352-0256; address: BLM, 280 Highway 191 N., Rock Springs, WY 82901; email: BLM_WY_QuakingAspen_Wind@blm.gov. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-(800) 877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
This document provides notice that the BLM Rock Springs Field Office, Rock Springs, Wyoming, intends to prepare an EIS for the Quaking Aspen project; announces the beginning of the scoping process for that EIS; and seeks public input on potential issues to be addressed in the EIS. The project area is located in Sweetwater County, Wyoming, and encompasses approximately 3,698 acres of public, 3,865 acres of private, and 630 acres of state lands. The project will include up to 100 1.5 megawatt (MW) to 3 MW wind turbine generators with a nameplate capacity of 250 MW of power, and a 230 kV transmission line. The purpose of the public scoping process is to determine relevant potential issues that will influence the scope of the environmental analysis, including alternatives, and to guide the NEPA process. Preliminary potential issues have been identified by BLM personnel; Federal, State, and local agencies; and other stakeholders. The potential issues include: Wind energy development; management of site-type ROWs for renewable energy; visual resource management; fluid minerals, coal and other minerals; livestock grazing; wild horses; wildlife, particularly birds, bats, and pronghorn antelope; cultural and historical resources; and recreation. The BLM will ensure compliance with all applicable local, State, tribal, and Federal air quality laws, statutes, regulations, standards, and implementation plans, and will include an analysis of climate change.
You may submit comments with potential issues to be addressed in the EIS in writing to the BLM at any public scoping meeting, or you may submit them to the BLM using one of the methods listed in the
1. Potential issues to be resolved in the EIS;
2. Potential issues to be resolved through policy or administrative action; or
3. Potential issues beyond the scope of this EIS.
The BLM will provide an explanation in the Draft EIS as to why an issue was placed in category two or three. The public is also encouraged to help identify any management questions and concerns that should be addressed in the EIS. The BLM will work collaboratively with interested parties to identify the management decisions that are best suited to local, regional, and national needs and concerns.
The BLM will use an interdisciplinary approach to develop the EIS in order to consider the variety of resource issues and concerns identified. Specialists with expertise in the following disciplines will be involved in the NEPA process: rangeland management, air quality, minerals and geology, botany, outdoor recreation, archaeology, paleontology, wildlife and fisheries, lands and realty, hydrology, soils, sociology and economics, and wildland fire.
The BLM will use and coordinate the NEPA commenting process to satisfy the public involvement process pursuant to Section 106 of the National Historic Preservation Act (NHPA) (16 U.S.C. 470f) as provided for in 36 CFR 800.2(d)(3). Native American tribal consultations will be conducted in accordance with policy, and tribal concerns will be given due consideration, including impacts on Indian trust assets. Federal, State, Tribal, and local agencies, along with other stakeholders that may be interested in or affected by the BLM's decision on this project, are invited to participate in the scoping process and, if eligible, may request or be requested by the BLM to participate as a cooperating agency.
In connection with the Quaking Aspen ROW application, public lands within the Quaking Aspen project area are segregated from appropriation under
In accordance with 43 CFR 2091.3- 1(e) and 2804.25(e), the following described public lands within the Quaking Aspen project area are hereby segregated for a period of up to 2 years, subject to valid existing rights, from all forms of appropriation under the public land laws, including location and entry under the United States mining laws, but not from leasing under the mineral leasing laws or disposal under the mineral material laws:
The described Federal lands, aggregate to approximately 3,698.35 acres, according to the official plats of the surveys of the said lands, on file with the BLM.
40 CFR 1501.7 and 43 CFR 1610.2
Bureau of Land Management, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management (BLM) Central Montana Resource Advisory Council (RAC) will meet as indicated below.
The meeting will be held December 6 and 7, 2011. The December 6 meeting will begin at 10 a.m. with a 30-minute public comment period and will adjourn at 5 p.m. The December 7 meeting will begin at 8 a.m. with a 30-minute public comment period and will adjourn at 3 p.m.
The meetings will be in the Bureau of Land Management's Central Montana District Office, at 920 NE Main Street, in Lewistown, MT.
This 15-member council advises the Secretary of the Interior on a variety of management issues associated with public land management in Montana. During these meetings the council will participate in/discuss/act upon these topics/activities: RAC charter review/orientation, RAC Roundtable, Associate/State Director's vision, Gilmore cabin rental proposal, District managers' updates, RAC 2012 work plan, Category 1 presentation, recreation statistics, national landscape conservation, open discussion; and administrative details. All RAC meetings are open to the public. The public may present written comments to the RAC. Each formal RAC meeting will also have time allocated for hearing public comments. Depending on the number of persons wishing to comment and time available, the time for individual oral comments may be limited.
Gary L. “Stan” Benes, Lewistown District Manager, Lewistown Field Office, 920 NE Main, Lewistown, MT 59457, (406) 538-1900,
Bureau of Land Management, Interior.
Notice of availability.
