Agricultural Marketing Service
Food and Nutrition Service
Forest Service
Grain Inspection, Packers and Stockyards Administration
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Navy Department
Pipeline and Hazardous Materials Safety Administration
Federal Energy Regulatory Commission
Agency for Toxic Substances and Disease Registry
Centers for Disease Control and Prevention
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
U.S. Customs and Border Protection
Fish and Wildlife Service
Land Management Bureau
National Park Service
Justice Programs Office
Workers Compensation Programs Office
Agency for Toxic Substances and Disease Registry
Federal Aviation Administration
National Highway Traffic Safety Administration
Pipeline and Hazardous Materials Safety Administration
Internal Revenue Service
United States Mint
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are superseding an existing airworthiness directive (AD) for all CPAC, Inc. (type certificate formerly held by Commander Aircraft Corporation, Gulfstream Aerospace Corporation, and Rockwell International) Models 112, 112B, 112TC, 112TCA, 114, 114A, 114B, and 114TC airplanes. That AD currently requires a one-time inspection of the elevator spar for cracks and, if any crack is found, either replace with a serviceable elevator spar that is found free of cracks or repair/modify the elevator spar with an FAA-approved method. That AD also requires reporting to the FAA the results of the inspection. Since we issued that AD, using the data collected through the reporting requirement, we have determined there is a need for continued inspections. This new AD requires repetitive inspections of the elevator spar for cracks and, if any crack is found, either replacing with a serviceable elevator spar that is free of any cracks and/or corrosion or repairing/modifying the elevator spar with an FAA-approved procedure. We are issuing this AD to correct the unsafe condition on these products.
This AD is effective March 15, 2012.
You may examine the AD docket on the Internet at
T.N. Baktha, Senior Aerospace Engineer, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Wichita, Kansas 67209; phone: (316) 946–4155; fax: (316) 946–4107; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2011–07–13, Amendment 39–16650 (76 FR 18376, April 4, 2011). That AD applies to the specified products. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal (76 FR 64038, October 17, 2011) and the FAA's response to each comment.
James D. Richards of Aerodyme Corporation requested additional information be added to the final rule AD action to clarify whether or not the inspection intervals and procedures in this AD take precedence over those specified in the FAA-approved Parts Manufacturer Approval (PMA) Elevator Spars 44211–RE9 and 44211–RE10, Instructions for Continued Airworthiness, original issue date May 5, 2011.
James D. Richards obtained a PMA for CPAC, Inc. Models 112, 112B, 112TC, 112TCA, 114, 114A, 114B, and 114TC airplanes elevator spars. The PMA Instructions for Continued Airworthiness have inspection intervals and procedures that are different from the intervals and procedures specified in the proposed AD (76 FR 64038, October 17, 2011).
We agree with the commenter. We do not want to have two different inspection intervals and procedures for the same elevator spars. We revised this AD as requested and added information into paragraph (f) to clarify that the actions required in this AD take precedence over those contained in PMA Elevator Spars 44211–RE9 and 44211–RE10, Instructions for Continued Airworthiness, original issue date May 5, 2011.
Fredrick E. Maupertuis requested that specific information be added to paragraph (l) Special Flight Permit of the final rule AD action about allowable crack criteria. Fredrick E. Maupertuis questioned whether the number of cracks, the length of the cracks, and/or the orientation of cracks found during an inspection will be a determining factor in obtaining a special flight permit.
We agree with the commenter because the requested information was not included in the proposed AD (76 FR 64038, October 17, 2011). We revised this AD as requested by adding crack criteria and allowances into paragraph (l).
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (76 FR 64038, October 17, 2011) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (76 FR 64038, October 17, 2011).
We also determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.
We consider this AD interim action. We continue to evaluate the reported data and repair procedures to determine a possible terminating action. Based on this determination, we may initiate further rulemaking action if needed to address the unsafe condition identified in this AD.
We estimate that this AD affects 773 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We estimate the following costs to do any replacement that will be required based on the results of the inspection. We have no way of determining the number of aircraft that might need this replacement:
We estimate the following costs to do any repair/modification that will be required based on the results of the inspection. We have no way of determining the number of aircraft that might need this repair/modification:
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 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 this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective March 15, 2012.
This AD supersedes AD 2011–07–13, Amendment 39–16650 (76 FR 18376, April 4, 2011).
This AD applies to CPAC, Inc. (type certificate formerly held by Commander Aircraft Corporation, Gulfstream Aerospace Corporation, and Rockwell International) Models 112, 112B, 112TC, 112TCA, 114, 114A, 114B, and 114TC airplanes, all serial numbers, certificated in any category. Type Certificate No. A12SO does not include Models 112A and 115. The Model 112A is a Rockwell “marketing name” for the Model 112. The Model 115 is a Rockwell “marketing name” for the Model 114. Since they are type-certificated as Model 112 and Model 114, this AD is applicable to the Models 112A and 115.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 55, Stabilizers.
This AD was prompted by reports of a total of nine elevator spar cracks across seven of the affected airplanes, including a crack of 2.35 inches just below the outboard hinge of the right-hand elevator. We are issuing this AD to prevent structural failure of the elevator spar due to such cracking, which could result in separation of the elevator from the airplane with consequent loss of control.
Comply with this AD within the compliance times specified, unless already done. The inspection intervals and procedures in this AD take precedence over those contained in Parts Manufacturer Approval (PMA) Elevator Spars 44211–RE9 and 44211–RE10, Instructions for Continued Airworthiness, original issue date May 5, 2011.
Within the next 5 hours time-in-service (TIS) after April 4, 2011 (the effective date retained from AD 2011–07–13 (76 FR 18376, April 4, 2011)), visually inspect the left-hand (LH) and right-hand (RH) elevator spar behind and around the outboard hinge bracket on the elevator spar for cracks. Do the inspection following the procedures specified in paragraph (j) of this AD. If cracks are found during this inspection, take the necessary corrective actions specified in paragraph (k) of this AD.
Within 30 days after the inspection required in paragraph (g) of this AD, report the results of the inspection to the FAA, Wichita Aircraft Certification Office (ACO), Attn: T.N. Baktha, Senior Aerospace Engineer, 1801 Airport Road, Room 100; Wichita, Kansas 67209; phone: (316) 946–4155; fax: (316) 946–4107; email:
(1) Airplane model and serial number.
(2) Hours TIS at time of inspection.
(3) Annotate any cracking found, including the exact location and length of any cracks.
(4) Any installations, repairs, modifications, etc. that have been done on your airplane in the elevator spar area or that could have affected the elevator spar.
(5) Type of operation primarily flown.
As a result of the inspection required in paragraph (g) of this AD, if the elevator spar was:
(1)
(2)
(3)
(1) Disconnect the elevator trim pushrod at the trim tab.
(2) Remove the hinge bolts at the horizontal stabilizer points.
(3) Remove six screws and two bolts at the inboard end of the elevator and remove the elevator.
(4) Remove all fasteners common to the elevator outboard aft end rib, part number (P/N) 44330, and elevator skin, P/N 44323.
(5) Remove the remaining two fasteners common to the elevator outboard aft end rib (P/N 44330) and the elevator spar, P/N 44211.
(6) Remove the elevator aft end rib, P/N 44330, to gain access to the aft side of the elevator spar.
(7) Remove the four bolts, washers, and nuts that secure the outboard elevator hinge bracket, P/N 44285.
(8) Remove elevator hinge bracket, P/N 44285, from the elevator spar.
(9) Clean in and around the location of the elevator outboard hinge bracket, outboard elevator hinge, and the outboard elevator hinge bracket (as applicable) on the elevator spar and visually inspect for cracks. Use a 10× magnifier to facilitate the detection of any crack.
(1) If cracks are found during any inspection required in paragraphs (g), (i)(1), (i)(2), or (i)(3) of this AD, before further flight, either replace the elevator spar with a new spar or a serviceable spar that is found free of cracks and/or corrosion or repair/modify the elevator spar following a procedure approved for this AD by the FAA, Wichita ACO;
(2) After doing the actions required in paragraph (k)(1) of this AD, before further flight, reassemble the elevator assembly, rebalance the elevator, and reinstall on the airplane following standard repair practices. Ensure elevator rigging is within tolerance, and that the system operates with ease, smoothness, and positiveness appropriate to its function; and
(3) After taking corrective action, continue with the repetitive inspections required in paragraphs (i)(1), (i)(2), and (i)(3) of this AD.
(1) Special flight permits are permitted for daytime visual flight rules (VFR) only, restricted to crew, calm weather, reduced speed not to exceed 111 knots calibrated air speed (KCAS), and not to exceed 5 flight hours when cracks are found in the elevator spar if:
(i) The cracks are at or near the outboard hinge bracket;
(ii) The cracks are 1.25 inches long or less; and
(iii) There is no more than one crack on the top and one at the bottom of the hinge bracket.
(2) Special flight permits are not allowed if:
(i) The crack length is greater than 1.25 inches; or
(ii) The number of cracks is more than two.
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is 2120–0056. Public reporting for this collection of information is estimated to be approximately 5 minutes per response, including the time for reviewing instructions, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the
(1) The Manager, Wichita ACO, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD.
(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.
(3) AMOCs approved for AD 2011–07–13, Amendment 39–16650 (76 FR 18376, April 4, 2011), are approved for this AD.
For more information about this AD, contact T.N. Baktha, Senior Aerospace Engineer, Wichita ACO, FAA, 1801 Airport Road, Room 100, Wichita, Kansas 67209; phone: (316) 946–4155; fax: (316) 946–4107; email:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain CFM International, S.A. model CFM56–5B series turbofan engines. This AD was prompted by a normal quality sampling at CFM International, S.A. that isolated a production batch of fan blades with nonconforming geometry of mid-span shroud tips of the fan blades. This AD requires removing from service certain serial number (S/N) fan blades. We are issuing this AD to prevent an inflight shutdown (IFSD) of one or more engines following foreign object damage (FOD) or a bird strike.
This AD is effective March 15, 2012.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of March 15, 2012.
For service information identified in this AD, contact CFM International, Inc., Aviation Operations Center, 1 Neumann Way, M/D Room 285, Cincinnati, OH 45125; International Phone: 1–(513) 552–3272; USA Phone: (877) 432–3272; International Fax: 1–(513) 552–3329; USA Fax: (877) 432–3329; email:
You may examine the AD docket on the Internet at
Martin Adler, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: (781) 238–7157; fax: (781) 238–7199; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal and the FAA's response to each comment.
One commenter, CFM International, S.A., requested that we reword the unsafe condition statement “This defect would cause the upper panel of the fan blade to be liberated following FOD or a bird strike and likely result in an in-flight shutdown (IFSD)” to “This non-conforming condition could increase the potential for damage during a foreign object impact. This secondary damage could include liberation of the upper panel of the blade, which increases the potential for in-flight shutdown.” The commenter stated that the outcome of FOD or bird strike event will not necessarily result in an outer panel release, therefore it is suggested that the sentence be replaced to more accurately reflect the possible outcome.
We agree. The unsafe condition increases the likelihood of separation after an event, but will not result in separation in every case. We changed paragraph (d) of the AD, which is the only place in the final rule that this information appears, to state that this defect could cause the upper panel of the fan blade to be liberated following FOD or a bird strike and likely result in an IFSD.
One commenter, American Airlines, requested that we establish a terminating action that would specify a point at which the AD would be considered closed. This would allow the airline to limit the time that it must verify compliance with the AD and reduce operating costs.
We do not agree. The AD as written clearly limits the fan blade serial numbers affected. The affected blades must never be installed in operating engines. We have no mechanism to assure that the affected fan blades have been completely purged from all inventories and so we can not stipulate when the AD is no longer applicable. We did not change the AD.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously.
We estimate that this AD will affect 16 engines installed on airplanes of U.S. registry. We also estimate that it will take about 6 work-hours per engine to perform the required actions and that the average labor rate is $85 per work-hour. Required parts will cost about $47,830 per engine. Based on these figures, we estimate the total cost of this AD to U.S. operators to be $773,440.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective March 15, 2012.
None.
This AD applies to CFM International, S.A. CFM56–5B1/3, CFM56–5B2/3, CFM56–5B3/3, CFM56–5B4/3, CFM56–5B5/3, CFM56–5B6/3, CFM56–5B7/3, CFM56–5B8/3, CFM56–5B9/3, CFM56–5B3/3B1, and CFM56–5B4/3B1 engines equipped with fan blades part number (P/N) 338–002–114–0 that have a serial number (S/N) listed in Appendix A of CFM International Service Bulletin (SB) No. CFM56–5B S/B 72–0777, Revision 1, dated April 11, 2011.
This AD was prompted by a normal quality sampling at CFM International. S.A. that isolated a production batch of fan blades with nonconforming geometry of mid-span shroud tips of the fan blades. This defect could cause the upper panel of the fan blade to be liberated following foreign object damage (FOD) or a bird strike, and likely result in an inflight shutdown (IFSD). We are issuing this AD to prevent an IFSD of one or more engines following FOD or a bird strike.
Comply with this AD within the compliance times specified, unless already done.
For engines that have fan blades, P/N 338–002–114–0, with S/Ns listed in Appendix A of CFM International SB No. CFM56–5B S/B 72–0777, Revision 1, dated April 11, 2011, remove the fan blades from service within 5,000 flight hours after the effective date of this AD.
After the effective date of this AD, do not install any fan blade, P/N 338–002–114–0, that has a S/N listed in Appendix A of CFM International SB No. CFM56–5B S/B 72–0777, Revision 1, dated April 11, 2011, onto any engine.
The Manager, Engine Certification Office, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request.
For more information about this AD, contact Martin Adler, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: (781) 238–7157; fax: (781) 238–7199; email:
(1) You must use the following service information to identify the fan blade S/Ns affected by this AD. The Director of the Federal Register approved the incorporation by reference (IBR) under 5 U.S.C. 552(a) and 1 CFR part 51 of the following service information.
(2) CFM International Service Bulletin No. CFM56–5B S/B 72–0777, Revision 1, dated April 11, 2011.
(3) For service information identified in this AD, contact CFM International, Inc., Aviation Operations Center, 1 Neumann Way, M/D Room 285, Cincinnati, OH 45125; International Phone: 1–(513) 552–3272; USA Phone: (877) 432–3272; International Fax: 1–(513) 552–3329; USA Fax: (877) 432–3329; email:
(4) You may review copies of the referenced service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803. For information on the availability of this material at the FAA, call 781–238–7125.
(5) You may also review copies of the service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for all Rolls-Royce plc RB211–Trent 500 series turbofan engines. This AD requires a one-time inspection of the fuel tubes and fuel tube clips for evidence of damage, wear, and fuel leakage. This AD was prompted by reports of wear found between the securing clips and the low-pressure (LP) fuel tube outer surface, which reduces the fuel tube wall thickness, leading to fracture of the fuel tube and consequent fuel leak. We are issuing this AD to prevent engine fuel leaks, which could result in risk to the airplane.
This AD becomes effective February 24, 2012.
We must receive comments on this AD by March 26, 2012.
The Director of the Federal Register approved the incorporation by reference of Rolls-Royce plc Alert Service Bulletin No. RB.211–73–AG797, dated October 26, 2011, listed in the AD as of February 24, 2012.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, England, DE248BJ; phone: 011–44–1332–242424; fax: 011–44–1332–245418 or email:
You may examine the AD docket on the Internet at
Alan Strom, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; email:
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2011–0243, dated December 20, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Fuel leaks from the LP fuel tubes which run between the LP fuel pumps and high pressure (HP) fuel pumps have occurred in service.
The subsequent technical investigations have shown that these have resulted from frettage between the securing clips and the LP fuel tube outer surface, which reduces the fuel tube wall thickness, leading to fracture of the fuel tube and consequent fuel leak.
The corrective action includes inspection of the tubes and the associated clips. The fretting and thinning of the fuel tubes is caused by relative movement between the tubes and the clips. You may obtain further information by examining the MCAI in the AD docket.
Rolls-Royce plc has issued Alert Service Bulletin No. RB.211–73–AG797, dated October 26, 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 United Kingdom and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
No domestic operators use this product. Therefore, we find that notice and opportunity for prior public comment are unnecessary and that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
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
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 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 this AD:
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 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 amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) becomes effective February 24, 2012.
None.
This AD applies to Rolls-Royce plc RB211–Trent 553–61, RB211–Trent 553A2–61, RB211–Trent 556–61, RB211–Trent 556A2–61, RB211–Trent 556B–61, RB211–Trent 556B2–61, RB211–Trent 560–61, and RB211–Trent 560A2–61 turbofan engines that have not complied with Rolls-Royce plc Service Bulletin No. RB.211–73–G723, and that have any of the following fuel tube part numbers installed:
(1) FW57605.
(2) FW17689.
(3) FW57604.
(4) FK30710.
(5) FW57578.
(6) FK30713.
This AD was prompted by reports of wear found between the securing clips and the low-pressure (LP) fuel tube outer surface, which reduces the fuel tube wall thickness, leading to fracture of the fuel tube and consequent fuel leak. We are issuing this AD to prevent engine fuel leaks, which could result in risk to the airplane.
Unless already done, do the following one-time actions within 1,600 flight hours after the effective date of this AD.
(1) Visually inspect the fuel tube clips holding the LP fuel tube run from the LP fuel pump to the fuel-oil-heat exchanger, and the clips holding the LP fuel tube run from the LP filter to the high-pressure (HP) fuel pump, for evidence of damage or wear and replace as necessary. Do this in accordance with paragraphs 3.A(4)(a) through 3.A(4)(c) of Rolls-Royce plc Alert Service Bulletin No. RB.211–73–AG797, dated October 26, 2011.
(2) Clean and dry the LP fuel tube run from the LP fuel pump to the fuel-oil-heat exchanger, and the LP fuel tube run from the LP filter to the HP fuel pump.
(i) Visually inspect for evidence of damage, wear near the clip locations, and for fuel leakage.
(ii) Reject the tube and replace it if evidence of fuel leakage or contact frettage to a depth of greater than 0.1 mm (0.004 in.) on the outer surface of a bend, or 0.2 mm (0.008 in.) in any other area, is evident.
The Manager, Engine Certification Office, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request.
(1) For more information about this AD, contact Alan Strom, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; email:
(2) Refer to European Aviation Safety Agency AD 2011–0243, dated December 20, 2011, for related information.
(1) You must use the following service information to do the actions required by this AD, unless the AD specifies otherwise. The Director of the Federal Register approved the incorporation by reference of the following service information under 5 U.S.C. 552(a) and 1 CFR part 51:
(2) Rolls-Royce plc Alert Service Bulletin No. RB.211–73–AG797, dated October 26, 2011.
(3) For service information identified in this AD, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, England, DE248BJ; phone: 011–44–1332–242424; fax: 011–44–1332–245418 or email:
(4) You may review copies of the service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call (781) 238–7125.
(5) You may also review copies of the service information incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for the products listed above. This AD was prompted by a report of an uncontained failure of a first stage turbine disk that had a metallurgical defect. This AD requires inspecting certain serial number (S/N) first stage turbine disks, part number (P/N) 3101520–1 and P/N
This AD is effective March 15, 2012.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of March 15, 2012.
For service information identified in this AD, contact Honeywell International Inc., 111 S. 34th Street, Phoenix, AZ 85034–2802; phone: (800) 601–3099 (toll free in U.S. or Canada) or (602) 365–3099 (International direct); Web site:
You may examine the AD docket on the Internet at
Joseph Costa, Aerospace Engineer, Los Angeles Aircraft Certification Office, FAA, Transport Airplane Directorate, 3960 Paramount Blvd., Lakewood, CA 90712–4137; phone: 562–627–5246; fax: 562–627–5210; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM published in the
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM.
We reviewed the relevant data and determined that air safety and the public interest require adopting the AD as proposed.
We estimate that this AD affects 90 engines installed on airplanes of U.S. registry. We also estimate that it will take about 20 work-hours per engine to perform these actions, and that the average labor rate is $85 per work-hour. Required parts cost about $19,000 per engine. We estimate that one disk will fail the initial inspection and that repetitive inspections will be performed on 89 engines. We estimate that one engine will fail the repetitive inspections and that further repetitive inspections will be performed on 88 engines. We estimate that an additional one disk will fail those repetitive inspections before retirement. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $511,155.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective March 15, 2012.
None.
Honeywell International Inc. TPE331–10, –10AV, –10GP, –10GT, –10N, –10P, –10R, –10T, –10U, –10UA, –10UF, –10UG, –10UGR, –10UR, and TPE331–11U model turboprop engines with a first stage turbine disk, part number (P/N) 3101520–1 or 3107079–1, with a serial number (S/N) listed in Table 2 of Honeywell International Inc. Alert Service Bulletin (ASB) TPE331–72–A2156, dated December 2, 2008, installed.
This AD was prompted by a report of an uncontained failure of a first stage turbine disk that had a metallurgical defect. We are issuing this AD to prevent uncontained failure of the first stage turbine disk and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) For first stage turbine disks, P/N 3101520–1 or 3107079–1, that have an S/N listed in Table 2 of Honeywell International Inc. ASB TPE331–72–A2156, dated December 2, 2008, inspect the disks as follows:
(i) For turbine disks with 4,100 or fewer cycles-since-new (CSN) on the effective date of this AD, perform an initial fluorescent penetrant inspection (FPI) by using paragraph 3.B.(2) through 3.B.(5) of Honeywell International Inc. ASB TPE331–72–A2156, dated December 2, 2008, within 4,500 CSN or at the next access, whichever occurs first.
(ii) For turbine disks with more than 4,100 CSN on the effective date of this AD, perform an initial FPI by using paragraph 3.B.(2) through 3.B.(5) of Honeywell International Inc. ASB TPE331–72–A2156, dated December 2, 2008, within 400 cycles-in-service (CIS) after the effective date of this AD or at the next access, whichever occurs first.
(iii) If the disk passes the FPI inspection, perform a special eddy current inspection (ECI) by using paragraph 3.B.(6) of Honeywell International Inc. ASB TPE331–72–A2156, dated December 2, 2008, before returning the disk to service.
(2) If you find a crack in the disk, remove the disk from service.
(1) Thereafter, for first stage turbine disks, P/N 3101520–1 or 3107079–1, that have an S/N listed in Table 2 of Honeywell International Inc. ASB TPE331–72–A2156, dated December 2, 2008, inspect the disks as follows:
(i) Perform a repetitive inspection at each scheduled hot section inspection, but not to exceed 3,600 hours-since-last inspection. Use paragraph 3.B.(2) through 3.B.(5) of Honeywell International Inc. ASB TPE331–72–A2156, dated December 2, 2008.
(ii) If the disk passes the FPI inspection, perform a special ECI by using paragraph 3.B.(6) of Honeywell International Inc. ASB TPE331–72–A2156, dated December 2, 2008, before returning the disk to service.
(2) If you find a crack in the disk, remove the disk from service.
For the purpose of this AD, “next access to the first stage turbine disk” is defined as the removal of the second stage turbine nozzle from the turbine stator housing.
The Manager, Los Angeles Aircraft Certification Office, FAA, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request.
(1) For more information about this AD, contact Joseph Costa, Aerospace Engineer, Los Angeles Aircraft Certification Office, FAA, Transport Airplane Directorate, 3960 Paramount Blvd., Lakewood, CA 90712–4137; phone: (562) 627–5246; fax: (562) 627–5210; email:
(2) Contact Honeywell International Inc., 111 S. 34th Street, Phoenix, AZ 85034–2802; phone: (800) 601–3099 (toll free in U.S. or Canada) or (602) 365–3099 (International direct); Web site:
(1) You must use the following service information to do the actions required by this AD, unless the AD specifies otherwise. The Director of the Federal Register approved the incorporation by reference (IBR) of the following service information under 5 U.S.C. 552(a) and 1 CFR part 51:
(i) Honeywell International Inc., Alert Service Bulletin TPE331–72–A2156, December 2, 2008.
(2) For service information identified in this AD, contact Honeywell International Inc., 111 S. 34th Street, Phoenix, AZ 85034–2802; Web site:
(3) You may review copies of the service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803. For information on the availability of this material at the FAA, call (781) 238–7125.
(4) You may also review copies of the service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at an NARA facility, call (202) 741–6030, or go to
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are superseding an existing airworthiness directive (AD) for Superior Air Parts and Lycoming Engines fuel-injected reciprocating engines. That AD currently requires removing AVStar Fuel Systems, Inc. (AFS) fuel servos installed after May 20, 2010, if the servo contained an AFS diaphragm, part number (P/N) AV2541801 or P/N AV2541803, from certain production lots. This AD expands the applicability, and changes the compliance interval for all affected Superior Air Parts, Lycoming Engines, and Continental Motors, Inc., fuel-injected reciprocating engines. This AD was prompted by an accident involving a Piper PA32R–301 airplane, and by the discovery of additional engines being affected by the unsafe condition since we issued the existing AD. We are issuing this AD to prevent an in-flight engine shutdown due to a failed fuel servo diaphragm, and damage to the airplane.
This AD is effective February 24, 2012.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of August 16, 2011 (76 FR 45655, August 1, 2011).
We must receive any comments on this AD by March 26, 2012.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact AVStar Fuel Systems, Inc., 1365 Park Lane South, Jupiter, FL 33458; phone: (561) 575–1560; Web site:
You may examine the AD docket on the Internet at
Kevin Brane, Aerospace Engineer, Atlanta Certification Office, FAA, 1701 Columbia Avenue, College Park, GA 30337; phone: (404) 474–5582; fax: (404) 474–5606; email:
On July 13, 2011, we issued AD 2011–15–10, Amendment 39–16757 (76 FR 45655, August 1, 2011), for Superior Air Parts and Lycoming Engines fuel-injected reciprocating engines. That AD requires, before further flight, removing AFS fuel servos installed after May 20, 2010, if the servo contained an AFS diaphragm, P/N AV2541801 or P/N AV2541803, from certain production lots. That AD resulted from an accident involving a Piper PA32R–301 airplane. We issued that AD to prevent an in-flight engine shutdown due to a failed fuel servo diaphragm, and damage to the airplane.
Since we issued AD 2011–15–10, Amendment 39–16757 (76 FR 45655, August 1, 2011), five commenters made us aware of eight additional engine models affected by the unsafe condition. We concur with the commenters. Discussions with AFS as a result of the comments indicated that the diaphragm problem extended to other reciprocating engines. AFS also indicated that the problem diaphragms could be installed on other unknown fuel injected engines. Therefore, we determined that we need to change the applicability from a table of specific engine models, to all Superior Air Parts, Lycoming Engines, and Continental Motors, Inc., fuel injected reciprocating engine models with an AFS fuel servo diaphragm, P/N AV2541801 or P/N AV2541803, installed.
Also since we issued AD 2011–15–10, Amendment 39–16757 (76 FR 45655, August 1, 2011), we relaxed the compliance from before further flight to within 5 flight hours after the effective date of the AD.
We reviewed AFS Mandatory Service Bulletin (MSB) No. AFS–SB6, Revision 2, dated April 6, 2011. The MSB provides P/Ns and serial numbers (S/Ns) of affected servos.
We conducted an updated risk analysis using the known number of diaphragms potentially still in service and concluded that an unacceptable risk of an in-flight engine shutdown still exists. We are issuing 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 AD requires within 5 flight hours after the effective date of this AD, that you determine if an AFS fuel servo diaphragm P/N AV2541801 or P/N AV2541803 from specific production lots, as identified in AFS MSB No. AFS–SB6, Revision 2, dated April 6, 2011, was installed in your fuel servo at any time after May 20, 2010, and if installed, that you remove the fuel servo from service before further flight.
This AD also replaces Table 1 of the existing AD with the statement that this AD applies to all Superior Air Parts, Lycoming Engines, and Continental Motors, Inc., fuel injected reciprocating engine models with an AFS fuel servo diaphragm, P/N AV2541801 or P/N AV2541803, installed.
AFS MSB No. AFS–SB6, Revision 2, dated April 6, 2011, does not specify a compliance time and recommends limiting special flight permits to delivery to a service location. This AD requires performing the actions within 5 flight hours and prohibits special flight permits.
An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because of the compliance requirement of 5 flight hours. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We estimate that this AD will affect 61,000 engines installed on aircraft of U.S. registry. We also estimate that it will take about 0.5 work-hour per engine to perform the inspection, 2.0 work-hours per engine to remove the servo from 261 engines with a discrepant AFS diaphragm, P/N AV2541801 or P/N AV2541803 installed, and that the average labor rate is $85 per work-hour. We estimate the parts cost to be $565 per servo. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $2,784,335.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective February 24, 2012.
This AD supersedes AD 2011–15–10, Amendment 39–16757 (76 FR 45655, August 1, 2011).
This AD applies to all Superior Air Parts, Lycoming Engines, and Continental Motors, Inc., fuel injected reciprocating engine models with an AVStar Fuel Systems, Inc. (AFS) fuel servo diaphragm, part number (P/N) AV2541801 or P/N AV2541803, installed.
This AD was prompted by an accident involving a Piper PA32R–301 airplane, and by the discovery of additional engines being affected by the unsafe condition since we issued AD 2011–15–10, Amendment 39–16757 (76 FR 45655, August 1, 2011). We are issuing this AD to prevent an in-flight engine shutdown due to a failed fuel servo diaphragm, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 5 flight hours after the effective date of this AD, determine if an AFS fuel servo diaphragm P/N AV2541801 or P/N AV2541803, from an affected production lot was installed in your fuel servo at any time after May 20, 2010. Use AFS Mandatory Service Bulletin (MSB) No. AFS–SB6, Revision 2, dated April 6, 2011 to determine if your fuel servo has an affected diaphragm. If you determine that your fuel servo has an affected diaphragm, remove the fuel servo from service before further flight.
(2) After the effective date of this AD, do not install any fuel servo containing an AFS fuel servo diaphragm, P/N AV2541801 or P/N AV2541803 from the production lots listed in AFS MSB No. AFS–SB6, Revision 2, dated April 6, 2011, into any airplane.
Special flight permits are not authorized.
The Manager, Atlanta Aircraft Certification Office, FAA, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request.
For more information about this AD, contact Kevin Brane, Aerospace Engineer, Atlanta Certification Office, FAA, 1701 Columbia Avenue, College Park, GA 30337; phone: (404) 474–5582; fax: (404) 474–5606; email:
(1) You must use AVStar Fuel Systems Mandatory Service Bulletin No. AFS–SB6, Revision 2, dated April 6, 2011, to do the actions required by this AD, unless the AD specifies otherwise.
(2) The Director of the Federal Register approved the incorporation by reference (IBR) under 5 U.S.C. 552(a) and 1 CFR part 51 on August 16, 2011.
(3) For service information identified in this AD, contact AVStar Fuel Systems, Inc., 1365 Park Lane South, Jupiter, FL 33458; (561) 575–1560; Web site:
(4) You may review copies of the service information at the FAA, 12 New England Executive Park, Burlington, MA 01803. For information on the availability of this material at the FAA, call (781) 238–7125.
(5) You may also review copies of the service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at an NARA facility, call (202) 741–6030, or go to
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Final rule.
This final rule removes HUD's outdated regulations for the Indian HOME Investment Partnerships (Indian HOME) program. Under the Indian HOME program, HUD awarded funds competitively to eligible applicants to provide affordable housing. The Indian HOME program was replaced by the Indian Housing Block Grant (IHBG) program established under the Native American Housing Assistance and Self-Determination Act of 1996 (NAHASDA). However, HUD retained the Indian HOME program regulations because they continued to govern grants awarded prior to the enactment of NAHASDA. Since September 30, 1997, HUD has not awarded grants under the Indian HOME program and, therefore, the regulations are no longer necessary.
Rodger J. Boyd, Deputy Assistant Secretary for Native American Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 4126, Washington, DC 20410, telephone number (202) 401–7914 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number through TTY by calling the toll-free Federal Relay Service at (800) 877–8339.
The HOME Investment Partnerships Act (Title II of the Cranston-Gonzales National Affordable Housing Act (Pub. L. 101–925, approved November 28, 1990; 42 U.S.C. 12701
Each fiscal year, one percent of the funds appropriated for the HOME program were allocated to the Indian HOME program. The Indian HOME program awarded competitive grants to eligible applicants to increase affordable housing for low-income and very low-income persons. Eligible applicants for Indian HOME program funds included any Indian Tribe, band, group, or nation. The Indian HOME program regulations are codified in 24 CFR part 954. Under the Indian HOME program, grant recipients could use funds for housing rehabilitation, acquisition of housing, new housing construction, and tenant-based rental assistance. Assistance was provided in the form of loans, advances, equity investments, interest subsidies, and other forms of investment that HUD approved.
NAHASDA (25 U.S.C. 4101
The IHBG program supports a range of affordable housing activities on Indian reservations and Indian areas. Eligible IHBG recipients include federally recognized Indian tribes or their tribally designated housing entity, and a limited number of state recognized tribes. IHBG funds must be used to develop or support rental or homeownership opportunities or provide housing services to benefit low-income Indian families. Eligible IHBG activities include modernization or operating assistance for housing previously developed using HUD assistance; acquisition, new construction, or rehabilitation of additional units; housing-related services such as housing counseling, self-sufficiency services, energy auditing, and establishment of resident organizations; housing management services; crime prevention and safety activities; rental assistance; model activities; and administrative expenses.
When NAHASDA was enacted and the IHBG program was created, previously awarded Indian HOME grants continued to be governed by the provisions of the statutes and regulations governing the program in effect at the time of funding. When funded activities were completed, Indian HOME grants were closed in accordance with their program requirements and grant agreements. As a result, HUD initially retained the Indian HOME program regulations because they continued to govern these previously awarded grants. As intended by NAHASDA, grants under the IHBG program have now replaced Indian HOME program grants.
On January 18, 2011, President Obama issued Executive Order 13563, “Improving Regulation and Regulatory Review” (see 76 FR 3821, January 21, 2011). The Executive Order requires federal agencies to coordinate, simplify, and harmonize regulations to reduce costs and promote certainty for businesses and the public. Section 6 of this Executive Order requires agencies to review existing significant regulations to determine if they are outmoded or ineffective. In response to the Executive Order, HUD is working to ensure that all of its regulations are updated and remain necessary. As discussed, the regulations pertaining to the terminated Indian HOME program are no longer necessary.
This final rule responds to the mandate in Executive Order 13563 by removing regulations for a program that is now obsolete. Part 954 of title 24 of the Code of Federal Regulations governs the Indian HOME program. At this time, the Indian HOME program no longer awards grants. This final rule removes all regulations pertaining to the Indian HOME program because it no longer exists. However, Indian HOME grantees are still required to comply with any statutory and regulatory requirements that continue to apply beyond the close-out date of an Indian HOME grant, such as ensuring compliance with applicable affordability requirements. Continued affordability for HOME rental housing projects is required by 42 U.S.C. 12745(a)(1)(E), as implemented by 24 CFR 92.252(e) and 954.306(a)(5).
In general, HUD publishes a rule for public comment before issuing a rule for effect, in accordance with HUD's regulations on rulemaking at 24 CFR part 10. Section 10.1 of part 10, however, provides for exceptions from that general rule where HUD finds good cause to omit advance notice and public participation. The good cause requirement is satisfied when the public procedure is “impracticable, unnecessary, or contrary to the public interest.” HUD finds that good cause exists to publish this rule for effect without soliciting public comment on the basis that public procedure is unnecessary. After all, the purpose of this final rule is to remove all regulations pertaining to a program that is obsolete. The Indian HOME program in part 954 was replaced by the IHBG program. Public comment is unnecessary because this final rule updates the HUD regulations to reflect that the Indian HOME program no longer exists, and there is no exercise of agency discretion upon which the public could comment.
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This rule does not have federalism implications and does not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) (UMRA) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on
This final rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).
Accordingly, under the authority of 42 U.S.C. 35335(d) and 25 U.S.C. 4101
Pension Benefit Guaranty Corporation.
Policy statement.
Executive Order 13563 on Improving Regulation and Regulatory Review directs agencies to review and improve their regulatory processes. As a result of this regulatory review, among other initiatives, PBGC is announcing a limited window for covered plans that have never paid required premiums to pay past-due premiums without penalty.
Catherine B. Klion (
The Pension Benefit Guaranty Corporation (PBGC) administers the pension insurance program under title IV of the Employee Retirement Income Security Act of 1974 (ERISA). Under sections 4006 and 4007 of ERISA, plans covered by title IV must pay premiums to PBGC. The vast majority of plans covered by PBGC make every effort to pay required premiums in full and on time. PBGC depends on these premium funds to provide participants and beneficiaries of terminated defined benefit plans guaranteed benefits as provided under ERISA.
A few times a year, PBGC becomes aware of a covered plan that has never filed PBGC premiums, in some cases because the plan administrator was unaware that the plan was covered.
On January 18, 2011, the President issued Executive Order 13563 on Improving Regulation and Regulatory Review (76 FR 3821, Jan. 21, 2011). Executive Order 13563 calls, among other things, for agencies to develop a plan to review existing regulations to identify any that can be made more effective or less burdensome in achieving regulatory objectives.
As part of PBGC's review of its premium regulations pursuant to Executive Order 13563,
To qualify for the relief provided in this document, the plan administrator of an eligible plan (or a representative) must—
1.
2.
PBGC will use its Web site (
Out of fairness to compliant plan sponsors and to protect participants, after the end of the period for taking advantage of this relief, PBGC will step up its efforts to enforce premium requirements for covered plans that have not paid any required premiums, including assessment of penalties.
Postal Service.
Final rule.
This rule establishes standards of qualification and responsibility for contractors employed by the Office of Inspector General. The rule also emphasizes consistency in contractor selection, and clarifies the OIG's exclusive authority to set qualifications and standards for its own contractors, as well as ensure the use of contracting best practices as established by the Federal Acquisition Regulations and other applicable sources in making contract awards.
Anil Murjani, Office of General Counsel, Office of Inspector General, United States Postal Service, (703) 248–2244.
The OIG possesses contracting authority pursuant to the Inspector General Act of 1978, as amended (section 6(a)(9) of 5 U.S.C. App. 3). Under 39 CFR 230.1(i), the Postal Service's Office of the Inspector General (OIG) may hire and retain the services of expert consultants and other personnel as necessary to fulfill the duties and responsibilities of the Office. This rule establishes general standards of qualification and responsibility for such contractors. The rule also emphasizes consistency in contractor selection, and clarifies the OIG's exclusive authority to set qualifications and standards for its own contractors, as well as ensure the use of contracting best practices as established by the Federal Acquisition Regulations and other applicable sources in making contract awards. Neither the United States Postal Service nor the OIG will be bound by the Federal Acquisition Regulations through the adoption of this rule.
Authority delegations (Government agencies), Freedom of information, Organization and functions (Government agencies), Privacy.
For the reasons stated, the Postal Service adopts the following amendment to 39 CFR Part 230:
5 U.S.C. App. 3; 39 U.S.C. 401(2) and 1001.
(a) The Office of Inspector General shall be the exclusive judge of its contractors' qualifications.
(b) The Office of Inspector General shall award contracts to and make purchases from only responsible contractors. In order to award a contract, a contracting officer must make an affirmative determination of responsibility.
(c) A responsible prospective contractor is one who:
(1) Has the financial and logistical resources to perform the contract;
(2) Has the necessary organization, experience, and technical ability to perform the contract;
(3) Is able to comply with the delivery and performance schedules established by the Office of Inspector General;
(4) Has a satisfactory performance record (although a lack of relevant performance history shall not disqualify a prospective contractor from award);
(5) Has a satisfactory record of integrity and business ethics; and,
(6) Is otherwise qualified and eligible to receive an award under applicable federal laws and regulations.
Postal Regulatory Commission.
Final rule.
The Commission is adopting a new set of rules for appeals of post office closings. The new rules are intended to update existing rules; foster clarity and simplicity, especially in terms of requirements that apply to the public; and expedite the appeal process. The rules incorporate some, but not all, of the proposed rules, as well as some commenters' suggestions. Some proposals have been deferred to allow time for further consideration. Adoption of a new set of rules will improve the post office closing appeal process.
Stephen L. Sharfman, General Counsel, at 202–789–6820.
On August 18, 2011, the Commission issued a notice of proposed rulemaking.
Some of the proposed rules generated opposition. Others were relatively uncontroversial. The Commission finds that it will be beneficial to promptly adopt rules that were, for the most part, unopposed. The Commission will address the other proposed rules in a later order. This order is organized as follows. First, proposed rules that generated no opposition are described and adopted. Next, proposed rules that generated suggestions for improvement are described, modified as appropriate, and adopted or deferred for further consideration. Third, proposed rules that generated controversy that is easily resolved are described, modified as appropriate, and adopted. Finally, proposed rules that generated significant opposition that requires additional research and analysis are described and deferred to a later date.
The Public Representative also suggests that participants in appeals be given 14 days to respond to Postal Service motions and briefs rather than the 7 days allowed by rule 3001.20(b) and proposed rule 3025.43. This is based on the expectation that many, if not most, participants will be corresponding with the Commission by mail rather than using the Internet. Seven days does appear to be inadequate. Most of the 7 days could easily be consumed in transit to and from a participant. However, the proposed rules are also intended to expedite Commission consideration of appeals. Order No. 814 at 5. A 14-day response time, especially for motions to dismiss, could necessitate revisions to the procedural schedule. Under the Public Representative's proposed change, responses to motions to dismiss would be due 14 days after their filing, while participant statements are due 20 days after the filing of such motions.
Proposed rule 3025.11 explains how to submit a Petition for Review to the Commission. The Public Representative proposes changes to rule 11. PR Comments, Attachment A at 3. The Public Representative proposes that the means of submission of appeals set out in rule 11 apply to all documents submitted by participants other than the Postal Service. Rule 3025.11 is adopted as modified by the Public Representative.
Rule 3025.13, as proposed, explains when a Petition for Review is considered timely. The statutory deadline for an appeal is 30 days from a final determination's being made available to patrons. The exact deadline depends on whether a petition is mailed, filed electronically, or delivered by someone other than the Postal Service. The Postal Service and the Public Representative suggest changing the event that triggers the running of the 30 days from the day the final determination is made available, to the date of posting of the final determination. Postal Service Comments, Appendix at v; PR Comments at 3–4. The phrase “made available” is the statutory description. Consideration of this proposed change is deferred. Rule 13 is adopted as proposed.
The purposes of rule 14(a), as proposed, are: (1) To remove the requirement for filing notices of intervention, and (2) to simplify language. The Postal Service reads proposed rule 14(a) as expanding the class of persons who may participate in an appeal. Postal Service Comments at 20 (as revised October 7, 2011). American Postal Workers Union (APWU) reads proposed rule 14 as narrowing the class of persons who may participate in an appeal.
Rule 3025.14(b), as proposed, is also changed to categorize comments as supporting or opposing an order returning the matter for further consideration.
The Postal Service objects to the definitions of “administrative record” and “post office” as overbroad and to the definition of “relocate” as too narrow. Postal Service Comments at 2–7, 13–19, 21. Valpak objects to the definition of “post office” as overbroad.
1. Changes to part 3001 of title 39, chapter III, Code of Federal Regulations, as set forth below, are hereby adopted, effective 30 days after publication in the
2. A new part 3025 of title 39, chapter III, Code of Federal Regulations, as set forth below, is hereby adopted, effective 30 days after publication in the
3. The Secretary shall arrange for publication of this order in the
Administrative practice and procedure, Freedom of information, Postal Service, Sunshine Act.
Administrative practice and procedure, Postal Service.
By the Commission.
For the reasons discussed in the preamble, the Postal Regulatory Commission amends chapter III of title 39 of the Code of Federal Regulations as follows.
39 U.S.C. 404(d); 503; 504; 3661.
(b)
(a)
(b)
(d)
(a) * * *
(3) In proceedings conducted pursuant to part 3025 of this chapter, the Secretary will serve documents (except an administrative record) on participants who do not use Filing Online. Service will be by First-Class Mail.
(a)
(1) The Postal Service files a request with the Commission to issue an advisory opinion on a proposed change in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis;
(2) The Commission in the exercise of its discretion determines that an opportunity for hearing should be provided with regard to a complaint filed pursuant to part 3030 of this chapter; or
(3) The Commission in the exercise of its discretion determines it is appropriate.
(b)
(c)
(1) The general nature of the proceeding involved in terms of categories listed in paragraph (a) of this section;
(2) A reference to the legal authority under which the proceeding is to be conducted;
(3) A concise description of proposals for changes in rates or fees, proposals for the establishment of or changes in the mail classification schedule, proposals for changes in the nature of postal services and, in the case of a complaint, an identification of the complainant and a concise description of the subject matter of the complaint;
(4) The date by which notices of intervention and requests for hearing must be filed; and
(5) Such other information as the Commission may desire to include
39 U.S.C. 404(d).
The following definitions apply in this part:
(a)
(b)
(c)
(a) The rules in this part apply when:
(1) The Postal Service decides to close or consolidate a post office, and
(2) A patron of that post office appeals the closing or consolidation.
(b) The following sections in part 3001, subpart A of this chapter, apply to appeals of post office closings or consolidations: §§ 3001.1 through 3001.9 of this chapter; § 3001.11(a) of this chapter, § 3001.11(c) through (f) of this chapter; §§ 3001.12 through 3001.17 of this chapter; and §§ 3001.21 and 3001.22 of this chapter.
(c) Answers to motions filed by the Postal Service are due within 10 days. § 3025.3 Notice by the Postal Service.
(a) Pursuant to section 404(d) of title 39, United States Code, any decision to close or consolidate a post office must be preceded by 60 days' notice to persons served by such post office, the opportunity for such persons to present their views, and a written determination based upon consideration of each of the factors listed in section 404(d)(2) of title 39, United States Code.
(b) This notice must include a provision stating that, pursuant to section 404(d)(5) of title 39, United States Code, a final Postal Service determination to close or consolidate a post office may be appealed by any person served by such office to the Postal Regulatory Commission at 901 New York Avenue NW., Suite 200, Washington, DC 20268–0001, within 30 days after such determination is made available to such person by the Postal Service.
(a) A Postal Service decision to close or consolidate a post office may be appealed only by a person served by that office. An appeal is commenced by submitting a Petition for Review to the Postal Regulatory Commission.
(b) The Petition for Review must state that the person(s) submitting it is/are served by the post office that the Postal Service has decided to close or consolidate. The petition should include the name(s) and address(es) of the person(s) filing it and the name or location of the post office to be closed or consolidated. A petitioner may include other information deemed pertinent.
Petitions for Review, comments, motions, answers, and other documents may be submitted by persons other than the Postal Service by mail, electronically through the Commission's Web site,
If the Commission receives more than one Petition for Review of the same post office closing or consolidation, the petitions will be considered in a single docket.
(a)
(b)
(c)
(d)
(a) A person served by the post office to be closed or consolidated pursuant to the Postal Service written determination under review who desires to intervene in the proceeding, or any other interested person, or any counsel, agent, or other person authorized or recognized by the Postal Service as such interested person's representative or the representative of such interested person's recognized group, such as Postmasters, may participate in an appeal by sending written comments to the Postal Regulatory Commission in the manner described in § 3025.11.
(b) Persons may submit comments supporting or opposing a Commission order returning the entire matter to the Postal Service for further consideration. Comments must be filed in accordance with the deadlines established in §§ 3025.41 through 3025.43. Commenters may use PRC Form 61, which is available on the Commission's Web site,
(a) The record on review includes:
(1) The final determination;
(2) The notices to persons served by the post office to be closed or consolidated;
(3) The administrative record; and
(4) All documents submitted in the appeal proceeding.
(b) The record shall contain all evidence considered by the Postal Service in making its determination and shall contain no evidence not previously considered by the Postal Service.
The Postal Service shall file the administrative record within 10 days of the date of posting of a Petition for Review on the Commission's Web site. The Commission may alter this time for good cause. The Secretary will notify participants that they may view the administrative record at post offices where the final determination was posted.