In accordance with the National Environmental Policy Act of 1969 (NEPA), as amended, and the Federal Land Policy and Management Act of 1976 (FLPMA), as amended, the Bureau of Land Management (BLM) announces the availability of its Record of Decision (ROD) to issue a land-use permit authorizing the construction, display, and removal of the proposed
Copies of the ROD are available for public inspection at the BLM Royal Gorge Field Office, 3028 East Main Street, Cañon City, CO 81212; the BLM Colorado State Office, 2850 Youngfield St., Lakewood, CO 80215; Cañon City Public Library, 516 Macon Ave., Cañon City, CO 81212; Salida Regional Library, 405 E. St., Salida, Colorado 81201; Arkansas Headwaters Recreation Area office, 307 West Sackett Ave., Salida, CO 81201; Denver Public Library, 10 W. Fourteenth Ave. Parkway, Denver, Colorado 80204; and the Cotopaxi Store, 20204 U.S. Highway 50, Cotopaxi, Colorado 81223. Interested persons may also review the ROD at the following Web site:
Mr. Vincent Hooper,
The
The proposed art exhibit involves the installation of approximately 900 porous, semi-transparent fabric panels, which would be suspended eight to 25 feet above the water for a total distance of approximately 5.9 miles at eight locations along the 42.4 mile stretch of the Arkansas River between Salida and Canon City. The fabric panels would be supported by approximately 1,270 steel cables and a series of steel anchor transition frames. More than 9,000 steel anchors would be drilled into the banks along the Arkansas River to support the panels. At the end of the two-week exhibition period, the fabric panels, system of support cables, anchors and other above-ground materials would be removed over an estimated three-month period. Below ground materials will not be removed. The OTR Corp. will be responsible for restoring the river corridor according to the standards, conditions and mitigation measures imposed by the operator permitting and approval authorities, including the BLM.
More than 300,000 people are expected to visit the Arkansas River canyon during the two-week exhibition period. The art exhibit is a no-fee visitor event. As approved, the project will be located primarily on Federal lands administered by the BLM Royal Gorge Field Office, but would also be located on lands owned or managed by the Colorado State Land Board (SLB), Union Pacific Railroad, and private landowners, and lands owned or cooperatively managed by Colorado Parks and Wildlife in the Arkansas Headwaters Recreation Area. The Colorado Department of Transportation and Colorado State Patrol have jurisdiction for activities along U.S. Highway 50. The majority of the project area is within Fremont County; however, a small portion at the western end of the project is within Chaffee County. Approximately 80 percent of the area in the proposed project would be located in the Arkansas Canyonlands Area of Critical Environmental Concern, a BLM-designated area that is managed to protect and enhance recreation, scenic, historic, cultural and wildlife values.
The Final Environmental Impact Statement identified seven alternatives (including a no action alternative) that vary by panel length, transportation, visitor management, and timing considerations from which the preferred alternative was selected. The preferred alternative was identified in the Final EIS published on July 29, 2011. The ROD sets forth the Front Range District Manager's decision to authorize a land-use permit for construction, display, and removal of 5.9 total miles of fabric panel at eight locations along the Arkansas River between Salida and Canon City, Colorado for a two-week display period in early August 2014. Included in this authorization are a variety of terms and conditions, which set forth mitigation and monitoring requirements for the protection of Federal resource values, lands and habitats.
The ROD was finalized based on multiple opportunities for public participation through scoping and later public comment throughout the EIS process. The BLM sought participation from the public; 16 tribes; and local, state and Federal agencies while developing the ROD. Cooperating agencies on the EIS included the Colorado Department of Natural Resources (Colorado Parks and Wildlife -formally known as the Division of Wildlife and the Colorado State Parks), SLB, Colorado State Patrol, Colorado Department of Transportation, and Fremont and Chaffee counties.
Prior to the BLM issuing a notice to proceed under the land use permit, OTR Corp. will have to obtain additional permits and authorizations from other state and local agencies. This decision is in compliance with the requirements of NEPA, FLPMA and other applicable laws, regulations, and resource management plans.
The ROD constitutes the BLM's final decision regarding the land-use permit application for the proposed
Please consult the appropriate regulations for further information.
40 CFR 1506.6 and 1506.10.
National Park Service, Interior.
Notice.
Notice is hereby given in accordance with the Federal Advisory Committee Act, 5 U.S.C. Appendix (1988), of a meeting of the Native American Graves Protection and Repatriation Review Committee (Review Committee). The Review Committee will meet on May 9-10, 2012, in the Ballroom of the La Fonda on the Plaza hotel, 100 East San Francisco Street, Santa Fe, NM 87501. This meeting will be open to the public.
The agenda for this meeting will include the appointment of the subcommittee to draft the Review Committee's Report to the Congress for 2012, and discussion of the scope of the Report; and National NAGPRA Program reports. In addition, the agenda may include requests to the Review Committee for a recommendation to the Secretary of the Interior, as required by law, in order to effect the agreed-upon disposition of Native American human remains determined to be culturally unidentifiable; presentations by Indian tribes, Native Hawaiian organizations, museums, Federal agencies, and the public; requests to the Review Committee, pursuant to 25 U.S.C. 3006 (c)(3), for review and findings of fact related to the identity or cultural affiliation of human remains or other cultural items, or the return of such items; and the hearing of disputes among parties convened by the Review Committee pursuant to 25 U.S.C. 3006
The Review Committee is soliciting presentations by Indian tribes, Native Hawaiian organizations, museums, and Federal agencies on the following two topics: (1) The progress made, and any barriers encountered, in implementing NAGPRA and (2) the outcomes of disputes that have come before the Review Committee pursuant to 25 U.S.C. 3006 (c)(4). The Review Committee also will consider other presentations by Indian tribes, Native Hawaiian organizations, museums, Federal agencies, and the public. A presentation request must, at minimum, include an abstract of the presentation and contact information for the presenter(s). Presentation requests must be received by March 2, 2012.