Copies of all filings (including the administrative record) related to an appeal shall be available for public inspection at the post offices where the
(a)
(b)
(a) When a timely Petition for Review of a decision to close or consolidate a post office is filed, the Secretary shall furnish petitioner with a copy of PRC Form 61. This form is designed to inform petitioners on how to make a statement of his/her arguments in support of the petition.
(b) The instructions for PRC Form 61 shall provide:
(1) A concise explanation of the purpose of the form;
(2) A copy of section 404(d)(2)(A) of title 39, United States Code; and
(3) Notification that, if petitioner prefers, he or she may file a brief in lieu of or in addition to completing PRC Form 61.
The statement or brief of petitioner and of any other participant seeking to have the Commission return the entire matter to the Postal Service for further consideration, shall be filed not more than 20 days after the filing of the administrative record.
The statement or brief of the Postal Service, and of any other participant opposing return of the matter for further consideration, shall be filed not more than 14 days after the date for filing of petitioner's statement.
Petitioner, and any other participant seeking to have the Commission return the matter for further consideration, may file a reply to the Postal Service response not more than 10 days after the date of the Postal Service response. Replies are limited to issues discussed in the responses of the Postal Service and other participants seeking affirmation of the Postal Service determination.
Environmental Protection Agency (EPA).
Final rule; correcting amendment.
On December 30, 2010, EPA published a final rule approving the Clean Air Act (CAA) section 111(d)/129 State Plan (the Plan) submitted by the Florida Department of Environmental Protection for the State of Florida on July 12, 2007, for implementing and enforcing the Emissions Guidelines (EGs) applicable to existing Large Municipal Waste Combustors (LMWCs). These EGs apply to municipal waste combustors with a capacity to combust more than 250 tons per day of municipal solid waste (MSW). This action corrects an error in the regulatory language in paragraph (a) of EPA's December 30, 2010, final rule.
This action is effective February 9, 2012.
Copies of the documentation used in the action being corrected are available for inspection during normal business hours at the following location: U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303–8960. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal holidays.
Daniel Garver, Air Toxics Assessment and Implementation Section, Air Toxics and Monitoring Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303–8960. The telephone number is (404) 562–9839. Mr. Garver can also be reached via electronic mail at
This action corrects an error in the regulatory language for an entry that appears in paragraph (a) of Florida's Identification of Sources at 40 CFR 62.2355. The final action determined that EPA approved the CAA section 111(d)/129 Plan applicable to LMWCs in the State of Florida on December 30, 2010 (75 FR 82269). However, EPA inadvertently indicated in 40 CFR 62.2355(a) that “the plan applies to existing facilities with a municipal waste combustor (MWC) unit capacity greater than 250 tons per day of MSW, and for which construction, reconstruction, or modification was commenced on or before July 12, 2007.” The correct date is September 20, 1994. Therefore, EPA is correcting this error by deleting the date “July 12, 2007” and inserting the correct date “September 20, 1994.”
EPA has determined that today's action falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedure Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation where public notice and comment procedures are impracticable, unnecessary, or contrary to the public interest. Public notice and comment for this action are unnecessary because today's action to correct an inadvertent error contained in paragraph (a) of 40 CFR 62.2355 of the rulemaking and has no substantive impact on EPA's December 30, 2010, approval. In addition, EPA can identify no particular reason why the public would be interested in being notified of the correction, or in having the opportunity to comment on the correction prior to this action being finalized, since this correction action does not change the meaning of EPA's analysis or action to approve the amendment in paragraph (a) to 40 CFR 62.2355.
EPA also finds that there is good cause under APA section 553(d)(3) for this correction to become effective on the date of publication of this action.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely corrects an error in paragraph (a) of a prior rulemaking by correcting the date as identified above in 40 CFR 62.2355, which EPA approved on December 30, 2010, and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This rule also does not have Federalism implications because it does not have substantial direct effects 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This rule merely corrects an error in paragraph (a) of a prior rulemaking by correcting the date as identified above in 40 CFR 62.2355, in a revision which EPA approved on December 30, 2010, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In addition, this rule does not involve technical standards, thus the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule also does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. section 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 9, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's
Environmental protection, Air pollution control, Incorporation by reference, Particulate matter.
40 CFR part 62 is amended as follows:
42 U.S.C. 7401
(a) The plan applies to existing facilities with a municipal waste combustor (MWC) unit capacity greater than 250 tons per day of municipal solid waste (MSW), and for which construction, reconstruction, or modification was commenced on or before September 20, 1994.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final estimates of annual fur seal subsistence needs.
Pursuant to the regulations governing the subsistence taking of
Effective March 12, 2012.
Michael Williams, (907) 271–5117, email
A Final Environmental Impact Statement, harvest reports, and other relevant information are available on the Internet at the following address:
The subsistence harvest from the depleted stock of northern fur seals,
On July 29, 2011 (76 FR 45499), NMFS published the summary of the 2008–2010 fur seal harvests and provided a 30-day comment period on the estimates of subsistence needs for the 2011–2013. No comments were received. Based on past studies, NMFS estimates the annual subsistence needs for Alaskan Natives for the next 3 years are 1,645–2,000 juvenile male fur seals on St. Paul Island, and 300–500 juvenile male fur seals on St. George Island. Background information related to these estimates was included in the proposed harvest estimates published in the
NMFS prepared an Environmental Impact Statement (EIS) evaluating the impacts on the human environment of the subsistence harvest of northern fur seals. The Final EIS, which is available on the NMFS Web site (see Electronic Access) was subjected to public review (69 FR 53915, September 3, 2004), and the comments were incorporated into the final EIS (May 2005). Therefore, no further environmental impact analyses are required.
This action has been determined not to be a significant rule under Executive Order (E.O.) 12866.
The Chief Counsel for Regulation, Department of Commerce, certified to the Chief Counsel for Advocacy of the Small Business Administration that this action would not have a significant economic impact on a substantial number of small entities. The harvest of northern fur seals on the Pribilof Islands, Alaska, is for subsistence purposes only, and the estimate of subsistence need would not have an adverse economic impact on any small entities. Background information related to the certification was included in the proposed estimates published in the
This action does not require the collection of information.
This action does not contain policies with federalism implications sufficient to warrant preparation of a federalism assessment under E.O. 13132 because this action does not have substantial direct effects 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. Nonetheless, NMFS worked closely with local governments in the Pribilof Islands, and these estimates of subsistence needs were prepared by the local governments in St. Paul and St. George, with assistance from NMFS officials.
Executive Order 13175 of November 6, 2000 (25 U.S.C. 450 Note), the executive Memorandum of April 29, 1994 (25 U.S.C. 450 note), and the American Indian Native Policy of the U.S. Department of Commerce (March 30, 1995) outline the responsibilities of the National Marine Fisheries Service in matters affecting tribal interests. Section 161 of Public Law 108–100 (188 Stat. 452) as amended by section 518 of Public Law 108–447 (118 Stat. 3267), extends the consultation requirements of E.O. 13175 to Alaska Native corporations. NMFS has contacted the tribal governments of St. Paul and St. George Islands and their respective local Native corporations (Tanadgusix and Tanaq) about setting the next three years harvest estimates and received their input.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific cod by vessels using pot gear in the Western Regulatory Area of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the A season allowance of the 2012 Pacific cod total allowable catch apportioned to vessels using pot gear in the Western Regulatory Area of the GOA.
Effective 1200 hrs, Alaska local time (A.l.t.), February 6, 2012, through 1200 hrs, A.l.t., September 1, 2012.
Obren Davis, (907) 586–7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of
The A season allowance of the 2012 Pacific cod total allowable catch (TAC) apportioned to vessels using pot gear in the Western Regulatory Area of the GOA is 4,100 metric tons (mt), as established by the final 2011 and 2012 harvest specifications for groundfish of the GOA (76 FR 11111, March 1, 2011), revision to the final 2012 harvest specifications for Pacific cod (76 FR 81860, December 29, 2011), and inseason adjustment to the final 2012 harvest specifications for Pacific cod (77 FR 438, January 5, 2012).
In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator) has determined that the A season allowance of the 2012 Pacific cod TAC apportioned to vessels using pot gear in the Western Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 4,090 mt and is setting aside the remaining 10 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by vessels using pot gear in the Western Regulatory Area of the GOA. After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of Pacific cod for vessels using pot gear in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of February 3, 2012.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede an existing airworthiness directive (AD) that applies to certain The Boeing Company Model 767 airplanes. The existing AD currently requires an inspection to detect cracks and fractures of the outboard hinge fitting assemblies on the trailing edge of the inboard main flap, and follow-on and corrective actions if necessary. For certain airplanes, the existing AD also requires a one-time inspection to determine if a tool runout option has been performed in the area. Since we issued that AD, we have received reports of hinge assembly fractures found before the currently-required inspection cycle compliance times on certain airplanes. This proposed AD reduces compliance times for Model 767–400ER series airplanes. In addition, this proposed AD would revise the applicability to include an additional airplane. We are proposing this AD to prevent the inboard aft flap from separating from the wing and potentially striking the airplane, which could result in damage to the surrounding structure and potential personal injury.
We must receive comments on this proposed AD by March 26, 2012.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, Washington 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; email
You may examine the AD docket on the Internet at
Berhane Alazar, Aerospace Engineer, Airframe Branch, ANM–120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057–3356; phone: 425–917–6577; fax: 425–917–6590; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On June 16, 2003, we issued AD 2003–13–01, Amendment 39–13201 (68 FR 37402, June 24, 2003), for certain Model 767 airplanes. That AD requires an inspection to detect cracks and fractures of the outboard hinge fitting assemblies on the trailing edge of the inboard main flap, and follow-on and corrective actions if necessary. For certain airplanes, that AD also requires a one-time inspection to determine if a tool runout option has been performed in the area. That AD resulted from a report indicating that, during a routine maintenance inspection, fractured lugs were found on both hinge fittings of the outboard hinge assembly mounted to the inboard main flap on a Boeing Model 767–300 series airplane. We issued that AD to prevent the inboard aft flap from separating from the wing and potentially striking the airplane, which could result in damage to the surrounding structure and potential personal injury.
Since we issued AD 2003–13–01, Amendment 39–13201 (68 FR 37402, June 24, 2003), we have determined that, due to hinge assembly fractures found before the currently-required inspection cycle compliance times on certain airplanes affected by that AD, compliance times need to be reduced for the initial and repetitive inspections for Model 767–400ER series airplanes.
In addition, we have determined that the airplane having line number 877 was inadvertently omitted from the applicability of AD 2003–13–01, Amendment 39–13201 (68 FR 37402, June 24, 2003).
AD 2003–13–01, Amendment 39–13201 (68 FR 37402, June 24, 2003), referred to Boeing Alert Service Bulletin 767–57A0079, dated June 20, 2002, as
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 retain certain requirements of AD 2003–13–01, Amendment 39–13201 (68 FR 37402, June 24, 2003). This proposed AD would reduce the compliance times for Model 767–400ER series airplanes. In addition, this proposed AD would revise the applicability to include an additional airplane.
This proposed AD would retain certain requirements of AD 2003–13–01, Amendment 39–13201 (68 FR 37402, June 24, 2003). Since AD 2003–13–01 was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, the corresponding paragraph identifiers have changed in this proposed AD, as listed in the following table:
Because there is no longer a need for inspection results, this proposed AD would also remove the reporting requirement from AD 2003–13–01, Amendment 39–13201 (68 FR 37402, June 24, 2003).
We estimate that this proposed AD affects 38 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these replacements:
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 have 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 that the 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 removing airworthiness directive (AD) 2003–13–01, Amendment 39–13201 (68 FR 37402, June 24, 2003), and adding the following new AD:
The FAA must receive comments on this AD action by March 26, 2012.
This AD supersedes AD 2003–13–01, Amendment 39–13201 (68 FR 37402, June 24, 2003).
The Boeing Company Model 767–200, –300, and –300F series airplanes, as specified in Boeing Service Bulletin 767–57A0076, Revision 1, dated March 29, 2001; and Model 767–400ER series airplanes, as specified in Boeing Alert Service Bulletin 767–57A0079, Revision 1, dated May 6, 2010; certificated in any category.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by reports of hinge assembly fractures found before the currently-required inspection cycle compliance times on certain airplanes. We are issuing this AD to prevent the inboard aft flap from separating from the wing and potentially striking the airplane, which could result in damage to the surrounding structure and potential personal injury.
Comply with this AD within the compliance times specified, unless already done.
Perform either a detailed inspection, or a detailed inspection plus an eddy current inspection, of the outboard hinge fitting assemblies on the trailing edge of the inboard main flap to detect cracks and fractures and evidence of a tool runout option, as applicable. For the purposes of this AD, a detailed inspection is defined as: “An intensive visual examination of a specific structural area, system, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at intensity deemed appropriate by the inspector. Inspection aids such as mirror, magnifying lenses, etc., may be used. Surface cleaning and elaborate access procedures may be required.”
(1) For Model 767–200, –300, and –300F series airplanes identified in Boeing Service Bulletin 767–57A0076, Revision 1, dated March 29, 2001: Inspect before the airplane accumulates 2,700 total flight cycles, or within 90 days after July 29, 2003 (the effective date of AD 2003–13–01, Amendment 39–13201 (68 FR 37402, June 24, 2003)), whichever occurs later, in accordance with Boeing Service Bulletin 767–57A0076, Revision 1, dated March 29, 2001.
(2) For Model 767–400ER series airplanes identified in Boeing Alert Service Bulletin 767–57A0079, dated June 20, 2002: Inspect before the airplane accumulates 12,000 total flight cycles, except as required by paragraph (m) of this AD, in accordance with Boeing Alert Service Bulletin 767–57A0079, dated June 20, 2002; or Revision 1, dated May 6, 2010. As of the effective date of this AD, only Revision 1 may be used.
Following the initial inspections required by paragraph (g) of this AD: Perform applicable follow-on and corrective actions at the times specified in Figure 1 of Boeing Service Bulletin 767–57A0076, Revision 1, dated March 29, 2001 (for Model 767–200, –300, and –300F series airplanes); or Boeing Alert Service Bulletin 767–57A0079, dated June 20, 2002, or Boeing Alert Service Bulletin 767–57A0079, Revision 1, dated May 6, 2010 (for Model 767–400ER series airplanes); until the inspection required by paragraph (n) of this AD is accomplished. After the effective date of this AD, only Boeing Alert Service Bulletin 767–57A0079, Revision 1, dated May 6, 2010, may be used for Model 767–400ER series airplanes. Do the follow-on and corrective actions (including repetitive inspections and replacement of the fittings with new fittings), in accordance with Part 1 or Part 2 of Boeing Service Bulletin 767–57A0076, Revision 1, dated March 29, 2001 (for Model 767–200, –300, and –300F series airplanes); or Boeing Alert Service Bulletin 767–57A0079, dated June 20, 2002, or Boeing Alert Service Bulletin 767–57A0079, Revision 1, dated May 6, 2010 (for Model 767–400ER series airplanes); except as required by paragraph (i)(2) of this AD. After the effective date of this AD, only Boeing Alert Service Bulletin 767–57A0079, Revision 1, dated May 6, 2010, may be used for Model 767–400ER series airplanes. For Model 767–200, –300, and –300F series airplanes: If the fitting has the tool runout, and no cracking or fracture is found during the inspection, this AD requires no further action for that hinge fitting.
For this AD, the following exceptions apply:
(1) Where the terminating action in Part 3 of Boeing Service Bulletin 767–57A0076, Revision 1, dated March 29, 2001; and Boeing Alert Service Bulletin 767–57A0079, dated June 20, 2002, and Revision 1, dated May 6, 2010; is specified as corrective action: This AD requires that the terminating action, if required, be accomplished before further flight.
(2) Boeing Service Bulletin 767–57A0076, Revision 1, dated March 29, 2001, specifies to contact Boeing before the terminating action is done as corrective action for any cracking or fracture found on a Model 767–200, –300, or –300F series airplane with the tool runout. This AD requires that any such crack or fracture on those airplanes be repaired in accordance with Part 3 of Boeing Service Bulletin 767–57A0076, Revision 1, dated March 29, 2001. This AD does not require a report.
Unless required to do so by paragraph (h) of this AD: Operators may choose to accomplish the terminating action (including replacement of the fittings with new fittings, and reinstallation of existing upper skin access panels and fairing midsections on the trailing edge of the main flap) in accordance with Part 3 of the Work Instructions of Boeing Service Bulletin 767–57A0076, Revision 1, dated March 29, 2001; or Boeing Alert Service Bulletin 767–57A0079, dated June 20, 2002, or Boeing Alert Service Bulletin 767–57A0079, Revision 1, dated May 6, 2010; as applicable. After the effective date of this AD, only Boeing Alert Service Bulletin 767–57A0079, Revision 1, dated May 6, 2010, may be used for Model 767–400ER series airplanes. Accomplishment of the terminating action terminates the repetitive inspection requirements of paragraph (h) of this AD.
As of July 29, 2003, no person may install on any airplane identified in Boeing Service Bulletin 767–57A0076, dated October 26, 2000; and Boeing Alert Service Bulletin 767–57A0079, dated June 20, 2002; a hinge fitting assembly that has any part number listed in table 1 of this AD, unless the applicable requirements of this AD have been accomplished for that fitting. As of the effective date of this AD, no person may install on any airplane identified in paragraph (c) of this AD, a hinge fitting assembly that has any part number listed in table 1 of this AD, unless the applicable requirements of this AD have been accomplished for that fitting.
Actions done before July 29, 2003, in accordance with Boeing Alert Service Bulletin 767–57A0076, dated October 26, 2000, are acceptable for compliance with the corresponding requirements of paragraphs (g), (h), (j), and (k) of this AD.
For Model 767–400ER airplanes identified in Boeing Alert Service Bulletin 767–57A0079, Revision 1, dated May 6, 2010, on which the inspection required in paragraph (g) of this AD has not been done as of the effective date of this AD: Before the accumulation of 6,000 total flight cycles, or within 750 flight cycles after the effective date of this AD, whichever occurs later, perform either a detailed inspection or a detailed inspection plus an eddy current inspection to detect cracks or fractures of the outboard hinge fitting assemblies on the trailing edge of the inboard main flap, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 767–57A0079, Revision 1, dated May 6, 2010. Accomplishment of this inspection terminates the inspection requirement of paragraph (g)(2) of this AD.
For Model 767–400ER airplanes: Repeat either inspection specified in paragraph (h) or (m) of this AD, as applicable, at the time specified in paragraph (n)(1) or (n)(2) of this AD, as applicable, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 767–57A0079, Revision 1, dated May 6, 2010.
(1) If the most recent inspection was a detailed inspection, repeat at intervals not to exceed 300 flight cycles after doing the detailed inspection.
(2) If the most recent inspections were a detailed inspection and an eddy current inspection, repeat at intervals not to exceed 750 flight cycles after doing the detailed inspection and eddy current inspection.
For Model 767–400ER airplanes: Replacing the fittings with new fittings, in accordance with Part 3 of the Work Instructions of Boeing Alert Service Bulletin 767–57A0079, dated June 20, 2002; or Revision 1, dated May 6, 2010; terminates the repetitive inspections required by paragraphs (h) and (n) of this AD.
Actions done before the effective date of this AD in accordance with Part 3 of the Work Instructions of Boeing Alert Service Bulletin 767–57A0079, dated June 20, 2002, are acceptable for compliance with the requirements of paragraph (h) and (n) of this AD.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as 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 Berhane Alazar, Aerospace Engineer, Airframe Branch, ANM–120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057–3356; phone: 425–917–6577; fax: 425–917–6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, Washington 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede an existing airworthiness directive (AD) that applies to certain Bombardier Inc. Model CL–215–1A10 and CL–215–6B11 (CL–215T Variant) airplanes. The existing AD currently requires repetitive inspections to detect cracking of the lower cap of the wing front and rear spars at wing station (WS) 51.00, and the wing lower skin. Additional actions, if cracking is found, include reworking the lower cap of the front or rear spar, inspecting for cracking, and repairing any cracking. The existing AD also requires reporting inspection results. Since we issued that AD, we have received reports of cracking found outside the inspection area. This proposed AD would extend the inspection area of the rear spar lower cap from WS 51.00 to WS 49.50 and modify the ultrasonic inspection calibration procedure. We are proposing this AD to detect and correct cracking of the lower caps of the wing front spar and rear spar, and lower wing skin, which could result in reduced structural integrity of the airplane.
We must receive comments on this proposed AD by March 26, 2012.
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,
You may examine the AD docket on the Internet at
George Duckett, Aerospace Engineer, Airframe and Mechanical Systems Branch, ANE–171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Westbury, NY 11590; telephone (516) 228–7325; 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
On August 24, 2005, we issued AD 2005–18–05, Amendment 39–14245 (70 FR 52009, September 1, 2005). That AD required actions intended to address an unsafe condition on Bombardier, Inc. Model CL–215–1A10, CL–215–6B11 (CL–215T Variant), and CL–215–6B11 (CL–415 Variant) airplanes.
Since we issued AD 2005–18–05, Amendment 39–14245 (70 FR 52009, September 1, 2005) Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, has issued Airworthiness Directive CF–1992–26R2, dated September 1, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Cracks have been found in the rear spar of the left wing at Wing Station (WS) 51.00 on several aircraft in service. On some aircraft, the cracks propagated through the lower spar cap and fail-safe straps into the spar web and the lower wing skin. The cracks are not visible from outside the aircraft.
Revision 2 of this [TCCA] AD is issued as a result of cracks found outside the inspection area specified in Revision 1. This revision extends the inspection area of the rear spar lower cap from WS 51.00 to WS 49.50 and to modify the ultrasonic inspection calibration procedure.
AD 2005–18–05, Amendment 39–14245 (70 FR 52009, September 1, 2005), specifies Model CL–215–6B11 (CL–415 Variant) airplanes in the applicability, but also specifies serial numbers 1001 though 1125. The serial numbers for Model CL–215–6B11 (CL–415 Variant) airplanes start at 2001. We have determined that Model CL–215–6B11 (CL–415 Variant) airplanes are not subject to the identified unsafe condition. Therefore, we have removed Model CL–215–6B11 (CL–415 Variant) airplanes from the applicability of this proposed AD.
Bombardier Inc. has issued Alert Service Bulletin 215–A454, Revision 4, dated November 18, 2009. 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.
Based on the service information, we estimate that this proposed AD would affect about 7 products of U.S. registry.
The actions that are required by AD 2005–18–05, Amendment 39–14245 (70 FR 52009, September 1, 2005) and retained in this proposed AD take about 17 work-hours per product, at an average labor rate of $85 per work hour. Based on these figures, the estimated cost of the currently required actions is $1,445 per product.
We estimate that it would take about 6 work-hour per product to comply with the new basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $3,570, or $510 per product.
In addition, we estimate that any necessary follow-on actions would take about 480 work-hours for a cost of $40,800 per product. We have received no definitive data that would enable us to provide a parts cost estimate for the on-condition requirement specified in this proposed AD. We have no way of determining the number of products that may need these actions.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and
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 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. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing Amendment 39–14245 (70 FR 52009, September 1, 2005) and adding the following new AD:
We must receive comments by March 26, 2012.
This AD supersedes AD 2005–18–05, Amendment 39–14245 (70 FR 52009, September 1, 2005).
This AD applies to the Bombardier Inc. airplanes; certificated in any category; as identified in paragraphs (c)(1) and (c)(2) of this AD.
(1) Model CL–215–1A10 (Water Bomber) airplanes, serial numbers 1001 through 1125 inclusive.
(2) Model CL–215–6B11 (CL215T Variant) airplanes, serial numbers 1056 through 1125 inclusive.
Air Transport Association (ATA) of America Code 57: Wings.
This AD was prompted by reports of cracking found outside the inspection area. We are proposing this AD to detect and correct cracking of the lower caps of the wing front spar and rear spar, and lower wing skin, which could result in reduced structural integrity of the airplane.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
At the time specified in paragraph (h) of this AD: Perform an ultrasonic inspection to detect cracking of the lower cap of the wing front and rear spars at wing station 51, in accordance with the Accomplishment Instructions of Canadair Alert Service Bulletin 215–A463, Revision 1, dated May 25, 1995, or Bombardier Alert Service Bulletin 215–A463, Revision 2, dated March 13, 2001 (for the front spar); and Canadair Alert Service Bulletin 215–A454, Revision 1, dated May 25, 1995, Bombardier Alert Service Bulletin 215–A454, Revision 2, dated January 27, 1999, Bombardier Alert Service Bulletin 215–A454, Revision 3, dated March 13, 2001, or Bombardier Alert Service Bulletin 215–A454, Revision 4, dated November 18, 2009 (for the rear spar). As of the effective date of this AD, the inspection must be done in accordance with the Accomplishment Instructions of Bombardier Alert Service Bulletin 215–A463, Revision 2, dated March 13, 2001 (for the front spar); and Bombardier Alert Service Bulletin 215–A454, Revision 3, dated March 13, 2001, or Bombardier Alert Service Bulletin 215–A454, Revision 4, dated November 18, 2009 (for the rear spar).
Do the inspections required by paragraph (g) of this AD at the earlier of the times specified in paragraphs (h)(1) and (h)(2) of this AD.
(1) Prior to the accumulation of 3,000 total flight hours, or within 25 flight hours after March 4, 1998 (the effective date of AD 98–04–08, Amendment 39–10321 (63 FR 7640, February 17, 1998)), whichever occurs later.
(2) At the later of the times specified in paragraphs (h)(2)(i) and (h)(2)(ii) of this AD.
(i) Prior to the accumulation of 2,500 total flight hours, or 8,000 total water drops, whichever occurs first.
(ii) Within 50 flight hours or 150 water drops after October 6, 2005 (the effective date of AD 2005–18–05, Amendment 39–14245 (70 FR 52009, September 1, 2005), whichever occurs first.
Repeat the ultrasonic inspection specified in paragraph (g) of this AD at the times specified in paragraph (i)(1) or (i)(2) of this AD, as applicable.
(1) For airplanes on which any ultrasonic inspection required by paragraph (a) of AD 98–04–08, Amendment 39–10321 (63 FR 7640, February 17, 1998), has been done before October 6, 2005: Within 600 flight hours after the last ultrasonic inspection, do the ultrasonic inspection specified in paragraph (g) of this AD. Repeat the ultrasonic inspection specified in paragraph (g) of this AD thereafter at intervals not to exceed 600 flight hours or 2,000 water drops, whichever occurs first.
(2) For airplanes on which the ultrasonic inspection required by paragraph (a) of AD 98–04–08, Amendment 39–10321 (63 FR 7640, February 17, 1998), has not been done before October 6, 2005: After accomplishing the initial ultrasonic inspection specified in paragraph (g) of this AD, repeat the ultrasonic inspection specified in paragraph (g) of this AD thereafter at intervals not to exceed 600 flight hours or 2,000 water drops, whichever occurs first.
At the later of the times specified in paragraphs (j)(1) and (j)(2) of this AD, do an ultrasonic inspection for cracks of the wing lower skin, in accordance with the Accomplishment Instructions of Bombardier Alert Service Bulletin 215–A454, Revision 3, dated March 13, 2001; or Bombardier Alert Service Bulletin 215–A454, Revision 4, dated November 18, 2009. Thereafter, do the ultrasonic inspection for cracks of the wing lower skin at the times specified for the ultrasonic inspection in paragraph (i) of this AD.
(1) Within 50 flight hours or 150 water drops after October 6, 2005, whichever occurs first.
(2) Before further flight after accomplishing the first ultrasonic inspection required by paragraph (g) or (i) of this AD after October 6, 2005.
If any cracking is detected during any inspection required by paragraph (g), (i), or (j) of this AD, before further flight, accomplish paragraphs (k)(1) and (k)(2) of this AD.
(1) Rework the lower cap of the front or rear spar, as applicable, in accordance with the Accomplishment Instructions of Bombardier Alert Service Bulletin 215–A463, Revision 2, dated March 13, 2001 (for the front spar); and Bombardier Alert Service Bulletin 215–A454, Revision 3, dated March 13, 2001; or Bombardier Alert Service Bulletin 215–A454, Revision 4, dated November 18, 2009 (for the rear spar).
(2) After doing the rework specified in paragraph (k)(1) of this AD, do a general visual inspection, from inside the wing box, to detect cracks of the front spar web or rear spar web, as applicable, and the lower skin area, in accordance with the Accomplishment Instructions of Bombardier Alert Service Bulletin 215–A463, Revision 2,
(l) Actions accomplished before October 6, 2005, in accordance with Canadair Alert Service Bulletin 215–A463, dated April 8, 1993; Canadair Alert Service Bulletin 215–A463, Revision 1, dated May 25, 1995; Canadair Alert Service Bulletin 215–A454, dated October 13, 1993; Canadair Alert Service Bulletin 215–A454, Revision 1, dated May 25, 1995; Bombardier Alert Service Bulletin 215–A454, Revision 2, dated January 27, 1999; are considered acceptable for compliance with the corresponding actions specified in this AD.
(2) Actions accomplished before October 6, 2005, in accordance with Bombardier Alert Wire 215–A454, dated December 23, 1992; and Bombardier Alert Wire 215–A463, dated March 26, 1993; are considered acceptable for compliance with the corresponding actions specified in this AD.
For any inspection required by AD 2005–18–05, Amendment 39–14245 (70 FR 52009, September 1, 2005), that is accomplished after October 6, 2005, within 30 days after accomplishing the inspection, submit a report of any inspection results (both positive and negative findings) to Bombardier, Inc., Canadair, Aerospace Group, P.O. Box 6087, Station Centre-ville, Montreal, Quebec H3C 3G9, Canada; or to Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514–855–5000; fax 514–855–7401; email
Within the compliance time specified in paragraph (p) of this AD: Perform an ultrasonic inspection to detect cracking of the right and left wing rear spar lower cap between wing station (WS) 51.00 and WS 49.50, in accordance with paragraph 2.C., “Part A,” of the Accomplishment Instructions of Bombardier Alert Service Bulletin 215–A454, Revision 4, dated November 18, 2009. Repeat the ultrasonic inspection thereafter at intervals not to exceed 600 flight hours or 2,000 water drops, whichever comes first. Accomplishment of the actions in this paragraph terminates the inspection requirements of the lower cap of the wing rear spars at wing station 51.00 of paragraph (g) of this AD. Accomplishment of the actions in this paragraph does not terminate the inspection requirements of the lower cap of the front wing spars at wing station 51.00 required by paragraph (g) of this AD.
(1) If any crack is found in the rear spar lower cap, before further flight, do a general visual inspection for cracks from inside the wing box, of the areas of the rear spar web and the wing lower skin adjacent to the crack in the rear spar lower cap, in accordance with paragraph 2.C., “Part A,” of the Accomplishment Instructions of Bombardier Alert Service Bulletin 215–A454, Revision 4, dated November 18, 2009.
(2) If any cracking is detected during any ultrasonic or general visual inspection required by paragraph (n) of this AD, before further flight, repair in accordance with a method approved by the Manager, New York ACO, FAA; or TCCA (or its delegated agent).
Within the compliance time specified in paragraph (p) of this AD: Perform an ultrasonic inspection to detect cracking of the wing lower skin underneath the drag angle between the front spar and the rear spar at the left and right WS 51.00, in accordance with paragraph 2.D., “Part B,” of the Accomplishment Instructions of Bombardier Alert Service Bulletin 215–A454, Revision 4, dated November 18, 2009. Do the ultrasonic inspection thereafter at intervals not to exceed 600 flight hours or 2,000 water drops, whichever comes first. Accomplishment of the actions in this paragraph terminates the requirements of paragraph (j) of this AD.
(1) If any crack is found in the wing lower skin, before further flight, do a general visual inspection for cracks from inside the wing box,
(2) If any cracking is detected during any ultrasonic or general visual inspection required by paragraph (o) of this AD, before further flight, repair in accordance with a method approved by the Manager, New York ACO, FAA; or TCCA (or its delegated agent).
At the later of the times specified in paragraphs (p)(1) and (p)(2) of this AD.
(1) Prior to the accumulation of 2,500 total flight hours, or 8,000 total water drops, whichever occurs first.
(2) Within 50 flight hours or 150 water drops after the effective date of this AD, whichever occurs first.
Inspections accomplished at WS 51.00 before the effective date of this AD in accordance with the Accomplishment Instructions of Bombardier Alert Service Bulletin 215–A454, Revision 3, dated March 13, 2001, within the last 550 flight hours or 1,850 water drops, are considered acceptable for compliance with the corresponding action specified in paragraph (o) of this AD.
At the applicable time specified in paragraph (r)(1) or (r)(2) of this AD, submit a report of the findings (both positive and negative) of the inspection required by paragraphs (n) and (o) of this AD to Bombardier, Inc., in accordance with Bombardier Alert Service Bulletin 215–A454, Revision 4, dated November 18, 2009.
(1) If the inspection was done on or after the effective date of this AD: Submit the report within 30 days after the inspection.
(2) If the inspection was done before the effective date of this AD: Submit the report within 30 days after the effective date of this AD.
The following provisions also apply to this AD:
(1)
(2)
(3)
Refer to MCAI Airworthiness Directive CF–1992–26R2, dated September 1, 2010, and the following service information for related information.
(1) Bombardier Alert Service Bulletin 215–A463, Revision 2, dated March 13, 2001.
(2) Bombardier Alert Service Bulletin 215–A454, Revision 3, dated March 13, 2001.
(3) Bombardier Alert Service Bulletin 215–A454, Revision 4, dated November 18, 2009.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 737–100, –200, –200C, –300, –400, and –500 series airplanes equipped with analog transient suppression devices (ATSDs) installed in accordance with Supplemental Type Certificate number ST00146BO. This proposed AD was prompted by multiple reports of corrosion on ATSDs. This proposed AD would require revising the maintenance program to incorporate certain limitations. We are proposing this AD to detect and correct corrosion on ATSDs, which could result in the loss of high voltage transient protection (e.g., lightning protection) in the fuel tanks and consequent fuel tank explosion and loss of the airplane.
We must receive comments on this proposed AD by March 26, 2012.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Goodrich Corporation, Sensors and Integrated Systems, 100 Panton Road, Vergennes, Vermont 05491; phone: 802–877–4580; fax: 802–877–4444; email:
You may examine the AD docket on the Internet at
Marc Ronell, Aerospace Engineer, Engine and Propeller Directorate, ANE–150, FAA, New England Aircraft Certification Office (ACO), 12 New England Executive Park, Burlington, Massachusetts 01803; phone: 781–238–7776; fax: 781–238–7170; email:
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 at least six reports of corrosion on the housings of ATSDs. This condition, if not corrected, could result in the loss of high voltage transient protection (
We have reviewed Goodrich Principal Instructions for Continued Airworthiness Manual for the Analog Transient Suppression Device Installation Applicable to Boeing 737–100 through -500 Airplanes Supplemental Type Certificate—ST00146BO, Document T3044–0010–0101, Revision D, dated September 26, 2011, which describes various limitations, including Critical Design Control Limitations (CDCCL), inspections, and checks of the ATSD, ground straps, and safe-side harness.
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information described previously.
We estimate that this proposed AD affects 384 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
(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 March 26, 2012.
None.
This AD applies to The Boeing Company Model 737–100, –200, –200C, –300, –400, and –500 series airplanes, certificated in any category, with an original airworthiness certificate or original export certificate of airworthiness issued before September 26, 2011, equipped with analog transient suppression devices (ATSDs) installed in accordance with Supplemental Type Certificate number ST00146BO.
This AD requires revisions to certain operator maintenance documents to include new actions (e.g., inspections and/or Critical Design Configuration Control Limitations (CDCCLs). Compliance with these actions is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these inspections, the operator may not be able to accomplish the inspections described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance (AMOC) according to paragraph (i) of this AD. The request should include a description of changes to the required actions that will ensure the continued operational safety of the airplane.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 2841, Fuel Quantity Indicator.
This AD was prompted by multiple reports of corrosion on ATSDs. We are issuing this AD to detect and correct corrosion on ATSDs, which could result in the loss of high voltage transient protection (
Comply with this AD within the compliance times specified, unless already done.
Within 3 months after the effective date of this AD, revise the maintenance program to incorporate the limitations specified in Goodrich Principal Instructions for Continued Airworthiness Manual for the Analog Transient Suppression Device Installation Applicable to Boeing 737–100 through –500 Airplanes Supplemental Type Certificate—ST00146BO, Document T3044–0010–0101, Revision D, dated September 26, 2011. The initial compliance time for accomplishing each task is at the applicable time specified in Goodrich Principal Instructions for Continued Airworthiness Manual for the Analog Transient Suppression Device Installation Applicable to Boeing 737–100 through –500 Airplanes Supplemental Type Certificate—ST00146BO, Document T3044–0010–0101, Revision D, dated September 26, 2011, or within 18 months after the effective date of this AD, whichever occurs later.
Components that have been identified as airworthy or installed on the affected airplanes before the revision of the maintenance program, as required by paragraph (g) of this AD, do not need to be reworked in accordance with the CDCCLs. However, once the maintenance program has been revised, paragraph (g) of this AD requires that future maintenance actions on these components must follow the CDCCLs.
After accomplishing the revision required by paragraph (g) of this AD, no alternative actions (
(1) The Manager, Boston Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19,
(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 Marc Ronell, Aerospace Engineer, Engine and Propeller Directorate, ANE–150, FAA, New England Aircraft Certification Office (ACO), 12 New England Executive Park, Burlington, Massachusetts 01803; phone: 781–238–7776; fax: 781–238–7170; email:
(2) For service information identified in this AD, contact Goodrich Corporation, Sensors and Integrated Systems, 100 Panton Road, Vergennes, Vermont 05491; phone: 802–877–4580; fax: 802–877–4444; email:
Federal Aviation Administration, DOT.
Notice of Proposed FAA Policy.
Notice is hereby given of the FAA's proposed policy regarding the registration of aircraft to U.S. Citizen Trustees in situations involving Non-U.S. citizen trustors and beneficiaries.
Written public comments regarding this FAA proposed policy should be submitted by March 31, 2012, via email to
LaDeana Peden at 405–954–3296, Office of Aeronautical Center Counsel, Federal Aviation Administration.
The FAA has been reviewing policies and practices regarding the registration of aircraft in the United States involving U.S. citizen trustees and non-U.S. citizen trustors and beneficiaries. Such arrangements are commonly referred to as non-citizen trusts. The FAA began its review in part because of problems the FAA has experienced in obtaining important operational and maintenance information concerning such aircraft from the registered owners,
As part of its review of non-citizen trusts, the FAA published a notice of public meeting inviting members of the public to discuss the use of non-citizen trusts to register aircraft in the United States. See 76 FR 23353 (April 26, 2011). In the notice, the FAA set forth several questions in order to elicit a robust discussion of the issues. Among other things, the FAA summarized the requirements in existing U.S. law that only an “owner” may register an aircraft, and that generally speaking only citizens of the United States that are owners are eligible to register aircraft. Thus, the FAA Aircraft Registry is an “ownership” registry. It is not an “operator” registry.
The FAA met with interested members of the public on June 1, 2011, in Oklahoma City. Representatives of trade associations, law firms, aircraft manufacturers, lenders, lessors, aircraft operators, trustees and others were present. The proceedings of that meeting were transcribed. The transcript is available for members of the public to read. Copies of the transcript (File No. A505180) may be purchased through Atkinson-Baker, Inc., Court Reporters, via email at
The FAA received a number of written comments from members of the public in response to the questions raised in the April 26, 2011
The discussion at the public meeting and the written comments received by the FAA have helped it to better understand the practices and concerns of the aviation industry with regard to the use of non-citizen trusts to register aircraft in the United States. In addition, the FAA gained a better understanding of the perceptions that exist with regard to the regulatory obligations on a trustee with regard to it registering an aircraft in the United States using a non-citizen trust. The FAA's improved understanding has allowed it to sharpen the focus of its review of non-citizen trusts. The FAA also believes that the public meeting was useful in helping members of the public to better understand the critical safety information that the FAA needs to communicate to aircraft operators, through owner trustees, and the critical information that the FAA needs to receive from them in order for the FAA to meet its safety oversight obligations under international and U.S. law.
The FAA will discuss the issues in terms of the law and safety since the two are greatly intertwined. International law and U.S. law impose safety oversight responsibilities on the FAA, existing law restricts aircraft registration in the U.S. to “owners,” and existing law imposes certain safety requirements on aircraft owners. After the FAA discusses the legal issues, the FAA will suggest which provisions in trust agreements may need to be changed and it will suggest language that would enable the FAA to facilitate the registration of aircraft in the future that are owned in trust. The suggested language and the reasons for the suggested language, if adopted as the FAA's final policy on this matter, will guide the FAA in the future in determining eligibility for registering non-U.S. citizen trusts. An example of a standard trust agreement with FAA-
Whenever an aircraft is registered in a country, that country becomes the State of Registry for that aircraft. Under U.S. law, the FAA has responsibility for the oversight of civil aircraft of the United States.
Under international law, a State of Registry has numerous responsibilities with regard to each aircraft on its registry. A number of these responsibilities, which are set forth in the Convention on International Civil Aviation (the Chicago Convention) and its annexes, relate to how a State registers an aircraft and manages its aircraft registry. Included among these responsibilities is the obligation to provide information on the registration and ownership of aircraft on its registry when requested by another contracting State or by the International Civil Aviation Organization.
Other responsibilities under the Chicago Convention relate to the regulation and oversight of the safety of the aircraft and its operations. The State of Registry of an aircraft is responsible for issuing certificates of competency and licenses for the crewmembers of those aircraft and issuing a certificate of airworthiness to each aircraft on its registry. The State of Registry also is responsible for overseeing the continuing airworthiness of each aircraft on its registry. Because the Chicago Convention provides for the registration of an aircraft in only one State at any given time, there can only be a single set of requirements for the airworthiness certification of a particular aircraft or for the licensing of an individual crewmember of that aircraft. Those requirements apply regardless of where the operator is incorporated or resides or the location of the operation.
With regard to the operation of aircraft, each contracting State to the Chicago Convention must require that every aircraft on its registry, when operated outside the territory of that State, comply with the rules and regulations relating to the flight and maneuver of aircraft there in force. Over international waters, the rules for the flight and maneuver of aircraft are set forth in Annex 2 to the Chicago Convention. (The FAA has incorporated these particular international requirements in Sections 91.703(a)(2) and Section 91.703(a)(3) of Title 14, Code of Federal Regulations.) Each contracting State also has undertaken to insure the prosecution of all persons violating the applicable rules for the flight and maneuver of aircraft. In order to execute its responsibilities as to compliance with, and enforcement of, flight and maneuver rules, the State of Registry must be able to obtain information about particular aircraft and operations in a timely manner and, in some cases, provide that information to other States.
Depending on the circumstances, the State of Registry also may be the State of the Operator of an aircraft if the operator's principal place of business is located in the State of Registry or, if there is no such place of business, the operator permanently resides in the State of Registry. The State of the Operator must oversee the operators of aircraft for which it is responsible in accordance with the standards set forth in Annex 6 to the Chicago Convention. Where the State of Registry and the State of the Operator are one and the same, the execution of safety oversight responsibilities is seamless because it occurs under a single regulatory system. However, the certification and oversight responsibilities of the State of the Operator are made more complicated when an operator uses an aircraft registered in another State. In those cases, the State of the Operator must consider and act consistently with certain State of Registry requirements—particularly with regard to the performance, equipage, and maintenance of the aircraft—when certifying and overseeing the operator. The effective execution of these responsibilities requires an ongoing exchange of information between the State of Registry and the State of the Operator.
In the course of its review of the use of non-citizen trusts to register aircraft, the FAA determined that the basing and operation of such aircraft outside the United States frequently gives rise to problems in the execution of the oversight responsibilities. The FAA's ability to carry out its State of Registry responsibilities for those aircraft is hampered by the fact that it has little or no presence in most foreign locations where the operations occur, and little or no information about the identity of the operators or the nature of the operations being conducted. Moreover, the United States is not the State of the Operator in many of those situations, inasmuch as the operators for the most part do not maintain their principal place of business or reside in the United States. The FAA's lack of information about the identity of the operators or the nature of the operations substantially diminishes the FAA's ability to provide information to the State that is either responsible for the oversight of the operator or the State where a flight operation actually occurs.
In the laws and regulations that establish and govern the FAA Aircraft Registry of the United States, no distinction is made between types or categories of aircraft owners for purposes of regulatory compliance. All registered owners of aircraft on the FAA Aircraft Registry, whether they are individuals, partnerships, corporations, or associations, any of which may act in the capacity of owner trustees, have the same obligations when it comes to compliance with the applicable FAA regulations. Once the FAA completes the registration process, the person to whom the aircraft is registered is the owner for all purposes under the regulations whether or not it acts as owner trustee.
The owners of U.S.-registered aircraft have a substantial role in the FAA's system for overseeing the safety of those aircraft and their operation. For example, the regulations specify that the application for an airworthiness certificate must be submitted by the owner of the aircraft. 14 CFR 21.173. The regulations also impose certain maintenance responsibilities on owners of aircraft as well as the actual operators of the aircraft. 14 CFR 91.403(a) and 91.405.
The importance of the owner's role in the FAA's safety oversight system may be best illustrated by Airworthiness Directive (AD) process. In situations involving unsafe conditions or defects in an aircraft type, the FAA issues ADs—frequently on an emergency basis—to the registered owners of such aircraft. Sometimes in the interests of safety, those ADs, which are mandatory rules, require the grounding of the aircraft while critical airworthiness inspections are conducted or while important repairs or alterations are made to the aircraft. The FAA requires aircraft owners to comply with the requirements of an AD. All owners, including owner trustees, must be able to communicate critical safety information in an AD in a timely manner to those who can take appropriate action.
The FAA may also communicate with the registered owner of aircraft when conducting an investigation about suspected operational or maintenance violations in situations where the identity of the pilot or operator of the aircraft is not readily apparent. Where a registered owner has caused or
In
In a letter to Edward M. Plaza from Assistant Chief Counsel for Regulations and Enforcement Carl B. Schellenberg, March 28, 1979, the FAA stated that a lessor could be considered to have operated an aircraft and be considered in violation of [now section 91.13] when the lessee flew the aircraft in a careless or reckless manner.) (FAA Interpretation No. 1979–11)
In
In most circumstances the FAA will prefer to focus on the actual operator of an aircraft when conducting an investigation or taking enforcement action. However, an aircraft owner is expected to cooperate fully in providing information in support of the FAA's investigatory and enforcement efforts.
In reviewing the issues surrounding the use of trusts to register aircraft, the FAA has focused attention on the role of the owner trustee of a U.S.-registered aircraft in ensuring compliance with the laws and regulations that relate to the operation of the aircraft. In particular, the FAA has considered whether the status of the trustee as the owner of the aircraft under a trust agreement affects its responsibilities for compliance issues related to the operation of the aircraft as compared to other owners of a U.S.-registered aircraft. After considering the comments submitted by the public, FAA has determined that there is nothing inherent in the status of a trustee owner of a U.S.-registered aircraft that would affect or limit its responsibilities for ensuring compliance with the laws and regulations that relate to the operation of the aircraft. The FAA is not aware of any basis for treating one type of owner—such as a trustee under a non-citizen trust—differently from any other owner of a civil aircraft on the U.S. registry when considering issues of regulatory compliance.
Several commenters indicated that a trustee could relieve itself of its regulatory compliance obligations if, in transferring the aircraft to another party for purposes of operating it, the trustee includes a contractual requirement that the operator fully comply with all applicable laws and regulations. The FAA disagrees. No commenter cited any legal authority in support of the proposition that a private party could somehow avoid a regulatory obligation imposed on it by the FAA simply by entering into a private contract with another party. The FAA in its regulations and policies does not recognize such a right.
The FAA also disagrees with the suggestion that 49 U.S.C. 44112 provides a basis for relieving owners of aircraft of their regulatory obligations. In its current form, section 44112, entitled “Limitations on Liability,” provides in part:
A lessor, owner, or secured party is liable for personal injury, death, or property loss or damage on land or water only when a civil aircraft, aircraft engine, or propeller is in the actual possession or control of the lessor, owner, or secured party, and the personal injury, death, or property loss or damage occurs because of
(1) The aircraft, engine, or propeller; or
(2) The flight of, or an object falling from, the aircraft, engine, or propeller.
Some of the commenters stated that, presently, most U.S. citizen owner trustees exercise due diligence when investigating the background of foreign trustors and beneficiaries before those U.S. citizen trustees enter into trust relationships or any other type of relationship with such non-U.S. citizens. As those commenters explained, those U.S. citizen trustees are endeavoring “* * * to protect the interests of the United States * * *”, and do so by, among other things, exercising due diligence pursuant to the USA Patriot Act, the Department of Commerce export control regulations, and the Office of Foreign Asset Control economic sanction regulations.
The FAA acknowledges that the due-diligence reviews described by the commenters are important for purposes of protecting the interests of the U.S. as to issues of national security, export control, and economic sanctions. Those reviews do not, however, necessarily meet the needs of the FAA with regard to protecting U.S. interests concerning aviation safety inasmuch as they do not consider the technical aviation issues that drive a safety oversight system. The FAA is concerned with technical qualification and the ability to comply on an ongoing basis with technical, operating, and maintenance standards. Such issues are outside the scope of the due-diligence reviews for national security, export control, and economic sanction compliance purposes.
As indicated in the foregoing discussion, the FAA by regulation and practice imposes important safety obligations on all owners of aircraft. These obligations require that the information about the identity and whereabouts of the actual operators of aircraft and location and nature of operation be updated on an ongoing basis, thereby allowing owners to provide operators with safety critical information in a timely manner, and to obtain information responsive to FAA inquiries, including investigations of
Some commenters have suggested however that the FAA should not expect that U.S. owner trustee be able to identify the operator or be able to insure quick contact with the operator of the aircraft. We reject these suggestions. To accept such suggestions would result in the removal of existing obligations on U.S. citizen owner trustees that would otherwise continue to exist for all other owners.
For the majority of the aircraft on the FAA Aircraft Registry, including some aircraft registered to non-U.S. citizens under trusts, the FAA has adequate sources of information about the aircraft and their operations to effectively and efficiently carry out its State of Registry responsibilities under international law. However, for aircraft registered to non-U.S. citizens under trusts that are primarily or exclusively used in general aviation or aerial works operations outside the United States, the FAA has been less successful in accessing information necessary to the execution of its State of Registry responsibilities. In all cases, the FAA will look to the trustee, as the registered owner of the aircraft, for information about the aircraft and its operations when needed to comply with the United States' State of Registry obligations under the Chicago Convention. In particular, the FAA expects that within 2 business days a trustee will be able to provide to the FAA the following information about the aircraft and its operation:
• The identity of the person normally operating, or managing the operations of, the aircraft;
• Where that person currently resides or has its principal place of business;
• The location of maintenance and other aircraft records; and
• Where the aircraft is normally based and operated.
The FAA further expects that within 5 business days the trustee, as the registered owner of the aircraft, will be able to respond to FAA requests for more detailed information about the aircraft and its operations, including:
• Information about the operator, crew, and aircraft operations on specific dates;
• Maintenance and other aircraft records; and
• The current airworthiness status of the aircraft.
In the event of an emergency, the FAA may request a trustee to provide information more quickly than the timelines specified above.
During the course of its review of non-citizen trusts, the FAA has had an opportunity to review a number of aircraft operating agreements between the trustee owners of aircraft and the trustors or beneficiaries of the trust.
In its review, the FAA found that many operating agreements contained clauses that addressed issues not covered in the non-citizen trust agreement or that modified or contradicted provisions in the trust agreement, particularly as to enlarging the degree of control exercised by a non-U.S. citizen over the trustee. The ultimate impact of many operating agreements was to affect the relationship and balance established under the non-citizen trust between the trustor and/or beneficiary on one hand and the trustee on the other.
The FAA requires that a person holding legal title to an aircraft in trust must, when applying to register that aircraft in the United States, submit a “copy of each document legally affecting a relationship under the trust. * * *” 14 CFR 47.7(c)(2)(i). The fact that the operating agreements referenced above have not been routinely submitted to the FAA in conjunction with an application to register an aircraft held in trust troubles the FAA because of the effect of the operating agreements on the relationship established under the trust. The FAA concludes, contrary to the views of some commenters, that a relationship established under a trust agreement is necessarily affected by an operating agreement or similar side agreement or arrangement involving trustee and trustor which allows possession and use of the aircraft at all times to remain with the trustor. The operating agreement and the trust agreement are so intertwined that the operating agreement will always affect the relationship established under the trust.
A fundamental part of the registration process for aircraft held in trust is determining whether the underlying agreements meet the applicable requirements and therefore are sufficient to establish the trustee's eligibility to register the aircraft. The failure to submit required documents such as an operating agreement frustrates this objective. To avoid this result in the future, the FAA will require that all operating agreements or similar side agreements involving the trustee transferring custody and use of the aircraft held in trust to the trustor be submitted to the FAA along with other documents that affect a relationship under the trust pursuant to 14 CFR 47.7(c)(2)(i).
In cases where a non-citizen trust is used to establish eligibility for registration and no operating agreement or other similar side agreement or arrangement is submitted along with a registration application, the FAA will expect the applicant to provide sufficient assurances that no such operating agreement or other side agreement or arrangement exists between the trustee and the trustor. An adequate assurance might take the form of an additional declaration by the trustee in an affidavit submitted in support of a non-citizen trust registration that no such operating agreement or other side agreement or arrangement has been entered into by the trustee and the trustor and/or beneficiary. There may be other means by which the trustee could adequately assure the FAA that no operating agreement or other side agreement or arrangement exists between the trustee and the trustor and/or beneficiary; the FAA will consider alternate approaches. In the end, however, the FAA must be certain that it has the opportunity to review all documents that affect the relationship established under a non-citizen trust in order to insure the integrity of the registration process. Silence by the trustee with regard to this important issue will not be sufficient.
In promulgating regulations to permit the use of a non-citizen trust to establish eligibility to register an aircraft in the U.S., the FAA imposed restrictions on
If persons who are neither U.S. citizens nor resident aliens have the power to direct or remove a trustee, either directly or indirectly through the control of another person, the trust instrument must provide that those persons together may not have more than 25 percent of the aggregate power to direct or remove a trustee. Nothing in this paragraph prevents those persons from having more than 25 percent of the beneficial interest in the trust.
The FAA is concerned that non-citizen trusts being used to establish eligibility to register an aircraft do not adequately limit the ability of non-U.S. citizens to remove a trustee. In general, the agreements allow trustees to be removed for cause without specifying what constitutes a sufficient cause. The FAA's view is that such lack of specificity appears to provide a non-U.S. citizen beneficiary with virtually unconditional power to remove a trustee, since practically any cause for removal might be interpreted as sufficient.
Therefore, the FAA believes that a non-citizen trust agreement must describe with specificity what would be a sufficient cause for removal of a trustee by a non-U.S. citizen beneficiary. Some trust agreements on file with the FAA have loosely attempted to define what constitutes cause to remove consistent with the general law of trusts. The grounds for removal listed in the Third Restatement of Trusts at Section 37 are illustrative of possible (but not always relevant) grounds for removing a trustee that might be included in a non-citizen trust agreement.
Section 47.7(c)(3) of the Federal Aviation Regulations provides that non-U.S. citizens or non-resident aliens may not have more than 25% of the aggregate power to direct or remove a trustee. In those cases where a non-citizen trustor appears to have 100% of such power (not just 25%), the FAA needs to be assured in writing (in the trust agreement, trust affidavit of citizenship, or elsewhere) how and why it is that such non-citizens will not be able to exercise such aggregate power in excess of 25%.
In summary, the FAA believes that without a description of the causes that might justify removal, and without the power to remove by non-U.S. citizen or non-resident aliens being clearly limited to 25% of the aggregate power, that a clause that simply vests a non-U.S. citizen trustor with the power to remove a trustee for cause is insufficient.
Finally, the FAA would note that none of the restrictions on the power of non-U.S. citizen to control or remove a trustee affect the ability of a non-U.S. citizen beneficiary or trustor otherwise to terminate a trust in accordance with its terms. With regard to the registration of the aircraft, the FAA expects that the likely effect of a termination, not involving removal of the trustee, would be to end registration or render the registration ineffective under 14 CFR 47.41(a). The aircraft could be re-registered in the United States if ownership were transferred to a person eligible to register it, whether under a non-citizen trust or some other mechanism recognized under the FAA's regulations.
Likewise, the FAA does not have any restrictions on the ability of a trustee to resign without first being replaced by a successor trustee. Contrary to the suggestion of at least one commenter, the FAA does not have any regulation or policy that requires the inclusion of a requirement in the non-citizen trust agreement that a resignation may take effect only upon the appointment of a successor trustee. The FAA allows the parties to the non-citizen trust to address that issue as they see fit. The FAA believes the consequences of a resignation by a trustee without the prior appointment of an eligible successor trustee would be the same as a termination of the trust as described above.
A standard non-citizen trust agreement has developed over the years. The FAA believes it is useful to offer suggestions to that document.
We propose new paragraphs (e) and (f) to Section 4.01 of the standard trust agreement. As discussed earlier in this document, foreign civil aviation authorities and others come to the FAA with information that a U.S.-registered aircraft may have conducted an unsafe operation or that it is presently in an unairworthy condition. Trustee aircraft owners, just like non-trustee aircraft owners, must be able to provide the FAA with information about who normally operates and maintains the aircraft.
We note that proposed new paragraphs (e) and (f) includes language to address emergency situations identified by the FAA. If an emergency arises, the FAA may issue an emergency order to the owner trustee requiring the production of information and documents in a shorter time frame. In an emergency situation, the nonemergency time frames specified in draft paragraphs (e) and (f) would not apply.
We are proposing a new paragraph (g) to Section 4.01 of the trust agreement in order for the parties to recognize that it is the owner trustee's duty to expeditiously communicate emergency airworthiness directives concerning the aircraft to the Trustor and/or Lessee of the aircraft. Again, the FAA through the appropriate Aircraft Certification Office uses the information about aircraft owners, which is listed in the FAA Aircraft Registry, to communicate time-critical safety requirements and restrictions to aircraft owners, who under the regulations are primarily responsible for the airworthiness of the aircraft.
In regard to draft paragraph (h), the United States has an interest in being informed by the most expeditious means possible of the resignation of a trustee or the “for cause” removal of a trustee. Among other things, the agency needs that information in order to determine whether to de-register the aircraft.
Much of the language in the existing Article 9 is ambiguous or problematic. For example, subsection 9.01(a) beginning at line 2 states:
“* * * the Trustor will have no rights or powers to direct, influence or control the Owner Trustee in the performance of the Owner Trustee's duties under this Agreement
In the proposed rewrite of subsection 9.01(a) FAA has tried to make it clear that the Trustor may not control the Owner Trustee's duties under the Agreement including, but not limited to, matters involving ownership or the operation of the aircraft.
FAA is seeking comment on the proposed policy clarifications and trust agreement revisions, and invites interested parties to visit its Web site for background information. The FAA will consider the comments and other information received in formulating a final notice of policy clarification, or in determining whether a new policy or rule should be developed to address FAA safety and oversight concerns with non-citizen trust registrations. The FAA also will consider whether an additional public meeting is required to ensure an adequate airing of the public's views on the use of non-citizen trusts to register aircraft in the United States.
THIS TRUST AGREEMENT (XXX), dated as of XXX, (the “Agreement”) by and between XXX, a [corporation organized and existing] [limited liability company formed]
WHEREAS, Trustor desires to cause title to the Aircraft (as hereinafter defined) to be conveyed to Owner Trustee;
WHEREAS, Trustor desires to create a trust (the “Trust”) and contribute the Aircraft thereto in order to ensure the eligibility of the Aircraft for United States registration with the Federal Aviation Administration (the “FAA”);
WHEREAS, this Agreement is designed to create a Trust in order that the Owner Trustee may hold title to the Aircraft until such time as Trustor directs the Owner Trustee to distribute the Aircraft in accordance with Trustor's written instructions; and
WHEREAS, Owner Trustee is willing to accept the trusts as herein provided;
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, Trustor and Owner Trustee agree as follows:
Capitalized terms used in this Agreement shall have the respective meanings assigned thereto below, unless such terms are otherwise defined herein or the context hereof shall otherwise require. The terms “hereof”, “herein”, “hereunder” and comparable terms refer to this Agreement, as amended, modified or supplemented from time to time, and not to any particular portion hereof. References in this Agreement to sections, paragraphs and clauses are to sections, paragraphs and clauses in this Agreement unless otherwise indicated.
“
“
“
“
“
“
“
“
“
“
“
Section 2.01
Section 2.02
Section 3.01
Section 3.02
Section 3.03
Section 3.04
Section 3.05
Section 3.06
Section 3.07
Section 3.08
Section 3.09
Section 3.10
Section 3.11
Section 3.12
Section 3.13
Section 3.14
Section 3.15
(a) Owner Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and in any Lease or Operating Agreement or as required by law and no implied duties, covenants or obligations shall be read into this Agreement or any Lease or Operating Agreement against Owner Trustee. Owner Trustee agrees that it will deal with the Aircraft or any other part of the Trust Estate in accordance with the terms of this Agreement and any Lease or Operating Agreement or as required by law.
(b) Whether or not herein expressly so provided, every provision of this Trust Agreement [relating to the conduct or] affecting the liability of or affording protection to Owner Trustee shall be subject to the provisions of this Section 3.15.
Section 3.16
Section 4.01
(a) to execute and deliver each agreement, instrument or document to which Owner Trustee is a party in the respective forms thereof in which delivered from time to time by Trustor for execution and delivery and, subject to the terms hereof, to exercise its rights and perform its duties under any Lease in accordance with the terms thereof, including without limitation, accepting title to, and delivery of, the Aircraft and leasing the Aircraft to any Lessee or, subject to the provisions of Section 7 hereof, distributing the Aircraft to Trustor pursuant to the specific written instructions of Trustor;
(b) to effect the registration of the Aircraft with the FAA by duly executing and filing or causing to be filed with the FAA (i) the Aircraft Registration Application, (ii) the Affidavit, (iii) the FAA Bill of Sale, (iv) an executed counterpart of this Agreement, and (v) any other document or instrument required therefore including any Operating Agreement;
(c) to execute and deliver each other document referred to in any Lease or which Owner Trustee is required to deliver pursuant to any Lease or this Agreement; and
(d) subject to the terms of this Agreement, to perform the obligations and duties and exercise the rights of Owner Trustee under any Lease.
(e) upon request by FAA, and with the cooperation of Trustor, to provide the FAA with the following information within 2 business days of the request (or immediately in an emergency identified by the FAA): (i) the identity and contact information (address, phone number, email) of person or entity normally operating, or maintaining the operations of the aircraft; (ii) where that person or entity resides or is incorporated and has its principal place of business; (iii) the location of the aircraft maintenance and other records; and; (iv) where the aircraft is normally based and operated.
(f) upon request by FAA, and with the cooperation of Trustor, to provide the FAA with the following information within 5 business days of the request (or immediately in an emergency identified by the FAA): (i) information about the operator, crew (names and pilot certificate numbers) and aircraft operations on specific dates; (ii) information about where the aircraft will be on a specific date in the future and (iii) maintenance and other aircraft records.
(g) upon receipt of an emergency airworthiness directive from the FAA, to immediately forward the emergency airworthiness directive to the Trustor and or Lessee by the most expeditious means available.
(h) to notify the FAA Aircraft Registry by the most expeditious means available of the trustee's resignation under Article 3.03 or removal under 3.02, or of the termination of the trust under 7.01.
(i) to authorize U.S. and foreign government officials to inspect the aircraft.
Section 4.02
Section 4.03
Section 5.01
Section 5.02
Section 6.01
Section 7.01
Section 7.02
Section 8.01
Section 8.02
Section 8.03
Section 8.04
Section 8.05
Every additional trustee hereunder shall, to the extent permitted by law, be appointed and act, and Owner Trustee and its successors shall act, subject to the following provisions and conditions:
(a) all powers, duties, obligations and rights conferred upon Owner Trustee in respect of the custody, control and management of moneys, the Aircraft or documents authorized to be delivered hereunder or under any Lease shall be exercised solely by Owner Trustee;
(b) all other rights, powers, duties and obligations conferred or imposed upon Owner Trustee shall be conferred or imposed upon and exercised or performed by Owner Trustee and such additional trustee jointly, except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (including the holding of title to the Trust Estate) Owner Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations shall be exercised and performed by such additional trustee;
(c) no power given to, or which it is provided hereby may be exercised by, any such additional trustee shall be exercised hereunder by such additional trustee, except jointly with, or with the consent in writing of, Owner Trustee;
(d) no trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder;
(e) Trustor, at any time, by an instrument in writing may remove any such additional trustee. In the event that Trustor shall not have executed any such instrument within 10 days after the receipt of a written request from Owner Trustee so to do, Owner Trustee shall have the power to remove any such additional trustee without the concurrence of Trustor; and Trustor hereby appoints Owner Trustee its agent and attorney-in-fact for it in such connection in such contingency; and
(f) no appointment of, or action by, any additional trustee will relieve the Owner Trustee of any of its obligations under, or otherwise affect any of the terms of, this Agreement or any Lease.
Section 8.06
Section 8.07
Section 8.08
Section 8.09
Section 8.10
Section 9.01
(a)
(b)
(c)
Section 9.02
If persons who are neither U.S. citizens or resident aliens have the power to direct or remove the Owner Trustee, either directly or indirectly through the control of another person, those persons together shall not have more than twenty five (25%) percent of the aggregate power to direct or remove the Owner Trustee.
Section 9.03
Section 10.1
Section 10.2
IN WITNESS WHEREOF, Owner Trustee and Trustor have caused this Agreement to be duly executed all as of the date first above written.
U.S. Customs and Border Protection, DHS.
Notice of proposed rulemaking.
Certain vessels and aircraft owned or chartered by the Department
Comments must be received on or before April 9, 2012.
You may submit comments, identified by
▪
▪
Michel Chausse, CBP Office of Field Operations, telephone (202) 344–3656.
Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects on the proposed rule. CBP also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposed rule. Comments that will provide the most assistance to CBP in developing these procedures will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.
Vessels and aircraft arriving in the United States from a foreign place are generally required to report their arrival to CBP and make entry. Under current regulations, certain vessels and aircraft owned or chartered by the Department of Defense (DoD) are exempt from entry requirements and, in some cases, reporting requirements upon their arrival in the United States from a foreign place. The exemptions generally apply when the vessel or aircraft is transporting cargo that is solely the property of DoD or when it is transporting passengers traveling on official business of the United States. This rule proposes to expand the exemptions to entry requirements and, to a lesser extent, arrival reporting requirements to improve the flow of cargo and passengers that support DoD missions.
Section 433 of the Tariff Act of 1930, as amended, requires vessels and aircraft arriving in the United States from a foreign place to report their arrival. 19 U.S.C. 1433. The statute authorizes the Secretary of Homeland Security (Secretary) to promulgate regulations concerning the manner and timing of reporting arrival for vessels and aircraft. Two regulatory provisions govern the method of reporting arrival to CBP for vessels and aircraft. First, concerning vessels, CBP regulations require that the master of a vessel arriving in the United States from a foreign port or place immediately report the arrival to the nearest CBP facility or other location designated by the port director.
In contrast to reporting arrival, making entry is a more formal process and typically involves filing certain necessary information with CBP. Separate statutes provide for vessel and aircraft entry requirements and separate regulatory provisions implement them.
First, sections 434 and 441 of the Tariff Act of 1930, as amended, govern vessel entry requirements. 19 U.S.C. 1434 and 1441. Section 434 describes the vessels that are subject to formal entry requirements and authorizes the Secretary to promulgate regulations relating to the manner, format, and timeframe regarding the filing of the entry. Section 441 describes the types of vessels that are not required to make entry under section 434. CBP regulations require certain vessels, including vessels arriving in the United States from a foreign place, to make formal entry within 48 hours after the arrival at any port or place in the United States, unless specifically excepted by law.
Second, concerning aircraft, 19 U.S.C. 1644a grants the Secretary discretion to apply the laws and regulations of vessel entry and clearance to civil air navigation. Accordingly, CBP regulations provide that all aircraft coming into the United States from a foreign place are required to make entry, subject to specified exemptions.
Under existing regulations, certain vessels and aircraft owned or chartered by the DoD are exempt from entry requirements and, in some cases, reporting requirements upon their arrival in the United States from a foreign place. These exemptions generally apply when the vessel or aircraft is transporting cargo that is solely the property of DoD or when it is transporting passengers traveling on official business of the United States.
Pursuant to 19 U.S.C. 1441, certain public vessels and vessels of war are not subject to formal entry requirements. CBP regulations provide that neither a report of arrival nor entry is required of any vessel that is:
• Owned by, or under the complete control and management of the United States or any of its agencies;
• Manned by members of the uniformed armed services of the United States, by personnel in the civil service of the United States, or by both; and
• Transporting only property of the United States, or passengers traveling on official business of the United States, or is in ballast.
CBP regulations provide exemptions for certain public and private aircraft and DoD-chartered aircraft from making entry. These regulations, however, do not provide exemptions from arrival reporting requirements. “Public aircraft” is defined as a government-owned aircraft that is carrying only property of the government or passengers traveling on official business of the government.
CBP regulations require vessels (19 CFR 4.7) and aircraft (19 CFR 122.48a) arriving in the United States, to provide advance cargo information when the vessel or aircraft is required to make entry. Therefore, vessels and aircraft that are exempt from entry requirements are also exempt from the requirement to present advance cargo information.
Currently, DoD-owned or DoD-chartered vessels and aircraft that are exempt from entry requirements are also exempt from advance cargo information requirements. Under this proposed rule, those additional vessels and aircraft that would be exempt from entry requirements would also be exempt from the advance cargo information requirements in 19 CFR 4.7 and 122.48a.
Many vessels and aircraft that are under DoD's control and used to support DoD's missions do not fit within the current exemptions, either because the cargo is not the property of DoD or because the vessel or aircraft is a chartered vessel or aircraft. Therefore, formal entry, advance reporting, and, in some cases, reports of arrival are required. These requirements can impede the flow of cargo and passengers moved in support of the U.S. government's and DoD's missions.
DoD transports all goods and passengers supporting its missions under DoD's control through its own transportation system, the Defense Transportation System (DTS). The DTS, administered pursuant to the DoD directive on Transportation and Traffic Management (DoD Directive 4500.09E), is the system by which DoD manages the secure shipment of cargo and personnel in peace and in war. Although the cargo that is transported in the DTS is under the strict control of DoD, much of this cargo is not owned by DoD. The controlling DoD directive requires that any non-DoD traffic transported in the DTS be in support of the mission of DoD or the United States or be of an emergency, lifesaving nature (DoD Directive 4500.09E E4.3.1). Vessels and aircraft often carry, for example, defense contractor owned cargo used to support DoD missions, personal property (household goods) of military members, humanitarian cargo, or security assistance cargo. These conveyances are not covered by the current entry exemptions, even though this cargo is normally transported under DoD's control through the DTS. In fact, much of the cargo that moves in the DTS renders the conveyance on which it is transported ineligible for an entry exemption. These conveyances are currently subject to entry requirements and thus also subject to advanced electronic presentation of cargo information requirements.
Under current regulations, although DoD-owned vessels and aircraft that transport passengers traveling on official U.S. business are exempt from entry, DoD-chartered vessels and aircraft are not exempt and must make entry if transporting any passengers. DoD often utilizes chartered vessels and aircraft to transport, for example, DoD personnel, personnel of the Red Cross or the United Service Organizations (USO), or DoD contractor employees, in addition to cargo. Even though all passengers transported on DoD conveyances must be approved to travel in the DTS, regardless of whether the conveyance is owned or chartered by DoD, the chartered vessel or aircraft would be subject to entry and advance cargo information requirements if transporting passengers, while DoD-owned vessels would not.
Based on the above considerations, CBP is proposing to revise the exemptions to better address the manner in which cargo and passengers are moved in support of DoD missions. CBP is proposing to relate the DoD exemptions from entry and reporting to the DTS. Specifically, CBP is proposing to add a general definition of the DTS in the relevant parts of the CBP regulations (part 4 for vessels and part 122 for aircraft). CBP also proposes to revise the current DoD exemptions to cover vessels and aircraft owned by, or under the complete control and management of DoD, or chartered by DoD, which transport only cargo and/or passengers that have been approved for carriage in the DTS. The proposed exemptions would only apply to those chartered vessels or aircraft that are chartered in their entirety by DoD. Those vessels and aircraft that would be exempt under this proposal would also be exempt from the advance cargo information requirements in 19 CFR 4.7 and 122.48a. The proposed changes would help ensure the unimpeded flow of cargo and passengers moved in support of the U.S. government's missions and ensure that cargo and passengers supporting the defense of our nation are not unnecessarily delayed.
The proposed rule would not pose any new security risks for several reasons. First, DoD has strict security protocols for the conveyances it owns, controls, or charters and for the cargo and passengers those conveyances carry. Second, DoD has indicated that non-DoD owned cargo approved for carriage in the DTS undergoes the same stringent security protocols for transportation as DoD-owned cargo and that DoD has absolute control over non-DoD cargo carried in the DTS. Therefore, non-DoD-owned cargo approved for carriage in the DTS poses no greater security threat than DoD-owned cargo that currently qualifies for the entry exemption. Likewise, DTS-approved passengers traveling on DoD-chartered vessels and aircraft must undergo the same security protocols as those passengers traveling on conveyances owned by DoD. When CBP provided the initial exemption for DoD vessels and aircraft carrying only DoD property, neither DoD nor CBP fully appreciated the negative impact this restriction would have for DoD conveyances. The proposed expanded exemptions for cargo and passengers are intended to make CBP's exemptions more suitable to actual DoD transportation needs without posing security risks.
The proposed exemptions concern only the formal entry, clearance, and, in some cases, reporting requirements of the conveyance under the CBP regulations in title 19 of the CFR. All other requirements would still be applicable unless exempt under the relevant authorities. For example, persons on board the conveyance would still be subject to all applicable inspection and immigration controls pursuant to title 8 of the CFR, even if the conveyance is exempt from the title 19 entry requirements. Similarly, the
In addition to the substantive amendments described above, CBP also proposes several non-substantive amendments to 19 CFR parts 4 and 122.
To provide clearer organization, in sections 4.5 (“Government vessels”), CBP proposes to give headings to paragraphs (a), (b), and (c). CBP proposes to divide paragraph (a) of section 4.5 (“
In 4.5(a), CBP proposes to change the current phrase “it is ballast” to “in ballast” to reflect proper use of the term. Additionally, “Department of Defense” is to be abbreviated “DoD” in all but its first occurrence in 4.5(a). The phrase “be entered” in paragraph (b) would be changed to the proper phrase “make formal entry,” and paragraph (c) would include a reference to newly designated paragraph (a)(1) to eliminate ambiguity. With regard to the cargo declaration requirement in section 4.5 for DoD-chartered vessels (which can be found in proposed new paragraph (a)(3)(iii)), CBP proposes to include language to clarify that the duplicate cargo declaration form must be made available to the officer at the pier upon arrival. Finally, CBP proposes to replace the word “shall” where it appears in section 4.5 with “will” or “must,” as applicable.
CBP also proposes to divide paragraph (b) of section 122.41 to include lower paragraphs (b)(1) and (b)(2).
Executive Order 12866, as supplemented by Executive Order 13563, requires Federal agencies to assess the benefits and costs of regulatory action, recognizing that some costs and benefits are difficult to quantify. Significant regulatory actions include those that may “(1) [h]ave an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) [c]reate a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) [m]aterially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) [r]aise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.” The proposed rule is not a “significant regulatory action” under Executive Order 12866. As such, the Office of Management and Budget has not reviewed this rule under that Order.
The proposed rule, if finalized, would extend the existing exemption for cargo and passengers transported by DoD to include all vessels and aircraft chartered by, owned by, or under the complete control and management of DoD that transport cargo and/or passengers that have been approved for carriage in the DTS. Extending the existing exemption facilitates the operations of another government agency, thus conveying a benefit to that agency. Because it merely extends the exemption to cargo and passengers approved for carriage in the DTS, the proposed regulation will not impose any costs or confer any benefits to private citizens or businesses. CBP welcomes comments on this conclusion.
The Regulatory Flexibility Act (5 U.S.C. 601
This rule proposes to extend the current DoD exemption to entry to include vessels and aircraft chartered by, owned by, or under the complete control and management of DoD when they are transporting cargo and/or that are approved for carriage in the DTS. Because this proposed exemption does not impose any new costs on small entities, it will not have a significant economic impact on a substantial number of small entities. We welcome comments on this conclusion. If we do not receive any comments contradicting our findings, we will certify that this rule will not have a significant economic impact on a substantial number of small entities at the final rule stage.
In accordance with the Paperwork Reduction Act of 1955 (44 U.S.C. 3507
This notice of proposed rulemaking is being issued in accordance with 19 CFR 0.2(a). Accordingly, this notice of proposed rulemaking is signed by the Secretary of Homeland Security.
Customs duties and inspection, Exports, Freight, Harbors, Maritime carriers, Oil pollution, Reporting and recordkeeping requirements, Vessels.
Administrative practice and procedure, Air carriers, Aircraft, Airports, Alcohol and alcoholic beverages, Cigars and cigarettes, Cuba, Customs duties and inspection, Drug traffic control, Freight, Penalties, Reporting and recordkeeping requirements, Security measures.
For the reasons set forth in the preamble, CBP proposes to amend 19 CFR parts 4 and 122 as set forth below.
1. The general authority citation for part 4 and specific citations for § 4.5 continue to read as follows:
5 U.S.C. 301; 19 U.S.C. 66, 1431, 1433, 1434, 1624, 2071 note; 46 U.S.C. 501, 60105.
Section 4.5 is also issued under 19 U.S.C. 1441;
2. Amend § 4.0 by adding paragraph (h) to read as follows:
(h)
3. Revise § 4.5 to read as follows:
(a)
(i) Owned by or under the complete control and management of the United States or any of its agencies;
(ii) Manned wholly by members of the uniformed services of the United States, or by personnel in the civil service of the United States, or by both; and
(iii) Either in ballast or transporting only property of the United States and/or passengers traveling on official business of the United States.
(2)
(i) Owned by or under the complete control and management of the U.S. Department of Defense (DoD);
(ii) Manned wholly by members of the uniformed services of the United States, or by personnel in the civil service of the United States, or by both; and
(iii) Either in ballast or transporting only passengers and/or cargo approved for carriage in the Defense Transportation System (DTS), as defined in § 4.0(h) of this part.
(3)
(ii)
(iii)
(b)
(c)
4. The general authority citation for part 122 continues to read as follows:
5 U.S.C. 301; 19 U.S.C. 58b, 66, 1431, 1433, 1436, 1448, 1459, 1590, 1594, 1623, 1624, 1644, 1644a, 2071 note.
5. Amend § 122.1 by adding paragraph (n) to read as follows:
(n)
6. Amend § 122.41 as follows:
a. Revise paragraph (b);
b. Redesignate paragraph (c) as paragraph (d); and
c. Add new paragraph (c).
The revision and addition read as follows:
(b) Aircraft owned by or under the complete control and management of the U.S. Department of Defense (DoD), if the aircraft is:
(1) Manned entirely by members of the armed forces or civil service of the United States; and
(2) Transporting only passengers and/or cargo approved for carriage in the Defense Transportation System (DTS), as defined in § 122.1(n) of this part.
(c) Aircraft chartered by DoD, if the aircraft is:
(1) Manned entirely by the civilian crew of the air carrier under contract to DoD; and
(2) Transporting only passengers and/or cargo approved for carriage in the DTS.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish special local regulations during the “Potomac River Sharkfest Swim” amateur swim, a marine event to be held on the waters of the Potomac River on June 2, 2012. These special local regulations are necessary to provide for the safety of life on navigable waters during the event. This action is intended to temporarily restrict vessel traffic in a portion of the Potomac River during the event.
Comments and related material must be received by the Coast Guard on or before March 12, 2012. Requests for public meetings must be received by the Coast Guard on or before February 27, 2012.
You may submit comments identified by docket number USCG–2011–1176 using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call or email Mr. Ronald Houck, U.S. Coast Guard Sector Baltimore, MD; telephone 410–576–2674, email
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking (USCG–2011–1176), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via
To submit your comment online, go to
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We do not now plan to hold a public meeting. But you may submit a request for one on or before the end of the comment period, using one of the four methods specified under
On June 2, 2012, Enviro-Sports Productions, Inc. of Stinson Beach, California, will sponsor an amateur swim across the Potomac River between Newburg, Maryland and King George, VA. The event consists of up to 500 swimmers on a course located upriver and parallel to the Governor Harry W. Nice Memorial (US–301) Bridge. The swimmers will be supported by sponsor-provided watercraft. The start will be located along the shore at the Aqua-Land Marina and the finish will be located along the shore at Dahlgren Wayside Park. A portion of the swim course will cross the federal navigation channel. Due to the need for vessel control during the event, the Coast Guard will temporarily restrict vessel traffic in the event area to provide for the safety of participants, spectators and other transiting vessels.
The Coast Guard proposes to establish temporary special local regulations on specified waters of the Potomac River. The regulations will be in effect from 7 a.m. to 12:30 p.m. on June 2, 2012. The regulated area, approximately 3,800 yards in length and 900 yards in width, extends across the entire width of the Potomac River between the Maryland and Virginia shorelines and includes all waters of the Potomac River, within lines connecting the following positions: from latitude 38°22′05″ N, longitude 076°59′03″ W, thence to latitude 38°21′50″ N, longitude 077°00′54″ W, and from latitude 38°21′29″ N, longitude 077°00′54″ W to latitude 38°21′45″ N, longitude 076°58′59″ W. The effect of this proposed rule will be to restrict general navigation in the regulated area during the event. Vessels intending to transit the Potomac River through the regulated area will only be allowed to safely transit the regulated area when the Coast Guard Patrol Commander has deemed it safe to do so. These regulations are needed to control vessel traffic during the event to enhance the safety of participants, spectators and transiting vessels.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. Although this regulation will prevent traffic from transiting a portion of the Potomac River during the event, the effect of this regulation will not be significant due to
Under the Regulatory Flexibility Act (5 U.S.C. 601–612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in the effected portions of the Potomac River during the event.
Although this regulation prevents traffic from transiting a portion of the Potomac River near the Governor Harry W. Nice Memorial (US–301) Bridge during the event, this proposed rule will not have a significant economic impact on a substantial number of small entities for the following reasons. This proposed rule would be in effect for only a limited period. Though the regulated area extends across the entire width of the river, vessel traffic may be permitted to safely transit a portion of the regulated area, but only after all participants have safely cleared that portion of the regulated area and when the Coast Guard Patrol Commander deems it safe for vessel traffic to do so. All Coast Guard vessels enforcing this regulated area can be contacted on marine band radio VHF–FM channel 16 (156.8 MHz). Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Coast Guard Sector Baltimore, MD. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves implementation of regulations within 33 CFR Part 100 applicable to organized marine events on the navigable waters of the United States that could negatively impact the safety of waterway users and shore side activities in the event area. The category of water activities includes but is not limited to sail boat regattas, boat parades, power boat racing, swimming events, crew racing, canoe and sail board racing. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:
1. The authority citation for part 100 continues to read as follows:
33 U.S.C. 1233.
2.
(a)
(b)
(2)
(c)
(2) Persons desiring to transit the regulated area must first obtain authorization from the Captain of the Port Baltimore or his designated representative. To seek permission to transit the area, the Captain of the Port Baltimore and his designated representatives can be contacted at telephone number 410–576–2693 or on Marine Band Radio, VHF–FM channel 16 (156.8 MHz). All Coast Guard vessels enforcing this regulated area can be contacted on marine band radio VHF–FM channel 16 (156.8 MHz).
(3) The Coast Guard will publish a notice in the Fifth Coast Guard District Local Notice to Mariners and issue a marine information broadcast on VHF–FM marine band radio announcing specific event date and times.
(d) Enforcement period: This section will be enforced from 7 a.m. until 12:30 p.m. on June 2, 2012.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to partially approve and partially disapprove submittals from the state of Arkansas pursuant to the Clean Air Act (CAA or Act) that address the infrastructure elements specified in the CAA section 110(a)(2), necessary to implement, maintain, and enforce the 1997 8-hour ozone and the 1997 and 2006 fine particulate matter (PM
This action is being taken under section 110 and part C of the Act. Finally, EPA is also proposing to make a correction to the attainment status table in 40 CFR 81.304 to accurately reflect the redesignation date of Crittenden County, Arkansas to attainment for the 1997 8-hour ozone standard.
Comments must be received on or before March 12, 2012.
Submit your comments, identified by Docket No. EPA–R06–OAR–2008–0633, by one of the following methods:
•
•
•
•
•
•
The State submittal is also available for public inspection during official business hours by appointment: Arkansas Department of Environmental Quality (ADEQ), Planning and Air Quality Analysis Branch, 5301 Northshore Drive, North Little Rock, Arkansas 72118.
Mr. Jeffrey Riley, Air Planning Section (6PD–L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202–2733, telephone 214–665–8542; fax number 214–665–6762; email address
Throughout this document, “we,” “us,” and “our” means EPA.
Section 109 of the Act requires EPA to establish NAAQS for pollutants that “may reasonably be anticipated to endanger public health and welfare,” and to develop a primary and secondary standard for each NAAQS. The primary standard is designed to protect human health with an adequate margin of safety, and the secondary standard is designed to protect public welfare and the environment. EPA has set NAAQS for six common air pollutants, referred to as criteria pollutants: carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter, and sulfur dioxide. These standards present state and local governments with the minimum air quality levels they must meet to comply with the Act. Also, these standards provide information to residents of the United States about the air quality in their communities.
The SIP is a set of air pollution regulations, control strategies, other means or techniques, and technical analyses developed by the state, to ensure that the state meets the NAAQS. The SIP is required by section 110 and other provisions of the Act. These SIPs can be extensive, containing state
Under sections 110(a)(1) and (2) of the Act, states are required to submit SIPs that provide for the implementation, maintenance, and enforcement (the infrastructure) of a new or revised NAAQS within three years following the promulgation of the NAAQS, or within such shorter period as EPA may prescribe. Section 110(a)(2) lists the specific infrastructure elements that must be incorporated into the SIPs, including for example, requirements for emission inventories, NSR, air pollution control measures, and monitoring that are designed to assure attainment and maintenance of the NAAQS. Table 1, displayed in Section D of this rulemaking, lists all 14 infrastructure elements.
On July 18, 1997, we published new and revised NAAQS for ozone (62 FR 38856) and PM (62 FR 38652). For ozone, we set an 8-hour standard of 0.08 parts per million (ppm) to replace the 1-hour standard of 0.12 ppm. For PM, we set a new annual and a new 24-hour NAAQS for particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers (denoted PM
Thus, states were required to submit such SIPs for the 1997 8-hour ozone and PM
On March 4, 2004, Earthjustice submitted a notice of intent to sue related to EPA's failure to issue findings of failure to submit related to the infrastructure requirements for the 1997 8-hour ozone and PM
On March 27, 2008, and October 22, 2008, we published findings concerning whether states had made the 110(a)(2) submissions for the 1997 ozone (73 FR 16205) and PM
On October 2, 2007, we issued “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM
On December 17, 2007, March 28, 2008, and September 16, 2009, the State of Arkansas submitted letters certifying that Arkansas has addressed any potential infrastructure issues associated with ozone and PM
EPA intended the statements in the other proposals concerning these four issues merely to be informational, and to provide general notice of the potential existence of provisions within the existing SIPs of some states that might require future corrective action. EPA did not want states, regulated entities, or members of the public to be under the misconception that the Agency's approval of the infrastructure SIP submission of a given state should be interpreted as a reapproval of certain types of provisions that might exist buried in the larger existing SIP for such state. Thus, for example, EPA explicitly noted that the Agency believes that some states may have existing SIP approved SSM provisions that are contrary to the CAA and EPA policy, but that “in this rulemaking, EPA is not proposing to approve or disapprove any existing State provisions with regard to excess emissions during SSM of operations at facilities.” EPA further explained, for informational purposes, that “EPA plans to address such State regulations in the future.” EPA made similar statements, for similar reasons, with respect to the director's discretion, minor source NSR, and NSR Reform issues. EPA's objective was to make clear that approval of an infrastructure SIP for these ozone and PM
Unfortunately, the commenters and others evidently interpreted these statements to mean that EPA considered action upon the SSM provisions and the other three substantive issues to be integral parts of acting on an infrastructure SIP submission, and therefore that EPA was merely postponing taking final action on the issues in the context of the infrastructure SIPs. This was not EPA's intention. To the contrary, EPA only meant to convey its awareness of the potential for certain types of deficiencies in existing SIPs, and to prevent any misunderstanding that it was reapproving any such existing provisions. EPA's intention was to convey its position that the statute does not require that infrastructure SIPs address these specific substantive issues in existing SIPs and that these issues may be dealt with separately, outside the context of acting on the infrastructure SIP submission of a state. To be clear, EPA did not mean to imply that it was not taking a full final agency action on the infrastructure SIP submission with respect to any substantive issue that EPA considers to be a required part of acting on such submissions under section 110(k) or under section 110(c). Given the confusion evidently resulting from EPA's statements in those other proposals, however, we want to explain more fully the Agency's reasons for concluding that these four potential substantive issues in existing SIPs may be addressed separately from actions on infrastructure SIP submissions.
The requirement for the SIP submissions at issue arises out of CAA section 110(a)(1). That provision requires that states must make a SIP submission “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof)” and that these SIPs are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must meet. EPA has historically referred to these particular submissions that states must make after the promulgation of a new or revised NAAQS as “infrastructure SIPs.” This specific term does not appear in the statute, but EPA uses the term to distinguish this particular type of SIP submission designed to address basic structural requirements of a SIP from other types of SIP submissions designed to address other different requirements, such as “nonattainment SIP” submissions required to address the nonattainment planning requirements of part D, “regional haze SIP” submissions required to address the visibility protection requirements of CAA section 169A, new source review permitting program submissions required to address the requirements of part D, and a host of other specific types of SIP submissions that address other specific matters.
Although section 110(a)(1) addresses the timing and general requirements for these infrastructure SIPs, and section 110(a)(2) provides more details concerning the required contents of these infrastructure SIPs, EPA believes that many of the specific statutory provisions are facially ambiguous. In particular, the list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to
Notwithstanding that section 110(a)(2) provides that “each” SIP submission must meet the list of requirements therein, EPA has long noted that this literal reading of the statute is internally inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment SIP requirements that could not be met on the schedule provided for these SIP submissions in section 110(a)(1).
Similarly, EPA notes that other types of SIP submissions required under the statute also must meet the requirements of section 110(a)(2), and this also demonstrates the need to identify the applicable elements for other SIP submissions. For example, nonattainment SIPs required by part D likewise have to meet the relevant subsections of section 110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear that nonattainment SIPs would not need to meet the portion of section 110(a)(2)(C) that pertains to part C,
Given the potential for ambiguity of the statutory language of section 110(a)(1) and (2), EPA believes that it is appropriate for EPA to interpret that language in the context of acting on the infrastructure SIPs for a given NAAQS. Because of the inherent ambiguity of the list of requirements in section 110(a)(2), EPA has adopted an approach in which it reviews infrastructure SIPs against this list of elements “as applicable.” In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the purpose of the submission or the NAAQS in question, would meet each of the requirements, or meet each of them in the same way. EPA elected to use guidance to make recommendations for infrastructure SIPs for these ozone and PM
On October 2, 2007, EPA issued guidance making recommendations for the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS and the 1997 PM
On September 25, 2009, EPA issued guidance to make recommendations to states with respect to the infrastructure SIPs for the 2006 PM
Significantly, neither the 2007 Guidance nor the 2009 Guidance explicitly referred to the SSM, director's discretion, minor source NSR, or NSR Reform issues as among specific substantive issues EPA expected states to address in the context of the infrastructure SIPs, nor did EPA give any more specific recommendations with respect to how states might address such issues even if they elected to do so. The SSM and director's discretion issues implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform issues implicate section 110(a)(2)(C). In the 2007 Guidance and the 2009 Guidance, however, EPA did not indicate to states that it intended to interpret these provisions as requiring a substantive submission to address these specific issues in existing SIP provisions in the context of the infrastructure SIPs for these NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief that the states should make submissions in which they established that they have the basic SIP structure necessary to implement, maintain, and enforce the NAAQS. EPA believes that states can establish that they have the basic SIP structure, notwithstanding that there may be potential deficiencies within the existing SIP. Thus, EPA's proposals for other states mentioned these issues not because the Agency considers them issues that must be addressed in the context of an infrastructure SIP as required by section 110(a)(1) and (2), but rather because EPA wanted to be clear that it considers these potential existing SIP problems as separate from the pending infrastructure SIP actions. The same holds true for this action on the infrastructure SIP submittals for Arkansas.
EPA believes that this approach to the infrastructure SIP requirement is reasonable, because it would not be feasible to read section 110(a)(1) and (2) to require a top to bottom, stem to stern, review of each and every provision of an existing SIP merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts that, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA considers the overall effectiveness of the SIP. To the contrary, EPA believes that a better approach is for EPA to determine which specific SIP elements from section 110(a)(2) are applicable to an infrastructure SIP for a given NAAQS, and to focus attention on those elements that are most likely to need a specific SIP revision in light of the new or revised NAAQS. Thus, for example, EPA's 2007 Guidance specifically directed states to focus on the requirements of section 110(a)(2)(G) for the 1997 PM
Finally, EPA believes that its approach is a reasonable reading of section 110(a)(1) and (2) because the statute provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow the Agency to take appropriate tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or otherwise to comply with the CAA.
Pursuant to the October 2, 2007 “EPA guidance for addressing the SIP infrastructure elements required under sections 110(a)(1) and (2) for the 1997 ozone and 1997 and 2006 PM
Section
On December 17, 2007, we received a certification from the State of Arkansas intended to address the requirements of section 110(a)(2)(D)(i) for both the 1997 8-hour ozone and 1997 PM
To meet the infrastructure requirements of section 110(a)(2)(C) of the Act for the 1997 ozone standard, EPA believes the State must have updated its rules for PSD to treat NO
EPA has recently undertaken a series of actions pertaining to the regulation of GHGs that, although for the most part distinct from one another, establish the overall framework for today's proposed action on the Arkansas infrastructure SIP. Four of these actions include, as they are commonly called, the “Endangerment Finding” and “Cause or Contribute Finding,” which EPA issued in a single final action,
The approved Arkansas SIP contained errors that resulted in its failure to address, or provide adequate legal authority for, the implementation of a GHG PSD program in Arkansas. On this basis, on December 13, 2010, EPA issued a finding that Arkansas' SIP was substantially inadequate to meet CAA requirements because it did not apply PSD requirements to GHG emitting sources (75 FR 77698). This rulemaking also issued a “SIP call” to Arkansas, requiring the state to revise its SIP as necessary to correct the inadequacies. The SIP call established a deadline of December 22, 2010 for Arkansas to submit its corrective SIP revision. In response to EPA's proposal of the SIP call (75 FR 53892), the state declined the 12-month deadline for SIP revision following the finding of substantial inadequacy in order to ensure that PSD permitting authorities for newly constructed or modified sources remain in place.
As we discuss further in this proposal and in the TSD, the current EPA-approved SIP PSD program does not apply to GHG-emitting sources that emit at or above the levels of emissions set in the Tailoring Rule, or at other appropriate levels. Thus, the Arkansas SIP does not satisfy portions of elements within the infrastructure and transport requirements as they pertain to GHGs. However, EPA's disapproval of those elements does not engender an additional statutory obligation, because EPA has already promulgated a FIP for the Arkansas PSD program to address permitting GHGs at or above the Tailoring Rule thresholds.