The Review Committee will consider requests for a recommendation to the Secretary of the Interior, as required by law, in order to effect the agreed-upon disposition of Native American human remains determined to be culturally unidentifiable (CUI). A CUI disposition request must include the appropriate, completed form posted on the National NAGPRA Program Web site and, as applicable, the ancillary materials noted on the form. To access and download the appropriate form—either the form for CUI with a “tribal land” or “aboriginal land” provenience or the form for CUI without a “tribal land” or “aboriginal land” provenience—go to
The Review Committee will consider requests, pursuant to 25 U.S.C. 3006 (c)(3), for review and findings of fact related to the identity or cultural affiliation of human remains or other cultural items, or the return of such items, where consensus among affected parties is unclear or uncertain. A request for findings of fact must be accompanied by the completed form posted on the National NAGPRA Program Web site and, as applicable, the ancillary materials noted on the form. To access and download the form, go to
The Review Committee will consider requests, pursuant to 25 U.S.C. 3006 (c)(4), to convene parties and facilitate a dispute, where consensus clearly has not been reached among affected parties regarding the identity or cultural affiliation of human remains or other cultural items, or the return of such items. A request to convene parties and facilitate a dispute must be accompanied by the completed form posted on the National NAGPRA Program Web site and, as applicable, the ancillary materials noted on the form. To access and download the form, go to
Submissions may be made in one of three ways:
1. Electronically, as an attachment to a message (preferred for submissions of 10 pages or less). Electronic submissions are to be sent to:
2. By mail, on a single compact disc (preferred for submissions of more than 10 pages). Mailed submissions are to be sent to: Designated Federal Officer, NAGPRA Review Committee, National Park Service, National NAGPRA Program, 1201 Eye Street NW., 8th Floor (2253), Washington, DC 20005.
3. By mail, in hard copy.
Such items are subject to posting on the National NAGPRA Program Web site prior to the meeting. Items submitted at the meeting are subject to posting after the meeting.
Information about NAGPRA, the Review Committee, and Review Committee meetings is available on the National NAGPRA Program Web site, at
The Review Committee was established in Section 8 of the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA), 25 U.S.C. 3006. Review Committee members are appointed by the Secretary of the Interior. The Review Committee is responsible for monitoring the NAGPRA inventory and identification process; reviewing and making findings related to the identity or cultural affiliation of cultural items, or the return of such items; facilitating the resolution of disputes; compiling an inventory of culturally unidentifiable human remains that are in the possession or control of each Federal agency and museum, and recommending specific actions for developing a process for disposition of such human remains; consulting with Indian tribes and Native Hawaiian organizations and museums on matters affecting such tribes or organizations lying within the scope of work of the Committee; consulting with the Secretary of the Interior on the development of regulations to carry out NAGPRA; and making recommendations regarding future care of repatriated cultural items. The Review Committee's work is carried out during the course of meetings that are open to the public.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
United States Section, International Boundary and Water Commission, United States and Mexico (USIBWC).
Notice of Availability of the Final Supplemental Environmental Assessment (SEA) and Finding of No Significant Impact (FONSI).
Pursuant to Section 102(2)(c) of the National Environmental Policy Act (NEPA) of 1969, the Council on Environmental Quality Final Regulations (40 CFR Parts 1500 through 1508), and the United States Section`s Operational Procedures for Implementing Section 102 of NEPA, published in the
Daniel Borunda, Natural Resources Specialist, Environmental Management Division, United States Section, International Boundary and Water Commission; 4171 N. Mesa, C-100; El Paso, Texas 79902.
On the basis of the record
The Commission instituted this review on June 1, 2011 (76 F.R. 31635) and determined on September 6, 2011 that it would conduct an expedited review (76 F R 60291, October 6, 2011).
The Commission transmitted its determination in this review to the Secretary of Commerce on October 31, 2011. The views of the Commission are contained in USITC Publication 4274 (October 2011), entitled
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on October 3, 2011, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Westinghouse Solar, Inc. of Campbell, California and Andalay Solar, Inc. of Campbell, California. Supplements to the complaint were filed on October 18, 2011 and October 19, 2011. The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain integrated solar power systems and components thereof by reason of infringement of certain claims of U.S. Patent No. 7,406,800 (“the `800 patent”) and U.S. Patent No. 7,987,641 (“the `641 patent”). The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainants request that the Commission institute an investigation and, after the investigation, issue an exclusion order and cease and desist orders.
The complaint and supplements, except for any confidential information contained therein, are available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Room 112, Washington, DC 20436, telephone (202) 205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205-2000. General information concerning the Commission may also be obtained by accessing its internet server at
The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2560.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain integrated solar power systems and components thereof that infringe one or more of claims 6 and 10 of the `800 patent and claim 1 of the `641 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) Pursuant to Commission Rule 210.50(b)(1), 19 CFR 210.50(b)(1), the presiding administrative law judge shall take evidence or other information and hear arguments from the parties and other interested persons with respect to the public interest in this investigation, as appropriate, and provide the Commission with findings of fact and a recommended determination on this issue, and the administrative law judge will limit public interest discovery, appropriately, with particular consideration for third parties, and will ensure that such discovery will not delay the investigation or be used improperly;
(3) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainants are:
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW., Suite 401, Washington, DC 20436; and
(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d)-(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 9) of the presiding administrative law judge (“ALJ”) granting a motion by Complainant to terminate the investigation based upon withdrawal of the complaint.
Panyin A. Hughes, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-3042. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on January 28, 2011, based on a complaint filed by Microsoft Corporation of Redmond, Washington (“Microsoft”). 76 FR 5206 (Jan. 28, 2011). The complaint alleged violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain game devices, components thereof, and products containing the same by reason of infringement of certain claims of United States Patent No. 7,787,411. The complaint named the following entities as respondents: Datel Design and Development Inc. of Clearwater, Florida; and Datel Design and Development Ltd., Datel Direct Ltd., Datel Holdings Ltd., and Datel Electronics Ltd. all of Staffordshire, United Kingdom (collectively, “Datel”).