To implement the PSD NSR component of section 110(a)(2)(C) for the 1997 and 2006 PM
EPA is proposing to partially approve and partially disapprove the Arkansas SIP submittals that identify where and how the 14 basic infrastructure elements are in the EPA-approved SIP as specified in CAA section 110(a)(2). The Arkansas submittals do not include revisions to the SIP, but do document how the current Arkansas SIP already includes the required infrastructure elements. In today's action, we are proposing to find that the following infrastructure elements are contained in the current Arkansas SIP regarding implementation of the 1997 ozone and 1997 and 2006 PM
As discussed in section I.C.6 of this proposal, we are proposing to find that the current Arkansas SIP does not meet the infrastructure requirements for the 1997 and 2006 PM
We are proposing to approve severable portions of the December 17, 2007 and the March 28, 2008 submissions from Arkansas, demonstrating that Arkansas has adequately addressed one of the four required prongs of the 110(a)(2)(D)(i) interstate transport element, specifically the prong that requires that the SIP prohibit air emissions from sources within a state from interfering with measures required to prevent significant deterioration of air quality in any other state.
In conjunction with our proposed finding that the Arkansas SIP meets the section 110(a)(1) and (2) infrastructure SIP elements listed above, we are also proposing to fully approve four severable portions of a SIP revision submitted by the ADEQ to EPA on February 17, 2010. This submittal contains rule revisions by ADEQ to (1) Regulate NO
Section 110(k)(3) of the Act states that EPA may partially approve and partially disapprove a SIP submittal if it finds that only a portion of the submittal meets the requirements of the Act. We believe that the Arkansas SIP meets a majority of the requirements of section 110(a)(2) of the Act and that specific portions of three elements of section 110(a)(2) are not met.
Enforcement of a state regulation (or rule) before and after it is incorporated into the federally approved SIP is primarily a state responsibility. However, after the rule is federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the Act. If a state rule is disapproved, it is not incorporated into the federally approved SIP, and is not enforceable by EPA or by citizens under section 304. Disapproval of any of the Arkansas infrastructure SIP elements would not trigger sanctions under section 179 of the Act, because the submittals are not required by part D of Title I of the Act and are not required by a call for a SIP revision under section 110(k)(5) of the Act.
Under section 110(c) of the Act, disapproval of a SIP in whole or in part requires EPA to promulgate a Federal implementation plan (FIP) at any time within two years following final disapproval, unless the State submits a plan or plan revision that corrects the deficiency—and the EPA approves the plan or plan revision—before the EPA promulgates such FIP. This two-year period is commonly referred to as the “FIP clock.” Here, based on Arkansas's failure to submit the required PM
The Arkansas submittals address the elements of Section 110(a)(2) as described below. We provide a more detailed review and analysis of the Arkansas infrastructure and transport SIP elements in the TSD.
The Arkansas Water and Air Pollution Control Act (AWAPCA), found in Title 8, Chapter 4 of the Arkansas Code Annotated (A.C.A.) names the Arkansas Department of Environmental Quality (ADEQ) as the state's air pollution control agency and provides enforcement authority to the ADEQ (37 FR 10841, May 31, 1972). ADEQ was originally created by the Arkansas General Assembly as the Arkansas Water Pollution Control Commission by Act 472 of 1949. Act 183 of 1965 changed the Commission's name to the Arkansas Pollution Control Commission (APCC) and gave it the power to regulate air pollution. A reorganization of state government in 1971 renamed the APCC to the Arkansas Pollution Control and Ecology Commission (APCEC), and created the Department of Pollution Control and Ecology as a cabinet-level agency headed by a director appointed by the Commission. In 1996, the Arkansas General Assembly voted to rename the Department of Pollution Control and Ecology to the Arkansas Department of Environmental Quality, effective March 31, 1999. The Department is responsible for the day-to-day administration of the Commission's regulations for a variety of environmental programs.
The APCEC has promulgated rules to limit and control emissions of, among other things, particulate matter (PM), sulfur dioxide (SO
In this proposed action, EPA has not reviewed and is not proposing to take any action to approve or disapprove any existing Arkansas SIP provisions with regard to excess emissions during
A detailed list of the applicable Regulation 19, Regulation 26, and Regulation 31 chapters discussed above are provided in the TSD. Arkansas' SIP clearly contains enforceable emission limits and other control measures, which are in the federally enforceable SIP. EPA is proposing to find that the Arkansas SIP meets the requirements of section 110(a)(2)(A) of the Act with respect to the 1997 8-hour ozone and 1997 and 2006 PM
In summary, Arkansas meets the requirement to establish, operate, and maintain an ambient air monitoring network; collect and analyze the monitoring data; and make the data available to EPA upon request. EPA is proposing to find that the current Arkansas SIP meets the requirements of section 110(a)(2)(B) with respect to the 1997 8-hour ozone and 1997 and 2006 PM
To meet the requirement for having a program for the regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that national ambient air quality standards are achieved—including a permit program as required by Parts C and D—generally, the state is required to have SIP-approved PSD, Nonattainment, and Minor NSR permitting programs adequate to implement the 1997 8-hour ozone and 1997 and 2006 PM
PSD programs apply in areas that are meeting the NAAQS, referred to as attainment areas, or in areas that are unclassifiable, referred to as unclassifiable/attainment areas. PSD applies to new major sources and major modifications at existing sources. EPA's PSD permitting regulations are found at 40 CFR 51.166 and 40 CFR 52.21. PSD requirements for SIPs are found in 40 CFR 51.166 and 40 CFR part 51 appendix W. Similar PSD requirements for SIPs incorporating EPA's regulations by reference are found in 40 CFR 52.21.
The Arkansas' PSD program was initially approved into the SIP on January 14, 1982 (47 FR 02112). Subsequent revisions to Arkansas' PSD program were approved into the SIP on February 10, 1986 (51 FR 04910), May 2, 1991 (56 FR 20137), October 16, 2000 (65 FR 61103), and April 12, 2007 (72 FR 18394). To meet the requirements of 110(a)(2)(C) for the 1997 ozone standard, EPA believes the state must have updated its PSD rules to treat NO
The February 17, 2010 revisions to the definitions in the Arkansas rules for “major modification” and “major stationary source” meet the Federal definition in 40 CFR 52.21(b) to identify a major source of NO
The revisions to Regulation 19, Chapter 9, and EPA's evaluation of these revisions are discussed in greater detail in the TSD. The provisions that address NO
To implement section 110(a)(2)(C) for the 1997 and 2006 PM
Section 110(a)(2)(C) creates “a general duty on States to include a program in their SIP that regulates the modification and construction of any stationary source as necessary to assure that the NAAQS are achieved” (70 FR 71612, 71677). This duty is often referred to as “minor NSR.” EPA provides states with a “broad degree of discretion” in implementing their minor NSR programs (71 FR 48696, 48700). The “considerably less detailed” regulations for minor NSR are provided in 40 CFR 51.160 through 51.164. EPA has determined that Arkansas' minor NSR program, adopted pursuant to section 110(a)(2)(C) of the Act, regulates emissions of ozone and its precursors and PM. Arkansas' minor source permitting requirements are contained in Regulation 19, Chapter 4, and portions of Chapters 3 and 5, and were approved at 65 FR 61108.
It is important to stress that EPA is not proposing to approve or disapprove the state's existing minor NSR program itself to the extent that it is inconsistent with EPA's regulations governing this program. EPA believes that a number of states may have minor NSR provisions that are contrary to the existing EPA regulations for this program. EPA intends to work with states to reconcile state minor NSR programs with EPA's regulatory provisions for the program. The statutory requirements of section 110(a)(2)(C) provide for considerable flexibility in designing minor NSR programs, and EPA believes it may be time to revisit the regulatory requirements for this program to give the states an appropriate level of flexibility to design a program that meets their particular air quality concerns, while assuring reasonable consistency across the country in protecting the NAAQS with respect to new and modified minor sources.
As explained in section I.C.5 of this proposal, the current EPA-approved SIP PSD program does not apply to GHG-emitting sources that emit at or above the levels of emissions set in the Tailoring Rule, or at other appropriate levels. Thus, the Arkansas SIP does not satisfy this portion of section 110(a)(2)(C). We are proposing to disapprove this portion of the Arkansas SIP for failing to meet the infrastructure requirements for the 1997 ozone and the 1997 and 2006 PM
EPA's 2006 Guidance made recommendations for SIP submissions to meet this requirement with respect to both the 1997 8-hour ozone NAAQS and the 1997 PM
The 2006 Guidance states that the PSD permitting program is the primary measure that each state must include to prevent interference with any other state's required measures to prevent significant deterioration of its air quality in accordance with section 110(a)(2)(D)(i)(II). EPA believes that Arkansas' December 17, 2007 and March 28, 2008 submissions, when
Consistent with EPA's November 29, 2005 rulemaking, “Final Rule to Implement the 8-hour Ozone National Ambient Air Quality Standards—Phase 2” (70 FR 71612), Arkansas submitted SIP revisions to modify its PSD provisions to address NO
We are proposing to find that Arkansas does not meet the third prong of section 110(a)(2)(D)(i), because the current Arkansas PSD SIP does not meet the requirements of section 110(a)(2)(C) with respect to the implementation of the PSD NSR program for the 2006 PM
Section 110(a)(2)(D)(ii) of the Act requires compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement. Section 115 addresses endangerment of public health or welfare in foreign countries from pollution emitted in the United States. Pursuant to section 115(a), the Administrator has neither received nor issued a formal notification that emissions from Arkansas are endangering public health or welfare in a foreign country.
Section 126(a) of the Act requires new or modified sources to notify neighboring states of potential impacts from such sources. Regulation 26, Chapter 6 requires that each major proposed new or modified source provide such notification and is in the federally enforceable SIP (see 66 FR 51312). The State also has no pending obligations under section 126 of the Act. For additional detail, please refer to the TSD. However, as previously noted in this rulemaking, Arkansas does not have a current EPA-approved SIP PSD program that applies to GHG-emitting sources that emit at or above the level of emissions set in the Tailoring Rule, or at other appropriate levels. Also, the State has failed to submit the required PSD NSR SIP revisions for the 1997 and 2006 PM
There are Federal sources of funding for the implementation of the 1997 8-hour ozone and PM
Section 110(a)(2)(E)(ii) requires that the state comply with section 128. Section 128 requires: (1) that the majority of members of the state body that approves permits or enforcement orders do not derive any significant portion of their income from entities subject to permitting or enforcement orders under the CAA; and (2) any potential conflicts of interest by such body be adequately disclosed. In 1982, the EPA approved the state's submittal to demonstrate compliance of the SIP with Section 128 of the CAA (47 FR 19136). The submittal cited AWAPCA Section 82–1901 as demonstrating compliance with CAA Section 128(a)(1), and cited Arkansas Code of Ethics Law, Act 570 of 1979 as addressing CAA Section 128(a)(2). See Arkansas Code of Ethics Law, Act 570 of 1979, Section 3: Use of Public Office to Obtain Special Privilege Prohibited; Section 4: Use and Disclosure of Information Acquired by Reason of Office—Activities Requiring Disclosure; Section 5: Requirement to File Statement; and Section 6: Statements—Period Retained—Public Access—Signature Required.
EPA is proposing to find that the current Arkansas PSD SIP meets section 110(a)(2)(E) with respect to the 1997 8-hour ozone and 1997 and 2006 PM
Under the Arkansas SIP, the ADEQ is required to analyze the emissions data from point, area, mobile, and biogenic (natural) sources. The ADEQ uses this
EPA is proposing to find that the Arkansas SIP meets the requirements of section 110(a)(2)(F) with respect to the 1997 8-hour ozone and 1997 and 2006 PM
The 2009 Infrastructure SIP Guidance for PM
EPA is proposing to find that the Arkansas SIP meets the requirements of section 110(a)(2)(G) with respect to the 1997 8-hour ozone and 1997 and 2006 PM
EPA is proposing to find that the Arkansas SIP meets the requirements of section 110(a)(2)(H) with respect to the 1997 8-hour ozone and 1997 and 2006 PM
In addition, the State implements an Ozone Action Day (OAD) program
For Arkansas to meet the requirements of the PSD portion of section 110(a)(2)(J), it must comply with section 110(a)(2)(C).
Moreover, as stated in our discussion of the PSD program under section 110(a)(2)(C), the current EPA-approved SIP PSD program does not apply to GHG-emitting sources that emit at or above the levels of emissions set in the Tailoring Rule, or at other appropriate levels. Thus, the Arkansas SIP does not satisfy the portion of section 110(a)(2)(J) that relates to permitting GHGs with respect to the 1997 8-hour ozone and 1997 and 2006 PM
EPA approved Arkansas' Visibility Protection Plan (Protection of Visibility in Mandatory Class I Federal Areas) into the Arkansas SIP on February 10, 1986 (51 FR 4910). EPA approved revisions to the Arkansas Visibility Protection Plan and approved a Long-Term Strategy for Visibility Protection into the Arkansas SIP on July 21, 1988 (53 FR 27514). The State's most recent SIP revision of their Regional Haze program was submitted to EPA on July 29, 2008, and we will take action on it in a separate rulemaking. With regard to the applicable requirements for visibility protection, EPA recognizes that States are subject to visibility and regional haze program requirements under Part C of the Act (which includes sections 169A and 169B). In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus, we find that there is no new visibility obligation “triggered” under section 110(a)(2)(J) when a new NAAQS becomes effective. This would be the case even in the event a secondary PM
EPA is proposing to find that the Arkansas SIP meets the requirements of this portion of section 110(a)(2)(J) with respect to the 1997 8-hour ozone NAAQS with the exception of section 110(a)(2)(J) as it relates to the GHG component of the PSD program. EPA is proposing to find that the Arkansas SIP does not meet the requirements of section 110(a)(2)(J) as it relates to the GHG component of the PSD program with respect to the 1997 8-hour ozone NAAQS. EPA is also proposing to find that the Arkansas SIP does not meet the requirements of this portion of section 110(a)(2)(J) with respect to the 1997 and 2006 PM
This section of the Act also requires that a SIP provides for the submission of data related to such air quality modeling to the EPA upon request. A.C.A. section 8–4–311 authorizes ADEQ to cooperate with the Federal government, allowing it to make this submission to the EPA.
EPA is proposing to find that the Arkansas SIP meets the requirements of section 110(a)(2)(K) with respect to the 1997 8-hour ozone and 1997 and 2006 PM
We are proposing to partially approve and partially disapprove the submittals provided by the State of Arkansas to demonstrate that the Arkansas SIP meets the requirements of Section 110(a)(1) and (2) of the Act for the 1997 ozone and 1997 and 2006 PM
Emission limits and other control measures (110(a)(2)(A) of the Act);
Ambient air quality monitoring/data system (110(a)(2)(B) of the Act);
Program for enforcement of control measures (110(a)(2)(C) of the Act), except for the portion that addresses GHGs;
Interstate Transport, pursuant to section (110(a)(2)(D)(ii) of the Act), except for the portion that addresses GHGs;
Adequate resources (110(a)(2)(E) of the Act);
Stationary source monitoring system (110(a)(2)(F) of the Act);
Emergency power (110(a)(2)(G) of the Act);
Future SIP revisions (110(a)(2)(H) of the Act);
Consultation with government officials (110(a)(2)(J) of the Act);
Public notification (110(a)(2)(J) of the Act);
Prevention of significant deterioration and visibility protection (110(a)(2)(J) of the Act), except for the portion that addresses GHGs;
Air quality modeling data (110(a)(2)(K) of the Act);
Permitting fees (110(a)(2)(L) of the Act); and
Consultation/participation by affected local entities (110(a)(2)(M) of the Act).
For the 1997 ozone standard, we are proposing to find that the current Arkansas SIP does not meet the infrastructure elements listed below:
Program for enforcement of control measures (110(a)(2)(C) of the Act), only as it relates to GHGs;
Interstate transport, pursuant to section 110(a)(2)(D)(ii) of the Act, only as it relates to GHGs; and
Prevention of significant deterioration (110(a)(2)(J) of the Act), only as it relates to GHGs.
We are also proposing to approve the Arkansas Interstate Transport SIP provisions that address the requirement of section 110(a)(2)(D)(i)(II) that emissions from sources in Arkansas do not interfere with measures required in the SIP of any other state under part C of the CAA to prevent significant deterioration of air quality, except as they relate to GHGs for the 1997 ozone NAAQS.
We are proposing to disapprove the portion of the Arkansas Interstate Transport SIP provisions that address the requirement of section 110(a)(2)(D)(i)(II), as it relates to GHGs, that emissions from sources in Arkansas do not interfere with measures required in the SIP of any other state under part C of the CAA to prevent significant deterioration of air quality, for the 1997 ozone NAAQS.
For the 1997 and 2006 PM
Emission limits and other control measures (110(a)(2)(A) of the Act);
Ambient air quality monitoring/data system (110(a)(2)(B) of the Act);
Adequate resources (110(a)(2)(E) of the Act);
Stationary source monitoring system (110(a)(2)(F) of the Act);
Emergency power (110(a)(2)(G) of the Act);
Future SIP revisions (110(a)(2)(H) of the Act);
Consultation with government officials (110(a)(2)(J) of the Act);
Public notification (110(a)(2)(J) of the Act);
Air quality modeling data (110(a)(2)(K) of the Act);
Permitting fees (110(a)(2)(L) of the Act); and
Consultation/participation by affected local entities (110(a)(2)(M) of the Act).
For the 1997 and 2006 PM
Program for enforcement of control measures (110(a)(2)(C) of the Act);
Interstate Transport, pursuant to section 110(a)(2)(D)(ii) of the Act; and
Prevention of significant deterioration and visibility protection (110(a)(2)(J) of the Act).
We are also proposing to disapprove the portion of the Arkansas Interstate Transport SIP that addresses the requirement of section 110(a)(2)(D)(i)(II)—that emissions from sources in Arkansas do not interfere with measures required in the SIP of any other state under part C of the CAA to prevent significant deterioration of air quality—for the 2006 PM
EPA is also proposing to approve the following revisions to APCEC Regulation 19, Chapter 9, submitted by the State of Arkansas on February 17, 2010:
1. The substantive change adding NO
2. The substantive change adding NO
3. The substantive change adding NO
4. The substantive change allowing for an exemption with respect to ozone monitoring for a source with a net emissions increase less than 100 tpy of NO
EPA is proposing these actions in accordance with section 110 and part C of the Act and EPA's regulations and consistent with EPA guidance. We are also proposing to make ministerial corrections to the attainment status table in 40 CFR 81.304 to accurately reflect the redesignation date of Crittenden County, Arkansas to attainment for the 1997 8-hour ozone standard. On March 24, 2010, we redesignated the county with an effective date of April 23, 2010 (75 FR 14077).
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 act on state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law.
This proposed action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).
This proposed action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant impact on a substantial number of small entities. This rule does not impose any requirements or create impacts on small entities. This proposed SIP disapproval under section 110 and subchapter I, part D of the CAA will not in-and-of itself create any new requirements but simply disapproves certain State requirements for inclusion into the SIP. Accordingly, it affords no opportunity for EPA to fashion for small entities less burdensome compliance or reporting requirements or timetables or exemptions from all or part of the rule. The fact that the CAA prescribes that various consequences (
We continue to be interested in the potential impacts of this proposed rule on small entities and welcome comments on issues related to such impacts.
This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531–1538 for State, local, or tribal governments or the private sector. EPA has determined that the proposed disapproval action does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This action proposes to disapprove pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects 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.”
This proposed action does not have federalism implications. It will not have substantial direct effects 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, as specified in Executive Order 13132, because it merely disapproves certain State requirements for inclusion into the SIP and does not alter the relationship or the distribution of power and responsibilities established in the CAA. Thus, Executive Order 13132 does not apply to this action.
This proposed action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because the action EPA is proposing neither imposes substantial direct compliance costs on tribal governments, nor preempts tribal law. Therefore, the requirements of section 5(b) and 5(c) of the Executive Order do not apply to this rule. Consistent with EPA policy, EPA nonetheless is offering consultation to Tribes regarding this rulemaking action. EPA will respond to relevant comments in the final rulemaking action.
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5–501 of the Executive Order has the potential to influence the regulation. This proposed action is not subject to Executive Order 13045 because it is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997). This proposed SIP disapproval under section 110 and subchapter I, part D of the CAA will not in-and-of itself create any new regulations but simply disapproves certain State requirements for inclusion into the SIP.
This proposed action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104–113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
The EPA believes that this proposed action is not subject to requirements of Section 12(d) of NTTAA because application of those requirements would be inconsistent with the CAA.
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent
EPA lacks the discretionary authority to address environmental justice in this proposed action. In reviewing SIP submissions, EPA's role is to approve or disapprove state choices, based on the criteria of the CAA. Accordingly, this action merely proposes to disapprove certain State requirements for inclusion into the SIP under section 110 and subchapter I, part D of the CAA and will not in-and-of itself create any new requirements. Accordingly, it 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.
The statutory authority for this action is provided by section 110 of the CAA, as amended (42 U.S.C. 7410).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve requests from the Wisconsin Department of Natural Resources (WDNR) to redesignate the Milwaukee-Racine and Sheboygan areas to attainment for the 1997 8-hour ozone standard, because the requests meet the statutory requirements for redesignation under the Clean Air Act (CAA or Act). The Milwaukee-Racine area includes Milwaukee, Ozaukee, Racine, Washington, Waukesha, and Kenosha Counties. The Sheboygan area includes Sheboygan County. WDNR submitted these requests on September 11, 2009, and supplemented the submittal on November 16, 2011. This proposed approval also involves several related actions. EPA is proposing to approve, as revisions to the Wisconsin State Implementation Plan (SIP), the state's plans for maintaining the 1997 8-hour ozone National Ambient Air Quality Standard (NAAQS or standard) through 2022 in the above-mentioned areas. EPA is also proposing to approve the 2005 comprehensive emissions inventories for the Milwaukee-Racine and Sheboygan areas as meeting the requirements of the CAA. Finally, EPA finds adequate and is proposing to approve the state's 2015 and 2022 Motor Vehicle Emission Budgets (MVEBs) for the Milwaukee-Racine and Sheboygan areas.
Comments must be received on or before March 12, 2012.
Submit your comments, identified by Docket ID No. EPA–R05–OAR–2009–0730, by one of the following methods:
1.
2.
3.
4.
5.
Kathleen D'Agostino, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), U.S. Environmental
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying information (subject heading,
2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
4. Describe any assumptions and provide any technical information and/or data that you used.
5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns, and suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline identified.
EPA is proposing to determine that the Milwaukee-Racine and Sheboygan ozone nonattainment areas have met the requirements for redesignation under section 107(d)(3)(E) of the CAA. EPA is thus proposing to approve Wisconsin's requests to change the legal designations of the Milwaukee-Racine and Sheboygan areas from nonattainment to attainment for the 1997 8-hour ozone NAAQS. EPA is also proposing to approve Wisconsin's maintenance plan SIP revisions for the Milwaukee-Racine and Sheboygan areas (such approval being one of the CAA criteria for redesignation to attainment status). The maintenance plans are designed to keep the Milwaukee-Racine and Sheboygan areas in attainment of the ozone NAAQS through 2022. EPA is proposing to approve the 2005 comprehensive emissions inventories for the Milwaukee-Racine and Sheboygan areas as meeting the requirements of section 182(a)(1) of the CAA. Finally, EPA is proposing to approve the newly-established 2015 and 2022 MVEBs for the Milwaukee-Racine and Sheboygan areas. The adequacy comment period for the MVEBs began on December 6, 2011, with EPA's posting of the availability of the submittal on EPA's Adequacy Web site (at
Ground-level ozone is not emitted directly by sources. Rather, emissions of nitrogen oxides (NO
The CAA establishes a process for air quality management through the NAAQS. Before promulgation of the 8-hour standard, the ozone NAAQS was based on a 1-hour standard. On November 6, 1991 (56 FR 56693 and 56852), the Milwaukee-Racine and Sheboygan areas were designated as severe and moderate nonattainment areas, respectively, under the 1-hour ozone NAAQS. The Sheboygan area was subsequently redesignated to attainment of the 1-hour standard on August 26, 1996 (61 FR 43675). Although the Milwaukee-Racine area was monitoring attainment of the 1-hour ozone standard by the end of the 2005 ozone season, at the time EPA revoked the 1-hour ozone NAAQS, on June 15, 2005, the Milwaukee-Racine area was never redesignated as attainment under the 1-hour ozone NAAQS.
On July 18, 1997 (62 FR 38856), EPA promulgated an 8-hour ozone standard of 0.08 parts per million parts (ppm). On April 30, 2004 (69 FR 23857), EPA published a final rule designating and classifying areas under the 8-hour ozone NAAQS. These designations and classifications became effective June 15, 2004. EPA designated as nonattainment any area that was violating the 8-hour ozone NAAQS based on the three most recent years of air quality data, 2001–2003.
The CAA contains two sets of provisions, subpart 1 and subpart 2, that address planning and control requirements for nonattainment areas. (Both are found in title I, part D, 42 U.S.C. 7501–7509a and 7511–7511f, respectively.) Subpart 1 contains general requirements for nonattainment areas for any pollutant, including ozone, governed by a NAAQS. Subpart 2 provides more specific requirements for ozone nonattainment areas.
Under EPA's implementation rule for the 1997 8-hour ozone standard, (69 FR 23951, April 30, 2004), an area was classified under subpart 2 based on its 8-hour ozone design value,
40 CFR 50.10 and appendix I of 40 CFR part 50 provide that the 8-hour ozone standard is attained when the three-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration is less than or equal to 0.08 ppm, when rounded. The data completeness requirement is met when the average percent of days with
WDNR submitted requests to redesignate the Milwaukee-Racine and Sheboygan areas to attainment for the 1997 8-hour ozone standard on September 11, 2009, and supplemented the request on November 16, 2011. Complete, quality-assured and certified data for the 2006–2008, 2007–2009, and 2008–2010 time periods indicate the 8-hour NAAQS for ozone, as promulgated in 1997, has been attained for the Milwaukee-Racine and Sheboygan areas. In addition, available monitoring data for 2011 continue to show the areas in attainment of the standard. Under the CAA, nonattainment areas may be redesignated to attainment if sufficient complete, quality-assured data are available for the Administrator to determine that the area has attained the standard, and the area meets the other CAA redesignation requirements in section 107(d)(3)(E).
On March 27, 2008 (73 FR 16436), EPA promulgated a revised 8-hour ozone standard of 0.075 ppm. EPA has not yet designated areas under the 2008 standard. The actions addressed in this proposed rulemaking relate only to the 1997 8-hour ozone standard.
On December 22, 2006, in
The June 8, 2007, decision reaffirmed the December 22, 2006, decision that EPA had improperly failed to retain four measures required for 1-hour nonattainment areas under the anti-backsliding provisions of the regulations: (1) Nonattainment area New Source Review (NSR) requirements based on an area's 1-hour nonattainment classification; (2) Section 185 penalty fees for 1-hour severe or extreme nonattainment areas; (3) measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the Act, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour NAAQS, or for failure to attain that NAAQS; and (4) certain transportation conformity requirements for certain types of Federal actions. The June 8, 2007, decision clarified that the court's reference to conformity requirements was limited to requiring the continued use of 1-hour motor vehicle emissions budgets until 8-hour budgets were available for 8-hour conformity determinations.
This section sets forth EPA's views on the potential effect of the Court's rulings on this proposed redesignation action. For the reasons set forth below, EPA does not believe that the court's rulings alter any requirements relevant to this redesignation action so as to preclude redesignation or prevent EPA from proposing or ultimately finalizing this redesignation. EPA believes that the D.C. Circuit's December 22, 2006, and June 8, 2007, decisions impose no impediment to moving forward with redesignation of this area to attainment, because even in light of the court's decisions, redesignation is appropriate under the relevant redesignation provisions of the CAA and longstanding policies regarding redesignation requests.
With respect to the 1997 8-hour standard, the Milwaukee-Racine and Sheboygan areas are classified under subpart 2. The June 8, 2007, opinion clarifies that the court did not vacate the Phase 1 Rule's provisions with respect to classifications for areas under subpart 2. The court's decision therefore upholds EPA's classifications for those areas classified under subpart 2 for the 8-hour ozone standard.
In its June 8, 2007 decision the D.C. Circuit limited its vacatur so as to uphold those provisions of the anti-backsliding requirements that were not successfully challenged. Therefore, an area must meet the anti-backsliding requirements which apply by virtue of the area's classification for the 1-hour ozone standard. See 40 CFR 51.900,
The anti-backsliding provisions at 40 CFR 51.905(a)(1) prescribe 1-hour ozone standard requirements that continue to apply after revocation of the 1-hour ozone NAAQS to former 1-hour ozone nonattainment areas. 40 CFR 51.905(a)(1)(i) provides that:
The area remains subject to the obligation to adopt and implement the applicable requirements as defined in section 51.900(f), except as provided in paragraph (a)(1)(iii) of this section, and except as provided in paragraph (b) of this section.
Applicable requirements means for an area the following requirements to the extent such requirements apply or applied to the area for the area's classification under section 181(a)(1) of the CAA for the 1-hour NAAQS at designation for the 8-hour NAAQS:
(1) Reasonably available control technology (RACT).
(2) Inspection and maintenance programs (I/M).
(3) Major source applicability cut-offs for purposes of RACT.
(4) Rate of Progress (ROP) reductions.
(5) Stage II vapor recovery.
(6) Clean fuels fleet program under section 182(c)(4) of the CAA.
(7) Clean fuels for boilers under section 182(e)(3) of the CAA.
(8) Transportation Control Measures (TCMs) during heavy traffic hours as provided section 182(e)(4) of the CAA.
(9) Enhanced (ambient) monitoring under section 182(c)(1) of the CAA.
(10) Transportation controls under section 182(c)(5) of the CAA.
(11) Vehicle miles traveled provisions of section 182(d)(1) of the CAA.
(12) NO
(13) Attainment demonstration or an alternative as provided under § 51.905(a)(1)(ii).
In addition, the D.C. Circuit held that EPA should have retained four additional measures in its anti-backsliding provisions: (1) Nonattainment area NSR; (2) section 185 penalty fees; (3) contingency measures under section 172(c)(9) or 182(c)(9) of the Act; and (4) 1-hour MVEBs that were not yet replaced by 8-hour emissions budgets. EPA has addressed these four requirements as follows:
With respect to NSR, EPA has determined that an area being redesignated need not have an approved nonattainment NSR program, provided that the state demonstrates maintenance of the standard in the area without part D NSR in effect. The rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled, “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” This policy assumes that the state's PSD program will become effective in the area immediately upon redesignation to attainment. Consequently EPA concludes that an approved NSR program is not an applicable requirement for purposes of redesignation. See the more detailed explanations in the following rulemakings: Detroit, Michigan (60 FR 12467–12468, March 7, 1995); Cleveland-Akron-Lorrain, Ohio (61 FR 20458, 20469–70, May 7, 1996); Louisville, Kentucky (66 FR 53665, 53669, October 23, 2001); Grand Rapids, Michigan (61 FR 31831, 31836–31837, June 21, 1996). Furthermore, EPA approved Wisconsin's NSR program on January 18, 1995 (60 FR 3538), February 6, 2006 (71 FR 5979), March 8, 2006 (71 FR 55062) and May 16, 2006 (71 FR 28274).
With regard to the requirement for section 185 source penalty fees, the Milwaukee-Racine area was classified as severe nonattainment under the 1-hour standard and is, therefore, subject to this requirement. EPA approved an excess VOC emissions fee rule for the Milwaukee-Racine area on June 25, 2002 (67 FR 42729). On April 24, 2009 (74 FR 18641), EPA published a final rule making a determination that the Milwaukee-Racine area had attained the 1-hour ozone standard and confirming that this finding of attainment relieved Wisconsin of the obligation to adopt section 185 source penalty fee regulations for this area.
With respect to the 1-hour MVEBs that were not yet replaced by 8-hour emissions budgets, the conformity portion of the court's June 8, 2007 ruling clarified that, for those areas with MVEBs for the 1-hour ozone standard, anti-backsliding requires that these MVEBs be used for 8-hour conformity determinations until replaced by MVEBs for the 8-hour ozone standard. To meet this requirement, conformity determinations in such areas must comply with the applicable requirements of EPA's conformity regulations at 40 CFR part 93. Note below that EPA is proposing to find adequate and approve 8-hour MVEBs established by Wisconsin's 8-hour ozone maintenance plans for the Milwaukee and Sheboygan areas.
With respect to the contingency measure requirements under sections 172(c)(9) and 182(c)(9) of the CAA, these requirements must be addressed in state ozone Reasonable Further Progress (RFP) and attainment demonstration plans. Wisconsin addressed these requirements in the 1-hour ozone RFP and attainment demonstration plans for the Milwaukee-Racine area by adopting and implementing extra VOC and NO
With respect to the 1-hour standard requirements, the Sheboygan area was an attainment area subject to a CAA section 175A maintenance plan under the 1-hour standard. The D.C. Circuit's decisions do not impact redesignation requests for these types of areas, except to the extent that the court, in its June 8, 2007, decision, clarified that for those areas with 1-hour MVEBs in their maintenance plans, anti-backsliding provisions require that those 1-hour budgets must be used for 8-hour conformity determinations until replaced by 8-hour budgets. All conformity determinations must comply with the applicable requirements of EPA's conformity regulations at 40 CFR part 93.
With respect to the three other anti-backsliding provisions for the 1-hour standard that the court found were not properly retained, the Sheboygan area is an attainment area subject to a maintenance plan for the 1-hour standard, and the nonattainment NSR, contingency measures (pursuant to section 172(c)(9) or 182(c)(9)), and fee provision requirements no longer apply to an area that has been redesignated to attainment of the 1-hour standard.
Thus the decision in
The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) allows for redesignation provided that: (1) The Administrator determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k); (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable Federal air pollutant control regulations and other permanent and enforceable reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and, (5) the state containing such area has met all requirements applicable to the area under section 110 and part D.
EPA provided guidance on redesignation in the General Preamble for the Implementation of Title I of the CAA Amendments of 1990 on April 16, 1992 (57 FR 13498), and supplemented this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in the following documents:
“Ozone and Carbon Monoxide Design Value Calculations,” Memorandum from William G. Laxton, Director Technical Support Division, June 18, 1990;
“Maintenance Plans for Redesignation of Ozone and Carbon Monoxide Nonattainment Areas,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, April 30, 1992;
“Contingency Measures for Ozone and Carbon Monoxide (CO) Redesignations,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, June 1, 1992;
“Procedures for Processing Requests to Redesignate Areas to Attainment,”
“State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act (ACT) Deadlines,” Memorandum from John Calcagni, Director, Air Quality Management Division, October 28, 1992;
“Technical Support Documents (TSD's) for Redesignation Ozone and Carbon Monoxide (CO) Nonattainment Areas,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993;
“State Implementation Plan (SIP) Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On or After November 15, 1992,” Memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation, September 17, 1993;
“Use of Actual Emissions in Maintenance Demonstrations for Ozone and CO Nonattainment Areas,” Memorandum from D. Kent Berry, Acting Director, Air Quality Management Division, to Air Division Directors, Regions 1–10, November 30, 1993.
“Part D New Source Review (part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994; and
“Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,” Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, May 10, 1995.
EPA is proposing to determine that the Milwaukee-Racine and Sheboygan areas have met all applicable redesignation criteria under CAA section 107(d)(3)(E). The bases for EPA's proposed approval of the redesignation requests are as follows:
On March 1, 2011 (76 FR 11080), EPA determined that the Milwaukee-Racine and Sheboygan areas have attained the 1997 8-hour ozone NAAQS based on monitoring data for 2006–2008 and 2007–2009, and 2008–2010 time periods. An area may be considered to be attaining the 1997 8-hour ozone NAAQS if there are no violations, as determined in accordance with 40 CFR 50.10 and 40 CFR part 50, appendix I, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. To attain this standard, the three-year average of the fourth-highest daily maximum 8-hour average ozone concentrations measured at each monitor within an area over each year must not exceed 0.08 ppm. Based on the rounding convention described in 40 CFR part 50, appendix I, the standard is attained if the design value is 0.084 ppm or below. The data must be collected and quality-assured in accordance with 40 CFR part 58, and recorded in EPA's Air Quality System (AQS). The monitors generally should have remained at the same location for the duration of the monitoring period required for demonstrating attainment.
All 2006–2010 monitoring data have been quality-assured in accordance with 40 CFR 58.10, recorded in the AQS database, and certified. The data meet the completeness criteria in 40 CFR 50, appendix I, which requires a minimum completeness of 75 percent annually and 90 percent over each three-year period. Monitoring data is presented in Table 1 below. In addition, available preliminary monitoring data for 2011 continue to show the areas in attainment of the standard.
In addition, as discussed below with respect to the maintenance plan, WDNR has committed to continue to operate an EPA-approved monitoring network in the areas. WDNR will continue to quality assure monitoring data in accordance with 40 CFR part 58 and enter all data into the AQS in accordance with Federal guidelines. In summary, EPA believes that the data provide an adequate demonstration that the Milwaukee-Racine and Sheboygan areas have attained and continue to attain the 8-hour ozone NAAQS.
We are proposing to determine that Wisconsin has met all currently applicable SIP requirements for
Recognizing that the comprehensive emissions inventory and VOC RACT rules must be approved on or before we complete final rulemaking approving the redesignation requests, we determine here that, assuming that this occurs, Wisconsin will have met all applicable section 110 and part D SIP requirements of the CAA for purposes of approval of Wisconsin's ozone redesignation requests for the Milwaukee-Racine and Sheboygan areas. In making these determinations, we have ascertained what SIP requirements are applicable to the area for purposes of redesignation, and have determined that the portions of the SIP meeting these requirements are fully approved or will be fully approved under section 110(k) of the CAA by the time we complete final rulemaking on Wisconsin's ozone redesignation requests for the Milwaukee-Racine and Sheboygan areas. As discussed more fully below, SIPs must be fully approved only with respect to currently applicable requirements of the CAA.
The September 4, 1992, Calcagni memorandum (see “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992) describes EPA's interpretation of section 107(d)(3)(E) of the CAA. Under this interpretation, a state and the area it wishes to redesignate must meet the relevant CAA requirements that are due prior to the state's submittal of a complete redesignation request for the area.
Since EPA determined that the areas have attained the 1997 8-hour ozone standard, under 40 CFR 51.918, the requirements to submit certain planning SIPs related to attainment, including attainment demonstration requirements (the reasonably available control measure (RACM) requirement of section 172(c)(1) of the CAA, the RFP and attainment demonstration requirements of sections 172(c)(2) and (6) and 182(b)(1) of the CAA, and the requirement for contingency measures of section 172(c)(9) of the CAA) are not applicable to the areas as long as they continue to attain the NAAQS and will cease to apply upon redesignation. In addition, in the context of redesignations, EPA has interpreted requirements related to attainment as not applicable for purposes of redesignation. For example, in the General Preamble EPA stated that:
Section 110(a) of title I of the CAA contains the general requirements for a SIP. Section 110(a)(2) provides that the implementation plan submitted by a state must have been adopted by the state after reasonable public notice and hearing, and that, among other things, it includes enforceable emission limitations and other control measures, means or techniques necessary to meet the requirements of the CAA; provides for establishment and operation of appropriate devices, methods, systems and procedures necessary to monitor ambient air quality; provides for implementation of a source permit program to regulate the modification and construction of any stationary source within the areas covered by the plan; includes provisions for the implementation of part C, PSD, and part D, NSR permit programs; includes criteria for stationary source emission control measures, monitoring, and reporting; includes provisions for air quality modeling; and provides for public and local agency participation in planning and emission control rule development.
Section 110(a)(2)(D) of the CAA requires that SIPs contain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, EPA has required certain states to establish programs to address transport of air pollutants,
Further, we conclude that the other section 110 elements described above that are not connected with nonattainment plan submissions and not linked with an area's attainment status are also not applicable requirements for purposes of redesignation. A state remains subject to these requirements after an area is redesignated to attainment. We conclude that only the section 110 and part D requirements which are linked with a particular area's designation and
We have reviewed Wisconsin's SIP and have concluded that it meets the general SIP requirements under section 110 of the CAA, to the extent those requirements are applicable for purposes of redesignation. EPA has previously approved provisions of the Wisconsin SIP addressing section 110 elements under the 1-hour ozone standard (40 CFR 52.2570). Further, in submittals dated December 12, 2007, January 24, 2011, and March 28, 2011, Wisconsin confirmed that the state continues to meet the section 110 requirements for the 8-hour ozone standard. EPA approved some elements of this Wisconsin submittal on July 13, 2011, at 76 FR 41075. The requirements of section 110(a)(2), however, are statewide requirements that are not linked to the 8-hour ozone nonattainment status of the Milwaukee-Racine and Sheboygan areas. Therefore, EPA concludes that these infrastructure SIP elements are not applicable requirements for purposes of review of the state's 8-hour ozone redesignation request.
EPA has determined that, if EPA finalizes the approval of the 2005 comprehensive emissions inventory, discussed in section V.C. of this rulemaking, and the VOC RACT submittal, discussed below under the heading “Subpart 2 Section 182(a) and (b) Requirements,” the Wisconsin SIP will meet the SIP requirements applicable for purposes of redesignation under part D of the CAA for the Milwaukee-Racine and Sheboygan areas. Subpart 1 of part D, found in sections 172–176 of the CAA, sets forth the basic nonattainment requirements applicable to all nonattainment areas. Subpart 2 of part D, which includes section 182 of the CAA, establishes additional specific requirements depending on the area's nonattainment classification.
The Milwaukee-Racine and Sheboygan areas were classified as moderate areas under subpart 2. Therefore, the state must meet the applicable requirements of both subpart 1 and subpart 2 of part D. The applicable subpart 1 requirements are contained in sections 172(c)(1)–(9) and in section 176. The applicable subpart 2 requirements are contained in sections 182(a) and (b) (marginal and moderate nonattainment area requirements).
Section 172(c)(1) requires the plans for all nonattainment areas to provide for the implementation of all RACM as expeditiously as practicable and to provide for attainment for the national primary ambient air quality standards. EPA interprets this requirement to impose a duty on all states containing nonattainment areas to consider all available control measures and to adopt and implement such measures as are reasonably available for implementation in each area as components of the area's attainment demonstration. Because attainment has been reached in the Milwaukee-Racine and Sheboygan areas, no additional measures are needed to provide for attainment and section 172(c)(1) requirements are no longer considered to be applicable as long as the area continues to attain the standard until redesignation. See 40 CFR 51.918.
The RFP requirement under section 172(c)(2) is defined as progress that must be made toward attainment. This requirement is not relevant for purposes of redesignation because the Milwaukee-Racine and Sheboygan areas have demonstrated monitored attainment of the 1997 8-hour ozone NAAQS. (General Preamble, 57 FR 13564). See also 40 CFR 51.918. In addition, because the Milwaukee-Racine and Sheboygan areas have attained the ozone NAAQS and are no longer subject to an RFP requirement, the section 172(c)(9) contingency measures are not applicable for purposes of redesignation.
Section 172(c)(3) requires submission and approval of a comprehensive, accurate and current inventory of actual emissions. This requirement was superseded by the inventory requirement in section 182(a)(1) discussed below.
Section 172(c)(4) requires the identification and quantification of allowable emissions for major new and modified stationary sources in an area, and section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. EPA approved Wisconsin's current NSR program on December 17, 2008 (73 FR 76558 and 76560). Nonetheless, EPA has determined that, since PSD requirements will apply after redesignation, areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A more detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled, “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” Wisconsin has demonstrated that the Milwaukee-Racine and Sheboygan areas will be able to maintain the standard without part D NSR in effect; therefore, EPA concludes that the state need not have a fully approved part D NSR program prior to approval of the redesignation request. The state's PSD program will become effective in the Milwaukee-Racine and Sheboygan areas upon redesignation to attainment.
Section 172(c)(6) requires the SIP to contain control measures necessary to provide for attainment of the standard. Because attainment has been reached, no additional measures are needed to provide for attainment.
Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). As noted above, we believe the Wisconsin SIP meets the requirements of section 110(a)(2) for purposes of redesignation.
Subpart 1, Section 176 Conformity Requirements.
Section 176(c) of the CAA requires states to establish criteria and
EPA interprets the conformity SIP requirements as not applying for purposes of evaluating the redesignation request under section 107(d) for two reasons. First, the requirement to submit SIP revisions to comply with the conformity provisions of the CAA continues to apply to areas after redesignation to attainment, since such areas would be subject to a section 175A maintenance plan. Second, EPA's Federal conformity rules require the performance of conformity analyses in the absence of Federally-approved state rules. Therefore, because areas are subject to the conformity requirements regardless of whether they are redesignated to attainment and, because they must implement conformity under Federal rules if state rules are not yet approved, it is reasonable to view these requirements as not applying for purposes of evaluating a redesignation request.
EPA approved Wisconsin's general and transportation conformity SIPs on July 29, 1996 (61 FR 39329) and August 27, 1996 (61 FR 43970), respectively. Wisconsin has submitted onroad motor vehicle budgets for the Milwaukee-Racine area of 21.08 tons per day (tpd) and 15.98 tpd VOC and 51.22 tpd and 31.91 tpd NO
NO
Thus, as discussed above, with approval of the comprehensive emissions inventory and Wisconsin's VOC RACT submittals, the Milwaukee-Racine and Sheboygan areas will satisfy the requirements applicable for purposes of redesignation under section 110 and part D of the CAA.
If EPA issues a final approval of the comprehensive emissions inventory and Wisconsin's VOC RACT submittals, EPA will have fully approved the Wisconsin SIP for the Milwaukee-Racine and Sheboygan areas under section 110(k) of the CAA for all requirements applicable for purposes of redesignation. EPA may rely on prior SIP approvals in approving a redesignation request (
The anti-backsliding provisions at 40 CFR 51.905(a)(1) prescribe 1-hour ozone NAAQS requirements that continue to apply after the revocation of the 1-hour ozone NAAQS for former 1-hour ozone nonattainment areas. 40 CFR 51.905(a)(1)(i) provides that:
The area remains subject to the obligation to adopt and implement the applicable requirements defined in 40 CFR 51.900(f), except as provided in paragraph (a)(1)(iii) of this section, and except as provided in paragraph (b) of this section.
Applicable requirements means for an area the following requirements to the extent such requirements apply or applied to the area for the area's classification under section 181(a)(1) of the CAA for the 1-hour NAAQS at designation for the 8-hour NAAQS:
(1) Reasonably available control technology (RACT).
(2) Inspection and maintenance programs (I/M).
(3) Major source applicability cut-offs for purposes of RACT.
(4) Rate of Progress (ROP) reductions.
(5) Stage II vapor recovery.
(6) Clean fuels fleet program under section 182(c)(4) of the CAA.
(7) Clean fuels for boilers under section 182(e)(3) of the CAA. [Not a requirement for the Milwaukee-Racine area.]
(8) Transportation Control Measures (TCMs) during heavy traffic hours as provided under section 182(e)(4) of the CAA.
(9) Enhanced (ambient) monitoring under section 182(c)(1) of the CAA.
(10) Transportation controls under section 182(c)(5) of the CAA.
(11) Vehicle miles travelled provisions of section 182(d)(1) of the CAA.
(12) NO
(13) Attainment demonstration or an alternative as provided under 40 CFR 51.905(a)(1)(ii).
In addition to applicable requirements listed under 40 CFR 51.900(f) and as discussed above, the state must also comply with the 1-hour anti-backsliding requirements discussed in the DC Circuit's decisions in
Pursuant to 40 CFR 51.905(c), the Milwaukee-Racine area is subject to the obligations set forth in 40 CFR 51.905(a) and 40 CFR 51.900(f). The following paragraphs address the 1-hour ozone SIP requirements applicable to the Milwaukee-Racine area pursuant to all the anti-backsliding requirements described above.
Prior to the revocation of the 1-hour ozone standard on June 15, 2005, the Milwaukee-Racine area was classified as a severe nonattainment area for the 1-hour ozone standard with an attainment deadline of November 15, 2007, and was therefore subject to the ozone SIP requirements for severe 1-hour ozone nonattainment areas contained in sections 182(a) through 182(d) of the CAA. In reviewing Wisconsin's ozone redesignation request for the Milwaukee-Racine area, we assessed whether the area satisfied the CAA requirements under the 1-hour ozone standard. We conclude that this area and the state of Wisconsin have satisfied all anti-backsliding CAA requirements applicable to a severe ozone nonattainment area by complying with all applicable 1-hour ozone SIP requirements. The following discusses how the applicable CAA requirements have been met in the Milwaukee-Racine area.
Section 182(a)(2)(A) of the CAA requires RACT corrections. Section 182(b)(2) requires RACT for each category of VOC sources covered by a CTG and for all other major sources of VOC within an ozone nonattainment area. Section 182(d) specifies requirements for severe ozone nonattainment areas, including a major source emissions cut-off of 25 tons per year.
Under the 1-hour ozone standard, EPA fully approved Wisconsin's VOC RACT regulations as SIP revisions for CTG sources and for major non-CTG sources through rulemakings on the following dates: August 15, 1994 (59 FR 41709), April 27, 1995 (60 FR 20643), June 30, 1995 (60 FR 34170), July 28, 1995 (60 FR 38722), February 12, 1996 (61 FR 5307), February 13, 1996 (61 FR 5514), April 4, 1996 (61 FR 14972), April 9, 1996 (61 FR 15706), April 25, 1996 (61 FR 18257), July 17, 1996 (61 FR 37216), August 29, 1996 (61 FR 45327), June 8, 2000 (65 FR 36351), November 13, 2001 (66 FR 56931), and September 22, 2006 (71 FR 55287). These RACT SIP revisions include rules covering all non-CTG sources in the Milwaukee-Racine area with the potential to emit VOCs at or in excess of 25 tons per year.
EPA issued CTGs for five source categories in September 2006 and three additional source categories in September 2007. Areas classified as moderate and above for the 1997 8-hour standard were required to submit VOC RACT for the source categories covered by these CTGs by September 2007 and September 2008, respectively. Wisconsin submitted SIP revisions to address these CTGs on September 1, 2009, and November 16, 2011. EPA is taking action on these revisions in a separate rulemaking action. Full approval of Wisconsin's RACT submittals is a prerequisite for approval of the redesignation of the Milwaukee-Racine and Sheboygan areas to attainment.
EPA approved Wisconsin's enhanced I/M program on January 12, 1995 (60 FR 2881), and August 16, 2001 (66 FR 42949).
Sections 182(b)(1)(A) and 182(c)(2)(B) of the CAA establish the ROP requirements for ozone nonattainment areas. EPA has fully approved Wisconsin's SIP revisions that demonstrate that Wisconsin achieved ROP in the Milwaukee-Racine area. On March 22, 1996 (61 FR 11735), EPA approved Wisconsin's plan to achieve a 15 percent reduction in VOC emissions in the Milwaukee-Racine area, as required in section 182(b) of the CAA. On October 10, 2001 (66 FR 51572), EPA approved Wisconsin's plan to achieve ROP between 1996 and 1999 in this area, meeting the ROP requirements of section 182(c) of the CAA. Finally, on November 13, 2001 (66 FR 56931), EPA approved Wisconsin's plan to achieve ROP emission reductions for the period of 1999 through 2007.
EPA approved Wisconsin's Stage II rule on August 13, 1993 (58 FR 43080), August 15, 1994 (59 FR 41709), and April 27, 1995 (60 FR 206423).
EPA approved Wisconsin's clean fuel fleet program rules as required by section 182(c)(4) of the CAA on March 11, 1996 (61 FR 9639).
Section 182(e)(3) of the CAA, which requires clean fuels for boilers, does not apply to the Milwaukee-Racine area.
This requirement applies to areas subject to section 182(e)(4) of the CAA, which covers extreme ozone nonattainment areas, and, therefore, does not apply to the Milwaukee-Racine area.
On March 18, 1994 (59 FR 1251), EPA approved Wisconsin's SIP revision establishing an enhanced monitoring program for ozone in the Milwaukee-Racine area, as required by section 182(c)(1) of the CAA.
Within six months of November 15, 1990, and every three years thereafter, section 182(c)(5) of the CAA requires states to submit a demonstration that current aggregate vehicle mileage, aggregate vehicle emissions, congestion levels, and other relevant traffic-related and vehicle emissions-related factors are consistent with those used for the area's ozone attainment demonstration for serious and above 1-hour ozone nonattainment areas. If the levels of relevant parameters that are projected in the attainment demonstration are exceeded, a state has 18 months to develop and submit a revision to the SIP to include TCMs to reduce mobile source emissions to levels consistent with the emission levels in the attainment demonstration.
The section 182(c)(5) requirements are included in those measures subject to EPA's interpretation under EPA's May 10, 1995, Clean Data Policy memorandum. As provided by the clean data policy, since the Milwaukee-Racine area is attaining the 1-hour ozone standard, any requirement for submitting the section 182(c)(5) measures for the Milwaukee-Racine area is suspended.
Section 182(d)(1)(A) of the CAA requires severe ozone nonattainment areas to offset the growth in emissions attributed to growth in VMT; to select and implement TCMs necessary to comply with the periodic emission reduction requirements of sections 182(b) and (c); and, to consider TCMs specified in section 108(f) of the CAA, and implement TCMs as necessary to demonstrate attainment with the ozone standard. EPA approved Wisconsin's section 182(d)(1)(A) VMT SIP on May 5, 1995 (60 FR 22284), and September 11, 1995 (60 FR 47088).
Section 182(f) requires major sources of NO
On November 13, 2001 (66 FR 56931), EPA approved Wisconsin's 1-hour ozone attainment demonstration SIP revision for the Milwaukee-Racine area.
EPA has determined that an area being redesignated need not have an approved nonattainment NSR program, provided that the state demonstrates maintenance of the standard in the area without part D NSR in effect. The rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled, “Part D New Source Review Requirements for Areas
The conformity portion of the court's ruling does not impact the redesignation request for the Milwaukee-Racine area except to the extent that the court, in its June 8, 2007, decision clarified that, for those areas with MVEBs for the 1-hour ozone standard, anti-backsliding requires that these MVEBs be used for 8-hour conformity determinations until replaced by MVEBs for the 8-hour ozone standard. To meet this requirement, conformity determinations in such areas must comply with the applicable requirements of EPA's conformity regulations at 40 CFR part 93. Note below that EPA is proposing to find adequate and approve 8-hour MVEBs established by Wisconsin's 8-hour ozone maintenance plans for the Milwaukee and Sheboygan areas.
The contingency measure requirements under sections 172(c)(9) and 182(c)(9) of the CAA must be addressed in state ozone RFP and attainment demonstration plans. Wisconsin addressed these requirements in the 1-hour ozone RFP and attainment demonstration plans for the Milwaukee-Racine area by adopting and implementing extra VOC and NO
EPA approved an excess VOC emissions fee rule for the Milwaukee-Racine area on June 25, 2002 (67 FR 42729). On April 24, 2009 (74 FR 18641), EPA published a final rule making a determination that the Milwaukee-Racine area had attained the 1-hour ozone standard and confirming that this finding of attainment relieved Wisconsin of the obligation to adopt section 185 source penalty fee regulations for this area.
For the reasons discussed above, EPA concludes that Wisconsin has met all part D SIP requirements for the 1-hour ozone standard applicable to the Milwaukee-Racine area for purposes of redesignation, as addressed in the DC Circuit's and EPA's anti-backsliding requirements.
EPA finds that Wisconsin has demonstrated that the observed air quality improvement in the Milwaukee-Racine and Sheboygan areas is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, Federal
In making this demonstration, the state has calculated the change in emissions between 2005 and 2008. For the nonattainment inventory, Wisconsin used the 2005 emissions inventory developed to meet the comprehensive emissions inventory requirement of section 182(a)(1) of the CAA. The state developed an attainment inventory for 2008, one of the years the Milwaukee-Racine and Sheboygan areas monitored attainment of the 1997 8-hour ozone standard. The reduction in emissions and the corresponding improvement in air quality over this time period can be attributed to a number of regulatory control measures that the Milwaukee-Racine and Sheboygan areas and upwind areas have implemented in recent years.
The following is a discussion of permanent and enforceable measures that have been implemented in the areas:
i.
ii.
iii.
iv.
v.
Wisconsin is using the 2005 emissions inventory developed pursuant to section 182(a)(1) of the CAA as the nonattainment inventory. This inventory is discussed in more detail in section V.C., below. In summary, WDNR developed the point source inventory using actual reported emissions, EPA's Clean Air Markets Database and EPA techniques for emissions calculation. The area source inventory was created by backcasting Wisconsin's 2008 emissions inventory that was submitted to EPA for the National Emissions Inventory. The nonroad mobile inventory was created using EPA's National Mobile Inventory Model (NMIM) (2009/05/04 version). In addition, emissions estimates were developed for commercial marine vessels, aircraft, and railroads, three nonroad categories not included in the model. The onroad mobile source inventory was developed using EPA's MOVES2010a model. Wisconsin is using the 2008 emissions inventory for the attainment inventory. The point source sector of the emissions inventory was created using annually reported point source emissions, EPA's Clean Air Markets Database, and EPA techniques for emissions calculation. Emissions were estimated by collecting process-level information from each facility that qualifies for inclusion in the state's point source database. Area source emissions estimates were taken from the 2008 emissions inventory developed by WDNR to meet the periodic emissions inventory requirement of 40 CFR part 51, subpart A.
In general, area source emissions estimates were calculated using population, gasoline consumption, employment, crop acreages, and other activity surrogates along with emission factors. Emission factors were derived from local data, local or national surveys and EPA guidance for the development of emissions inventories. Nonroad emissions estimates were developed using EPA's NMIM (2009/05/04 version). In addition, emissions estimates were developed for commercial marine vessels, aircraft, and railroads, three nonroad categories not included in the model. The onroad mobile source inventory was developed using EPA's MOVES2010a model.
Using the inventories described above, Wisconsin's submittal documents changes in VOC and NO
Table 4 shows that the Milwaukee-Racine area reduced VOC emissions by 19.85 tpd and NO
In conjunction with its requests to redesignate the Milwaukee-Racine and Sheboygan nonattainment areas to attainment status, WDNR submitted SIP revisions to provide for the maintenance of the 1997 8-hour ozone NAAQS in the areas through 2022.
Section 175A of the CAA sets forth the required elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least ten years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the state must submit a revised maintenance plan which demonstrates that attainment will continue to be maintained for ten years following the initial ten-year maintenance period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures with a schedule for implementation as EPA deems necessary to assure prompt correction of any future violations of the 1997 8-hour ozone standard.
The September 4, 1992, John Calcagni memorandum provides additional guidance on the content of a maintenance plan. The memorandum clarifies that an ozone maintenance plan should address the following items: The attainment VOC and NO
WDNR developed an emissions inventory for 2008, one of the years Wisconsin used to demonstrate monitored attainment of the 1997 8-hour NAAQS, as described above. The attainment level of emissions is summarized in Table 3, above.
Along with the redesignation requests, WDNR submitted revisions to the 8-hour ozone SIP to include maintenance plans for the Milwaukee-Racine and Sheboygan areas, in compliance with section 175A of the CAA. These demonstrations show maintenance of the 1997 8-hour ozone standard through 2022 by assuring that current and future emissions of VOC and NO
Wisconsin is using emissions inventories for the years 2015 and 2022 to demonstrate maintenance. The emissions inventories were developed as described below.
Electric Generating Unit (EGU) point source emissions for 2018 were estimated using IPM3.0. Non-EGU point source emissions for 2018 were derived by applying growth and control factors, developed by Pechan for the Lake Michigan Air Directors Consortium (LADCO), to the 2005 inventory. Growth factors were initially based on the Economic Growth and Analysis System (EGAS) model and were modified for select priority categories by examining emissions activity data. Projected emissions for 2015 and 2022 were estimated using linear interpolation and extrapolation from 2008 and 2018 emissions estimates.
Area source emissions inventories were created by projecting the 2008 emissions inventory. The emission projections were primarily based on growth factors from the EGAS model. If EGAS growth factors were not available, population based growth factors were used.
Nonroad emissions estimates were developed using EPA's NMIM model (2009/05/04 version). In addition, emissions estimates were developed for commercial marine vessels, aircraft, and railroads, three nonroad categories not included in the model. Onroad emissions estimates were generated using the MOVES2010a model.
Emissions data are shown in Tables 5 through 7 below.
The emission projections show that WDNR does not expect emissions in the Milwaukee-Racine and Sheboygan areas to exceed the level of the 2008 attainment year inventory during the maintenance period. In the Milwaukee-Racine area, WDNR projects VOC emissions to decrease by 36.79 tpd and NO
Further, ozone modeling performed by the Lake Michigan Air Directors Consortium supports the conclusion that the Milwaukee-Racine and Sheboygan areas will maintain the 1997 8-hour ozone standard throughout the maintenance period. Peak modeled ozone levels in the Milwaukee-Racine area for 2012 and 2018 are 0.080 ppm, and 0.077 ppm, respectively. Peak modeled ozone levels in the Sheboygan area for 2012 and 2018 are 0.081 ppm, and 0.076 ppm, respectively. These projected ozone levels were modeled applying only legally enforceable controls;
As part of its maintenance plans, the state elected to include “safety margins” for the areas. A “safety margin” is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan, which continues to demonstrate attainment of the standard. The attainment level of emissions is the level of emissions during one of the years in which the area met the NAAQS. The Milwaukee-Racine and Sheboygan areas attained the 8-hour ozone NAAQS during the 2006–2008, 2007–2009, and 2008–2010 time periods. Wisconsin used 2008 as the attainment level of emissions for the areas. In the maintenance plans, WDNR projected emission levels for 2022. For the Milwaukee-Racine area, the emissions from point, area, nonroad, and onroad mobile sources in 2008 equaled 155.76 tpd of VOC. WDNR projected VOC emissions for the year 2022 to be 118.97 tpd of VOC. The SIP submission demonstrates that the Milwaukee-Racine area will continue to maintain the standard with emissions at this level. The safety margin for VOC is calculated to be the difference between these amounts or, in this case, 36.79 tpd of VOC for 2022. By this same method, for the Milwaukee-Racine area, 73.88 tpd (
Wisconsin currently operates ten ozone monitors in the Milwaukee-Racine area and one monitor in the Sheboygan area. WDNR has committed to continue to monitor ozone levels in the areas. WDNR will work with EPA should changes in siting become necessary. Wisconsin remains obligated to meet monitoring requirements and continue to quality assure monitoring data in accordance with 40 CFR part 58, and to enter all data into the AQS in accordance with Federal guidelines.
Continued attainment of the ozone NAAQS in the Milwaukee-Racine and Sheboygan areas depends, in part, on the state's efforts toward tracking indicators of continued attainment during the maintenance period. Wisconsin's plan for verifying continued attainment of the 8-hour standard in the Milwaukee-Racine and Sheboygan consists of plans to continue ambient ozone monitoring in accordance with the requirements of 40 CFR part 58. WDNR will also continue to develop and submit periodic emission inventories as required by the Federal Consolidated Emissions Reporting Rule (67 FR 39602, June 10, 2002) to track future levels of emissions.
The contingency plan provisions are designed to promptly correct or prevent a violation of the NAAQS that might occur after redesignation of an area to attainment. Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that the state will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the contingency measures to be adopted, a schedule and procedure for adoption and implementation of the contingency measures, and a time limit for action by the state. The state should also identify specific indicators to be used to determine when the contingency measures need to be adopted and implemented. The maintenance plan must include a requirement that the state will implement all measures with respect to control of the pollutant(s) that were contained in the SIP before redesignation of the area to attainment. See section 175A(d) of the CAA.
As required by section 175A of the CAA, Wisconsin has adopted contingency plans for the Milwaukee-Racine and Sheboygan areas to address possible future ozone air quality problems. A contingency plan response will be triggered whenever a three-year average fourth-high monitored value of 0.085 ppm or greater is monitored within the maintenance area. When a response is triggered, WDNR will evaluate existing but not fully implemented, forthcoming, and, if necessary, new control measures to correct the violation of the standard within 18 months. Wisconsin has confirmed EPA's interpretation that this commitment means that the measure will be adopted and implemented within 18 months of the triggering event. In addition, it is EPA's
WDNR included the following list of potential contingency measures in its maintenance plans:
i. Broaden the application of the NO
ii. Develop an anti-idling control program for mobile sources targeting diesel vehicles;
iii. Adopt a rule reducing VOC content in architectural, industrial and maintenance coatings; and
iv. Adopt a rule reducing VOC content in commercial and consumer products.
As required by section 175A(b) of the CAA, WDNR commits to submit to the EPA updated ozone maintenance plans eight years after redesignation of the Milwaukee-Racine and Sheboygan areas to cover an additional ten-year period beyond the initial ten-year maintenance period. As required by section 175A of the CAA, Wisconsin has committed to retain the VOC and NO
EPA has concluded that the maintenance plans adequately address the five basic components of a maintenance plan: Attainment inventory, maintenance demonstration, monitoring network, verification of continued attainment, and a contingency plan. Thus EPA proposes to find that the maintenance plan SIP revisions submitted by Wisconsin for the Milwaukee-Racine and Sheboygan areas meet the requirements of section 175A of the CAA.
Under the CAA, states are required to submit, at various times, control strategy SIP revisions and ozone maintenance plans for ozone nonattainment areas and for areas seeking redesignations to attainment of the ozone standard. These emission control strategy SIP revisions (
Under 40 CFR part 93, a MVEB for an area seeking a redesignation to attainment is established for the last year of the maintenance plan. The MVEB serves as a ceiling on emissions from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993, transportation conformity rule (58 FR 62188).
Under section 176(c) of the CAA, new transportation projects that receive Federal funding or support, such as the construction of new highways, must “conform” to (
When reviewing SIP revisions containing MVEBs, including attainment strategies, rate-of-progress plans, and maintenance plans, EPA must affirmatively approve or find that the MVEBs are “adequate” for use in determining transportation conformity before the MVEBs can be used. Once EPA affirmatively approves or finds the submitted MVEBs to be adequate for transportation conformity purposes, the MVEBs must be used by state and Federal agencies in determining whether proposed transportation projects conform to the SIP as required by section 176(c) of the CAA. EPA's substantive criteria for determining the adequacy of MVEBs are set out in 40 CFR 93.118(e)(4).
EPA's process for determining adequacy of a MVEB consists of three basic steps: (1) Providing public notification of a SIP submission; (2) providing the public the opportunity to comment on the MVEB during a public comment period; and, (3) EPA taking action on the MVEB. The process for determining the adequacy of submitted SIP MVEBs is codified at 40 CFR 93.118.
The maintenance plans submitted by Wisconsin for the Milwaukee-Racine and Sheboygan areas contain new VOC and NO
EPA, through this rulemaking, has found adequate and is proposing to approve the MVEBs for use to determine transportation conformity in the Milwaukee-Racine and Sheboygan areas, because EPA has determined that the areas can maintain attainment of the 8-hour ozone NAAQS for the relevant maintenance period with mobile source emissions at the levels of the MVEBs. WDNR has determined the 2015 MVEBs for the Milwaukee-Racine and Sheboygan areas to be 21.08 tpd for VOC and 51.22 tpd for NO
As discussed above, section 182(a)(1) of the CAA requires states containing areas classified as marginal and above to submit a comprehensive emissions inventory. As part of Wisconsin's redesignation request for the Milwaukee-Racine and Sheboygan areas, the state submitted a 2005 comprehensive emissions inventory. Emissions contained in the submittal cover the general source categories of point sources, area sources, nonroad mobile sources and onroad mobile sources.
WDNR developed the point source inventory using annually reported point source emissions, EPA's Clean Air Markets Database and EPA techniques for emissions calculation. Where feasible, Federal, state and local controls were factored into the emission calculations. Emissions were estimated by collecting process-level information from each facility that qualifies for inclusion in the Wisconsin's point source database.
The area source inventory was created by backcasting Wisconsin's 2008 emissions inventory that WDNR submitted to EPA for the National Emissions Inventory. The backcasting factors were primarily based on growth factors from the EGAS model. If growth factors were not available for source classification code, population based growth factors were used.
The nonroad mobile inventory was created using NMIM (2009/05/04 version). In addition, emissions estimates were developed for commercial marine vesels, aircraft, and railroads, three nonroad categories not included in the model. Through LADCO, Pechan, an independent contractor, provided marine and rail emission estimates. Aircraft emissions were calculated using the Federal Aviation Administration's Emissions and Dispersion Modeling System.
The Onroad mobile source inventory was developed using EPA's MOVES2010a model. Emissions estimates were made in accordance with the User Guide for MOVES2010a
The 2005 emissions estimates are summarized in Table 2, above. EPA is proposing to approve the 2005 emissions inventory as meeting the section 182(a)(1) comprehensive emissions inventory requirement for the Milwaukee-Racine and Sheboygan areas.
After evaluating the redesignation requests submitted by Wisconsin, EPA concludes that the requests meet the redesignation criteria set forth in section 107(d)(3)(E) of the CAA. Therefore, EPA is proposing to approve the redesignation of the Milwaukee-Racine and Sheboygan areas from nonattainment to attainment for the 1997 8-hour ozone NAAQS. EPA is also proposing to approve Wisconsin's maintenance plan SIP revisions for the Milwaukee-Racine and Sheboygan areas. EPA's proposed approval of the maintenance plans is based on the state's demonstration that the plans meet the requirements of section 175A of the CAA, as described more fully above. EPA is also proposing to approve WDNR's 2005 comprehensive emissions inventories for the Milwaukee-Racine and Sheboygan areas as meeting the requirements of section 182(a)(1) of the CAA. Finally, EPA finds adequate under 40 CFR 93.118(e) and is proposing to approve Wisconsin's 2015 and 2022 MVEBs for the Milwaukee-Racine and Sheboygan areas.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on tribes, impact any existing sources of air pollution on tribal lands, nor impair the maintenance of ozone national ambient air quality standards in tribal lands. However, because there are tribal lands located in Milwaukee County, we provided the affected tribe with the opportunity to consult with EPA on the redesignation. The affected tribe raised no concerns with the proposed rule.
Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen oxides, Ozone, Volatile organic compounds.
Air pollution control, Environmental protection, National parks, Wilderness areas.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve a request from Illinois to redesignate the Illinois portion of the Chicago-Gary-Lake County, Illinois-Indiana (IL-IN) ozone nonattainment area (the Greater Chicago area) to attainment of the 1997 8-hour ozone National Ambient Air Quality Standard (NAAQS or standard) because the request meets the statutory requirements for redesignation under the Clean Air Act (CAA). The Illinois portion of the Greater Chicago area includes Cook, DuPage, Kane, Lake, McHenry, and Will Counties and portions of Grundy (Aux Sable and Goose Lake Townships) and Kendall (Oswego Township) Counties. The Illinois Environmental Protection Agency (IEPA) submitted this request on July 23, 2009, and supplemented its request in a submittal on September 16, 2011. EPA is proposing to approve, as a revision of the Illinois State Implementation Plan (SIP), the State's plan for maintaining the 1997 8-hour ozone standard through 2025 in the Illinois portion of the Greater Chicago area. EPA is proposing to approve 2002 Volatile Organic Compound (VOC) and Nitrogen Oxides (NO
Comments must be received on or before March 12, 2012.
Submit your comments, identified by Docket ID No. EPA–R05–OAR–2009–0666, by one of the following methods:
•
•
•
•
•
Edward Doty, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–6057, or
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying information (subject heading,
2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
4. Describe any assumptions and provide any technical information and/or data you used.
5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns, and suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline identified in the proposed rule.
EPA is proposing to take several related actions. First, EPA is proposing to approve the redesignation of the Illinois portion of the Greater Chicago area from nonattainment to attainment of the 1997 8-hour ozone NAAQS. EPA is also proposing to approve Illinois' ozone maintenance plan for the Illinois portion of the Greater Chicago area as a revision of the Illinois SIP (such approval being one of the CAA criteria for redesignation to attainment). The ozone maintenance plan demonstrates that the Greater Chicago area should remain in attainment of the 1997 8-hour ozone standard through 2025, and specifies the measures that will be taken in the Illinois portion of the Greater Chicago area to assure maintenance of the 1997 8-hour ozone standard in the Greater Chicago area.
EPA is proposing to approve 2002 VOC and NO
Finally, EPA is proposing to approve VOC and NO
EPA has determined that ground-level ozone (O
Ground-level ozone is generally not emitted directly by sources. Rather, emitted NO
Section 107 of the CAA required EPA to designate as nonattainment any area that violated the 1997 8-hour ozone standard. EPA promulgated 8-hour ozone designations and classifications on April 30, 2004 (69 FR 23857). The Greater Chicago area was designated and classified as a moderate nonattainment area for the 1997 8-hour ozone standard. The designation and classification became effective on June 15, 2004.
The CAA contains two sets of provisions, subparts 1 and 2, that address planning and emission control requirements for ozone nonattainment areas. Both of these subparts are found in title I, part D of the CAA; sections 171–179 and sections 181–185, respectively. Subpart 1 contains general, less prescriptive requirements for all nonattainment areas of any pollutant, including ozone, governed by a NAAQS. Subpart 2 contains additional, more specific requirements for certain ozone nonattainment areas, and applies to ozone nonattainment areas classified under section 181 of the CAA.
Under EPA's implementation rule for the 1997 8-hour ozone standard (69 FR 23951, April 30, 2004), an area was classified under subpart 2 based on its 8-hour ozone design value (i.e., the 3-year average annual fourth-highest daily maximum 8-hour average ozone concentration at the worst-case monitoring site in the area or in its immediate downwind environs), if it had a 1-hour ozone design value
40 CFR 50.10 and 40 CFR part 50, appendix I provide that the 8-hour ozone standard is attained when the 3-year averages of the annual fourth-highest daily maximum 8-hour average ozone concentrations at all monitoring sites in the area are less than or equal to 0.08 ppm. The ozone data must be complete over the 3-year period, meeting the data completeness requirements of 40 CFR part 50, appendix I, section 2.3(d).
On March 27, 2008 (73 FR 16436), EPA promulgated a revised 8-hour ozone standard of 0.075 ppm (the 2008 8-hour ozone standard). EPA has not yet promulgated area designations for this standard. The actions addressed in this proposed rule relate only to the 1997 8-hour ozone standard.
On July 23, 2009, IEPA requested that EPA redesignate the Illinois portion of the Greater Chicago area to attainment for the 1997 8-hour ozone standard based on ozone data for the period of 2006–2008. On September 16, 2011, IEPA supplemented the original redesignation request, submitting ozone data for the period of 2008–2010, revising the mobile source emission estimates using EPA's new on-road
On December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) vacated EPA's Phase 1 implementation rule for the 1997 8-hour ozone standard (69 FR 23591, April 30, 2004).
The June 8, 2007, decision reaffirmed the December 22, 2006, decision that EPA had failed to retain four measures required for 1-hour ozone nonattainment areas under the anti-backsliding provisions of the regulations: (1) Part D New Source Review (NSR) requirements based on an area's 1-hour nonattainment classification; (2) section 185 penalty fees for 1-hour severe or extreme ozone nonattainment areas; (3) measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the CAA, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour ozone NAAQS, or for failure to attain the NAAQS; and, (4) certain transportation conformity requirements for Federal actions. The June 8, 2007, decision clarified that the Court's reference to conformity requirements was limited to requiring the continued use of 1-hour MVEBs until 8-hour MVEBs are available for the 8-hour conformity determinations.
This section sets forth EPA's views on the potential effect of the Court's rulings on this proposed redesignation action. For the reasons set forth below in sections III.B.2 and B.3, EPA does not believe that the Court's rulings alter any requirements relevant to this redesignation action so as to preclude redesignation, and do not prevent EPA from proposing and ultimately finalizing this redesignation. EPA believes that the Court's decisions impose no impediment to moving forward with redesignation of this area to attainment, because, even in light of the Court's decisions, redesignation is appropriate under the relevant redesignation provisions of the CAA and longstanding policies regarding redesignation requests.
With respect to the 1997 8-hour ozone standard, the Greater Chicago area is classified as moderate nonattainment under subpart 2, part D of the CAA. The June 8, 2007, decision clarifies that the Court did not vacate the Phase 1 rule's provisions with respect to classifications for areas under subpart 2. The Court's decision, therefore, upholds EPA's classifications for those areas classified under subpart 2 for the 1997 8-hour ozone standard, and all 8-hour ozone requirements for these areas remain in place.
In its June 8, 2007, decision, the Court limited its Phase 1 rule vacatur so as to uphold provisions of EPA's anti-backsliding requirements that were not successfully challenged. Therefore, an area must meet the anti-backsliding requirements which apply by virtue of the area's classification for the 1-hour ozone standard. See 40 CFR 51.900,
The anti-backsliding provisions at 40 CFR 51.905(a)(1) prescribe 1-hour ozone standard requirements that continue to apply after revocation of the 1-hour ozone standard for former 1-hour ozone nonattainment areas. Section 51.905(a)(1)(i) provides that:
The area remains subject to the obligation to adopt and implement the applicable requirements as defined in section 51.900(f), except as provided in paragraph (a)(1)(iii) of this section, and except as provided in paragraph (b) of this section.
Applicable requirements means for an area that the following requirements, to the extent such requirements applied to the area for the area's classification under section 181(a)(1) of the CAA for the 1-hour NAAQS at the time of designation for the 8-hour NAAQS, remain in effect:
(1) Reasonably available control technology (RACT).
(2) Inspection and maintenance programs (I/M).
(3) Major source applicability cut-offs for purposes of RACT.
(4) Rate of Progress (ROP) reductions.
(5) Stage II vapor recovery.
(6) Clean fuels fleet program under section 183(c)(4) of the CAA.
(7) Clean fuels for boilers under section 182(e)(3) of the CAA.
(8) Transportation Control Measures (TCMs) during heavy traffic hours as provided under section 182(e)(4) of the CAA. [Not a requirement for the Illinois portion of the Greater Chicago area.]
(9) Enhanced (ambient) monitoring under section 182(c)(1) of the CAA.
(10) TCMs under section 182(c)(5) of the CAA.
(11) Vehicle miles traveled (VMT) provisions of section 182(d)(1) of the CAA.
(12) NO
(13) Attainment demonstration or alternative as provided under section 51.905(a)(1)(ii).
With regard to part D NSR requirements, EPA has determined that an area being redesignated to attainment need not have an approved nonattainment NSR program, provided that the state demonstrates maintenance of the standard in the area without part D NSR in effect. The rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation dated October 14, 1994, titled, “Part D New Source Requirements for Areas Requesting Redesignation to Attainment.” This policy assumes that the state's Prevention of Significant Deterioration (PSD) program will become effective in the area upon redesignation of the area to attainment. Consequently, EPA concludes that an approved part D NSR program is not an applicable requirement for purposes of redesignation. See the more detailed explanations of this issue in the following rulemakings: Detroit, Michigan (60 FR 12467–12468 (March 7, 1995); Cleveland-Akron-Lorain, Ohio
The conformity portion of the Court's ruling does not impact the redesignation request for the Illinois portion of the Greater Chicago area except to the extent that the Court, in its June 8, 2007, decision clarified that, for those areas with MVEBs for the 1-hour ozone standard, anti-backsliding requires that these MVEBs must be used for 8-hour conformity determinations until replaced by MVEBs for the 8-hour ozone standard. To meet this requirement, conformity determinations in such areas must comply with the applicable requirements of EPA's conformity regulations at 40 CFR part 93. Note below that EPA is proposing to find adequate and approve 8-hour MVEBs established by Illinois' 8-hour ozone maintenance plan for the Illinois portion of the Greater Chicago area.
Severe ozone nonattainment areas must meet the CAA requirement for section 185 source penalty fees. Since the Greater Chicago area was classified as severe nonattainment under the 1-hour ozone standard, the Illinois portion of the Greater Chicago area and the Illinois SIP for this area are subject to this CAA requirement. It should be noted, however, that on December 30, 2008 (73 FR 79652), EPA published a final rule making a determination that the Greater Chicago area had attained the 1-hour ozone standard and confirming that this finding of attainment relieved Illinois (and Indiana) of the obligation to adopt section 185 source penalty fee regulations for this area.
Finally, with regard to the contingency measure requirements under sections 172(c)(9) and 182(c)9) of the CAA, it is noted that these requirements must be addressed in state ozone Reasonable Further Progress (RFP) and attainment demonstration plans. Illinois addressed these requirements in the 1-hour ozone RFP and attainment demonstration plans for the Illinois portion of the Greater Chicago area by adopting and implementing extra VOC and NO
The CAA provides the basic requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA authorizes redesignation provided that: (1) The Administrator determines that the area has attained the applicable NAAQS based on current air quality data; (2) the Administrator has fully approved an applicable state implementation plan for the area under section 110(k) of the CAA; (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable emission reductions resulting from implementation of the applicable SIP, Federal air pollution control regulations, and other permanent and enforceable emission reductions; (4) the Administrator has fully approved a maintenance plan for the area meeting the requirements of section 175A of the CAA; and, (5) the state has met all requirements applicable to the area under section 110 and part D of the CAA.
EPA provided guidance on redesignations in the General Preamble for the Implementation of Title I of the CAA Amendments of 1990 on April 16, 1992 (57 FR 13498), and supplemented this guidance on April 28, 1992 (57 FR 18070).
Two significant policy documents affecting the review of ozone redesignation requests are the following: (1) “Procedures for Processing Requests To Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992 (the September 4, 1992 Calcagni memorandum); and, (2) “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,” Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, May 10, 1995 (the May 10, 1995 Clean Data Policy memorandum). Additional guidance on processing redesignation requests is included in the following documents:
• “Maintenance Plans for Redesignation of Ozone and Carbon Monoxide Nonattainment Areas,” Memorandum from G.T. Helms, Chief Ozone/Carbon Monoxide Programs Branch, April 30, 1992;
• “Contingency Measures for Ozone and Carbon Monoxide (CO) Redesignations,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, June 1, 1992;
• “State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act (Act) Deadlines,” Memorandum from John Calcagni, Director, Air Quality Management Division, October 28, 1992;
• “Technical Support Documents (TSDs) for Redesignation of Ozone and Carbon Monoxide (CO) Nonattainment Areas,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993;
• “State Implementation Plan (SIP) Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On or After November 15, 1992,” Memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation, September 17, 1993;
• “Use of Actual Emissions in Maintenance Demonstrations for Ozone and CO Nonattainment Areas,” Memorandum from D. Kent Berry, Acting Director, Air Quality Management Division, November 30, 1993; and,
• “Part D New Source Review (Part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994.
EPA is proposing to approve Illinois' ozone redesignation request for the Illinois portion of the Greater Chicago area with a determination that the Greater Chicago area has attained the 1997 8-hour ozone standard based on current ozone monitoring data for 2008–2010 and that the State of Illinois and the Illinois portion of this area have met all other applicable redesignation criteria for the 1997 8-hour ozone standard under section 107(d)(3)(E) of the CAA. The basis for EPA's proposed approval of the redesignation request is discussed in more detail as follows.
An area may be considered to be attaining the 1997 8-hour ozone NAAQS if there are no violations of the NAAQS, as determined in accordance with 40 CFR 50.10 and appendix I, based on the most recent 3 consecutive years of complete, quality-assured air quality monitoring data at all ozone monitoring sites in the area and in its nearby downwind environs. To attain this standard, the average of the annual fourth-high daily maximum 8-hour average ozone concentrations measured and recorded at each monitoring site over the most recent 3-year period (the monitoring site's ozone design value) must not exceed 0.084 ppm. The data must be collected and quality-assured in accordance with 40 CFR part 58, and must be recorded in EPA's Air Quality System (AQS).
As part of the July 23, 2009, ozone redesignation request, IEPA summarized the annual fourth-high daily maximum 8-hour ozone concentrations and the 3-year 8-hour ozone design values for the period of 2006–2008 for all ozone monitoring sites in the Greater Chicago area. This ozone data summary also includes ozone concentration data for the Chiwaukee Prairie monitoring site in Wisconsin, an ozone peak downwind impact site for ozone precursor emissions originating in the Greater Chicago area. The September 16, 2011, updated ozone redesignation request from Illinois also summarized the annual fourth-high ozone data for all monitoring sites for the period of 2006–2008.
Table 1 summarizes the monitoring site-specific annual fourth-high daily maximum 8-hour ozone concentrations and 3-year ozone design values for all monitoring sites covered in Illinois' ozone redesignation request for the period of 2006–2010. Note that we have included 2009 and 2010 ozone monitoring data in this summary. These additional data were obtained from EPA's AQS. Since Illinois' July 23, 2009, submittal of the ozone redisignation request, 2009 and 2010 ozone monitoring data have been quality assured and submitted to EPA's AQS.
IEPA notes that the 2006–2008 ozone design values for all monitoring sites are below the 0.084 ppm attainment level. We also note that the 2008–2010 ozone design values for all monitoring sites are below the 0.084 ppm attainment level. Therefore, the ozone monitoring data for the Greater Chicago area and for Chiwaukee Prairie in Wisconsin show attainment of the 1997 8-hour ozone standard.
IEPA commits to continue ozone monitoring at the Illinois monitoring sites in accordance with EPA-approved monitoring plans, as required to confirm maintenance of the 1997 8-hour ozone standard. Should changes in the ozone monitoring system become necessary, IEPA commits to work with the EPA to assure the continued adequacy of the ozone monitoring network in the Illinois portion of the Greater Chicago area.
Based on the available ozone monitoring data, we conclude that the Greater Chicago area has attained the 1997 8-hour ozone standard, and has continued to attain this ozone standard through the most recent three years of quality-assured ozone monitoring data.
In April 2004, the Greater Chicago area was designated as a moderate nonattainment area with a June 15, 2010, attainment deadline for the 1997 8-hour ozone standard. Prior to this, the Greater Chicago area had been designated as a severe nonattainment area with a November 15, 2007,
The September 4, 1992, Calcagni memorandum confirms that a state with an area seeking redesignation to attainment has to fully adopt rules and meet SIP requirements that come due prior to the submittal of a complete redesignation request. See also 60 FR 12459, 12465–66 (March 7, 1995) (redesignation of Detroit-Ann Arbor, Michigan); 68 FR 25424, 25427 (May 12, 2003) (redesignation of St. Louis);
We are proposing to determine that the State of Illinois and the Illinois portion of the Greater Chicago area have met all currently applicable SIP requirements for purposes of redesignation of the Illinois portion of the Greater Chicago area to attainment of the 1997 8-hour ozone standard under section 110 and part D of the CAA. We have determined that the Illinois SIP, with the exception of the 2002 base year VOC and NO
As discussed below in section VII, EPA is proposing to approve Illinois' 2002 base year VOC and NO
In the September 16, 2011, submittal the IEPA submitted VOC emission control regulations and other rule revisions needed to meet the VOC RACT requirements of the CAA.
Recognizing that the base year VOC and NO
Section 110(a) of the CAA contains the general requirements for a SIP. Section 110(a)(2) provides that the SIP implemented by a state must have been adopted by the state after reasonable public notice and hearing, and that, among other things, it must: (1) Include enforceable emission limitations and other control measures, means or techniques necessary to meet the requirements of the CAA; (2) provide for establishment and operation of appropriate devices, methods, systems and procedures necessary to monitor ambient air quality; (3) provide for implementation of a source permit program to regulate the modification and construction of stationary sources within the areas covered by the plan; (4) include provisions for the implementation of part C PSD and part D NSR permit programs; (5) include criteria for stationary source emission control measures, monitoring, and reporting; (6) include provisions for air quality modeling; and, (7) provide for public and local agency participation in planning and emission control rule development.
Section 110(a)(2)(D) of the CAA requires SIPs to contain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, EPA has required certain states to establish programs to address transport of certain air pollutants, e.g., NO
Further, we believe that section 110(a)(2) elements, other than those described above that are not connected with nonattainment plan submissions and that are not linked with an area's attainment status are also not applicable requirements for purposes of redesignation. A state remains subject to these requirements regardless of an area's designation and after the area is redesignated to attainment. We conclude that only the section 110 and part D requirements that are linked with an area's designation and classification are the relevant measures for evaluating this aspect of a redesignation request. This approach is consistent with EPA's policy on applicability of conformity and oxygenated fuel requirements for redesignation purposes, as well as with section 184 ozone transport requirements. See: Reading, Pennsylvania proposed and final rulemakings (61 FR 53174–53176, October 10, 1996 and 62 FR 24826, May
We have reviewed the Illinois SIP and conclude that it meets the general SIP requirements under section 110 of the CAA applicable to the State's request for redesignation. EPA has previously approved provisions of the Illinois SIP addressing section 110 elements under the 1-hour ozone standard (40 CFR 52.720 and 40 CFR 52.722). Further, in a submittal dated December 12, 2007, Illinois confirmed that the State continues to meet the section 110(a)(2) infrastructure requirements for the 8-hour ozone standard. EPA approved elements of this Illinois submittal on July 13, 2011, at 76 FR 41075. The requirements of section 110(a)(2), however, are statewide requirements that are not linked to the 8-hour ozone nonattainment status of the Illinois portion of the Greater Chicago area. Therefore, EPA concludes that these infrastructure elements are not applicable requirements for purposes of review of the State's 8-hour ozone redesignation request.
EPA has determined that, if EPA finalizes the approval of the 2002 base year VOC and NO
As noted above, the Greater Chicago area was classified as moderate nonattainment for the 1997 8-hour ozone standard under subpart 2 of part D of the CAA. Therefore, Illinois must meet the requirements of subpart 1 and subpart 2 of part D of the CAA applicable for purposes of redesignation. The applicable subpart 1 requirements are contained in sections 172(c)(1)–(9) and 176 of the CAA. The applicable subpart 2 requirements are contained in sections 182(a)–(b) (moderate nonattainment area requirements) of the CAA.
A thorough discussion of the requirements contained in section 172 can be found in the General Preamble for Implementation of Title I (57 FR 13498, April 16, 1992).
Section 172(c)(1) requires the state plans for all nonattainment areas to provide for the implementation of Reasonably Available Control Measures (RACM), including RACT at a minimum, as expeditiously as practicable. EPA interprets this requirement to impose a duty on all states with nonattainment areas to consider all available control measures and to adopt and implement such measures as are reasonably available for implementation in the areas as components of the areas' attainment demonstrations (the attainment demonstrations must address RACM). Because attainment of the 1997 8-hour ozone standard has been reached in the Greater Chicago area, no additional RACM measures, beyond RACT, are needed to provide for attainment, and section 172(c)(1) requirements (other than RACT) are no longer considered to be applicable as a prerequisite for approval of Illinois' redesignation request, provided the Greater Chicago area continues to attain the standard until redesignation of the Illinois portion of the area occurs. See 57 FR 13498, 13564 (April 16, 1991), 40 CFR 51.918.
Section 172(c)(2) requires plans for all nonattainment areas to provide for RFP toward attainment of the NAAQS. This requirement is not relevant to the Greater Chicago area for purposes of redesignation because the Greater Chicago area has monitored attainment of the 1997 8-hour ozone standard. General Preamble, 57 FR 13564. In addition, pursuant to EPA's determination of attainment of the 1997 8-hour ozone standard for the Greater Chicago area, the requirement for RFP under section 172(c)(2), as well as the section 172(c)(9) contingency measure requirement, is suspended pursuant to 40 CFR 51.918.
Section 172(c)(3) requires submission and EPA approval of a comprehensive, accurate, and current inventory of actual emissions. This requirement is superseded by the emission inventory requirement in section 182(a)(1) of the CAA. See the discussion of Illinois' emissions inventory for the Illinois portion of the Greater Chicago area below in section VII of this proposed rule.
Section 172(c)(4) requires the identification and quantification of emissions for major new and modified stationary sources to be allowed in an area, and section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources in the nonattainment area. EPA approved the Illinois NSR program
Section 172(c)(6) requires the SIP to contain emission control measures necessary to provide for attainment of the standard. Because attainment has been reached in the Greater Chicago area, no additional emission control measures are needed to provide for attainment of the standard.
Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). As noted above, in
Section 176(c) of the CAA requires States to establish criteria and procedures to ensure that Federally-supported or funded activities, including highway projects, conform to the air quality planning goals of the SIPs. The requirement to determine conformity applies to transportation plans, programs, and projects developed, funded, or approved under title 23 of the U.S. Code and the Federal Transit Act (transportation conformity) as well as to all other Federally-supported or funded projects (general conformity). State conformity SIP revisions must be consistent with Federal conformity regulations relating to consultation, enforcement, and enforceability, which EPA promulgated pursuant to CAA requirements.
EPA thinks that it is reasonable to interpret the conformity SIP requirements as not applying for purposes of evaluating the redesignation request under section 107(d) for two reasons. First, the requirement to submit SIP revisions to comply with the conformity provisions of the CAA continues to apply to areas after redesignation to attainment since such areas would be subject to section 175A maintenance plans. Second, EPA's Federal conformity rules require the performance of conformity analyses in the absence of Federally-approved state rules. Therefore, because areas are subject to the conformity requirements regardless of whether they are redesignated to attainment and, because they must implement conformity under Federal rules if state rules are not yet approved, EPA believes it is reasonable to view these requirements as not applying for purposes of evaluating a redesignation request. See
EPA approved Illinois' general conformity SIP on December 23, 1997 (62 FR 67000). Illinois does not have a Federally-approved transportation conformity SIP. However, Illinois performs conformity analyses pursuant to EPA's Federal conformity rules. Illinois has submitted on-road motor vehicle emission budgets for the Illinois portion of the Greater Chicago area of 117.23 tons VOC per ozone season weekday and 373.52 tons NO
As set forth in the September 4, 1992, and September 17, 1993, EPA guidance memoranda referenced in section IV of this action, only those requirements which came due prior to Illinois' July 23, 2009, submittal of the request for redesignation of the Illinois portion of the Greater Chicago area must be fully approved into the SIP by the time EPA approves the redesignation of the area to attainment. These requirements are discussed below.
As required under the 1-hour ozone standard, Illinois submitted VOC RACT rules covering the second and third source categories above. EPA approved these VOC RACT rules on February 21, 1980 (45 FR 11472), November 21, 1987 (52 FR 45333), and September 9, 1994 (59 FR 46562).
EPA issued CTGs for five source categories in September 2006, three source categories in September 2007, and five source categories in September 2008. States with ozone nonattainment areas classified as moderate and above were required to submit VOC RACT for the source categories covered by these CTGs within one year after the release of each CTG, by September 2007, September 2008, and September 2009, respectively.
Illinois submitted a SIP revision to address all of the new CTGs on July 29, 2010, September 16, 2011, and September 29, 2011. EPA is taking action on these revisions in a separate rulemaking action. Full approval of IEPA's VOC RACT submittals is a prerequisite for approval of the redesignation of the Illinois portion of the Greater Chicago area to attainment of the 1997 8-hour ozone standard.
In its July 29, 2010, submittal, IEPA requested a waiver from the NO
Thus, as discussed above, with EPA approval of the 2002 base year emission inventories and Illinois' VOC RACT submittals, the Illinois portion of the Greater Chicago area will satisfy the requirements applicable for purposes of redesignation under section 110 and part D of the CAA.
If EPA issues a final approval of the 2002 base year emission inventories and the Illinois VOC RACT submittals, EPA will have fully approved the Illinois SIP for the Illinois portion of the Greater Chicago area under section 110(k) of the CAA for all requirements applicable for purposes of redesignation. EPA may rely on prior SIP approvals when rulemaking on a redesignation request (see page 3 of the September 4, 1992, John Calcagni memorandum;
Since the passage of the CAA of 1970, Illinois has adopted and submitted, and EPA has fully approved, SIP provisions addressing various required SIP elements under the 1-hour ozone standard. In this action, EPA is proposing to approve Illinois' 2002 base year emission inventories for the Illinois portion of the Greater Chicago area as meeting the requirement of section 182(a)(1) of the CAA. As noted above, in a separate rule, EPA is proposing action on the Illinois VOC RACT submittals.