On August 29, 2011, Microsoft filed a motion to terminate the investigation in its entirety based upon withdrawal of the complaint. On August 30, 2011, the Commission investigative attorney filed a response in support of the motion. On September 8, 2011, Respondent Datel filed a response in support of the motion and requested that the ALJ impose certain conditions on Microsoft.
On October 18, 2011, the ALJ issued the subject ID (Order No. 9) terminating the investigation. None of the parties petitioned for review of the ID. The Commission has determined not to review the ID. Accordingly, this investigation is terminated.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in section 210.42 of the Commission's Rules of Practice and Procedure (19 CFR 210.42).
By order of the Commission.
Notice is hereby given that on November 1, 2011, a proposed Consent Decree in
In this action the United States seeks civil penalties and injunctive relief for alleged violations of the Clean Air Act (“CAA”), 42 U.S.C. 7401
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either emailed to
The consent decree and associated appendices may be examined on the following Department of Justice Web site:
30-Day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until December 8, 2011. This process is conducted in accordance with 5 CFR 1320.10.
Written comments concerning this information collection should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget,
Comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
The form is used for the renewal of an explosive license or permit. The renewal application is used by ATF to determine that the applicant remains eligible to retain the license or permit .
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Policy and Planning Staff, Justice Management Division, Two Constitution Square, Room 2E-508, 145 N Street NE., Washington, DC 20530.
30-Day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until December 8, 2011. This process is conducted in accordance with 5 CFR 1320.10.
Written comments concerning this information collection should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget,
Comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
The form is filed by the licensee desiring to renew a Federal firearms license. It is used to identify the applicant, locate the business/collection premises, identify the type of business/collection activity, and determine the eligibility of the applicant.
(5)
(6) An estimate of the total burden (in hours) associated with the collection: There are an estimated 14,700 total burden hours associated with this collection.
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Policy and Planning Staff, Justice Management Division, Two Constitution Square, Room 2E-508, 145 N Street NE., Washington, DC 20530.
60-Day Notice of Information Collection Under Review.
The Department of Justice (DOJ) FBI Criminal Justice Information Services (CJIS) Division's National Instant Criminal Background Check System (NICS) Section has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for 60 days until January 9, 2012. This process is conducted in accordance with Title 5, Code of Federal Regulations (CFR), § 1320.10.
If you have comments (especially on the estimated public burden or associated response time),suggestions, or need a copy of the proposed information collection instrument with instructionsor additional information, please contact Sherry L. Kuneff, Management and Program Analyst,FBI, Criminal Justice Information Services Division, National Instant Criminal Background Check System Section, Module A-3, 1000 Custer Hollow Road, Clarksburg, West Virginia, 26306, or facsimile at (304) 625-7540.
Written comments and suggestions from the public and affected agencies concerning theproposed collection of information are encouraged. Your comments should address one or moreof the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency/component, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's/component's estimate of the burden of the proposed collection of the information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including the use of
(1)
(2)
(3)
(4)
(5)
It is estimated that annually 7,542 individuals will request entry into the VAF. It takes an average of 5 minutes to read and complete all areas of the application, an estimated 2 hours for the process of fingerprinting including travel, and 25 minutes to mail the form for a total of 2.5 hours estimated burden to the respondent.
(6)
The number of persons requesting entry into the VAF is estimated to be 7,542 individuals annually. The time it takes each individual to complete the process is 2.5 hours. The total public burden hours are 7,542 respondents multiplied by 2.5 hours which equals 18,855 total burden hours.
If additional information is required, contact: Jerri Murray, Department ClearanceOfficer, United States Department of Justice, Policy and Planning Staff, Justice ManagementDivision, Two Constitution Square, 145 N Street, NE., Room 2E-508, Washington, DC 20530.
Copyright Office, Library of Congress.
Notice of objections and specialty station filings.
Periodically, the Copyright Office (“Office”) seeks to update its list of specialty stations related to the use of the cable compulsory license. In response to the publication of an initial list of specialty stations for this purpose in April of this year, the Office received objections filed by the Motion Picture Association of America to the identification of certain stations as being entitled to specialty station status in accordance with the Federal Communications Commission's (“FCC”) definition of specialty station in effect on June 24, 1981. Consequently, before compiling the final list, the Office is providing an opportunity for response to the filed objections. The Office is also publishing for comment a new list of television stations reported in filed affidavits received after publication of the initial list in which the owner or licensee of the television station attests that the station qualifies as a specialty station under the FCC's former rules.
Objections to the newly designated specialty stations must be filed no later than December 8, 2011. Responses to any objections filed to the newly designated specialty stations must be received no later than January 9, 2012. Responses to any of the MPAA objections noted herein must also be filed with the Office no later than January 9, 2012.
All comments and reply comments shall be submitted electronically. A comment page containing a comment form is posted on the Copyright Office Web site at
Ben Golant, Assistant General Counsel, and Tanya M. Sandros, Deputy General Counsel, Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, DC 20024. Telephone: (202) 707-8380. Telefax: (202) 707-8366.