No SIP provisions for the Illinois portion of the Greater Chicago area are currently disapproved, conditionally approved, or partially approved.
The anti-backsliding provisions at 40 CFR 51.905(a)(1) prescribe 1-hour ozone NAAQS requirements that continue to apply after the revocation of the 1-hour ozone NAAQS for former 1-hour ozone nonattainment areas. 40 CFR 51.905(a)(1) provides that:
The area remains subject to the obligations to adopt and implement the applicable requirements defined in 40 CFR 51.900(f), except as provided in paragraph (a)(1)(iii) of this section and except as provided in paragraph (b) of this section.
Applicable requirements means that for an area that the following requirements, to the extent such requirements applied to the area for the area's classification under section 181(a)(1) of the CAA for the one-hour NAAQS at the time of designation for the eight-hour NAAQS, remain in effect:
(1) RACT.
(2) I/M.
(3) Major source applicability cut-offs for purposes of RACT.
(4) ROP reductions.
(5) Stage II vapor recovery.
(6) Clean fuels fleet program under section 182(c)(4) of the CAA.
(7) Clean fuels for boilers under section 182(e)(3) of the CAA.
(8) TCMs during heavy traffic hours as provided under section 182(e)(4) of the CAA.
(9) Enhanced (ambient) monitoring under section 182(c)(1) of the CAA.
(10) TCMs under section 182(c)(5) of the CAA.
(11) VMT provisions of section 182(d)(1) of the CAA.
(12) NO
(13) Attainment demonstration or alternative as provided under 40 CFR 51.905(a)(1)(ii).
In addition to applicable requirements listed under 40 CFR 51.900(f) and as discussed above, the state must also comply with the 1-hour anti-backsliding requirements discussed in the Court's decisions in
Pursuant to 40 CFR 51.905(c), the Illinois portion of the Greater Chicago area is subject to the obligations set forth in 40 CFR 51.905(a) and 40 CFR 51.900(f). The following paragraphs address the 1-hour ozone SIP requirements applicable to the Illinois portion of the Greater Chicago area pursuant to these anti-backsliding requirements and those discussed in the Court's decision in
Prior to the revocation of the 1-hour ozone standard on June 15, 2005, the Greater Chicago area was classified as a severe nonattainment area for the 1-hour ozone standard with an attainment deadline of November 15, 2007, and, therefore, was subject to ozone SIP requirements for severe 1-hour ozone nonattainment areas (sections 182(a) through 182(d) of the CAA). In reviewing Illinois' ozone redesignation request for the Illinois portion of the Greater Chicago area, we assessed whether the area satisfied the CAA requirements under the 1-hour ozone standard. We conclude that this area and the State of Illinois have satisfied all anti-backsliding CAA requirements applicable to a severe ozone nonattainment area by complying with all applicable 1-hour ozone SIP requirements. The following discusses how the applicable CAA requirements have been met in the Illinois portion of the Greater Chicago area.
Section 182(a)(2)(A) of the CAA requires RACT corrections. Section 182(b)(2) requires RACT for each category of VOC sources covered by a CTG and for all other major sources of VOC within an ozone nonattainment area. Section 182(d) specifies requirements for severe ozone nonattainment areas, including a major source emissions cut-off of 25 tons per year. Section 182(f), as discussed above in section V.B.2, requires major sources of NO
Under the 1-hour ozone standard, EPA fully approved Illinois' VOC RACT regulations as SIP revisions for CTG sources and for major non-CTG sources through rulemakings on the following dates: February 21, 1980 (45 FR 11472); November 21, 1987 (52 FR 45333); and, September 9, 1994 (59 FR 46562). As noted elsewhere in this proposed rule, on September 16, 2011, Illinois EPA submitted final, adopted VOC emission control regulations covering CTG-source categories not yet addressed and covered by the Illinois ozone SIP. As noted above, on July 29, 2010, Illinois submitted a NO
As noted elsewhere in this proposed rule, we cannot approve Illinois' ozone redesignation request in a final rule until we can also approve all of Illinois' required VOC RACT rules through a final rule. With these new final rule approvals, we can conclude that Illinois has met all RACT requirements under the 1-hour ozone standard, as well as the 1997 8-hour ozone standard.
Through rulemaking on February 22, 1999 (64 FR 8517), EPA fully approved Illinois' vehicle I/M program as meeting the enhanced I/M requirements of section 182(c)(3) of the CAA. Therefore, the Illinois portion of the Greater Chicago area meets the I/M requirements for severe 1-hour ozone nonattainment areas.
We have determined that Illinois' VOC RACT rules for CTG source categories already incorporated into Illinois' ozone SIP and the new CTG-based VOC RACT rules currently being reviewed by the EPA cover source size cut-offs that are well below CTG-recommended major source cut-offs for severe ozone nonattainment areas. In addition, Illinois' major non-CTG source RACT rule covers all sources with the potential to emit VOC at or in excess of 25 tons per year. Therefore, Illinois' RACT rules meet the major source size cut-off requirement of section 182(d) of the CAA.
Sections 182(b)(1)(A) and 182(c)(2)(B) of the CAA establish the ROP requirements for ozone nonattainment areas. EPA has fully approved Illinois' SIP revisions that demonstrate that Illinois achieved ROP in the Illinois portion of the Greater Chicago area. On December 18, 1997, at 62 FR 66279, EPA approved Illinois' plan to achieve a 15 percent reduction in VOC emissions in the Illinois portion of the Greater Chicago area, as required in section 182(b) of the CAA. On December 18, 2000, at 65 FR 78961, EPA approved Illinois' plan to achieve ROP between 1996 and 1999 in this area, meeting the ROP requirements of section 182(c) of the CAA. Finally, on November 13, 2001, at 66 FR 56904, EPA approved Illinois' plan to achieve ROP emission reductions for the period of 1999 through 2007. Therefore, Illinois has met all 1-hour ozone ROP requirements for the Illinois portion of the Greater Chicago area.
On January 12, 1993 (58 FR 3841), EPA approved Illinois' Stage II gasoline vapor recovery rules for the Illinois portion of the Greater Chicago area as required by section 182(b)(3) of the CAA.
On March 19, 1996, at 61 FR 11139, EPA approved Illinois' clean fuel fleet program rules as required by section 182(c)(4) of the CAA. Therefore, the State of Illinois has met this CAA requirement under the 1-hour ozone standard.
Section 182(e)(3) of the CAA, which requires clean fuels for boilers, does not apply to the Greater Chicago area. This CAA requirement only applies to extreme ozone nonattainment areas.
This requirement applies to areas subject to section 182(e)(4) of the CAA, which covers extreme ozone nonattainment areas, and, therefore, does not apply to the Greater Chicago area.
On February 25, 1994, EPA fully approved Illinois' SIP revision establishing an enhanced monitoring program for ozone in the Illinois portion of the Greater Chicago area. Therefore, Illinois has complied with the enhanced monitoring requirement of section 182(c)(1) of the CAA.
Within six months of November 15, 1990, and every three years thereafter, section 182(c)(5) of the CAA requires states to submit a demonstration that current aggregate vehicle mileage, aggregate vehicle emissions, congestion levels, and other relevant traffic-related and vehicle emissions-related factors (collectively “relevant parameters”) are consistent with those used for the area's ozone attainment demonstration for serious and above 1-hour ozone nonattainment areas. If the levels of relevant parameters that are projected in the attainment demonstration are exceeded, a state has 18 months to develop and submit a revision to the SIP to include TCMs to reduce mobile source emissions to levels consistent with the emission levels in the attainment demonstration.
On December 26, 2000, Illinois submitted a SIP revision request consisting of an adopted emissions control strategy and a demonstration that the Greater Chicago area would attain the 1-hour ozone standard by November 15, 2007, the statutory attainment deadline for the area. EPA
In addition, the section 182(c)(5) requirements are also included in those measures subject to EPA's interpretation under EPA's May 10, 1995, Clean Data Policy memorandum. That is, attainment of the 1-hour ozone standard suspends the need for the State to submit additional TCMs under section 182(c)(5) of the CAA. EPA, therefore, concludes that, since the Greater Chicago area is attaining the 1-hour ozone standard,
Section 182(d)(1)(A) of the CAA requires severe ozone nonattainment areas to offset the growth in emissions attributed to growth in VMT; to select and implement TCMs necessary to comply with the periodic emission reduction requirements of sections 182(b) and (c); and, to consider TCMs specified in section 108(f) of the CAA, and implement TCMs as necessary to demonstrate attainment with the ozone standard. Through rulemaking on September 21, 1995, at 60 FR 48896, EPA approved Illinois' TCMs as meeting these requirements of the CAA.
As noted above, EPA approved a NO
As noted above, on November 13, 2001, at 66 FR 56904, EPA fully approved Illinois' 1-hour ozone attainment demonstration SIP revision for the Greater Chicago area. Therefore, Illinois has met the ozone attainment demonstration requirements of sections 182(b)(1)(A) and 182(c)(2)(A) of the CAA for the 1-hour ozone standard.
As noted elsewhere in this proposed rule, EPA believes that a part D NSR program is not an applicable requirement for purposes of evaluating an ozone redesignation request. EPA has determined that states with areas being redesignated to attainment need not have an approved part D NSR program, provided that the states demonstrate maintenance of the standard without part D NSR programs in effect.
Nonetheless, as also discussed above, the Court's decision in
Regardless of how one views the part D NSR requirements of the CAA for purposes of redesignation, we concluded that Illinois has met the NSR requirements with regard to Illinois' ozone redesignation request. The State has an approved NSR program, and the approval status of this NSR program is not relevant to Illinois' ozone redesignation request.
On December 30, 2008 (73 FR 79652), EPA finalized a determination that the Greater Chicago area had attained the 1-hour ozone standard based on 2005–2007 ozone data. Based on the determination of attainment, the section 185 fee requirements no longer apply to the Illinois portion of the Greater Chicago area and to the State of Illinois.
Sections 172(c)(9) and 182(c)(9) of the CAA require the ozone control portion of SIPs to contain measures to be implemented in the event that any milestone (standard attainment date, rate-of-progress emission reduction milestone dates, etc.) in the SIP is missed. EPA approved Illinois' contingency measures for attainment of the 1-hour ozone standard in the Greater Chicago area in our approval of the State's 1-hour ozone attainment plan. See 66 FR 56904, November 13, 2001.
The transportation conformity portion of the court's ruling in
For the above reasons, EPA concludes that Illinois has met all applicable part D SIP requirements for the 1-hour ozone standard as addressed in the court's and EPA's anti-backsliding requirements for the purposes of redesignation of the Illinois portion of the Greater Chicago area to attainment of the 1997 8-hour ozone standard. It is again noted that the State of Illinois has committed in its maintenance plan to maintain the VOC and NO
EPA finds that Illinois has demonstrated that the observed air quality improvement in the Greater Chicago area is due to permanent and enforceable reductions in emissions resulting from the implementation of the Illinois and Indiana SIPs, Federal measures, and other State-adopted measures. As discussed below, Illinois made this demonstration by considering VOC and NO
In making this demonstration, Illinois first determined and documented the changes in VOC and NO
The following is a discussion of the permanent and enforceable emission control measures that have been implemented in the Greater Chicago area and in upwind areas that have resulted in VOC and NO
On March 18, 2009, IEPA submitted an ozone attainment demonstration plan for the Greater Chicago area to EPA. Even though EPA has not taken action on this attainment demonstration as a revision of the Illinois SIP,
• NO
• New Source Performance Standards (NSPS), National Emission Standards for Hazardous Air Pollutants (NESHAPS), and Maximum Available Control Technology (MACT) standards for new sources
• VOC Solvent Category Emission Controls: Aerosol Coatings; Architectural and Industrial Maintenance (AIM) Coatings; and Consumer Solvents
• Enhanced Vehicle Inspection and Maintenance
• Reformulated Gasoline
• Federal Tier 2 Motor Vehicle Emission Standards and Gasoline Sulfur Control Requirements
• Federal On-Highway Heavy-Duty Engine and Vehicle Standards, and Federal Highway Diesel Fuel Sulfur Control Requirements
• Federal Off-Road Mobile Source Emission Control Programs Incorporated into EPA's NONROAD Emissions Model, including EPA's Nonroad Diesel Emissions Control Rule and Evaporative Large Spark Ignition and Recreational Vehicle Standards
• Federal Tier 4 Nonroad Diesel Engine Standards and Diesel Fuel Sulfur Content Restrictions
• Marine Compression-Ignition Engine Standards and Locomotive Engine Standards
• Consent Decrees requiring emission controls for: Dynergy Midwest Generation; Conoco Phillips; CITGO; Exxon-Mobil; Marathon Ashland; and Archer Daniels Midland.
Since the Greater Chicago area was classified as a moderate nonattainment area for the 1997 8-hour ozone standard, Illinois was required to achieve a 15 percent net reduction in VOC emissions in the Illinois portion of the Greater Chicago area between 2002 and 2008 to meet the RFP requirements of CAA section 182(b)(1)(A). These emission reductions were primarily achieved through the implementation of the emission controls listed above for the ozone attainment demonstration plan. These emission controls resulted in a 15.7 percent reduction in VOC emissions in the Illinois portion of the Greater Chicago area between 2002 and 2008, and continued to provide additional VOC emission controls in 2009 and 2010. IEPA estimates that these VOC emission controls resulted in a VOC emission reduction of 210 tons per day between 2002 and 2008 in the Illinois portion of the Greater Chicago area.
RACT is required for all major stationary sources of VOC in the Greater Chicago area. Since the Greater Chicago area was designated as a moderate nonattainment area for ozone under the 1997 8-hour ozone standard, a major stationary source is any source that has a potential to emit VOC equal to or greater than 100 tons per year. EPA defines RACT as the lowest emission limitation that a source is capable of meeting by the application of control technology that is reasonably available considering technological feasibility and economic reasonableness (70 FR 71612, November 29, 2005). The sum of emissions from all emission units at a source facility determines if the source facility is a major source and, therefore, subject to RACT requirements.
Sections 172 and 182(b)(2) of the CAA required implementation of VOC RACT for sources that are subject to CTGs that have been published by the EPA. In addition to CTG source categories, major VOC sources that are not covered by any CTG must also be covered by State RACT regulations.
Illinois has adopted and implemented all required VOC RACT regulations with the exception of source categories covered by CTGs published in 2006, 2007, and 2008. The State has documented that the implemented VOC RACT rules have reduced VOC emissions in the Illinois portion of the Greater Chicago area, contributing to the attainment of the 1997 8-hour ozone standard in the Greater Chicago area.
In addition to VOC emission reductions resulting from the implementation of VOC RACT in the Illinois portion of the Greater Chicago area, IEPA points out that additional VOC emission reductions were achieved in this area as the result of the implementation of MACT and achieving NESHAPS for VOC sources that also emit toxic chemicals, and implementation of NSPS for new VOC sources. Illinois believes that all of these emission control requirements are more stringent than RACT, and, therefore, have resulted in additional VOC
Reductions in VOC and NO
Illinois commits to maintain all of the current emission control measures for VOC and NO
Illinois chose 2008 (the end of the 3-year period in which the Greater Chicago area first attained the 1997 8-hour ozone standard) as the attainment year. IEPA compared 2002 and 2008 VOC and NO
As required by sections 172(c)(3) and 182(a)(1) of the CAA and EPA's Phase 2 ozone implementation rule (November 29, 2005, at 70 FR 71612), IEPA prepared comprehensive VOC and NO
To demonstrate that VOC and NO
For the attainment year, point source emissions were compiled from 2008 annual emission reports submitted to the IEPA, in compliance with the State's point source emission statement reporting regulations, and from EPA's Clean Air Markets Division emissions database for electric utilities. Area sources were projected from the 2002 area source emissions using source type-specific growth factors. On-road mobile source emissions were calculated using EPA's MOVES emissions model and vehicle miles travelled data provided by the Illinois Department of Transportation. Off-road emissions were calculated using EPA's NONROAD emissions model. These emission estimation procedures are consistent with those used to develop the 2002 emission inventories. Biogenic emissions were not included in the 2008 emission inventories (and also not in the 2002 emission inventories) because it was assumed that these emissions are
Table 3 summarizes the 2008 VOC and NO
One must also consider the total VOC and NO
Besides the 2002–2008 reductions in VOC and NO
Section 175A of the CAA sets forth the required elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the maintenance plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the state must submit a revised maintenance plan which demonstrates that attainment of the NAAQS will continue to be maintained for 10 years following the initial 10-year maintenance period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures with a schedule for implementation, as EPA deems necessary, to assure prompt correction of any future standard violations.
The September 4, 1992, John Calcagni memorandum provides additional guidance on the content of maintenance plans. The memorandum clarifies that an ozone maintenance plan should, at minimum, address the following: (1) The attainment VOC and NO
As noted above, 2008 is the final year of the 3-year period (2006–2008) in which all ozone monitors in the Greater Chicago nonattainment area recorded attainment of the 1997 8-hour ozone standard. Therefore, IEPA chose 2008 as an attainment year. The discussion above describes how Illinois derived the 2008 VOC and NO
The maintenance plan, as revised in the State's September 16, 2011, submittal, shows maintenance of the 1997 8-hour ozone standard through 2025 by showing that future (2015, 2020, and 2025) VOC and NO
Point source emissions in the Illinois portion of the Greater Chicago area were projected to 2015, 2020, and 2025 using 2002 and 2008 point source emissions and source category-specific growth factors. Area source emissions were similarly projected to 2015, 2020, and 2025 using the 2002 and 2008 area source emissions and source category-specific growth factors. Area source category emissions, determined using county populations, were projected by
Table 5 compares the VOC and NO
Illinois has successfully demonstrated maintenance of the 1997 8-hour ozone standard between 2008 and 2025. In addition, VOC and NO
IEPA has demonstrated maintenance of the 1997 8-hour ozone standard during the 10-year ozone maintenance period for the Illinois portion of the Greater Chicago area through projected VOC and NO
Section 175A of the CAA requires the maintenance plan to include such contingency measures as EPA deems necessary to assure that the state will promptly correct a violation of the NAAQS that might occur after redesignation. The maintenance plan must identify the contingency measures to be considered for possible adoption, a schedule and procedure for adoption and implementation of the selected contingency measures, and a time limit for action by the state. The state should also identify specific indicators to be used to determine when the contingency measures need to be adopted and implemented. The maintenance plan must include a requirement that the state will implement all measures with respect to control of pollutant(s) that were controlled through the SIP before the redesignation of the area to attainment. See section 175A(d) of the CAA.
As required by section 175A of the CAA, Illinois has adopted a contingency plan to address possible future ozone air quality problems. The contingency plan has two levels of actions/responses depending on whether a violation of the 1997 8-hour ozone standard is only threatened (Level I) or has actually occurred (Level II).
A Level I response will be triggered whenever: (1) An annual (1-year) fourth-high daily maximum 8-hour ozone concentration of 84 parts per billion (ppb) (0.084 ppm) is monitored at any site in the Greater Chicago area; or, (2) the Illinois portion of the Greater Chicago area's NO
A Level II response will be triggered when a violation of the 1997 8-hour ozone standard is monitored at any monitoring site in the Greater Chicago area. If triggered, the IEPA will conduct a thorough study to determine the appropriate emission control measures to address the cause of the ozone standard violation. Analysis will be completed within 6 months of the triggering of the Level II response. Selected emission control measures will be implemented within 18 months of the determination of the ozone standard violation.
Adoption of any additional emission control measures prompted by either of the contingency triggers will be subject to the necessary administrative and legal processes dictated by State law. This process will include publication of public notices, public hearings, and other measures required by Illinois law.
Contingency measures contained in the maintenance plan are those emission controls or other measures that the State chooses to adopt and implement in response to either of the contingency triggers discussed above. Possible contingency measures contained in Illinois' contingency plan include, but are not limited to, the following:
• Illinois' Multi-Pollutant Program for electric generating units.
• NO
• Cross-State Air Pollution Rule.
• Best Available Retrofit Technology.
• Broader geographic applicability of existing measures.
• Tier 2 vehicle standards and low sulfur fuel.
• High-enhanced vehicle I/M.
• Federal railroad/locomotive standards.
• Federal commercial marine vessel engine standards.
• Portable fuel containers (replacement with low leak containers)
• AIM Coatings
• Commercial and consumer products standards
• Aerosol coatings standards
• Other measures to be identified.
In the State's ozone redesignation request and maintenance plan, IEPA has committed to continue to monitor ozone levels in the Illinois portion of the Greater Chicago area according to an EPA-approved monitoring plan. Should changes in the locations of ozone monitors become necessary, IEPA commits to work with EPA to ensure the adequacy of the ozone monitoring network in this area. Illinois remains obligated to continue to quality assure ozone monitoring data in accordance with 40 CFR part 58 and to enter all ozone data into EPA's Air Quality System in accordance with Federal guidelines.
Application of Illinois' ozone maintenance plan for the Illinois portion of the Greater Chicago area and continued attainment of the 1997 8-hour ozone standard in the Greater Chicago area depend, in part, on the State's efforts in tracking of ozone monitoring data to verify continued attainment of the ozone standard. IEPA's plan for verifying continued attainment of the 1997 8-hour ozone standard in the Greater Chicago area (Indiana is similarly tracking continued attainment of the standard in this area) consists of plans to continue ambient ozone monitoring in accordance with the requirements of 40 CFR part 58. IEPA will also continue to develop, review, and submit periodic emission inventories as required by the Federal Consolidated Emissions Reporting Rule (67 FR 19602, June 10, 2002) to track future levels of emissions.
Under the CAA, States are required to submit, at various times, SIP revisions, such as ozone attainment demonstrations and RFP plans, and ozone maintenance plans for applicable areas (for ozone nonattainment areas and for areas seeking redesignation to attainment of the ozone standard). These SIP revisions, including ozone maintenance plans, must create and document MVEBs based on on-road mobile source emissions allocated to highway and transit vehicle use that, together with emissions from other sources in the area, will provide for attainment and maintenance of the ozone NAAQS.
Under 40 CFR part 93, a MVEB for an area seeking a redesignation to attainment is established for the last year of the maintenance plan (MVEBs may also be specified for additional years during the maintenance period). The MVEB serves as a ceiling on emissions that would result from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993, transportation conformity rule (58 FR 62188). The preamble describes how to establish the MVEB in the SIP and how to revise the MVEB if needed.
Under section 176(c) of the CAA, new transportation projects, such as the construction of new highways, must “conform” to (i.e., be consistent with) the SIP. Conformity to the SIP means that transportation activities will not cause new air quality violations, worsen existing air quality violations, or delay timely attainment of the NAAQS. CAA section 176(c)(1). If a transportation plan does not conform, most new transportation projects that would expand the capacity of roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA policy, criteria, and procedures for demonstrating and assuring conformity of such transportation activities to a SIP.
When reviewing SIP revisions containing MVEBs, including attainment strategies, rate-of-progress plans, and maintenance plans, EPA must affirmatively approve or find that the MVEBs are “adequate” for use in determining transportation conformity. Once EPA affirmatively approves or finds the submitted MVEBs to be adequate for transportation conformity purposes, the MVEBs must be used by state and Federal agencies in determining whether proposed transportation projects conform to the SIP as required by section 176(c) of the CAA. EPA's substantive criteria for determining the adequacy of MVEBs are set out in 40 CFR 93.118(e)(4).
EPA's process for determining adequacy of a MVEB consists of three basic steps: (1) Providing public notification of a SIP submission; (2) providing the public the opportunity to comment on the MVEB during a public comment period; and, (3) making a finding of adequacy. The process for determining the adequacy of a submitted MVEB is codified at 40 CFR 93.118.
The ozone maintenance plan submitted by Illinois for the Illinois portion of the Greater Chicago area, as revised in Illinois' September 16, 2011, supplemental submittal, contains new VOC and NO
Illinois' ozone maintenance plan for the Illinois portion of the Greater Chicago area contains VOC and NO
EPA intends to approve 2008 and 2025 MVEBs for the Illinois portion of the Greater Chicago area for transportation conformity purposes in the final rulemaking on Illinois' ozone redesignation request. If EPA approves the MVEBs in the final rulemaking action, the new MVEBs must be used in future transportation conformity determinations for the Illinois portion of the Greater Chicago area. The new MVEBs, if approved in the final rulemaking, will be effective on the date of EPA's final rulemaking in the
The MVEBs are the on-road mobile source VOC and NO
EPA is proposing to approve the MVEBs for 2008 and 2025 as part of Illinois' 1997 8-hour ozone standard maintenance plan. EPA has determined that the MVEB emission targets are consistent with emission control measures in the SIP and that the Greater Chicago area can maintain attainment of the 1997 8-hour ozone NAAQS.
Section 182(a)(1) of the CAA requires States with ozone nonattainment areas to submit a comprehensive, accurate, and current inventory of actual emissions (emissions of VOC and NO
IEPA prepared the point source emissions using source-reported actual 2002 emissions data for VOC and NO
Illinois used several methods to estimate area source activity levels and emissions, including applying local activity levels, apportioning national or statewide activity levels to the local level, and applying per capita emission factors considering county-specific populations. The documentation supplied in the emissions inventory submittal shows how the county-specific emissions were calculated for each area source category.
Non-road mobile source emissions were generated using EPA's NONROAD model. In addition, separate emission estimates were developed for commercial marine vessels, aircraft, and railroads, non-road source categories not included in the NONROAD model.
On-road mobile source emissions contained in the June 21, 2006, submittal were prepared by the IEPA using EPA's MOBILE6 emissions model and daily VMT and speed estimates provided by the Illinois Department of Transportation. Note, however, that the 2002 on-road mobile source emissions documented in the September 16, 2011, submittal were derived using the MOVES mobile source emissions model rather than MOBILE6. MOVES is the currently EPA-accepted model for the determination of on-road mobile source emissions.
Illinois' September 16, 2011, submittal documents 2002 emissions for the Illinois portion of the Greater Chicago area in units of tons per summer day. These emissions were modified relative to those included in the June 21, 2006, submittal, reflecting revised mobile source emissions calculated using MOVES (the mobile source emissions included in the June 21, 2006 submittal were calculated using MOBILE6 mobile source emission factors). The 2002 emissions are summarized in table 2 above in section V.C.
EPA is proposing to approve this 2002 base year emissions inventory, as revised in the September 16, 2011, submittal, as meeting the requirements of section 182(2)(1) of the CAA.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; 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, Intergovernmental relations, Nitrogen dioxide, Ozone, Volatile organic compounds.
Environmental protection, Air pollution control, National parks, Wilderness areas.
National Transportation Safety Board (NTSB or Board).
Notice of proposed rulemaking (NPRM).
The NTSB proposes various amendments to our regulations, which sets forth rules of procedure for the NTSB's review of certificate actions taken by the Federal Aviation Administration (FAA); and rules of procedure concerning applications for fees and expenses under the Equal Access to Justice Act of 1980 (EAJA). The NTSB previously issued an advance notice of proposed rulemaking (ANPRM) and has carefully considered comments submitted in response to the ANPRM concerning these procedural rules. This document contains both a discussion of the comments and explanations for the changes proposed herein.
Send your comments on or before April 9, 2012.
You may send comments identified by Docket ID Number NTSB–GC–2011–0001 using any of the following methods:
For more information on the rulemaking process, see the
David Tochen, General Counsel, (202) 314–6080.
On December 22, 2010, the NTSB published an ANPRM inviting public comments concerning the NTSB procedural rules codified at 49 CFR parts 821 and 826. 75 FR 80452. The NTSB specifically sought comments concerning the standard of review for emergency determinations, discovery and exchanges of information between parties, and electronic filing of documents in air safety enforcement cases before the Board. The NTSB also sought comments concerning outdated rules in 49 CFR part 826, governing claims brought under the EAJA.
The ANPRM included a discussion of the rationale for the Board's procedure for handling certain aspects of emergency cases. The FAA issues emergency orders when it determines the interests of aviation safety require that the order take effect immediately, and, in those cases, the certificate holder may not exercise certificate privileges during the pendency of an appeal with the NTSB. Section 716 of the Aviation Investment and Reform Act for the 21st Century
The ANPRM also sought comments pertaining to other matters. With regard to discovery and the parties' exchanges of information, the ANPRM requested feedback as to whether law judges should routinely issue prehearing orders to govern discovery, and whether a standard sanction should apply if parties fail to comply with a prehearing order or discovery obligation.
The NTSB received 20 relevant comments in response to the ANPRM, which are available at
The comments received primarily focus on the first issue set forth above, concerning the NTSB's review of emergency determinations. Some comments asserted the FAA must utilize its authority to issue immediately effective orders taking action against a certificate, and that the NTSB's current rules for review of the FAA's choice of taking such immediately effective action are appropriate. Other comments, however, maintain the current standard for review of emergency determinations is fundamentally unfair because it requires the NTSB's law judges to assume the truth of the factual allegations the FAA makes in its certificate orders.
The FAA Deputy Chief Counsel submitted comments urging the NTSB to refrain from changing the language of 49 CFR 821.54(e). The submission quotes the NTSB's 2003 adoption of the Final Rule for the provision, in which the NTSB stated as follows:
An emergency determination is not * * * a finding or conclusion that easily lends itself to evidentiary proof. And the right to challenge an emergency determination before the Board should neither be seen as, nor be allowed to become, an opportunity to contest the factual predicate underlying the Administrator's judgment that considerations of aviation safety require an individual or an entity to be deprived of certificate privileges pending adjudication of the charges. The Board's rules provide a contemporaneous, expedited review process designed for that very purpose which must, by statute, be fully completed within 60 days. We are aware of no Congressional desire to supplant that process with the 5-day emergency determination review process under the Board's new rules.
An FAA Aviation Safety Inspector (ASI) also submitted comments. The ASI's submission includes several policy reasons for the current emergency enforcement procedure, and states:
The determining factor is safety, if the operator continues to operate in violation there is a serious problem. The only way [to] prevent an accident and the safety of others on the ground is to prevent the operator from breaking rules. The emergency action is the last resort to stop an operator from continuing to break rules.
Another commenter, who identified himself as part of “DOT/FAA,” submitted comments similar to the previously described comments. The DOT/FAA commenter asserts the FAA does not abuse its authority in taking emergency action against a certificate, and states emergency cases are “discussed at length at all levels of management” within the FAA. The commenter also maintains the FAA only chooses to take emergency action “when public safety is jeopardized” and when the evidence shows such jeopardy.
Another individual commenter also urges the NTSB to maintain the current standard of review for emergency determinations. His concise submission made several points, including: (1) The expedited process for reviewing emergency determinations ensures a certificate holder is not deprived of due process; (2) the certificate holder's continued ability to exercise certificate privileges “must be considered in light of the public's far greater right to expect safety in air transportation;” (3) the NTSB has found the FAA's decision to take emergency action valid in the vast majority of cases; and (4) the NTSB's mission of advancing transportation safety would be “jeopardized if reckless airmen are permitted to exercise the privileges of their certificates without fear of a swift penalty.”
The law firm of Carstens and Cahoon submitted comments stating Congress never intended the language of 49 U.S.C. 44709(e) to provide for a separate evidentiary hearing to determine whether the FAA's action in emergency cases is justified. The commenter states the NTSB should view dispositions of cases via summary judgment
The NTSB received many comments advocating a change to the standard of review for FAA emergency determinations. The Transport Workers Union of America (TWU) posited that the current rules are “too deferential to the [FAA],” and compared reviews of emergency determinations to temporary restraining orders and preliminary injunctions. TWU's comment urges the NTSB to adopt rules similar to those proceedings with the standard of review being whether the FAA can show a likelihood of success on the merits of a case.
The NTSB also received comments from the Air Line Pilots Association, International (ALPA). ALPA's submission stated, “[n]early eight years of unsatisfactory experience under [49 CFR 821.54(e)] demonstrates that the procedure has failed to meet either the spirit or intent of the legislation” under which the NTSB promulgated section 821.54(e). ALPA's submission includes a policy discussion as to how an FAA emergency action against a pilot's airman certificate could cost the pilot
We recommend that the Board substantively amend Rule 54(e) [49 CFR 821.54(e)] to delete the language requiring the Administrator's factual allegations to be assumed to be true. We also recommend that Rule 54(e) be substantively amended to reflect the statutory authority delegated the Board to make an independent determination of whether or not an emergency exists. This may be accomplished by deleting the phrasing in current Rule 54(e) that refers to a review of “whether the Administrator's emergency determination was appropriate under the circumstances,” and changing the language in Rule 54(e) to reflect the language of the statute, [49 U.S.C. 44709(e)(3)] (“[i]f the Board finds that an emergency does not exist * * * the [Administrator's] order shall be stayed”).
The NTSB Bar Association (NTSBBA) submitted comments providing arguments similar to those provided by ALPA, as described above. Initially, NTSBBA urges the NTSB to delete the “assumption of the truth” language of 49 CFR 821.54(e), so the subsection would read, “the [law judge] * * * shall consider whether the Administrator's emergency determination was appropriate under the circumstances, in that it supports a finding that aviation safety would likely be compromised by a stay of the effectiveness of the order during the pendency of the respondent's appeal.” Also with regard to emergency cases, NTSBBA requests the NTSB to require the FAA to provide a copy of the EIR in tandem with its service of an emergency order. The NTSBBA asserts that immediate disclosure of the EIR would promote settlement discussions and result in fewer discovery disputes. Finally, NTSBBA suggests that a certificate holder seeking review of an FAA emergency determination “be allowed to concurrently submit evidence, affidavits and/or declarations in response to the FAA's factual allegations, in order to enable the law judge to properly consider whether the Administrator's emergency determination was appropriate under the circumstances.” Michael L. Dworkin and Associates submitted comments which contained the same language as the NTSBBA submission.
Similarly, the law offices of Hoff and Herran submitted comments asserting the FAA utilizes its authority to issue emergency orders too frequently and in an unfair manner. The commenter urges the NTSB to change the rules applicable to emergency cases, by requiring the FAA to provide a copy of the EIR with every emergency order; and to delete from section 821.54(e) the phrase in which the truth of the allegations set forth in emergency orders is assumed and, instead, require the FAA to prove “by clear and convincing evidence that aviation safety would be likely compromised by proceeding in the normal procedure with the due process safeguards left in play during the pendency of the respondent's appeal.”
The National Business Aviation Association (NBAA) also submitted comments urging the NTSB to delete from section 821.54(e) the provision assuming the truth of the FAA's allegations. The submission states:
NBAA proposes that when reviewing the FAA's determination that an emergency exists, the NTSB ALJ's should not be required to assume that all the facts alleged in the FAA's complaint are true, and should be able to consider facts not alleged in the FAA's complaint that the certificate holder believes are important. One such fact in particular that the NTSB ALJ's should be able to consider, regardless of whether it is mentioned in the FAA's complaint, is the length of time the FAA was aware of the alleged facts on which it bases its determination before the FAA initiated emergency action.
The Aircraft Owners and Pilots Association (AOPA) submitted comments urging the NTSB to delete the standard in section 821.54(e) requiring the law judge to assume the truth of the allegations in the Administrator's order. In setting forth its rationale for this proposed deletion, AOPA asserts many of the same points articulated by the NBAA. AOPA's comments suggests the NTSB's rules provide its law judges with the discretion to determine whether they should assume the truth of the factual allegations contained in the FAA's emergency orders; in this regard, the comment makes an analogy to Federal Rule of Civil Procedure 65, which relates to preliminary injunctions and temporary restraining orders. In addition, AOPA proposes the NTSB amend the rules to provide specific permission for the submission of evidentiary records, “such as affidavits or other records,” in conjunction with petitions for review of FAA emergency determinations. As to the process for reviewing those determinations, AOPA urges the NTSB to adopt a rule providing for further Board review; in particular, AOPA appears to suggest the full Board should either comment on the law judge's determination in every case in which a party requests it do so, or the rule provide for “an accelerated appeal to the full Board” of the law judge's determination.
The National Air Transport Association (NATA) also submitted comments, which do not specifically ask the NTSB to delete the “assuming the truth” language from section 821.54(e), but, instead, suggest requiring law judges to consider all facts contained in “pleadings and evidence” presented by either party. NATA's submission also proposes adding a sentence to section 821.54(e), which would state the law judge should consider, but is not required to follow, the FAA's interpretation of the Federal Aviation Regulations. NATA's comments include many policy arguments, similar to those articulated in other comments, as justification for the suggested changes. The language of NATA's justification suggests the practical effect of its proposed changes would be the same as deleting the “assuming the truth” phrase from section 821.54(e). NATA also believes law judges should consider the amount of time the FAA has taken to issue an emergency order in determining whether the FAA's decision to take emergency action was appropriate. With regard to the amount of information available to certificate holders in emergency cases, NATA encourages the NTSB to issue a rule requiring the FAA to disclose the releasable portions of the EIR when the FAA issues an emergency order.
MMO Legal Services, LLC, (MMO) submitted two separate sets of comments. In one, MMO proposes the NTSB's rules should require the FAA to “allege, under oath, that its investigations have revealed `that there is a good faith belief that one or more conditions represent an imminent threat to the safety of innocent persons or property on the ground, or to pilots or passengers aboard aircraft.' ” MMO opines that, after providing this sworn statement, “FAA should be entitled to a rebuttable presumption the facts it has asserted are true,” in lieu of the
The Helicopter Association International (HAI) also submitted comments urging the NTSB to delete the phrase involving the assumption of the truth of the FAA's allegations in section 821.54(e). HAI's submission states:
It is difficult to see how there can be any “meaningful” review of an FAA emergency determination, if the certificate holder is unable to challenge the facts, or regulatory interpretations included in the FAA complaint or to present facts outside the FAA's complaint that the certificate holder believes are important and pertinent to the FAA revocation action.
Air Trek, Inc., submitted a comment urging the NTSB to take action to prevent the FAA from issuing emergency orders. It cites a recent Board case involving the FAA's emergency revocation of its air carrier certificate. NTSB Order No. EA–5440 (2009) (available at
Similarly, a former FAA ASI submitted comments arguing the NTSB is not an impartial arbiter of certificate cases. The former ASI urges the NTSB to implement a standard without the “assumption of truth” language; however, beyond this, he does not suggest any specific language or standard that should be used to evaluate the propriety of the FAA's emergency determinations.
Air Tahoma submitted comments containing various details regarding the FAA's emergency revocation of its air carrier certificate. Air Tahoma's submission contains attachments of sections entitled “FAA misconduct—corroborating facts,” “revocation report analysis,” “revocation analysis chart,” and “recent FAA operator violations.” Air Tahoma principally contends the FAA is unfair in taking action against some certificate holders, and chooses to utilize its authority to issue emergency orders in an inequitable manner.
Several commenters also addressed electronic filing in their responses to the ANPRM. The text of the ANPRM stated the NTSB is committed to creating an electronic filing system for certificate enforcement cases. All commenters who addressed electronic filing agreed the ability to file documents electronically in air safety enforcement actions would be helpful. The FAA's comments suggested electronic filing would not be an additional burden on
HAI's comments proposed the NTSB implement an electronic filing and docketing system similar to the Federal courts' Public Access to Court Electronic Records (PACER) system. Other comments simply observed that electronic filing would be helpful, and suggested allowing parties the option of filing either electronically or in paper format for a certain period of time, such as 2 years, before requiring all parties to file documents electronically.
The FAA's comments also addressed pre-hearing orders by stating that the Board's rules sufficiently cover the parties' discovery obligations, and asserting that a specific requirement in the rules for each judge to issue a pre-hearing order is unnecessary. The FAA's submission further notes 49 CFR 821.19(d) already contains an adequate enforcement mechanism for failure to comply with discovery, as it provides noncompliance with a law judge's order compelling discovery may result in a negative inference, or other relief the law judge may deem appropriate. The FAA contends that no changes to the rules relating to discovery are necessary, but, if anything, the only change the FAA might support would be limited to an initial exchange of information among the parties. The FAA's submission states, as an example, “in an emergency case, the rule might specify that no later than 5 days after the answer to the complaint is served, the Complainant would provide the Respondent with copies of all non-privileged documents relied on to support the factual allegations in the complaint,” and the certificate holder would be required to provide it with all discoverable documents related to all affirmative defenses upon which the certificate holder expects to rely.
As has been noted above, many comments urge the NTSB to require the FAA to provide a copy of the EIR in tandem with the FAA's issuance of a certificate order, or soon thereafter. AOPA's comments advocate for a rule applicable to both emergency and non-emergency cases that would require the FAA to disclose the releasable portions of the EIR when the FAA issues a notice of proposed certificate action, which precedes the FAA's issuance of a certificate order. AOPA's submission includes its rationale for this suggestion: respondents who are not represented by experienced counsel may not know how to obtain a copy of the releasable portions of the FAA's EIR, and may attempt to obtain such information by filing a Freedom of Information Act request, which is unnecessarily burdensome to both parties.
TWU's comments indicate it favors a requirement that law judges issue prehearing orders, to provide sufficient clarity to parties concerning deadlines and discovery obligations. In discussing potential sanctions for failure to comply with a discovery requirement, TWU
With respect to the EAJA, many commenters suggest the standard for receiving an award of attorney's fees is too difficult to fulfill. The current standard is based upon a collection of several NTSB and Federal court cases, all of which have consistently held that a certificate holder is eligible for fees under the EAJA if the certificate holder prevailed in the underlying certificate action and can show the FAA was not substantially justified in pursuing it. The comments specifically discussing the part 826 EAJA rules did not distinguish the cases that form the basis for this standard, but instead opined that obtaining fees under the EAJA is sufficient to discourage the Administrator from pursuing meritless certificate actions.
A number of commenters ask the NTSB to adopt a bright-line standard in part 826 that a law judge's dismissal of a certificate action after the FAA voluntarily withdraws the complaint should be
MMO's second set of comments specifically suggests how the NTSB should handle cases in which the FAA withdraws a complaint just prior to the hearing. The submission states:
Once the Respondent has made a good faith, honest showing that there is no prima [facie] case, FAA should proceed at its peril if it elects to ignore the Respondent's showing. This will deter a lot of cases which are based on misinformation at the FSDO inspector level. If a Respondent shows FAA Counsel that the underlying facts and conclusions are incorrect, FAA should have a duty to require its inspector(s) to re-evaluate their information to make sure it is correct before forcing the Respondent to defend the case further.
With regard to other proposed amendments to part 826, the FAA's submission suggests changing the rule that contains outdated information as to where a successful applicant should seek payment after the Board issues a decision awarding fees and expenses under the EAJA. The FAA suggests the NTSB change 49 CFR 826.40 to “specify only that the applicant shall comply with all FAA administrative requirements for payment (
The FAA's submission also requests the NTSB make a “technical correction” to subpart B of 49 CFR part 821, in order to clarify the general rules of practice also apply to appeals in cases involving civil penalties. The FAA correctly notes section 821.2 (“Applicability and description of part”) states, “[t]he provisions of this part also govern all proceedings on appeal from an order of the Administrator imposing a civil penalty.” Subpart B, however, does not reference the statutory section under which the FAA may impose a civil penalty, and the FAA, therefore, suggests the NTSB clarify it applies to appeals of civil penalties.
As the NTSB stated in the ANPRM, we are committed to implementing an electronic filing system. The NTSB carefully considered the comments received concerning electronic filing, and determined the least costly and most effective manner of introducing the practice of electronic filing is to propose incremental changes, commencing with the acceptance of filings via electronic mail.
The NTSB proposes the addition of two new sentences at the end of section 821.7(a)(1), to provide parties the option to submit documents electronically. With this addition, section 821.7(a)(1) would read as follows: “(1) Except as provided in paragraph (2), documents are to be filed with the Office of Administrative Law Judges, National Transportation Safety Board, 490 L'Enfant Plaza East, SW., Room 4704, Washington, DC 20594, and addressed to the assigned law judge, if any. If the proceeding has not yet been assigned to a law judge, documents shall be addressed to the Case Manager. Filings may be made by paper (hard copy), including by facsimile at (202) 314–6158, or (except as otherwise provided in Subpart I) by electronic mail at
The NTSB proposes to amend section 821.7(a)(2) as follows: “(2) Subsequent to the filing of a notice of appeal with the Office of Administrative Law Judges from a law judge's initial decision or appealable order, the issuance of a decision permitting an interlocutory appeal, or the expiration of the period within which an appeal from the law judge's initial decision or appealable order may be filed, all documents are to be filed with the Office of General Counsel, National Transportation Safety Board, 490 L'Enfant Plaza East, SW., Room 6401, Washington, DC 20594. Filings may be made by hard copy, including by facsimile at (202) 314–6090, or by electronic mail at
As described above, the NTSB would like to accommodate parties who prefer to submit documents to the NTSB via facsimile and electronic mail. To do so, the NTSB proposes to amend section 821.7(a)(3) as follows: “(3) Except as otherwise provided in Subpart I (governing emergency proceedings), documents shall be filed: By personal delivery, by U.S. Postal Service first-class mail, by overnight delivery service, by facsimile or by electronic mail. Documents filed by electronic mail must be signed and transmitted in a commonly accepted format, such as Adobe Portable Document Format (PDF). ”
The NTSB proposes amending the language of section 821.7(a)(4) to reflect electronic service of documents, as follows: “(4) Documents shall be deemed filed: On the date of personal delivery; on the send date shown on the facsimile or the item of electronic mail; and, for mail delivery service, on the mailing date shown on the certificate of service, on the date shown on the postmark if there is no certificate of service, or on the mailing date shown by other evidence if there is no certificate of service and no postmark. Where the document bears a postmark that cannot reasonably be reconciled with the mailing date shown on the certificate of service, the document will be deemed filed on the date of the postmark.”
The NTSB proposes adding the option for parties to receive documents only by electronic mail to subsection (1) of § 821.8(b) with the following language: “(1) Service of documents by any party on any other party shall be accomplished by any method prescribed in § 821.7(a)(3) for the filing of documents with the Board. A party may waive the applicability of this paragraph, and elect to be served with documents by the other parties to the proceeding solely by electronic mail, without also receiving a hard copy of the original by personal delivery, first-class mail or overnight delivery service, by filing a written document with the Board (with copies to the other parties) expressly stating such a preference.”
The NTSB also proposes to amend this section to provide electronic mail transmission as an option to parties submitting briefs in emergency cases. The NTSB proposes the following addition: “* * * Unless otherwise authorized by the Board, all briefs in connection with appeals governed by this subpart must be filed and served by overnight delivery service, or by facsimile or electronic mail. Aside from the time limits and methods of filing and service specifically mandated by this paragraph, the provisions of § 821.48 shall apply.”
As noted above, many comments we received in response to the ANPRM encouraged the NTSB to change the standard of review for emergency determinations (found at section 821.54(e)), and to allow certificate holders to obtain certain evidence from the FAA and submit their own evidence into the record in support of petitions for review of FAA emergency determinations. We have carefully considered these comments, and acknowledge the FAA maintains the authority to take action affecting a certificate that is immediately effective “[w]hen the Administrator is of the opinion that an emergency exists related to safety in air commerce and requires immediate action.” 49 U.S.C. 46105(c). The NTSB is also mindful of the viewpoints expressed in some comments that the standard of review is unfair and may result in irrevocable harm to certificate holders, and in other comments urging the NTSB to treat reviews of emergency determinations like requests for temporary restraining orders or preliminary injunctions. We do not believe reviews of emergency determinations made by an administrative agency such as the FAA in consideration of the public interest in aviation safety raise questions of a similar nature to civil proceedings in which injunctive relief is sought.
Although the rules provide the facts alleged in the order are assumed as true for the limited, preliminary purpose of determining whether the Administrator's emergency determination was warranted in the interest of aviation safety, the law judges have always considered evidence submissions relevant to the propriety of the emergency determination itself. For example, in a recent case involving revocation of a respondent's pilot and airman medical certificates based on an alleged “refusal” to submit to a random drug test by allegedly leaving the testing facility before the testing process was completed, the respondent submitted evidence showing he had passed a breath test and passed a drug test taken at his own expense and at the same facility within approximately 3 hours of furnishing the insufficient sample. Such evidence was offered to show the respondent did not present an immediate threat to aviation safety related to alcohol or drug use. The law judge considered it favorably in granting the respondent's petition. Nevertheless, the number of comments requesting the rules permit the submission of evidence relevant to the FAA's emergency determination suggests clarification of this point would be useful.
The NTSB therefore proposes including explicit language in the rules permitting the attachment of such evidence to petitions for review of emergency determinations. Finally, we propose adding a requirement for the FAA to provide certificate holders with certain releasable information many commenters believe necessary for a certificate holder to obtain a full understanding of the basis for a certificate action and/or an emergency determination as soon as possible. We note some commenters believe such information will significantly reduce the need for discovery, especially in the compressed time frame environment of emergency cases.
As explained above, the NTSB currently does not intend to remove the “assuming the truth of the allegations” language from section 821.54(e), but proposes including explicit language permitting the respondent to present evidence challenging the emergency nature of the proceedings in the form of affidavits or other records. However, the NTSB reminds parties that a law judge's review of an emergency determination is separate and distinct from a review of the underlying certificate action on the merits. Parties should be mindful of this distinction in submitting evidence under this provision, and should only provide evidence helpful in resolving the issue of whether the FAA's decision to take immediately effective action was appropriate, and avoid presenting evidence that goes to the merits of the underlying certificate action.
The NTSB proposes changing section 821.54(e) as follows: “(e) Disposition. Within 5 days after the Board's receipt of the petition, the chief law judge (or, if the case has been assigned to a law judge other than the chief law judge, the
The NTSB proposes adding a new subsection, replacing current subsection (d), to section 821.55 that will make a complaint subject to dismissal if the FAA, without good cause, failed to provide a certificate holder against whom an emergency order was issued with the releasable portions of its enforcement investigation report (EIR) by the date on which the emergency order was issued. Additionally, subsection (c) will be amended to permit the filing of such a motion to dismiss, and current subsection (d) will be redesignated as subsection (e). The NTSB proposes the following language: “(c) Motion to dismiss and motion for more definite statement. Except as provided in paragraph (d) of this section, in proceedings governed by this subpart, no motion to dismiss the complaint or for a more definite statement of the complaint's allegations shall be made, but the substance thereof may be stated in the respondent's answer. The law judge may permit or require a more definite statement or other amendment to any pleading at the hearing, upon good cause shown and upon just and reasonable terms.
(d) Motion to dismiss for failure to include copy of releasable portion of Enforcement Investigative Report (EIR) with emergency or other immediately effective order. (1) Where the Administrator has failed to include a copy of the releasable portion of the FAA's EIR with an emergency or other immediately effective order, or to provide the respondent with a copy of the releasable portion of the EIR prior to the issuance of such an order, the respondent may move to dismiss the complaint and, unless the Administrator establishes good cause for that failure, the law judge shall dismiss the complaint. The law judge may accept arguments from the parties on the issue of whether a dismissal resulting from failure to provide the releasable portions of the EIR should be deemed to occur with or without prejudice.
(2) The releasable portion of the EIR shall include all information in the EIR, except for the following: (i) information that is privileged; (ii) information that is an internal memorandum, note or writing prepared by a person employed by the FAA or another government agency; (iii) information that would disclose the identity of a confidential source; (iv) information of which applicable law prohibits disclosure; (v) information about which the law judge grants leave to withhold as not relevant to the subject matter of the proceeding or otherwise, for good cause shown; or (vi) sensitive security information, as defined at 49 U.S.C. 40119 and 49 CFR § 15.5.
(3) Nothing in this section shall be interpreted as preventing the Administrator from releasing to the respondent information in addition to that which is contained in the releasable portion of the EIR.”
In rare cases, the Board may determine it necessary to remand an emergency case to a law judge. Therefore, the NTSB proposes changing section 821.57(c) to clarify that both subsections (a) and (b) of section 821.49 apply to emergency cases. The NTSB proposes amending subsection 821.57(c) to read: “(c) Issues on appeal. The provisions of § 821.49 (a) and (b) shall apply in proceedings governed by this subpart.”
Several commenters who responded to the ANPRM suggested the NTSB implement changes with regard to 49 CFR part 826. The NTSB has reviewed part 826 and proposes the changes discussed below, in order to ensure the rules are updated and consistent with 49 CFR part 821.
In order to make 49 CFR part 826 consistent with the terminology used in 49 CFR part 821, the NTSB proposes replacing each reference to “the Agency” with the term “the Administrator.” This will necessitate a minor change to section 826.1, and the NTSB proposes that it read: “The Equal Access to Justice Act, 5 U.S.C. 504 (the Act), provides for the award of attorney fees and other expenses to eligible individuals and entities who are parties to certain administrative proceedings (adversary adjudications) before the National Transportation Safety Board. An eligible party may receive an award when it prevails over the Federal Aviation Administration (FAA), unless the FAA's position in the proceeding was substantially justified or special circumstances make an award unjust. The rules in this part describe the parties eligible for awards and the proceedings that are covered. They also explain how to apply for awards, and the procedures and standards this Board will use to make them. As used hereinafter, the term “Administrator” refers to the Administrator of the FAA.
In addition to the change to section 826.1, the NTSB proposes additional changes to sections 821 and 826 as follows.
As discussed above, the NTSB received several comments in response to the ANPRM concerning the EAJA, which specifically suggested the NTSB's rules should address the status of cases the FAA withdraws immediately prior to hearing. In a recent opinion involving an issue concerning whether the certificate holder was the “prevailing party” when the FAA withdrew its order just before the hearing, the Board stated it would not adopt a bright-line rule to determine when such a withdrawal should result in a dismissal with or without prejudice.
As was stated in the ANPRM, the address listed for sending applications for EAJA award grants in section 826.40 is outdated. The FAA's comment in response to the ANPRM recommends section 826.40 simply state the FAA will pay funds via electronic fund transfer, because this is the only manner in which the FAA now provides funds. The NTSB believes this change will provide sufficient flexibility to allow for the FAA to change its payment process in the future. In each case, the FAA's provision of detailed instructions to each applicant will ensure the applicant has the updated, relevant information needed to obtain payment.
Therefore, the NTSB proposes the following change to section 826.40: “Within 5 days of the Board's service of a final decision granting an award of fees and expenses to an applicant, the Administrator shall transmit to the applicant instructions explaining how the applicant may obtain the award. These instructions may require, but are not limited to, the submission of the following information to the Administrator: a statement that the applicant will not seek review of the decision in the United States courts, bank routing numbers to which the Administrator may transmit payment, and the applicant's tax identification or Social Security number. The Administrator will pay the applicant the amount awarded within 60 days of receiving the necessary information from the applicant, unless judicial review of the award or of the underlying decision of the adversary adjudication has been sought by the applicant or any other party to the proceeding.”
In undertaking a detailed review of both parts 821 and 826, the NTSB has identified several sections of the rules we believe should be updated. Many of the provisions in question are either no longer practical or simply out-of-date. Some contain ambiguities the NTSB has recently identified in encountering unique situations. Therefore, this NPRM proposes to amend those sections of the rules to resolve the identified issues. Below are summaries of the proposed changes.
The NTSB proposes to delete the phrase, “in person,” because some matters, including rulings on motions and, where the parties consent, hearings (or sessions thereof), are conducted telephonically. The NTSB proposes deleting the phrase, “in person,” to clarify the rule and make it consistent with such case practice. With this change, section 821.6(b) would read, “(b) Any person appearing in any proceeding governed by this part may be accompanied, represented and advised, and may be examined by, his or her own counsel or representative.”
In a recent case, the NTSB granted reconsideration of a previous order due to a misunderstanding regarding which attorney was representing the respondent.
The NTSB proposes deleting the word “other” immediately preceding the word “representative” in current § 821.7(e). This word is unnecessary. With this change, § 821.7(e) will read as follows: “(e) Subscription. The original of every document filed shall be signed by the filing party, or by that party's attorney or representative.”
Consistent with the change to section 821.6(d) suggested above, the NTSB proposes adding the phrase “and any subsequent document advising the Board of any representation or change in representation of a party pursuant to § 821.6(d)” to section 821.7(f). With this change, section 821.7(f) would read, “(f) Designation of person to receive service. The initial document filed by a party in a proceeding governed by this part, and any subsequent document advising the Board of any representation or change in representation of a party that is filed pursuant to § 821.6(d), shall show on the first page the name, address and telephone number of the person or persons who may be served with documents on that party's behalf.”
The NTSB proposes adding the word “simultaneously” to subsection (a) of § 821.8, to state as follows: “(a) Who must be served. (1) Copies of all documents filed with the Board must be simultaneously served on (
The NTSB proposes deleting parts of this section to ensure consistency with the changes proposed to § 821.7(f). We propose § 821.8(c) should include only the following language: “(c) Where service shall be made. Except for personal service, parties shall be served at the address appearing in the official record, which the Board must receive under §§ 821.6(d) and 821.7(f). In the case of an agent designated by an air carrier under 49 U.S.C. 46103, service may be accomplished only at the agent's office or usual place of residence.”
The NTSB proposes adding a subsection (3) to § 821.8(d), to ensure consistency with other sections in part 821 that will provide for transmission of documents via electronic mail. With the new subsection (3), § 821.8(d) will read as follows: (d) Presumption of service. There shall be a presumption of lawful service:
(1) When receipt has been acknowledged by a person who customarily or in the ordinary course of business receives mail at the residence or principal place of business of the party or of the person designated under § 821.7(f);
(2) When a properly addressed envelope, sent to the most current address in the official record, by regular, registered or certified mail, has been returned as unclaimed or refused; or
(3) When a document is transmitted by facsimile or electronic mail and there is evidence to confirm its successful transmission to the intended recipient.
In addition to initial decisions, law judges may dispose of cases by dispositional order, where appropriate. Therefore, the NTSB proposes adding the phrase “and dispositional orders” to this subsection, to state as follows: “(b) Powers of law judge. Law judges shall have the following powers: * * * (10) To issue initial decisions and dispositional orders.”
Recently, the NTSB has received an increased number of petitions for reconsideration. Most of these petitions do not contain “new matter” under the rule, but instead challenge the Board's legal reasoning and may contain legal arguments the parties could have made in their appeal briefs. The NTSB proposes clearly addressing this issue by adding the following to the end of Section 821.50(c): “To the extent the petition is not based upon new matter, the Board will not consider arguments that could have been made in the appeal or reply briefs received prior to the Board's decision.”
The NTSB recently encountered a situation in which the respondent filed a motion for a stay pending judicial review on the 29th day following the date of service of the Board's decision, and this circumstance highlighted the ambiguity of the current language in this subsection. To ensure the deadline is clear, the NTSB proposes amending this subsection to give the respondent 20 days to file a motion for a stay, and the FAA 2 days to reply to the motion, as follows: “(b) Stay pending judicial review. No request for a stay pending judicial review will be entertained unless it is served on the Board within 20 days after the date of service of the Board's order. The Administrator may, within 2 days after the date of service of such a motion, file a reply thereto.”
The changes proposed below do not include any changes indicating the rules of subpart B apply to civil penalty actions. The NTSB declines to propose any such change because it believes that the language of section 821.2 sufficiently indicates that 49 CFR part 821 applies to civil penalty cases. In addition, we note that, in the definitions section of subpart A (section 821.1), the term “complaint” is defined as “an order of the Administrator * * * from which an appeal to the Board has been taken pursuant to sections 49 U.S.C. 44106, 44709, 46301.” This last cited provision, section 46301 of title 49, United States Code, concerns civil penalties for violations of various provisions in subtitle VII (Aviation Programs) of that title.
This notice of proposed rulemaking is not a significant regulatory action under Executive Order 12866. Therefore, Executive Order 12866 does not require a Regulatory Assessment. As such, the Office of Management and Budget (OMB) has not reviewed this proposed rule under Executive Order 12866. In addition, on July 11, 2011, the President issued Executive Order 13579, “Regulation and Independent Regulatory Agencies,” 76 FR 41587, July 14, 2011. Section 2(a) of the Executive Order states:
Independent regulatory agencies “should consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.”
Consistent with Executive Order 13579, the NTSB's proposed amendments to 49 CFR parts 821 and 826 reflect its judgment that these rules should be updated and streamlined.
This rule does not require an analysis under the Unfunded Mandates Reform Act, 2 United States Code (U.S.C.) 1501–1571, or the National Environmental Policy Act, 42 U.S.C. 4321–4347.
The NTSB has analyzed this NPRM in accordance with the principles and criteria contained in Executive Order 13132. Any rulemaking proposal resulting from this notice would not propose any regulations that would: (1) Have a substantial direct effect on the states, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of government; (2) impose substantial direct compliance costs on state and local governments; or (3) preempt state law. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
The Regulatory Flexibility Act (5 U.S.C. 601
This NPRM also complies with all applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. In addition, the NTSB has evaluated this rule under: Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights; Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks; Executive Order 13175, Consultation and Coordination with Indian Tribal Governments; Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use; and the National Technology Transfer and Advancement Act, 15 U.S.C. 272 note. The NTSB has concluded that this rule does not contravene any of the requirements set forth in these Executive Orders or statutes, nor does this rule prompt further consideration with regard to such requirements.
Administrative practice and procedure, Airmen, Aviation safety.
Claims, Equal access to justice, Lawyers.
For the reasons discussed in the preamble, the NTSB proposes to amend 49 CFR parts 821 and 826 as follows:
1. The authority citation for 49 CFR part 821 continues read as follows:
49 U.S.C. 1101–1155, 44701–44723, 46301, unless otherwise noted.
2. In § 821.6, revise paragraphs (b) and (d) to read as follows:
(b) Any person appearing in any proceeding governed by this part may be accompanied, represented and advised, and may be examined by, his or her own counsel or representative.
(d) Any party to a proceeding who is represented by an attorney or representative shall, in a separate written document, notify the Board of the name, address and telephone number of that attorney or representative. In the event of a change in representation or a withdrawal of representation, the party shall immediately, in a separate written document, notify the Board (in the manner provided in § 821.7) and the other parties to the proceeding (pursuant to § 821.8), before the new attorney or representative may participate in the proceeding in any way. Parties, and their attorneys and representatives, must notify the Board immediately of any changes in their contact information.
3. In § 821.7, revise paragraphs (a), (e) and (f) to read as follows:
(a)
(1) Except as provided in paragraph (a)(2) of this section, documents are to be filed with the Office of Administrative Law Judges, National Transportation Safety Board, 490 L'Enfant Plaza East SW., Room 4704, Washington, DC 20594, and addressed to the assigned law judge, if any. If the proceeding has not yet been assigned to a law judge, documents shall be addressed to the Case Manager. Filings may be made by paper (hard copy), including by facsimile at (202) 314–6158, or (except as otherwise provided in Subpart I) by electronic mail at
(2) Subsequent to the filing of a notice of appeal with the Office of Administrative Law Judges from a law judge's initial decision or appealable order, the issuance of a decision permitting an interlocutory appeal, or the expiration of the period within which an appeal from the law judge's initial decision or appealable order may be filed, all documents are to be filed with the Office of General Counsel, National Transportation Safety Board, 490 L'Enfant Plaza East SW., Room 6401, Washington, DC 20594. Filings may be made by hard copy, including by facsimile at (202) 314–6090, or by electronic mail at
(3) Except as otherwise provided in Subpart I (governing emergency proceedings), documents shall be filed: By personal delivery, by U.S. Postal Service first-class mail, by overnight delivery service, by facsimile or by electronic mail. Documents filed by electronic mail must be signed and transmitted in a commonly accepted format, such as Adobe Portable Document Format (PDF).
(4) Documents shall be deemed filed on the date of personal delivery; on the send date shown on the facsimile or the item of electronic mail; and, for mail delivery service, on the mailing date shown on the certificate of service, on the date shown on the postmark if there is no certificate of service, or on the mailing date shown by other evidence if there is no certificate of service and no postmark. Where the document bears a postmark that cannot reasonably be reconciled with the mailing date shown on the certificate of service, the document will be deemed filed on the date of the postmark.
(e)
(f)
4. In § 821.8, revise paragraphs (a), (b)(1), (c), (d) and (e) to read as follows:
(a)
(1) Copies of all documents filed with the Board must be simultaneously served on (
Dated at __, this __ day of ___, 20_
(2) Service shall be made on the person designated in accordance with § 821.7(f) to receive service. If no such person has been designated, service shall be made directly on the party.
(b)
(1) Service of documents by any party on any other party shall be accomplished by any method prescribed in § 821.7(a)(3) for the filing of documents with the Board. A party may waive the applicability of this paragraph, and elect to be served with documents by the other parties to the proceeding solely by electronic mail, without also receiving a hard copy of the original by personal delivery, first-class mail or overnight delivery service, by filing a written document with the Board (with copies to the other parties) expressly stating such a preference.
(c)
(d)
(1) When receipt has been acknowledged by a person who customarily or in the ordinary course of business receives mail at the residence or principal place of business of the party or of the person designated under § 821.7(f);
(2) When a properly addressed envelope, sent to the most current address in the official record, by regular, registered or certified mail, has been returned as unclaimed or refused; or
(3) When a document is transmitted by facsimile or electronic mail and there is evidence to confirm its successful transmission to the intended recipient.
(e)
5.In § 821.12, revise paragraph (b) to read as follows:
(b)
6. In § 821.35, revise paragraph (b)(10) to read as follows:
(b) * * *
(10) To issue initial decisions and dispositional orders.
7. In § 821.50, revise paragraph (c) to read as follows:
(c)
8. In § 821.54, revise paragraph (e) to read as follows:
(e)
9. In § 821.55, revise paragraphs (c) and (d) to read as follows:
(c)
(d)
(1) Where the Administrator has failed to include a copy of the releasable portion of the FAA's EIR with an emergency or other immediately effective order, or to provide the respondent with a copy of the releasable portion of the EIR prior to the issuance of such an order, the respondent may move to dismiss the complaint and, unless the Administrator establishes good cause for that failure, the law judge shall dismiss the complaint. The law judge may accept arguments from the parties on the issue of whether a dismissal resulting from failure to provide the releasable portions of the EIR should be deemed to occur with or without prejudice.
(2) The releasable portion of the EIR shall include all information in the EIR, except for the following:
(i) Information that is privileged;
(ii) Information that is an internal memorandum, note or writing prepared by a person employed by the FAA or another government agency;
(iii) Information that would disclose the identity of a confidential source;
(iv) Information of which applicable law prohibits disclosure;
(v) Information about which the law judge grants leave to withhold as not relevant to the subject matter of the proceeding or otherwise, for good cause shown; or
(vi) Sensitive security information, as defined at 49 U.S.C. 40119 and 49 CFR 15.5.
(3) Nothing in this section shall be interpreted as preventing the Administrator from releasing to the respondent information in addition to that which is contained in the releasable portion of the EIR.
10. In § 821.57, revise paragraphs (b) and (c) to read as follows:
(b)
(c)
11. In § 821.64, revise paragraph (b) to read as follows:
(b)
12. The authority citation for 49 CFR part 826 continues read as follows:
Section 203(a)(1) Pub. L. 99–80, 99 Stat. 186 (5 U.S.C. 504).
13. Section 826.1 is revised to read as follows:
The Equal Access to Justice Act, 5 U.S.C. 504 (the Act), provides for the award of attorney fees and other expenses to eligible individuals and entities who are parties to certain administrative proceedings (adversary adjudications) before the National Transportation Safety Board. An eligible party may receive an award when it prevails over the Federal Aviation Administration (FAA), unless the FAA's position in the proceeding was substantially justified or special circumstances make an award unjust. The rules in this part describe the parties eligible for awards and the proceedings that are covered. They also explain how to apply for awards, and the procedures and standards this Board will use to make them. As used hereinafter, the term “Administrator” refers to the Administrator of the FAA.
14. Section 826.40 is revised to read as follows:
Within 5 days of the Board's service of a final decision granting an award of fees and expenses to an applicant, the Administrator shall transmit to the applicant instructions explaining how the applicant may obtain the award. These instructions may require, but are not limited to, the submission of the following information to the Administrator: A statement that the applicant will not seek review of the decision in the United States courts, bank routing numbers to which the Administrator may transmit payment, and the applicant's tax identification or Social Security number. The Administrator will pay the applicant the amount awarded within 60 days of receiving the necessary information from the applicant, unless judicial review of the award or of the underlying decision of the adversary adjudication has been sought by the applicant or any other party to the proceeding.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; extension of comment period.
On January 6, 2012, the NMFS published its proposed regulations to govern the take of marine mammals, by harassment, incidental to conducting operations of Surveillance Towed Array Sensor System (SURTASS) Low Frequency Active (LFA) sonar in areas of the world's oceans (with the exception of Arctic and Antarctic waters and certain geographic restrictions), from August 16, 2012, through August 15, 2017.
The
NMFS has extended the public comment period for this action from February 6, 2012, to February 21, 2012. NMFS must receive written comments and information no later than February 21, 2012.
You may submit comments, identified by 0648–BB14, by any one of the following methods:
•
• Hand delivery or mailing of paper, disk, or CD–ROM comments should be addressed to P. Michael Payne, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910.
NMFS will accept anonymous comments (enter N/A in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. To help NMFS process and review comments more efficiently, please use only one method to submit comments.
Jeannine Cody, Office of Protected Resources, NMFS, (301) 427–8401.
NMFS refers the reader to the January 6, 2012,
Agricultural Marketing Service, USDA.
Notice.
The Agricultural Marketing Service (AMS), of the Department of Agriculture (USDA), is soliciting comments on the proposed revision to the United States Standards for Grades of Cauliflower. AMS is reviewing all fresh fruit and vegetable grade standards for usefulness in serving the industry. As a result, AMS has noted the current U.S. grade standards do not have provisions for grading purple, orange or green cauliflower. The proposed revision will amend the color requirement for curds to allow all colors of cauliflower to be certified to a U.S. grade. In addition, AMS proposes to permit mixed color packs, heads less than 4 inches in diameter, and to remove the unclassified section.
Comments must be received by April 9, 2012.
Interested persons are invited to submit written comments to the Standardization and Training Branch, Fresh Products Division, Fruit and Vegetable Programs, Agricultural Marketing Service, U.S. Department of Agriculture, National Training and Development Center, Riverside Business Park, 100 Riverside Parkway, Suite 101, Fredericksburg, VA 22406: Fax (540) 361–1199, or on the Web at:
Dr. Carl Newell, at the above address or call (540) 361–1120.
Section 203(c) of the Agricultural Marketing Act of 1946 (7 U.S.C. 1621–1627), as amended, directs and authorizes the Secretary of Agriculture “to develop and improve standards of quality, condition, quantity, grade and packaging and recommend and demonstrate such standards in order to encourage uniformity and consistency in commercial practices.” AMS is committed to carrying out this authority in a manner that facilitates the marketing of agricultural commodities and makes copies of official standards available upon request. The United States Standards for Grades of Fruits and Vegetables not connected with Federal Marketing Orders or U.S. Import Requirements, no longer appear in the Code of Federal Regulations, but are maintained by USDA, AMS, Fruit and Vegetable Programs.
AMS is proposing to revise the voluntary United States Standards for Grades of Cauliflower using procedures that appear in Part 36, Title 7 of the Code of Federal Regulations (7 CFR part 36).
AMS is reviewing all fresh fruit and vegetable grade standards for usefulness in serving the industry. As a result, AMS has identified the U.S. Standards for Grades of Cauliflower color requirement for possible updating.
Different colors of cauliflower, such as purple, green, and orange, are currently being packed, including specialty packs consisting of mixed colors. The U.S. grade standards presently require curds to be white, creamy white, or cream color; they do not have provisions for grading other colors of cauliflower. AMS proposes to amend U.S. No. 1 color provisions by adding “unless otherwise specified;” to the basic requirement for color. This revision will also affect the U.S. Commercial grade. AMS believes that permitting other colors and mixed color packs will facilitate the marketing of cauliflower by providing the industry with more flexibility that reflects current marketing practices and consumer demand.
In addition, California produce growers, packers, and shippers requested that the USDA provide more flexibility regarding the minimum size. Currently, curds are required to be not less than 4 inches in diameter. In order to allow for smaller sized heads of cauliflower, AMS proposes to amend provisions concerning U.S. No. 1 size by adding “unless otherwise specified” to the basic requirement for size. This revision will also affect the U.S. Commercial grade.
AMS also proposes to eliminate the “Unclassified” category from the standards. The unclassified section is being removed from all standards when they are revised. This category is not a grade and only serves to show that no grade has been applied to the lot. It is no longer considered necessary.
This notice provides for a 60 day comment period for interested parties to comment on the proposed revisions in the standards.
7 U.S.C. 1621–1627.
Agricultural Marketing Service, USDA.
Notice.
The Agricultural Marketing Service (AMS), prior to undertaking research and other work associated with revising official grade standards, is soliciting comments on the possible revisions to the United States Standards for Grades of Okra. AMS has been reviewing the Fresh Fruit and Vegetable grade standards for usefulness in serving the industry. As a result, AMS has identified the United States
Comments must be received by April 9, 2012.
Interested persons are invited to submit written comments to the Standardization and Training Branch, Fresh Products Division, Fruit and Vegetable Programs, Agricultural Marketing Service, U.S. Department of Agriculture, National Training and Development Center, Riverside Business Park, 100 Riverside Parkway, Suite 101, Fredericksburg, VA 22406; Fax (540) 361–1199, or on the Web at:
Contact Dr. Carl Newell, Standardization and Training Branch, Fresh Products Division, (540) 361–1120. The United States Standards for Grades of Okra are available by accessing the Fresh Products Branch Web site at:
Section 203(c) of the Agricultural Marketing Act of 1946 (7 U.S.C. 1621–1627), as amended, directs and authorizes the Secretary of Agriculture “to develop and improve standards of quality, condition, quantity, grade and packaging and recommend and demonstrate such standards in order to encourage uniformity and consistency in commercial practices.” AMS is committed to carrying out this authority in a manner that facilitates the marketing of agricultural commodities. AMS makes copies of official standards available upon request. The United States Standards for Grades of Fruits and Vegetables not connected with Federal Marketing Orders or U.S. Import Requirements no longer appear in the Code of Federal Regulations, but are maintained by USDA, AMS, Fruit and Vegetable Programs.
AMS is revising the United States Standards for Grades of Okra using the procedures that appear in Part 36, Title 7 of the Code of Federal Regulations (7 CFR Part 36). These standards were last revised December 18, 1928.
This notice provides for a 60 day comment period for interested parties to comment on the proposed revisions in the standard. Should AMS go forward with the revisions, it will develop the proposed revised standards that will be published in the
7 U.S.C. 1621–1627.
Agricultural Marketing Service, USDA.
Notice and request for comments.
The Agricultural Marketing Service (AMS) of the Department of Agriculture (USDA) is soliciting comments on the proposed revision to the United States Standards for Grades of Grapefruit Juice. The proposal includes changes to the grade standards for grapefruit juice to remove the parameters for maximum “free and suspended pulp” to account for advances in industry processing technology.
Comments must be submitted on or before April 9, 2012.
Interested persons are invited to submit written comments on the Internet at
Please be advised that all comments submitted in response to this notice will be included in the record and will be made available to the public on the Internet via
Brian E. Griffin, Inspection and Standardization Branch, Processed Products Division, Agricultural Marketing Service, U.S. Department of Agriculture, telephone (202) 720–5021; or fax (202) 690–1527.
Section 203(c) of the Agricultural Marketing Act of 1946, as amended, directs and authorizes the Secretary of Agriculture “to develop and improve standards of quality, condition, quantity, grade, and packaging, and recommend and demonstrate such standards in order to encourage uniformity and consistency in commercial practices.”
AMS is committed to carrying out this authority in a manner that facilitates the marketing of agricultural commodities and makes copies of official grade standards available upon request. Those voluntary U.S. standards for grades of fruits and vegetables no longer appear in the Code of Federal Regulations, 7 CFR Part 52, but are maintained by USDA, AMS, Fruit and Vegetable Programs. AMS is revising the U.S. Standards for Grades of Grapefruit Juice using the procedures that appear in part 36 of Title 7 of the Code of Federal Regulations (7 CFR part 36).
AMS received a petition from the Florida Citrus Processors Association, an association of citrus producers, requesting revisions to the U.S. Standards for Grades of Grapefruit Juice. The petitioners requested the removal of the maximum limit for “free and suspended pulp” (referred to in the industry as “sinking pulp”) from the U.S. grade standards for all forms of grapefruit juice.
The grade standards, effective since September 12, 1983, provided that grapefruit juice from concentrate, grapefruit juice, and frozen concentrated grapefruit juice establish limits for maximum free and suspended pulp as follows: “Grade A”—10 percent by volume, “Grade B”—15 percent by volume. Concentrated grapefruit juice for manufacturing requirements for maximum free and suspended pulp are as follows: “Grade A”—10 percent by volume, and “Grade B”—12 percent by volume.
The petitioners believe that, with respect to maximum values for “free and suspended pulp”, the existing U.S. Standards for Grades of Grapefruit Juice do not take into account modern extraction and finishing technologies, nor are they supported by evidence of a correlation between these criteria and acceptable flavor. The petitioners also believe that removing the “free and suspended pulp” values from the grade standards would allow processors to process the entire grapefruit crop without resorting to expensive technologies that increase the cost of juice with no concomitant benefit. More mature grapefruit tends to be sweeter, but when juiced tends to cause the product to exceed maximum free and suspended pulp values.
Processing technologies used in the early 1940's were considerably different than the technologies in place today. In the developmental stages of the citrus industry, the amount of sinking pulp was an indication of excessive pressures used in extraction and finishing of citrus juice, resulting in bitter flavor. It was noted that sinking pulp levels could be correlated to bitter flavor. The bitter flavors are due to the naturally occurring naringin and limonin components found in grapefruit juice. Although bitterness is an inherent contributor to what we know as “grapefruit flavor,” an excessive amount of bitterness can be objectionable to some consumers.
Current industry practices have shown us that sinking pulp levels can be greatly influenced by modern processing techniques, which eliminate the correlation between sinking pulp and excessive bitterness.
The petitioners submitted research data covering a six season period which illustrates levels of sinking pulp vs. naringin, and levels of sinking pulp vs. limonin using variations in extractor settings. The petitioners also submitted data on a sensory evaluation performed by the University of Florida on consumer acceptability of grapefruit juice with two free and suspended pulp levels. The petitioner's research data supports the premise that modern extraction and finishing technologies produce a product where there is no correlation between grapefruit juice flavor components associated with bitter and off flavor,
Prior to undertaking research and other work associated with revising the grade standards, AMS sought public comments on the petition (see 76 FR 51343).
Two comments were received regarding this petition. One comment was from a trade association with international membership; and one comment was from a trade association in the U.S. representing over 8,000 citrus growers. Both comments were in support of the petition to remove the maximum limit for “free and suspended pulp” from the U.S. Standards for Grades of Grapefruit Juice.
AMS is soliciting comments on the proposed revision of the U.S. Standards for Grades of Grapefruit Juice. Further details are provided in the petition and are available from Brian E. Griffin at the previously mentioned address in the
7 U.S.C. 1621–1627.
Agricultural Marketing Service, USDA.
Notice.
The Agricultural Marketing Service (AMS), of the Department of Agriculture (USDA), is soliciting comments on the proposed revision to the United States Standards for Grades of Eggplant. AMS is reviewing the fresh fruit and vegetable grade standards for usefulness in serving the industry. As a result, AMS has noted the current grade standards do not have provisions for mixed or specialty packs. Therefore, AMS is proposing to amend the similar varietal characteristic requirement in the U.S. Fancy and No. 1 grades to allow mixed colors and/or types of eggplant when designated as a mixed or specialty pack. In addition, AMS proposes to remove the unclassified section.
Comments must be received by April 9, 2012.
Interested persons are invited to submit written comments to the Standardization and Training Branch, Fresh Products Division, Fruit and Vegetable Programs, Agricultural Marketing Service, U.S. Department of Agriculture, National Training and Development Center, Riverside Business Park, 100 Riverside Parkway, Suite 101, Fredericksburg, VA 22406: Fax (540) 361–1199, or on the Web at:
Dr. Carl Newell, at the above address or call (540) 361–1120.
Section 203(c) of the Agricultural Marketing Act of 1946 (7 U.S.C. 1621–1627), as amended, directs and authorizes the Secretary of Agriculture “to develop and improve standards of quality, condition, quantity, grade and packaging and recommend and demonstrate such standards in order to encourage uniformity and consistency in commercial practices.” AMS is committed to carrying out this authority in a manner that facilitates the marketing of agricultural commodities and makes copies of official standards available upon request. The United States Standards for Grades of Fruits and Vegetables not connected with Federal Marketing Orders or U.S. Import Requirements, no longer appear in the Code of Federal Regulations, but are maintained by USDA, AMS, Fruit and Vegetable Programs.
AMS is proposing to revise the voluntary United States Standards for Grades of Eggplant using procedures that appear in Part 36, Title 7 of the Code of Federal Regulations (7 CFR part 36).
AMS is reviewing all fresh fruit and vegetable grade standards for usefulness in serving the industry. As a result, AMS has identified the U.S. Standards for Grades of Eggplant similar varietal characteristic requirement for possible updating. AMS has observed that mixing colors and/or types of eggplant in a specialty pack is a current marketing practice. The U.S. grade standards presently require eggplant to be packed with eggplant of similar type, color and character of growth; there are no provisions for mixed or specialty packs. AMS proposes to revise the similar varietal characteristic requirement for the U.S. Fancy and No. 1 grades to allow mixed colors and/or types of eggplant when designated as a mixed or specialty pack. The following language would be added to these two grades: “* * * consists of eggplants of similar varietal characteristics, except when specified as a mixed or specialty pack * * *.” AMS believes that permitting mixed colors and/or type packs will facilitate the marketing of eggplant by providing the industry with more flexibility that reflects current marketing practices and consumer demand.
AMS also proposes to eliminate the “Unclassified” category from the standards. The unclassified section is being removed from all standards when they are revised. This category is not a grade and only serves to show that no grade has been applied to the lot. It is no longer considered necessary.
This notice provides for a 60 day comment period for interested parties to comment on the proposed revisions to the standards.
7 U.S.C. 1621–1627.
Food and Nutrition Service (FNS), USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. This collection is a revision of a currently approved collection under OMB No.0584–0025, Civil Rights Title VI Collection Reports—Forms FNS–191 and FNS–101, for the Commodity Supplemental Food Program, the Food Distribution Program on Indian Reservations, and the Supplemental Nutrition Assistance Program.
Written comments must be received on or before April 9, 2012.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All written comments will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m. Monday through Friday) at 3101 Park Center Drive, Room 818, Alexandria, Virginia 22302.
All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.
Requests for additional information or copies of this information collection should be directed to Jane Duffield at 703–605–4385.
In all three programs, State and local agencies collect racial/ethnic information on the benefits application form that applicants may complete and file manually or electronically. The application form must clearly indicate that the information is voluntary and that the race and ethnic information will not affect an applicant's eligibility or level of benefits. It must also state that the reason for the collection of the information is to assure that program benefits are distributed without regard to race, color or national origin. All three programs allow the individual to self-identify his or her racial/ethnic status on the application. Visual
Food and Nutrition Service (FNS), USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on the proposed information collection for the APEC–II Study.
Written comments must be received by April 9, 2012.
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 will 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 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.
All written comments will be open for public inspection at the Office of Research and Analysis, Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m. Monday through Friday) at 3101 Park Center Drive, Room 1014, Alexandria, Virginia 22302.
All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.
Requests for additional information or copies of this information collection
USDA is seeking to renew OMB Clearance 0584–0530 granted on 08/2005 for The Access, Participation, Eligibility, and Certification (APEC) study. The new study will produce national estimates of overpayment, underpayment and overall erroneous payments made under the National School Lunch Program (NSLP) and the School Breakfast Program (SBP). The study will measure certification error and meal counting and claiming error for School Year (SY) 2012–2013; and develop and validate estimation models to be used by USDA's FNS staff for updating the erroneous payment estimate annually with NSLP and SBP administrative records and extant data (i.e. without extensive collection of new data between national studies). Models are being developed because it would be cost prohibitive to conduct a large nationally representative data collection effort to measure improper payments comprehensively on an annual basis. The development of an estimation model to produce updated annual estimates using available extant data is a pragmatic approach to meeting the intent of the Improper Payments Information Act of 2002. In addition, this study will produce separate estimates of erroneous payments for Local Education Agencies participating in the Community Eligibility Option and will examine alternatives to develop estimates of erroneous payment estimates at the State level. Data collected from school districts and households will be used to produce estimates of erroneous payments in at least one state and to create and validate estimation models for generating annual estimates of erroneous payments at the State level.
In School Year 2012–2013, on-site data collection activities will be conducted in a nationally representative sample of school districts and schools across the 48 contiguous States and the District of Columbia. Data to be collected will include school administrative records, household income from parents/guardians, direct observation of school meal transactions and other information that will inform this study. OMB approval will be requested for the data collection instruments to be used for the APEC–II Study.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The Forest Service gives notice of its intent to prepare an Environmental Impact Statement for the Clear Creek Integrated Restoration Project. The Proposed action would use a combination of timber harvest, pre-commercial thinning, prescribed fire and reforestation to achieve the desired range of age classes, size classes, vegetative species distributions habitat complexity (diversity) and landscape pattern across the forested portions of the project area. Road decommissioning, culvert replacement and road improvements are also proposed to improve watershed health. The EIS will analyze the effects of the proposed action and alternatives. The Nez Perce-Clearwater Forests invites comments and suggestions on the issues to be addressed. The agency gives notice of the National Environmental Policy Act (NEPA) analysis and decision making process on the proposal so interested and affected members of the public may participate and contribute to the final decision.
Comments concerning the scope of the analysis must be received by February 15th, 2012. The draft environmental impact statement is expected in February 2013 and the final environmental impact statement is expected in November 2013.
Send written or electronic comments to Attn: Lois Foster, Interdisciplinary Team Leader; 903 3rd St.; Kamiah, ID 83536; FAX 208–935–4257; Email
Lois Foster, Interdisciplinary Team Leader, (208) 935–4258.
The objective of the Clear Creek Integrated Restoration Project is to manage forest vegetation to restore natural disturbance patterns, improve long term resistance and resilience at the landscape level; restore natural fire regimes and reduce
The Purpose and Need for the Proposal is:
Historical logging practices and fire suppression have created a landscape that is more highly fragmented than what would be expected through natural disturbance. Ladder fuels have increased and there has been a shift to shade tolerant species. Habitat structure and patch sizes of young forests are simplified and smaller than what would have been created through natural disturbance. Edges of patches are straight and even. There is a need to increase diversity within previously harvested areas to begin restoring long-term habitat quality for sensitive and old growth associated species.
There is a shortage of young forest habitats on this landscape. Age classes are dominated by middle-aged and mature forest habitats. Forest management would increase high quality early seral wildlife habitats by retaining large trees and promoting establishment of tall shrubs and hardwood trees by using variable retention regeneration harvest. This would benefit wildlife species using early seral habitats such as: Neotropical migratory birds, resident birds, small mammals, and big game species in the short term. Tree retention would help maintain habitat structure and complexity needed by old growth associated species in the long-term.
The desired condition for roads is to have ditchlines that drain road surface water away from streams and onto forest the forest floor. All culverts at stream crossings are appropriately sized to allow for the passage of material within minimal risk of plugging.
There is a need to drain roadside ditchline water away from streams by installing cross drain pipes near live stream crossings. The cross drain pipes collect ditchline water and direct it onto the forest floor. There is also a need to replace existing undersized, damaged, or rusting culverts on streams to minimize failure potential.
The Proposed Action would:
• Conduct “variable retention” regeneration harvest and post harvest burning activities on up to 2500 acres to create early sucessional plant communities and improve wildlife habitat while re-establishing long-lived early seral tree species. Variable retention harvest would include areas of full retention (clumps), irregular edges, and retention of snags and legacy trees to provide structure and a future source of woody debris. Openings will likely exceed 40 acres.
• Commercially thin approximately 7810 acres to reduce stand densities improve forest health and reduce the chance of crown fire.
• Apply improvement harvest to approximately 311 acres (thin from
• Construct a minimum temporary road system to carry out the proposed action. Roads would be decommissioned after use.
• Pre-commercially thin approximately 1865 acres to reduce stand densities improve forest health and reduce fuels.
• Restore approximately 42 acres of bunchgrass communities through prescribed burning and revegetation with native grasses to improve wildlife winter range through reestablishment of native grasses and forbs.
• Apply approximately 1,400 acres of low and mixed severity prescribed fire within the Clear Creek Roadless area to restore natural fire regimes, reduce fuels, improve wildlife habitat and create mosaic forest conditions. Proposed activities are consistent with Idaho Roadless Rule. There is no timber cutting planned within the Clear Creek Roadless area.
• Conduct maintenance on or improve 100–130 miles of system roads including culvert installation or replacement, ditch cleaning, and riprap placement for drainage improvement. It may also include gravel placement, road grading and dust abatement.
• Additional site specific maintenance or improvements would occur to improve watershed conditions on up to 20 miles of roads outside of proposed treatment areas.
• Decommission 2–5 miles of system roads no longer considered necessary for transportation needs.
Possible Alternatives the Forest Service will consider include a no-action alternative, which will serve as a baseline for comparison of alternatives. The proposed action will be considered along with additional alternatives that will be developed to meet the purpose and need for action, and to address significant issues identified during scoping.
The Responsible Official is the Nez Perce-ClearwaterForest Supervisor. 12730 Highway 12, Orofinio, ID 83544.
The Decision To Be Made is whether to adopt the proposed action, in whole or inpart, or another alternative; and what mitigation measures and management requirements will be implemented.
The Scoping Process for the EIS is being initiated with this notice. The scoping process will identify issues to be analyzed in detail and will lead to the developemnt of alternatives to the proposal. The Forest Service is seeking information and comments from other Federal, State, and local agencies; Tribal Governments; and organizations and individuals who may be interested in or affected by the proposed action. Comments received in response to this notice, including the names and addresses of those who comment, will be a part of the project record and available for public review.
Early Notice of Importance of Public Participation in Subsequent Environmental Review: A draft environmental impact statement will be prepared for comment. The second major opportunity for public input will be when the draft EIS is published. The comment period for the draft EIS will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the
Grain Inspection, Packers and Stockyards Administration, USDA.
Notice.
GIPSA is announcing the designation of the Alabama Department of Agriculture and Industries (Alabama); Gulf Country Grain Inspection Service, Inc. (Gulf Country); Kankakee Grain Inspection, Inc. (Kankakee); Springfield Grain Inspection, Inc. (Springfield); State Grain Inspection, Inc. (State Grain); and Washington Department of Agriculture (Washington) to provide official services under the United States Grain Standards Act (USGSA), as amended.
Eric J. Jabs, Chief, USDA, GIPSA, FGIS, QACD, QADB, 10383 North Ambassador Drive Kansas City, MO 64153.
Eric J. Jabs, 816–659–8408 or
In the June 1, 2011
Alabama, Gulf Country, Kankakee, Springfield, State Grain, and Washington were the sole applicants for designation to provide official services in these areas. As a result, GIPSA did not ask for additional comments.
GIPSA evaluated all available information regarding the designation criteria in section 79(f) of the USGSA (7 U.S.C. 79(f)) and determined that the applicants Alabama, Gulf Country, Kankakee, Springfield, State Grain, and Washington are qualified to provide official services in the geographic area specified in the
Interested persons may obtain official services by contacting this agency at the following telephone numbers:
Section 79(f) of the USGSA authorizes the Secretary to designate a qualified applicant to provide official services in a specified area after determining that the applicant is better able than any other applicant to provide such official services (7 U.S.C. 79 (f)).
Under section 79(g) of the USGSA, designations of official agencies are effective for no longer than three years unless terminated by the Secretary; however, designations may be renewed according to the criteria and procedures prescribed in section 79(f) of the USGSA.
7 U.S.C. 71–87k.
Grain Inspection, Packers and Stockyards Administration, USDA.
Notice.
The designations of the official agencies listed below will end on June 30, 2012. We are asking persons or governmental agencies interested in providing official services in the areas presently served by these agencies to submit an application for designation. In addition, we are asking for comments on the quality of services provided by the following designated agencies: Kansas Grain Inspection Service, Inc. (Kansas); Mid-Iowa Grain Inspection, Inc. (Mid-Iowa); Minot Grain Inspection, Inc. (Minot); and Tri-State Grain Inspection Service, Inc. (Tri-State).
Applications and comments must be received by March 12, 2012.
Submit applications and comments concerning this notice using any of the following methods:
•
•
•
•
•
Eric J. Jabs, 816–659–8408 or
Section 79(f) of the United States Grain Standards Act (USGSA) authorizes the Secretary to designate a qualified applicant to provide official services in a specified area after determining that the applicant is better able than any other applicant to provide such official services (7 U.S.C. 79(f)). Under section 79(g) of the USGSA, designations of official agencies are effective for three years unless terminated by the Secretary, but may be renewed according to the criteria and procedures prescribed in section 79(f) of the USGSA.
Pursuant to section 79(f)(2) of the USGSA, the following geographic area, in the States of Colorado, Kansas, Nebraska, and Wyoming, is assigned to this official agency:
1. The entire State of Colorado.
2. The entire State of Kansas.
3.
Pursuant to section 79(f)(2) of the USGSA, the following geographic area, in the States of Minnesota and Iowa, is assigned to this official agency:
1.
2.
Pursuant to section 79(f)(2) of the USGSA, the following geographic area, in the State of North Dakota, is assigned to this official agency: Bounded on the North by the North Dakota State line east to the eastern Bottineau County line; Bounded on the East by the eastern Bottineau County line south to the northern Pierce County line; the northern Pierce County line east to State Route 3; State Route 3 south to State Route 200; Bounded on the South by State Route 200 west to State Route 41; State Route 41 south to U.S. Route 83; U.S. Route 83 northwest to State Route 200; State Route 200 west to U.S. Route 85; U.S. Route 85 south to Interstate 94; Interstate 94 west to the North Dakota State line; and Bounded on the West by the North Dakota State line.
Pursuant to section 79(f)(2) of the USGSA, the following geographic area,
1.
2.
3.
Interested persons or governmental agencies may apply for designation to provide official services in the geographic areas specified above under the provisions of section 79(f) of the USGSA and 7 CFR 800.196(d). Designation in the specified geographic areas is for the period beginning July 1, 2012 and ending June 30, 2015. To apply for designation or for more information, contact Eric J. Jabs at the address listed above or visit GIPSA's Web site at
We are publishing this notice to provide interested persons the opportunity to comment on the quality of services provided by the Kansas, Mid-Iowa, Minot, and Tri-State official agencies. In the designation process, we are particularly interested in receiving comments citing reasons and pertinent data supporting or objecting to the designation of the applicants. Submit all comments to Eric J. Jabs at the above address or at
We consider applications, comments, and other available information when determining which applicants will be designated.
7 U.S.C. 71–87k.
On October 9, 2009, in the U.S. District Court, District of Minnesota, Kok Tong Lim, a/k/a Thomas Lim, (“Lim”) of Singapore, pled guilty to one count of violating the International Emergency Economic Powers Act (50 U.S.C. 1701
Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”)
I have received notice of Lim's conviction for violating IEEPA, and have provided notices and opportunities for Lim to make a written submission to BIS, as provided in Section 766.25 of the Regulations. I have not received a submission from Lim. Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Lim's export privileges under the Regulations for a period of ten years from the date of Lim's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Lim had an interest at the time of his conviction.
Accordingly, it is hereby
I. Until October 9, 2019, Kok Tong Lim, a/k/a Thomas Lim, with the last known address at: Blk 258A,Compassvale Road #07–551, Singapore 541258, and when acting for or on behalf of Lim, his representatives, assigns, agents or employees (the “Denied Person”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, including, but not limited to:
A. Applying for, obtaining, or using any license, License Exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations.
II. No person may, directly or indirectly, do any of the following:
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
III. After notice and opportunity for comment as provided in Section 766.23 of the Regulations, any other person, firm, corporation, or business organization related to Lim by affiliation, ownership, control or position of responsibility in the conduct of trade or related services may also be subject to the provisions of this Order if necessary to prevent evasion of the Order.