Under the cable statutory license, a cable operator may retransmit the signal of a distant television station identified as a specialty station at the base rate rather than at the higher 3.75% rate that is incurred for the carriage of a non-permitted signal. 37 CFR 256.2(c). Specialty station status is determined by reference to the former regulations of the FCC which defined a specialty station as “a commercial television broadcast station that generally carries foreign-language, religious, and/or automated programming in one-third of the hours of an average broadcast week and one-third of the weekly prime-time hours.” 47 CFR 76.5(kk) (1981). The specialty station designation was part of a complex regulatory structure which governed the carriage of distant network station signals in the 1970s. However,
The Office published its first specialty station list in 1990 under a procedure which allowed the owner of the station to file an affidavit with the Office attesting to the fact that the station's programming comports with the 1981 FCC definition, and hence, qualifies it as a specialty station. 55 FR 40021 (October 1, 1990). The Office noted at that time that it would periodically update the list.
Accordingly, on January 28, 2011, the Office published a Notice in the
• Stations offering full days of syndicated programming, including during prime time, cannot be identified as specialty stations:
• Stations carrying the multicast signals of, and featuring the same programs as, a Public Broadcasting Service affiliate cannot be identified as specialty stations:
• Stations offering home shopping programming throughout the day, and during prime time as well as stations solely broadcasting infomercials cannot be identified as specialty stations:
• Stations currently licensed and silent cannot be identified as specialty stations:
• ABC and Fox affiliates offering syndicated programming throughout the day in English should not be identified as specialty stations:
• Stations offering a radio programming format should not be identified as specialty stations:
• The following Port Jervis, NY licensed stations for which there is no evidence of construction or the type of programming broadcast should not be identified as specialty stations:
In addition to this notice, the Office will also contact each of the broadcast stations informing it that an objection has been filed to its representation that it is a specialty station and advising that it may respond to that objection. Responses from the broadcaster must be filed with the Office no later than January 9, 2012. A broadcaster that has determined that its station should not be considered as a specialty station at this time may inform the Office of this fact and the station will not be included on the final list. However, unless a broadcaster asks to be removed from the list of specialty stations, it will be included on the final list with an annotation to denote that an objection had been filed to the station's characterizing itself as a specialty station.
The Office will place in the public file together with the relevant affidavit any objection received and response thereto. With regard to the treatment of contested specialty stations after this proceeding concludes, it is important to note that the Licensing Division examiners will look at these stations in the same way they have done in the past. That is, if a cable operator claims specialty station status for a contested station on the list, the examiner will inform the operator by letter that a particular party objects to the “specialty characterization.”
MPAA also contended that the Register has the authority to determine whether a particular station is properly identified as a specialty station. In its objection, MPAA referred to the standards set forth in 17 U.S.C. 411(b)(1) regarding the use of a registration certificate for purposes of filing an infringement suit, noting that the
Millennium Challenge Corporation.
Notice.
Section 608(d) of the Millennium Challenge Act of 2003 requires the Millennium Challenge Corporation to publish a report that identifies countries that are “candidate countries” for Millennium Challenge Account assistance during FY 2012. The report is set forth in full below and updates the report published September 7, 2011 (76 FR 55419) to reflect the issuance of presidential determinations that waived sanctions with respect to certain countries under Section 110 of the Trafficking Victims Protection Act of 2000 (Pub. L. 106-386), as amended.
This report to Congress is provided in accordance with section 608(a) of the Millennium Challenge Act of 2003, as amended, 22 U.S.C. 7701, 7707(a) (the “Act”).
The Act authorizes the provision of Millennium Challenge Account (MCA) assistance for countries that enter into a Millennium Challenge Compact with the United States to support policies and programs that advance the progress of such countries to achieve lasting economic growth and poverty reduction. The Act requires the Millennium Challenge Corporation (MCC) to take a number of steps in selecting countries with which MCC will seek to enter into a compact, including (a) Determining the countries that will be eligible for MCA assistance for fiscal year 2012 (FY12) based on a country's demonstrated commitment to (i) Just and democratic governance, (ii) economic freedom, and (iii) investments in its people; and (b) considering the opportunity to reduce poverty and generate economic growth in the country. These steps include the submission of reports to the congressional committees specified in the Act and the publication of notices in the
The countries that are “candidate countries” for MCA assistance for FY12 based on per capita income levels and eligibility to receive assistance under U.S. law, and countries that would be candidate countries but for specified legal prohibitions on assistance (section 608(a) of the Act);
The criteria and methodology that the MCC Board of Directors (Board) will use to measure and evaluate the relative policy performance of the “candidate countries” consistent with the requirements of subsections (a) and (b) of section 607 of the Act in order to determine “MCA eligible countries” from among the “candidate countries” (section 608(b) of the Act); and
The list of countries determined by the Board to be “MCA eligible countries” for FY12, identification of such countries with which the Board will seek to enter into compacts, and a justification for such eligibility determination and selection for compact negotiation (section 608(d) of the Act).
This report is the first of three required reports listed above.
The Act requires the identification of all countries that are candidates for MCA assistance for FY12 and the identification of all countries that would be candidate countries but for specified legal prohibitions on assistance. Sections 606(a) and (b) of the Act provide that for FY12 a country shall be a candidate for the MCA if it:
Meets one of the following two income tests:
Has a per capita income equal to or less than the historical ceiling of the International Development Association eligibility for the fiscal year involved (or $1,915 gross national income (GNI) per capita for FY12) (the “low income category”); or
Is classified as a lower middle income country in the then most recent edition of the World Development Report for Reconstruction and Development published by the International Bank for Reconstruction and Development and has an income greater than the historical ceiling for International Development Association eligibility for the fiscal year involved (or $1,916 to $3,975 GNI per capita for FY12) (the “lower middle income category”); and
Is not ineligible to receive U.S. economic assistance under part I of the Foreign Assistance Act of 1961, as amended, (the “Foreign Assistance Act”), by reason of the application of the Foreign Assistance Act or any other provision of law.
Pursuant to section 606(c) of the Act, the Board has identified the following countries as candidate countries under the Act for FY12. In so doing, the Board has anticipated that prohibitions against assistance as applied to countries in the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2010 (Div. F, Pub. L. 111-117) (the “FY 2010 SFOAA”), will again apply for FY12, even though the Department of State, Foreign Operations, and Related Programs Appropriations Act for FY12 has not yet been enacted and certain findings under other statutes have not yet been made. As noted below, MCC will provide any required updates on subsequent changes in applicable legislation or other circumstances that affect the status of any country as a candidate country for FY12. All section references identified as prohibitions on assistance to a given country are taken from the FY 2010 SFOAA as carried over by the Full-Year Continuing Appropriations Act, 2011 (Div. B, Pub. L. 112-10) unless another statue is identified.
Countries that would be considered candidate countries for FY12, but are ineligible to receive United States economic assistance under part I of the Foreign Assistance Act by reason of the application of any provision of the Foreign Assistance Act or any other provision of law are listed below. As noted above, this list is based on legal prohibitions against economic assistance that apply for fiscal year 2011 and that are anticipated to apply again for FY12.
Burma is subject to numerous restrictions, including but not limited to section 570 of the FY 1997 Foreign Operations, Export Financing, and Related Programs Appropriations Act (Pub. L. 104-208), which prohibits assistance to the government of Burma until it makes progress on improving human rights and implementing democratic government, and due to its status as a major drug-transit or major illicit drug producing country for 2009 (Presidential Determination No. 2009-30 (9/15/2009)).
Eritrea is subject to restrictions due to its status as a Tier III country under the Trafficking Victims Protection Act, as amended, 22 U.S.C. 7101
Madagascar is subject to section 7008 of the FY 2010 SFOAA, which prohibits assistance to the government of a country whose duly elected head of government is deposed by military coup or decree and also section 7086(c) of the FY 2010 SFOAA regarding budget transparency. It is also subject to restrictions due to its status as a Tier III country under the Trafficking Victims Protection Act, as amended, 22 U.S.C. 7101
North Korea is subject to numerous restrictions, including section 7007 of the FY 2010 SFOAA which prohibits any direct assistance to the government.
Sudan is subject to numerous restrictions, including but not limited to
Uzbekistan's central government is subject to section 7076(a) of the FY 2009 SFOAA, which is largely incorporated by reference and carried forward by section 7075 of the FY 2010 SFOAA. This restriction states that funds (other than expanded international military education and training funds) may be made available for assistance to the central government of Uzbekistan only if the Secretary of State determines and reports to the Congress that the government is making substantial and continuing progress in meeting its commitments under a framework agreement with the United States.
Zimbabwe is subject to several restrictions, including section 7070(i)(2) of the FY 2010 SFOAA which prohibits assistance (except for macroeconomic growth assistance) to the central government of Zimbabwe, unless the Secretary of State determines and reports to Congress that the rule of law has been restored in Zimbabwe.
Syria is subject to numerous restrictions, including but not limited to 620A of the Foreign Assistance Act which prohibits assistance to governments supporting international terrorism, section 7007 of the FY 2010 SFOAA which prohibits direct assistance, and section 7012 of the FY 2010 SFOAA and section 620(q) of the Foreign Assistance Act, both of which prohibit assistance to countries in default in payment to the U.S. in certain circumstances.
The countries identified above as candidate countries, as well as countries that would be considered candidate countries but for the applicability of legal provisions that prohibit U.S. economic assistance, may be the subject of future statutory restrictions or determinations, or changed country circumstances, that affect their legal eligibility for assistance under part I of the Foreign Assistance Act by reason of application of the Foreign Assistance Act or any other provision of law for FY12. MCC will include any required updates on such statutory eligibility that affect countries' identification as candidate countries for FY12, at such time as it publishes the notices required by sections 608(b) and 608(d) of the Act or at other appropriate times. Any such updates with regard to the eligibility or ineligibility of particular countries identified in this report will not affect the date on which the Board is authorized to determine eligible countries from among candidate countries which, in accordance with section 608(a) of the Act, shall be no sooner than 90 days from the date of publication of this report.
National Aeronautics and Space Administration.
Notice of Meeting Postponement.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration (NASA) announces that the meeting of the Planetary Science Subcommittee of the NASA Advisory Council originally scheduled for November 2-3, 2011, at NASA Headquarters, has been postponed due to the recent unexpected and tragic loss of Dr. Ronald Greeley, Subcommittee Chair. A notice was published in the
Ms. Marian Norris, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, at
National Science Foundation.
Notice of permit issued under the Antarctic Conservation of 1978, Public Law 95-541.
The National Science Foundation (NSF) is required to publish notice of permits issued under the Antarctic Conservation Act of 1978. This is the required notice.
Nadene G. Kennedy, Permit Office, Office of Polar Programs, Rm. 755, National Science Foundation, 4201 Wilson Boulevard, Arlington, VA 22230.
On October 3, 2011, the National Science Foundation published a notice in the
Mahlon C. Kennicutt, II, Permit No. 2012-010.
Nuclear Regulatory Commission.
Draft interim staff guidance; request for public comment.
The U.S. Nuclear Regulatory Commission (NRC) requests public comment on Draft License Renewal Interim Staff Guidance (LR-ISG), LR-ISG-2011-01, “Aging Management of Stainless Steel Structures and Components in Treated Borated Water.” This LR-ISG revises the guidance in the Standard Review Plan for Review of License Renewal Applications for Nuclear Power Plants (SRP-LR) and Generic Aging Lessons Learned (GALL) Report for the aging management of stainless steel structures and components exposed to treated borated water.
Submit comments by December 8, 2011. Comments received after this date will be considered, if it is practical to do so, but the NRC staff is able to
Please include Docket ID NRC-2011-0256 in the subject line of your comments. For additional instructions on submitting comments and instructions on accessing documents related to this action, see “Submitting Comments and Accessing Information” in the
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Dr. John Wise, Division of License Renewal, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: (301) 415-8489; email:
Comments submitted in writing or in electronic form will be posted on the NRC Web site and on the Federal rulemaking Web site,
The NRC requests that any party soliciting or aggregating comments received from other persons for submission to the NRC inform those persons that the NRC will not edit their comments to remove any identifying or contact information, and therefore, they should not include any information in their comments that they do not want publicly disclosed.
You can access publicly available documents related to this document using the following methods:
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The NRC issues LR-ISGs to communicate insights and lessons learned and to address emergent issues not covered in license renewal guidance documents, such as the GALL Report and SRP-LR. In this way, the NRC staff and stakeholders may use the guidance in an LR-ISG document before it is incorporated into a formal license renewal guidance document revision. The NRC staff issues LR-ISG in accordance with the LR-ISG Process, Revision 2 (ADAMS Accession No. ML100920158), for which a notice of availability was published in the
The NRC staff has determined that existing guidance in the SRP-LR and GALL Report may not adequately address aging management of stainless steel structures and components exposed to treated borated water. Specifically, for pressurized water reactors, the guidance inappropriately credits boron as a corrosion inhibitor in place of other aging management activities. As a result, aging effects such as loss of material, cracking, and reduction of heat transfer may not be adequately managed. The staff has proposed to revise the SRP-LR and GALL Report to align the guidance for treated borated water with that for treated (non-borated) water. The revisions include adding the One-Time Inspection Program to verify the effectiveness of the Water Chemistry Program to manage loss of material and cracking of stainless steel structures and components exposed to treated borated water and adding reduction of heat transfer due to fouling as an aging effect requiring management for stainless steel heat exchanger tubes exposed to treated borated water.
By this action, the NRC is requesting public comments on draft LR-ISG-2011-01. This LR-ISG proposes certain revisions to NRC guidance in the SRP-LR and GALL Report. The NRC staff will make a final determination regarding issuance of the LR-ISG after it considers any public comments received in response to this request.
Notice is hereby given that the Director, Office of Federal and State Materials and Environmental Management Programs (FSME) has issued a Director's Decision with regard to a Petition, dated March 4, 2010, filed by Mr. Issac Harp, herein after referred to as the “Petitioner,” pursuant to Title 10 of the
The Petition requested that the NRC take enforcement action against the U.S. Army by initiating an investigation into the potential violation of NRC License SUB-459, and if it was determined that a violation occurred, to apply the full penalty permissible by law. The Petition
The Petition raised a concern about the possession of licensable quantities of DU by the U.S. Army without an NRC license to do so. Section 40.3 states, in part, that persons may not receive title to, own, receive, possess, use, transfer, or dispose of source material unless authorized in a specific or general license issued by the Commission. Contrary to 10 CFR 40.3, the U.S. Army is in possession of DU, a source material, in the form of spent spotting rounds (expended prior to 1968) at firing ranges located at Schofield Barracks and Pohakuloa Training Area, in Hawaii and on other U.S. Army installations, in excess of the exempt and general use limits, without authorization in a specific or general license issued by the NRC.
The Petitioner met with the FSME Petition Review Board by teleconference on April 14, 2010, to discuss the Petition. The meeting gave the Petitioner an opportunity to provide additional information and to clarify issues raised in the Petition. The transcript of this meeting was treated as a supplement to the Petition and is available in the Agencywide Document Access and Management System (ADAMS) for inspection at the NRC's Public Document Room, O1-F21, One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. Publicly available documents created or receive at the NRC are available online in the NRC Library at
The NRC issued a proposed Director's Decision (DD-11-05) dated August 8, 2011, which granted the Petition, in part, and denied the Petition, in part. The NRC sent a copy of the proposed Director's Decision to the Petitioner and to the U.S. Army for comment on August 8, 2011. The Petitioner responded on August 21, 2011. The U.S. Army did not provide comments on the proposed Director's Decision. The Petitioner's comments and the NRC staff's responses are included in the Director's Decision.
The Director of the Office of Federal and State Materials and Environmental Management Programs has determined that the activities requested by the Petitioner have been granted in part and denied in part. The reasons for this decision are explained in the Director's Decision pursuant to 10 CFR 2.206 [DD-11-05], the complete text of which is available in ADAMS for inspection at the NRC's Public Document Room, O1-F21, One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. Publicly available documents created or receive at the NRC are available online in the NRC Library at
The Petition requested that the NRC investigate whether, contrary to applicable law and regulations, the U.S. Army possessed or released into the environment DU from spent spotting rounds after the expiration of NRC License SUB-459. NRC conducted an investigation of the U.S. Army's possession of licensable quantities of DU and issued a Severity Level III Notice of Violation to the U.S. Army (ML111680087). Consistent with NRC Enforcement Policy (
In addition, the Petition requested that, if the NRC determined that a violation occurred, to assess against the U.S. Army the maximum penalty permitted by law, and asked that any assessed monetary fines be applied to the environmental remediation of DU contamination at the Schofield Barracks and Pohakuloa Training Area installations in Hawaii, if the law provides for such action. Were the NRC to have chosen to impose a civil penalty, the law does not provide for the application of that assessed civil penalty to the environmental remediation of DU contamination as requested by the Petitioner. Fines assessed for violations of NRC requirements are sent to the U.S. Treasury. Therefore, this portion of the Petition was denied.
As provided in 10 CFR 2.206(c), a copy of this Director's Decision will be filed with the Secretary of the Commission for the Commission to review. As provided for by this regulation, the Decision will constitute the final action of the Commission 25 days after the date of the Decision, unless the Commission, on its own motion, institutes a review of the Decision within that time.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Draft generic letter; extension of comment period.
On September 1, 2011 (76 FR 54507), the U.S. Nuclear Regulatory Commission (NRC) published for public comment Draft Generic Letter 2011-XX: Seismic Risk Evaluations for Operating Reactors. The public comment period was scheduled to expire on October, 31, 2011; however, on September 16, 2011 (76 FR 57767), the NRC issued a correction and extended the public comment period to November 15, 2011. In order to allow the public sufficient time to review and comment on the Draft Generic Letter, the NRC has decided to extend the comment period for the Draft Generic Letter until December 15, 2011.
The comment period has been extended and expires on December 15, 2011. Comments received after this date will be considered if it is practical to do so. The NRC is only able to assure consideration of comments received on or before this date.
Please include Docket ID NRC-2011-0204 in the subject line of your comments. For instructions on submitting comments and accessing documents related to this action, see Section I, “Submitting Comments and Accessing Information” in the
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Kamal Manoly, Division of Engineering, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001;
Comments submitted in writing or in electronic form will be posted on the NRC Web site and on the Federal rulemaking Web site,
The NRC requests that any party soliciting or aggregating comments received from other persons for submission to the NRC inform those persons that the NRC will not edit their comments to remove any identifying or contact information and; therefore, they should not include any information in their comments that they do not want publicly disclosed.
You can access publicly available documents related to this document using the following methods:
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On September 1, 2011 (76 FR 54507), the NRC published for public comment Draft Generic Letter 2011-XX: Seismic Risk Evaluations for Operating Reactors to inform addressees that the NRC requests addressees to evaluate their facilities to determine the current level of seismic risk and to submit the requested information to facilitate the NRC's determination if there is a need for additional regulatory action. The public comment period was scheduled to expire on October, 31, 2011; however, on September 16, 2011 (76 FR 57767), the NRC issued a correction and extended the public comment period to November 15, 2011. In order to allow the public sufficient time to review and comment on the Draft Generic Letter, the NRC has decided to extend the comment period for the Draft Generic Letter until December 15, 2011.
For the Nuclear Regulatory Commission.
Pursuant to delegation by the Commission dated December 29, 1972, published in the
This proceeding involves a license application from Peninsula Minerals, Ltd., doing business as Strata Energy, Inc., requesting a new source and byproduct materials license at its Ross In Situ Recovery Uranium Project site located in Crook County, Wyoming. In response to a Notice of Materials License Application, Opportunity to Request a Hearing and to Petition for Leave to Intervene, and Commission Order Imposing Procedures for document Access to Sensitive Unclassified Non-Safeguards Information published in the
The Board is comprised of the following administrative judges:
All correspondence, documents, and other materials shall be filed in accordance with the NRC E-Filing rule, which the NRC promulgated in August 2007 (72 FR 49,139).
Nuclear Regulatory Commission,[NRC-2011-0006].
Weeks of November 7, 14, 21, 28, December 5, 12, 2011.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the week of November 7, 2011.
There are no meetings scheduled for the week of November 14, 2011.
There are no meetings scheduled for the week of November 21, 2011.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of December 5, 2011.
This meeting will be webcast live at the Web address-
* The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings, call (recording)—(301) 415-1292. Contact person for more information: Rochelle Bavol, (301) 415-1651.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
This notice is distributed electronically to subscribers. If you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301) 415-1969, or send an email to
Nuclear Regulatory Commission.
Notice of Availability; correction.
The U.S. Nuclear Regulatory Commission (NRC) is correcting a notice appearing in the
The original Notice of Availability (NOA) published in the
Ms. Michelle C. Honcharik, Senior Project Manager, Licensing Processes Branch, Mail Stop: O-12D20, Division of Policy and Rulemaking, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC, 20555-0001; telephone (301) 415-1774 or email at
On September 1, 2011 (76 FR 54510), the NRC published an NOA announcing the availability of the model application and model SE for plant-specific adoption of TSTF Traveler TSTF-500, Revision 2. In that publication on page 54510 first column under the section titled
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of issuance of renewed facility operating license.
You can access publicly available documents related to this document using the following methods:
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For details with respect to the application for renewal, see the licensee's letter dated March 25, 2005 (ADAMS Accession No. ML050900074), as supplemented on June 1, 2009 (ADAMS Accession No. ML092090027), February 9, 2010 (ADAMS Accession No. ML100550670), March 10, 2010 (ADAMS Accession No. ML100810143), May 13, 2010 (ADAMS Accession No. ML101380222), May 27, 2010 (ADAMS Accession No. ML101600188), October 4, 2010 (two letters), (ADAMS Accession Nos. ML103210041 and ML103160196), June 8, 2011 (ADAMS Accession No. ML111720666), July 15, 2011 (ADAMS Accession No. ML11207A429), August 23, 2011 (ADAMS Accession No. ML11249A053), and August 31, 2011 (ADAMS Accession No. ML112490384).