IV. This Order does not prohibit any export, reexport, or other transaction subject to the Regulations where the only items involved that are subject to the Regulations are the foreign-produced direct product of U.S.-origin technology.
V. This Order is effective immediately and shall remain in effect until October 9, 2019.
VI. In accordance with Part 756 of the Regulations, Lim may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.
VII. A copy of this Order shall be delivered to the Lim. This Order shall be published in the
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“Department”) is extending the time limit for the preliminary results of the administrative review of certain polyester staple fiber from the People's Republic of China (“PRC”). This review covers the period June 1, 2010, through May 31, 2011.
Steven Hampton, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–0116.
On July 28, 2011, the Department published a notice of initiation of the administrative review of the antidumping duty order on certain polyester staple fiber from the PRC.
In antidumping duty administrative reviews, section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“the Act”), requires the Department to make a preliminary determination within 245 days after the last day of the anniversary month of an order for which a review is requested and a final determination within 120 days after the date on which the preliminary results are published. However, if it is not practicable to complete the review within these time periods, section 751(a)(3)(A) of the Act allows the Department to extend the time limit for the preliminary determination to a maximum of 365 days after the last day of the anniversary month.
We determine that it is not practicable to complete the preliminary results of this administrative review within the original time limit because the Department requires additional time to analyze questionnaire responses, issue supplemental questionnaires, and evaluate surrogate value submissions for purposes of the preliminary results. Therefore, the Department is extending the time limit for completion of the preliminary results of this administrative review by 30 days. The preliminary results will now be due no later than March 31, 2012. As that day falls on a Saturday, the preliminary results are due no later than April 2, 2012.
We are issuing and publishing this notice in accordance with sections 751(a)(3)(A) and 777(i) of the Act.
International Trade Administration, U.S. Department of Commerce.
Notice of an open meeting.
The Renewable Energy and Energy Efficiency Advisory Committee (RE&EEAC) will hold a meeting to hear presentations from the Department of State, Office of the U.S. Trade Representative, Ex-Im Bank, and Department of Commerce on efforts to address issues that affect the competitiveness of U.S. renewable
February 23, 2012, from 8:30 a.m. to 3:30 p.m. Eastern Standard Time (EST).
The meeting will be held at the U.S. Department of Commerce, Room 4830, 1401 Constitution Avenue NW., Washington, DC 20230. The meeting will also be available via conference call.
Jennifer Derstine, Office of Energy and Environmental Technologies Industries (OEEI), International Trade Administration, U.S. Department of Commerce at (202) 482–3889; email:
The meeting is open to the public and the room is disabled-accessible. Public seating is limited and available on a first-come, first-served basis. Members of the public wishing to attend the meeting, either in person or through participation in the conference call, must notify Ms. Derstine at the contact information above by 5 p.m. EST on Friday, February 17, in order to pre-register. Registered members of the public who wish to participate in the conference call will receive call-in instructions. Please specify any request for reasonable accommodation by Friday, February 17. Last minute requests will be accepted, but may be impossible to fill. A limited amount of time, from 3 p.m. until 3:30 p.m., will be available for pertinent brief oral comments from members of the public attending the meeting.
Any member of the public may submit pertinent written comments concerning the RE&EEAC's affairs at any time before or after the meeting. Comments may be submitted to
Copies of RE&EEAC meeting minutes will be available within 30 days of the meeting.
National Oceanic and Atmospheric Administration (NOAA), 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 April 9, 2012.
Direct all written comments to Jennifer Jessup, 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 Jason Blackburn, (301) 427–8555 or
This request is for revision and extension of a current information collection. Fishery regulations do not generally affect scientific research activities conducted by a scientific research vessel. Persons planning to conduct such research are encouraged to submit a scientific research plan to ensure that the activities are considered research and not fishing. The researchers are requested to submit reports of their scientific research activity after its completion. The National Marine Fisheries Service (NMFS) may also grant exemptions from fishery regulations for educational or other activities (
Information may be submitted on paper or electronically, and in some cases by telephone.
Comments are invited on: (a) Whether the proposed collection of information
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.
National Oceanic and Atmospheric Administration (NOAA), 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 April 9, 2012.
Direct all written comments to Jennifer Jessup, 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 Jeff Lorens, (801) 524–4000 or
This request is for extension of this information collection.
This information collection supports the Tsunami Warning and Education Act, Public Law 109–424. To assess the effectiveness of NOAA/National Weather Service's (NWS) Tsunami Warning System, this survey is needed to gather specific feedback information following testing of the associated NWS communications systems. The tests are planned annually, in March/April and again in September. Post-test feedback information will be requested from emergency managers, the media, law enforcement officials, local government agencies/officials, and the general public. The responses will be solicited for a limited period immediately following completion of the tests, not to exceed seven days. This will be a Web-based survey and will allow for efficient collection of information regarding the effectiveness of the Tsunami Warning System.
A Web-based survey will be used for electronic submission.
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.
National Oceanic and Atmospheric Administration (NOAA), 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 April 9, 2012.
Direct all written comments to Jennifer Jessup, 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 Paula N. Evans (301) 427–8557 or
This request is for extension of a currently approved information collection.
Under the provisions of the Magnuson-Stevens Fishery and Conservation and Management Act (Magnuson-Stevens Act) [16 U.S.C. 1801
The respondent provides written notice. No form is used.
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.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of change to public meeting dates and times.
The Western Pacific Fishery Management Council (Council) announces changes in the dates that the Merizo community and Guam Regional Ecosystem Advisory Committee (REAC) meetings will be held.
The Merizo Community Meeting will be held on February 29, 2012, between 6 p.m. and 9 p.m. and the Guam REAC on March 1, 2012, between 9 a.m. and 4 p.m. The Merizo Community Meeting will be held at the Merizo Community Center, Merizo, Guam and the Guam REAC will be held at the Guam Hilton Hotel, Tumon Bay, Guam. For specific times and agendas, see
Council office, 1164 Bishop Street, Suite 1400, Honolulu, HI 96813; telephone: (808) 522–8220.
Merizo Community Center, Merizo, Guam 96915; telephone: (671) 828–2941.
Guam Hilton Hotel, 202 Hilton Road, Tumon Bay, Guam 96913; telephone: (671) 646–1835.
Kitty M. Simonds, Executive Director; telephone: (808) 522–8220.
The original notice published on February 6, 2012 (77 FR 5775). The new dates and agenda items are listed below.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kitty M. Simonds, (808) 522–8220 (voice) or (808) 522–8226 (fax), at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Ocean Service, NOAA, Department of Commerce.
Notice of public meeting, Notice of public comment.
Notice is hereby given of a public meeting of the U.S. Coral Reef Task Force. The meeting will be held in Washington, DC This meeting, the 27th
The meeting will be held Thursday, February 23, 2012. Registration is requested for all participants. Advance public comments can be submitted to the email, fax, or mailing address listed below from Wednesday, February 1–Wednesday, February 15.
Beth Dieveney, NOAA U.S. Coral Reef Task Force Steering Committee Point of Contact, NOAA Coral Reef Conservation Program, 1305 East-West Highway, Silver Spring, Maryland, 20910 (Phone: (301) 713–3155 ext. 129, Fax: (301) 713–4389, email:
Established by Presidential Executive Order 13089 in 1998, the U.S. Coral Reef Task Force mission is to lead, coordinate, and strengthen U.S. government actions to better preserve and protect coral reef ecosystems. Co-chaired by the Departments of Commerce and Interior, Task Force members include leaders of 12 Federal agencies, seven U.S. states and territories, and three freely associated states. For more information about the meeting, registering, and submitting public comment go to
Department of the Navy, DoD.
Notice.
Pursuant to Section 102(2)(c) of the National Environmental Policy Act (NEPA) of 1969, as implemented by the Council on Environmental Quality Regulations (40 CFR parts 1500–1508), the Department of the Navy (DoN) announces its intent to prepare a Supplemental Environmental Impact Statement (SEIS) to evaluate the potential environmental consequences that may result from construction and operation of a live-fire training range complex and associated infrastructure on Guam to support the Guam Military Relocation. The SEIS supplements the Final EIS for the “Guam and Commonwealth of the Northern Mariana Islands (CNMI) Military Relocation; Relocating Marines from Okinawa, Visiting Aircraft Carrier Berthing, and Army Air and Missile Defense Task Force” dated July 2010.
Pursuant to 40 CFR 1502.9(c), a SEIS is being prepared for the limited purpose of supplementing the 2010 Final EIS regarding the establishment of a live-fire training range complex on Guam.
The proposed action that will be analyzed in the SEIS is to construct and operate a live-fire training range complex that allows for simultaneous use of all firing ranges to support training and operations on Guam for the relocated Marines. The DoN has preliminarily identified five alternatives for the range complex: two are adjacent to Route 15 in northeastern Guam, and three are located at or immediately adjacent to the Naval Magazine (NAVMAG), also known as the Naval Munitions Site. The SEIS will also consider the No Action Alternative.
The purpose and need for the proposed action is to ensure that the relocated Marines are organized, trained, and equipped as mandated in section 5063 of Title 10 of the United States Code, and to satisfy individual live-fire training requirements as described in the Guam and CNMI Military Relocation Final EIS and associated Record of Decision (ROD).
The live-fire training range complex will consist of a Known Distance (KD) rifle range, KD pistol range, Modified Record of Fire Range, nonstandard small arms range, Multipurpose Machine Gun range, and a hand grenade range. The proposed action also includes associated roadways and supporting infrastructure.
The DoN encourages government agencies, private-sector organizations, and the general public to participate in the NEPA process for the training range complex. Because the Federal Aviation Administration (FAA) will have to approve airspace associated with the training range complex at any of the five preliminary alternatives being considered, the DoN will invite the FAA to participate as a cooperating agency in the preparation of the SEIS.
The DoN invites comments on the proposed scope and content of the SEIS from all interested parties. Comments on the scope of the SEIS may be provided by mail and through the SEIS Web site at:
Saturday, March 17, 2012, from 1 p.m. to 5 p.m., University of Guam Field House, Mangilao, Guam;
Monday, March 19, 2012, from 5 p.m. to 9 p.m., Southern High School, Santa Rita, Guam;
Tuesday, March 20, 2012, from 5 p.m. to 9 p.m., Yigo Gymnasium, Yigo, Guam.
Interested agencies, individuals, and groups unable to attend the open-house scoping meetings are encouraged to submit comments by April 6, 2012. Mailed comments should be postmarked no later than April 6, 2012, Chamorro Standard Time (ChST) to ensure they are considered. Mail comments to: Joint Guam Program Office Forward, P.O. 153246, Santa Rita, GU 96915.
Ms. Catherine Norton, Public Affairs Officer, NAVFAC Marianas; phone (671) 349–4053; email:
The DoN's proposed action is to construct and operate a live-fire training range complex and associated infrastructure in support of the Guam Military Relocation.
A ROD for the Guam and CNMI Military Relocation Final EIS was signed on September 20, 2010, and published in the
Since that time, the DoN has been evaluating options to satisfy this commitment while also meeting the training requirements of the relocating Marines. This analysis resulted in the application of a probabilistic methodology which takes into account site-specific conditions and reduced the boundaries of the training range complex while providing the same margin of safety. The DoN then reviewed previously discarded sites to determine if any of those sites might be a reasonable alternative with application of the probabilistic methodology (
Under the No Action Alternative, Marine Corps units would not be provided live-fire training ranges. The No Action Alternative is not a reasonable alternative as it would not satisfy the need for training requirements for the relocated Marines as mandated in section 5063 of Title 10 of the United States Code, or satisfy individual live-fire training requirements as described in the Guam and CNMI Military Relocation Final EIS and ROD. NEPA requires the lead agency to consider the alternative of no action as a baseline for comparison of environmental impacts regardless of whether or not it would meet the purpose and need of the proposed action. The SEIS will evaluate environmental effects associated with: Geology and soils; water resources, which may include water, floodplains, wetlands, wild and scenic rivers; terrestrial biology; threatened and endangered species and their designated critical habitat (if applicable); air quality; noise; airspace; cultural resources; socioeconomics; environmental justice (minority and low income populations and children); land use and coastal zone management federal consistency; transportation; hazardous materials/hazardous waste/installation restoration; public health and safety; and other environmental concerns as identified through scoping. The analysis will include an evaluation of direct and indirect impacts, and will account for cumulative impacts from other relevant activities in the area of Guam. Additionally, the DoN will undertake any consultations required by all applicable laws or regulations.
No decision will be made to implement any alternative until the SEIS process is completed and a ROD is signed by the Assistant Secretary of the Navy (Energy, Installations and Environment) or designee.
By publishing this Notice, the DoN is initiating a scoping process to identify community concerns and issues that should be addressed in the SEIS. Federal, Territory, and local agencies, and interested parties and persons are encouraged to provide comments on the proposed action that clearly describe specific issues or topics of environmental concern that the commenter believes the DoN should consider. In addition to this Notice, an information report is available for review on the project Web site (see link below). This information report provides additional background information on the environmental planning efforts which have occurred since the Final EIS ROD was signed in September 2010. Additional information will be made available on the project Web site as it becomes available.
Comments may be submitted in writing at one of the public scoping meetings, through the project Web site at:
To ensure consideration, all written comments on the scope of the SEIS must be submitted or postmarked by April 6, 2012 ChST.
Department of the Navy, DoD.
Notice of Partially Closed Meeting.
The U.S. Naval Academy Board of Visitors will meet to make such inquiry, as the Board shall deem necessary, into the state of morale and discipline, the curriculum, instruction, physical equipment, fiscal affairs, and academic methods of the Naval Academy. The executive session of this meeting from 11 a.m. to 12 p.m. on March 5, 2012, will include discussions of disciplinary matters, law enforcement investigations into allegations of criminal activity, and personnel issues at the Naval Academy, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. For this reason, the executive session of this meeting will be closed to the public.
The open session of the meeting will be held on March 5, 2012, from 8:30 a.m. to 11 a.m. The closed session of this meeting will be the executive session held from 11 a.m. to 12 p.m.
The meeting will be held in the Bo Coppege Room at the Naval Academy in Annapolis, Maryland. The meeting will be handicap accessible.
Lieutenant Commander Travis Haire, USN, Executive Secretary to the Board of Visitors, Office of the Superintendent, U.S. Naval Academy, Annapolis, MD 21402–5000, (410) 293–1503.
This notice of meeting is provided per the Federal Advisory Committee Act, as amended (5 U.S.C. App.). The executive session of the meeting from 11 a.m. to 12 p.m. on March 5, 2012, will consist of discussions of law enforcement investigations into allegations of criminal activity, new and pending administrative/minor disciplinary infractions and nonjudicial punishments involving the Midshipmen
Department of Education.
Comment Request.
The Department of Education (the Department), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the reporting burden on the public and helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13).
Interested persons are invited to submit comments on or before April 9, 2012.
Written comments regarding burden and/or the collection activity requirements should be electronically mailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that Federal agencies provide interested parties an early opportunity to comment on information collection requests. The Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Copies of the proposed information collection request may be accessed from
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339.
Institute of Education Sciences, U.S. Department of Education.
Notice of an open meeting.
This notice sets forth the schedule and proposed agenda of an upcoming meeting of the National Board for Education Sciences. The notice also describes the functions of the Committee. Notice of this meeting is required by Section 10(a)(2) of the Federal Advisory Committee Act and is intended to notify the public of their opportunity to attend the meeting.
February 24, 2012.
80 F Street NW., Room 100, Washington, DC 20001.
Monica Herk, Executive Director, National Board for Education Sciences, 555 New Jersey Ave. NW., Room 602 K, Washington, DC 20208; phone: (202) 208–3491; fax: (202) 219–1466; email:
The National Board for Education Sciences is authorized by Section 116 of the Education Sciences Reform Act of 2002 (ESRA), 20 U.S.C. 9516. The Board advises the Director of the Institute of
On February 24, 2012, starting at 8:30 a.m., the Board will approve the agenda and hear remarks from the chair. John Easton, IES Director, and the Commissioners of the national centers will give an overview of recent developments at IES. From 9:30 to 10:45 a.m., Board members will discuss and give suggestions regarding a draft of the Board's 2012 Annual Report. A break will take place from 10:45 to 11 a.m.
From 11 a.m. to 12:30 p.m., the Board will consider the topic, “The Importance of Disseminating Research Results: How can we better reach practitioners and policy-makers?” Following opening remarks by Ruth Neild, Associate Commissioner of the National Center for Education Evaluation, and by Diane Massell with the University of Michigan's School of Education, Board members will engage in roundtable discussion of the issues raised.
The meeting will break for lunch from 12:30 to 1:30 p.m.
Following lunch the Board will resume from 1:30 to 2:30 p.m. to discuss the topic, “Scaling up Promising Models: What can the field of education learn from other Federal agencies?” Naomi Goldstein, Director of the Office of Policy Research and Evaluation in the Administration for Children and Families in the Department of Health and Human Services, and Paul Carttar, Director of the Social Innovation Fund within the Corporation for National and Community Service, will present their experience with scaling up evidence-based programs within the Federal Government. Their presentations will be followed by Board discussion.
From 2:30 to 3:30 p.m., Elizabeth Albro, Acting Commissioner of the National Center for Education Research, and Deborah Speece, Commissioner of the National Center for Special Education Research, will brief the Board on research grants in their centers. The Board will then discuss any implications of these presentations.
An afternoon break from 3:30 to 3:45 p.m. will precede a legislative update from 3:45 to 4:45 p.m. by a representative of the Office of Legislation and Congressional Affairs in the U.S. Department of Education who will brief the Board on legislative developments affecting IES.
At 4:45 p.m., there will be closing remarks and a consideration of next steps from the IES Director and NBES Chair, with adjournment scheduled for 5 p.m.
There will not be an opportunity for public comment. However, members of the public are encouraged to submit written comments related to NBES to Monica Herk (see contact information above). A final agenda will be available from Monica Herk (see contact information above) on February 10 and will be posted on the Board Web site
Records are kept of all Board proceedings and are available for public inspection at 555 New Jersey Ave. NW., Room 602 K, Washington, DC 20208, from the hours of 9 a.m. to 5 p.m., Eastern Standard Time Monday through Friday.
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free at 1–866–512–1800; or in the Washington, DC, area at (202) 512–0000.
The official version of this document is the document published in the
Department of Energy (DOE).
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Portsmouth. The Federal Advisory Committee Act (Pub. L. 92–463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Thursday, March 1, 2012; 6 p.m.
Ohio State University, Endeavor Center, 1862 Shyville Road, Piketon, Ohio 45661.
Joel Bradburne, Deputy Designated Federal Officer, Department of Energy Portsmouth/Paducah Project Office, Post Office Box 700, Piketon, Ohio 45661, (740) 897–3822,
• Call to Order, Introductions, Review of Agenda.
• Approval of February Minutes.
• Deputy Designated Federal Officer's Comments.
• Federal Coordinator's Comments.
• Liaisons' Comments.
• Presentations:
○ The Ohio Valley Regional Development Center (OVRDC) Overview, John Hemmings, Executive Director of OVRDC.
○ Waste Acceptance Criteria, Dennis Carr, Fluor-B&W
○ Information Portfolio, Karen Price, Fluor-B&W.
○ Fluor-B&W Community Commitment Plan Update, Jerry Schneider, Fluor-B&W.
• Administrative Issues.
• Subcommittee Updates.
• Public Comments.
• Final Comments from the Board.
• Adjourn.
Energy Efficiency and Renewable Energy, Department of Energy.
Notice of open meeting.
This notice announces an open meeting of the Biomass Research and Development Technical Advisory Committee. The Federal Advisory Committee Act requires that public notice of these meetings be announced in the
March 1, 2012; 9 a.m.–2 p.m.
Omni Shoreham Hotel, 2500 Calvert Street NW. (at Connecticut Avenue), Washington, DC 20008.
Elliott Levine, Designated Federal Officer, Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585; (202) 586–1476; Email:
• Update on USDA Biomass R&D Activities
• Update on DOE Biomass R&D Activities
• Presentation on the USDA Feedstocks Readiness Tool
• Panel discussion on Renewable Fuel Standards
• Presentation on the National Biofuels Action Plan
Take notice that the Commission received the following electric rate filings:
Description:
Description: Supplement to Application for Market-Based Rate Authority and Approval of Waivers and Blanket Authorization.
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 reliability 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:
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the D'Lo Gas Storage Project involving construction and operation of facilities by D'Lo Gas Storage, LLC (DGS) in Simpson and Rankin Counties, Mississippi. The Commission will use this EA in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the project. Your input will help the Commission staff determine what issues they need to evaluate in the EA. Please note that the scoping period will close on March 5, 2012. Further details on how to submit written comments are provided in the Public Participation section of this notice.
The Office of Energy Projects staff will conduct an onsite environmental review of the project area to gather data for its environmental analysis of the proposed project. Viewing of this area is anticipated to be from public access points and DGS's right-of-way and property. All interested parties are invited to attend but must provide their own transportation. Those attending should meet at the following location and time:
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this proposed project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the Commission approves the project, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings where compensation would be determined in accordance with state law.
DGS provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?”. This fact sheet addresses a number of typically-asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is also available for viewing on the FERC Web site (
DGS proposes to construct and operate a new natural gas storage facility in the D'Lo Salt Dome formation in Simpson County, Mississippi. The D'Lo Gas Storage Project would provide approximately 24 billion cubic feet of working natural gas storage and have interconnections with five existing natural gas transmission pipelines in Simpson and Rankin Counties, Mississippi.
The D'Lo Gas Storage Project would consist of the construction and operation of the following facilities:
• Three salt dome storage caverns;
• A Solution Mining Facility;
• A Compression Facility with four 8,000 horsepower and one 4,735 horsepower gas engine driven compressors;
• Four primary and three secondary source water wells;
• Four primary and one secondary brine disposal wells;
• 3.7 miles of 20-inch-diameter source water and brine disposal pipelines;
• 0.2 miles of 24-inch-diameter natural gas pipeline for the Cavern Well Corridor;
• 0.4 miles of 30-inch-diameter natural gas pipeline with an interconnect and meter station to Boardwalk Pipeline;
• 0.8 miles of 24-inch-diameter natural gas pipeline with an interconnect and meter station to Southern Natural Gas Company (SONAT);
• 3.2 miles of 30-inch-diameter natural gas pipeline with an interconnect and meter station to Kinder Morgan Midcontinent Express Pipeline;
• a 12-inch-diameter tap, an interconnect, and meter station to Southcross Pipeline;
• 1.0 mile of 12-inch-diameter natural gas pipeline with an interconnect and meter station to Gulf South Pipeline; and
• 0.4 miles of nonjurisdictional electric right-of-way for utility lines to the storage facility and an electrical substation.
The general location of the project facilities is shown in appendix 1.
Construction of the proposed facilities would disturb about 172 acres of land for the aboveground facilities and the pipelines. Following construction, DGS would maintain about 123 acres for permanent operation of the project facilities; the remaining acreage would be restored and revert to former uses.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us
In the EA we will discuss impacts that could occur as a result of the construction and operation of the proposed project under these general headings:
• Geology and soils;
• Land use;
• Water resources, fisheries, and wetlands;
• Cultural resources;
• Vegetation and wildlife;
• Air quality and noise;
• Socioeconomics;
• Endangered and threatened species; and
• Public safety.
We will also evaluate reasonable alternatives to the proposed project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
The EA will present our independent analysis of the issues. The EA will be available in the public record through eLibrary on the FERC Web site. Depending on the comments received during the scoping process, we may also publish and distribute the EA to the public for an allotted comment period. We will consider all comments on the EA before making our recommendations to the Commission. To ensure we have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section beginning on page 5.
With this notice, we are asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues of this project to formally cooperate with us in the preparation of the EA.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, we are using this notice to initiate consultation with the Mississippi State Historic Preservation Office (SHPO), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
You can make a difference by providing us with your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure that your comments are timely and properly recorded, please send your comments so that the Commission receives them in Washington, DC on or before March 5, 2012.
For your convenience, there are three methods which you can use to submit your comments to the Commission. In all instances please reference the project docket number (CP12–39–000) with your submission. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502–8258 or
(1) You can file your comments electronically using the eComment feature on the Commission's Web site (
(2) You can file your comments electronically using the eFiling feature on the Commission's Web site (
(3) You can file a paper copy of your comments by mailing them to the following address: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project.
If we publish and distribute the EA, copies will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version or would like to remove your name from the mailing list, please return the attached Information Request (appendix 2).
In addition to involvement in the EA scoping process, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Instructions for becoming an intervenor are in the User's Guide under the “e-filing” link on the Commission's Web site.
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208–FERC, or on the FERC Web site at
In addition, the Commission now offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links
Site visits and any public meetings will be posted on the Commission's calendar located at
Finally, to request additional project information or to obtain updated information directly from the project sponsor, you may call DGS's representative at the toll free number 1–855–4DLOGAS, or access its Web site (
Environmental Protection Agency (EPA).
Notice.
The EPA Science Advisory Board (SAB) Staff Office announces a public meeting of the SAB Panel to conduct a peer review on the EPA documents, “Draft—Development of Emissions Estimating Methodologies for Broiler Animal Feeding Operations” and “Draft—Development of Emissions Estimating Methodologies for Lagoons and Basins at Swine and Dairy Animal Feeding Operations” (February 2012 draft).
The SAB Panel meeting will be held on Wednesday, March 14, 2012 from 8:30 a.m. to 5:30 p.m. (Eastern Time), Thursday, March 15, 2012 from 8:30 a.m. to 5:30 p.m. (Eastern Time), and Friday, March 16, 2012 from 8:30 a.m. to 1 p.m. (Eastern Time).
The public meeting will be held at the Marriott at Research Triangle Park hotel, 4700 Guardian Drive, Durham, North Carolina 27703, (919) 941–6200.
Any member of the public who wants further information concerning the public meeting may contact Mr. Edward Hanlon, Designated Federal Officer (DFO), via telephone at (202) 564–2134 or email at
The SAB was established pursuant to the Environmental Research, Development, and Demonstration Authorization (ERDDAA) Act, codified at 42 U.S.C. 4365 to provide independent scientific and technical advice to the EPA Administrator on the technical basis for EPA actions. Pursuant to Federal Advisory Committee Act (FACA) and EPA policy, notice is hereby given that the SAB Animal Feeding Operations Emission Review Panel will hold a public meeting to peer review the EPA's documents, “Draft—Development of Emissions-Estimating Methodologies for Broiler Animal Feeding Operations” (February 2012 draft), and “Draft—Development of Emissions-Estimating Methodologies for Lagoons and Basins at Swine and Dairy Animal Feeding Operations” (February 2012 draft). EPA's Office of Air and Radiation developed the draft methodologies to address requirements of a voluntary air compliance consent agreement signed in 2005 between EPA and nearly 14,000 broiler, dairy, egg layer, and swine animal feeding operations. As previously announced in a
Federal advisory committees and panels, including scientific advisory committees, provide independent advice to EPA. Members of the public can submit relevant comments for a federal advisory committee to consider pertaining to EPA's charge to the panel or meeting materials. Input from the public to the SAB will have the most impact if it provides specific scientific or technical information or analysis for SAB panels to consider or if it relates to the clarity or accuracy of the technical information. Members of the public wishing to provide comment should contact the Designated Federal Officer directly.
Environmental Protection Agency (EPA).
Notice.
The EPA Science Advisory Board (SAB) Staff Office announces three public teleconferences of a work group of the Chartered Science Advisory Board to discuss the President's FY 2013 Budget Request for the EPA Office of Research and Development.
The teleconference dates and times are March 1, 2012, from 1 p.m. to 4 p.m. (Eastern Time); March 2, 2012 from 10 a.m. to 1 p.m. (Eastern Time); and March 8, 2012 from 10 a.m. to 1 p.m. (Eastern Time).
The public teleconferences will be held by telephone only.
Any member of the public wishing to obtain general information concerning this public meeting should contact Dr. Angela Nugent, Designated Federal Officer (DFO), EPA Science Advisory Board (1400R), 1200 Pennsylvania Ave. NW., Washington, DC 20460; via telephone/voice mail: (202) 564–2218; fax: (202) 565–2098; or email at
The SAB was established pursuant to the Environmental Research, Development, and Demonstration Authorization Act (ERDAA), codified at 42 U.S.C. 4365, to provide independent scientific and technical advice to the Administrator on the technical basis for Agency positions and regulations. The SAB is a Federal Advisory Committee chartered under the Federal Advisory Committee Act (FACA), 5 U.S.C., App. 2. Pursuant to FACA and EPA policy, notice is hereby given that a work group of the chartered SAB will hold three public teleconferences to discuss the President's requested Fiscal Year 2013 Budget to support EPA research needs. The SAB work group and the SAB will comply with the provisions of FACA and all appropriate SAB Staff Office procedural policies.
Federal advisory committees and panels, including scientific advisory committees, provide independent advice to EPA. Members of the public can submit comments pertaining to EPA's charge, meeting materials and/or the group conducting the activity. They should send their comments directly to the DFO for the relevant advisory committee.
Environmental Protection Agency (EPA).
Notice.
The EPA Science Advisory Board (SAB) Staff Office announces a public teleconference of the CASAC Ozone Review Panel to discuss its draft review of EPA's
The CASAC Ozone Review Panel teleconference will be held on Friday, March 9, 2012, from 9 a.m. to 1 p.m. (Eastern Time).
The public teleconference will take place by telephone only.
Any member of the public who wants further information concerning the public teleconference may contact Mr. Aaron Yeow, Designated Federal Officer (DFO), via telephone at: (202) 564–2050 or email at
The CASAC was established pursuant to the Clean Air Act (CAA) Amendments of 1977, codified at 42 U.S.C. 7409D(d)(2),
Federal advisory committees and panels, including scientific advisory committees, provide independent advice to EPA. Members of the public can submit relevant comments for a federal advisory committee to consider pertaining to EPA's charge to the panel or meeting materials. Input from the public to the CASAC will have the most impact if it provides specific scientific or technical information or analysis for CASAC panels to consider or if it relates to the clarity or accuracy of the technical information. Members of the public wishing to provide comment should contact the DFO directly.
Environmental Protection Agency (EPA).
Notice.
The EPA Science Advisory Board (SAB) Staff Office is requesting nominations of experts to be considered for service on an SAB Committee to make recommendations on EPA's Scientific and Technological Achievement Awards (STAA) for 2012–2015.
Nominations should be submitted by March 1, 2012 per the instructions below.
Any member of the public wishing further information regarding this Notice and Request for Nominations may contact Mr. Edward Hanlon, Designated Federal Officer (DFO), SAB Staff Office, by telephone/voice mail at (202) 564–2134; by fax at (202) 565–2098 or via email at
The SAB (42 U.S.C. 4365) is a chartered Federal Advisory Committee that provides independent scientific and technical peer review, advice, consultation, and recommendations to the EPA Administrator on the technical basis for EPA actions. As a Federal Advisory Committee, the SAB conducts business in accordance with the Federal Advisory Committee Act (FACA) (5 U.S.C. App. 2) and related regulations. The SAB will comply with the provisions of FACA and all appropriate SAB Staff Office procedural policies. EPA's STAA was established in 1980 to recognize Agency scientists and engineers who published their work in the peer-reviewed literature. The STAA Program is an Agency-wide competition to promote and recognize scientific and technological achievements by EPA employees. The STAA program is administered and managed by EPA's Office of Research and Development (ORD). Each year the SAB has been asked to review EPA's STAA nominations and make recommendations to the Administrator for monetary awards. The SAB Staff Office is announcing the formation of a
EPA's SAB Staff Office requests contact information about the person making the nomination, contact information about the nominee, the disciplinary and specific areas of expertise of the nominee, the nominee's resume or curriculum vita, sources of recent grant and/or contract support, and a biographical sketch of the nominee indicating current position, educational background, research activities, and recent service on other national advisory committees or national professional organizations. The bio-sketches and resume or curriculum vita of nominees identified by respondents to this
Persons having questions about the nomination procedures, or who are unable to submit nominations through the SAB Web site, should contact Mr. Edward Hanlon, DFO, as indicated above in this notice. Nominations should be submitted in time to arrive no later than March 1, 2012. EPA values and welcomes diversity. In an effort to obtain nominations of diverse candidates, EPA encourages nominations of women and men of all racial and ethnic groups.
The EPA SAB Staff Office will acknowledge receipt of nominations. The names and bio-sketches of qualified nominees identified by respondents to this
For the EPA SAB Staff Office a review panel includes candidates who possess the necessary domains of knowledge, the relevant scientific perspectives (which, among other factors, can be influenced by work history and affiliation), and the collective breadth of experience to adequately address the charge. In forming this expert panel, the SAB Staff Office will consider public comments on the List of Candidates, information provided by the candidates themselves, and background information independently gathered by the SAB Staff Office. Selection criteria to be used for panel membership include: (a) Scientific and/or technical expertise, knowledge, and experience (primary factors); (b) availability and willingness to serve; (c) absence of financial conflicts of interest; (d) absence of an appearance of a lack of impartiality; (e) skills working in committees, subcommittees and advisory panels; and, (f) for the Panel as a whole, diversity of expertise and viewpoints.
The SAB Staff Office's evaluation of an absence of financial conflicts of interest will include a review of the “Confidential Financial Disclosure Form for Special Government Employees Serving on Federal Advisory Committees at the U.S. Environmental Protection Agency” (EPA Form 3110–48). This confidential form allows government officials to determine whether there is a statutory conflict between a person's public responsibilities (which includes membership on an EPA federal advisory committee) and private interests and activities, or the appearance of a lack of impartiality, as defined by federal regulation. The form may be viewed and downloaded from the following URL address
The approved policy under which the EPA SAB Office selects subcommittees and review panels is described in the following document:
Equal Employment Opportunity Commission.
Wednesday, February 15, 2012, 9:30 a.m. Eastern Time.
Commission Meeting Room on the First Floor of the EEOC Office Building, 131 “M” Street, NE., Washington, DC 20507.
The meeting will be open to the public.
1. Announcement of Notation Votes, and
2. Unlawful Discrimination Against Pregnant Workers and Workers with Caregiving Responsibilities
In accordance with the Sunshine Act, the meeting will be open to public observation of the Commission's deliberations and voting. Seating is limited and it is suggested that visitors arrive 30 minutes before the meeting in order to be processed through security and escorted to the meeting room. (In addition to publishing notices on EEOC Commission meetings in the
Please telephone (202) 663–7100 (voice) and (202) 663–4074 (TTY) at any time for information on these meetings. The EEOC provides sign language interpretation and Communication Access Realtime Translation (CART) services at Commission meetings for the hearing impaired. Requests for other reasonable accommodations may be made by using the voice and TTY numbers listed above.
Bernadette B. Wilson, Senior Program Analyst on (202) 663–4077.
This Notice Issued February 7, 2012.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act the Regulatory Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection requirement concerning past performance information. A notice was published in the
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Submit comments on or before March 12, 2012.
Submit comments identified by Information Collection 9000–0142, Past Performance Information, by any of the following methods:
•
•
•
Mr. Curtis E. Glover, Sr., Procurement Analyst, Acquisition Policy Division, at GSA (202) 501–1448 or email
Past performance information regarding a contractor's actions under previously awarded contracts is relevant information for future source selection purposes.
Department of Health and Human Services, Office of the Secretary, Office of the Assistant Secretary for Health.
Notice.
Pursuant to Section 10(a) of the Federal Advisory Committee Act, U.S.C. Appendix 2, notice is hereby given that the Secretary's Advisory Committee on Human Research Protections (SACHRP) will hold its twenty-seventh meeting. The meeting will be open to the public. Information about SACHRP and the meeting agenda will be posted on the SACHRP Web site at:
The meeting will be held on Tuesday, February 28, 2012 from 8:30 a.m. until 5 p.m. and Wednesday, February 29, 2012 from 8:30 a.m. until 5:00 pm.
U.S. Department of Health & Human Services, 200 Independence Avenue SW., Hubert H. Humphrey Building, Room 705, Washington, DC 20201.
Jerry Menikoff, M.D., J.D., Director, Office for Human Research Protections (OHRP), or Julia Gorey, J.D., Executive Director, SACHRP; U.S. Department of Health and Human Services, 1101 Wootton Parkway, Suite 200, Rockville, Maryland 20852; 240–453–8141; fax: 240–453–6909; email address:
Under the authority of 42 U.S.C. 217a, Section 222 of the Public Health Service Act, as amended, SACHRP was established to provide expert advice and recommendations to the Secretary of Health and Human Services and the Assistant Secretary for Health on issues and topics pertaining to or associated with the protection of human research subjects.
The meeting will open February 28 with remarks from SACHRP Chair Dr. Barbara Bierer and OHRP Director Dr. Jerry Menikoff, followed by a summary report from the Presidential Commission for the Study of Bioethical Issues on that group's recent report
On February 29, SACHRP will hear recommendations from the Subcommittee on Harmonization (SOH). SOH was established by SACHRP at its July 2009 meeting, and is charged with identifying and prioritizing areas in which regulations and/or guidelines for human subjects research adopted by various agencies or offices within HHS would benefit from harmonization, consistency, clarity, simplification and/or coordination. Following the SOH report, SACHRP will hear a discussion on the IRB use of component analysis, utilizing speakers from the FDA and academia.
Public Comment will be heard on both days.
Public attendance at the meeting is limited to space available. Individuals who plan to attend the meeting and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the designated contact persons. Members of the public will have the opportunity to provide comments on both days of the meeting. Public comment will be limited to five minutes per speaker. Any members of the public who wish to have printed materials distributed to SACHRP members for this scheduled meeting should submit materials to the Executive Director, SACHRP, prior to the close of business February 23, 2012.
Agency for Toxic Substances and Disease Registry (ATSDR), Department of Health and Human Services (DHHS).
Notice.
This notice announces the development of Set 25 Toxicological Profiles, which will consist of four updated profiles. ATSDR will make these profiles available to the public on or about October 17, 2012 and will solicit public comments at that time for a 90-day period. Electronic access to these documents will be available at the ATSDR Web site:
The following toxicological profiles are now being developed:
The Superfund Amendments and Reauthorization Act of 1986 (SARA) (42 U.S.C. 9601
Notice of the availability of drafts of these four updated toxicological profiles for public review and comment will be published in the
Commander Jessilynn B. Taylor, Division of Toxicology and Environmental Medicine, Agency for Toxic Substances and Disease Registry, 1600 Clifton Road NE., Mail Stop F–62,
The Agency for Toxic Substances and Disease Registry (ATSDR) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. chapter 35). To request a copy of these requests, call the CDC/ATSDR Reports Clearance Officer at (404) 639–7570 or send an email to
Registration of Individuals Displaced by the Hurricanes Katrina and Rita (Pilot Project)—New—Agency for Toxic Substances and Disease Registry (ATSDR), Centers for Disease Control and Prevention (CDC).
On August 29, 2005, Hurricane Katrina made landfall on the coast of the Gulf of Mexico near New Orleans, Louisiana, and became one of the most deadly and destructive storms in U.S. history. Also occurring in 2005, Hurricane Rita was the fourth-most intense Atlantic hurricane ever recorded and the most intense tropical cyclone ever observed in the Gulf of Mexico. Following the initial phase of the response, the Federal Emergency Management Agency (FEMA) assumed the primary role for housing displaced persons over the intermediate term. To support those needing temporary housing, FEMA provided over 130,000 travel trailers, park homes, and mobile homes for persons displaced by the above mentioned storms. However, some persons living in trailers complained of an odor or of eye or respiratory tract irritation.
FEMA entered into an Interagency Agreement with the Centers for Disease Control and Prevention (CDC)/ATSDR on August 16, 2007 to conduct a comprehensive public health assessment, based on objective and credible research, of air quality conditions present in FEMA housing units to guide FEMA policy makers and inform the public as to the actual conditions in the field and any actions required to better promote a safe and healthful environment for the disaster victims FEMA housed in the units. FEMA's agreement with the CDC includes an initial formaldehyde exposure assessment as well as a subsequent long-term study of the health effects among resident children. Formaldehyde testing conducted and evaluated by the CDC pursuant to the initial exposure assessment has identified the need to evaluate the feasibility of establishing a national registry to identify and monitor the health of disaster victims who occupied FEMA-provided temporary housing units. The establishment of such a registry would complement the long-term health effects study set forth in the FEMA–CDC Interagency Agreement.
The proposed pilot registry will have two goals: Primary Goal: Test the feasibility and cost of contacting and enrolling members in a registry by collecting and verifying phone interview data. Secondary Goal: Test the difference in prevalence rates of health conditions compared to national surveys (
The data collected in the pilot registry and the evaluation of the pilot registry will be used to determine the feasibility and estimate the costs of developing and populating a more complete registry of people affected by Hurricanes Katrina and Rita. In addition, comparisons of prevalence rates of health outcomes obtained through the pilot registry with estimates from national surveys will help determine the utility of conducting a full registry. For example, if all or most health outcomes do not appear to be in excess, the value of a full registry may be questionable.
A pre-registration datasets will be created before enrollment. This dataset will be populated with contact information of the occupants of temporary housing units provided by FEMA. FEMA provided the datasets for this pilot registry.
A computer-assisted telephone interview (CATI) system based on a paper questionnaire will be used during all interviews to collect data for this project. The first part will consist of screening questions to determine eligibility for enrollment. The second part will contain contact information of the registrant and other household members, demographics, and health status questions, focusing on respiratory outcomes and mental health.
The two minute screening questionnaire will be administered to a total of 8,000 respondents. Annualized over a two year period, 4,000 will be screened. The 25 minute main questionnaire will be administered to a total of 5,000 respondents. Annualized over a two year period, 2,500 occupants will complete the main questionnaire.
There are no costs to the respondents other than their time. The total estimated annual burden hours are 1,176.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639–7570 or send an email to
HIV Prevention among Latino MSM: Evaluation of a locally developed intervention—New—National Center for HIV/AIDS, Viral Hepatitis, STD, TB Prevention (NCHHSTP), Centers for Disease Control and Prevention (CDC).
Latinos are the largest and fastest growing ethnic minority group in the U.S. and have the second highest rate of HIV/AIDS diagnoses of all racial/ethnic groups in the country. From the beginning of the epidemic through 2007, Latinos accounted for 17% of all AIDS cases reported to the CDC. Among Latino males, male-to-male sexual contact is the single most important source of HIV infection, accounting for 46% of HIV infections in U.S.-born Latino men from 2001 to 2005, and for more than one-half of HIV infections among South American, Cuban, and Mexican-born Latino men in the U.S. (CDC, 2007a; 2007b). In 2006, male-to-male sex accounted for 72% of new HIV infections among Latino males. Relative to other men who have sex with men (MSM), the rate of HIV infection among Latino MSM is twice the rate recorded among whites (43.1 vs. 19.6 per 100,000).
Despite the high levels of infection risk that affect Latino MSM, no efficacious interventions to prevent infection by HIV and other sexually transmitted diseases (STDs) are available for this vulnerable population. CDC's Prevention Research Synthesis group, whose role is to identify HIV prevention interventions that have met rigorous criteria for demonstrating evidence of efficacy, has not identified any behavioral interventions for Latino MSM that meet current efficacy criteria, and no such interventions are listed in CDC's 2011 update of its Compendium of Evidence-Based HIV Behavioral Interventions (
The purpose of this project is to test the efficacy of an HIV prevention intervention for reducing sexual risk among Latino men who have sex with men in North Carolina. The HOLA en Grupos intervention is a Spanish-language, small-group, 4-session intervention that is designed to increase consistent and correct condom use and HIV testing among Latino MSM and to affect other behavioral and psychosocial factors that can increase their vulnerability of HIV/STD infection. This study will use a randomized controlled trial design to assess the efficacy of the HOLA en Grupos intervention compared to a general health comparison intervention.
CDC is requesting approval for a 3-year clearance for data collection. The data collection system involves screening of potential study participants for eligibility, collection of participants' contact information, and measures of intervention and comparison participants' socio-demographic characteristics, health seeking actions, HIV/STD and substance use-related risk behaviors, and psychosocial factors at baseline before intervention delivery and 6 months after intervention delivery. An estimated 350 men will be screened for eligibility in order to enroll the 300 men required for the study. The baseline and the 6-month follow-up assessments will be similar. However, the 6-month assessment will ask study participants fewer questions because there is no need to ask all questions during both assessments. Collection of eligibility information from potential participants will require about 10 minutes; collection of baseline assessment information will require about 1 hour and 45 minutes; and collection of the 6-month follow-up assessment information will require about 1 hour.
The total estimated annual burden hours are 883. There is no cost to participants other than their time.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995. To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639–5960 or send an email to
The National Health and Nutrition Examination Survey (NHANES) 1999–2010 Birth Certificate Linkage Study—Pregnant Women—New—National Center for Health Statistics (NCHS), Centers for Disease Control and Prevention (CDC).
Section 306 of the Public Health Service (PHS) Act (42 U.S.C. 242k), as amended, authorizes that the Secretary of Health and Human Services (DHHS), acting through NCHS, shall collect statistics on the extent and nature of illness and disability; environmental, social and other health hazards; and determinants of health of the population of the United States.
Division of Health and Nutrition Examination Surveys (DHANES) proposes to re-contact women who were pregnant at the time of their participation in NHANES in 1999–2010 and ask permission to link their data to the child's birth certificate data, for the birth that resulted after the survey. This study is funded in collaboration with CDC's National Center for Chronic Disease Prevention and Health Promotion, Division of Reproductive Health (DRH). Participation is completely voluntary and confidential.
NHANES was conducted periodically between 1970 and 1994, and continuously since 1999 by the NCHS. A supplemental sample of pregnant women was selected in NHANES from 1999–2006. This resulted in a total of 1,350 pregnant women. Although this supplemental sample was discontinued after 2006, there are an estimated 150 pregnant women in the NHANES sample for the years 2007–10. This results in a total estimate of 1,500 women for this project.
The NHANES only collected information about the pregnant women at the time of interview. Having information on their children's birth certificates and birth outcomes could provide insight into issues related to maternal and child health. No other survey has the physical examination and nutritional data that NHANES collects on pregnant women.
Consents for these projects will be sent to the appropriate U.S. states, local areas, or territories, where the birth certificate retrievals will then be conducted. Electronic retrieval per records is estimated at five minutes.
NHANES data users include the U.S. Congress; the World Health Organization; numerous Federal agencies such as the National Institutes of Health, the Environmental Protection Agency, and the United States Department of Agriculture; private groups such as the American Heart Association; schools of public health; private businesses; individual practitioners; and administrators. This submission requests approval for two years. There is no cost to respondents other than their time. The total estimated annual burden is 312 hours.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639–7570 or send an email to
Underreporting of Occupational Injuries and Illnesses by Workers—New—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
In 2008, the Congressional Committee on Education and Labor released the report, “Hidden Tragedy: Underreporting of Workplace Injuries and Illnesses,” indicating “that work-related injuries and illnesses in the United States are chronically and even grossly underreported.” Based in part on the report's results, Congress allocated funds for NIOSH to conduct a follow-up study using NIOSH's occupational supplement to the National Electronic Injury Surveillance System (NEISS–Work) to estimate underreporting among individuals who seek care at an emergency department (ED) for an occupational illness, injury, or exposure.
Objectives for this project are to (1) assess the reporting behavior of workers that are injured, ill, or exposed to a harmful substance at work; (2) characterize the chronic aspects of work-related injuries or illnesses; and (3) estimate the prevalence of work-related chronic injuries and illnesses among United States workers treated in EDs. Particular attention will be paid to self-employed workers, workers with work-related illnesses, and workers with chronic health problems.
Data collection for the telephone interview survey will be done via a questionnaire containing questions about the respondent's injury, illness, or exposure that sent them to the ED; the characteristics of the job they were working when they were injured, became ill, or were exposed; their experiences reporting their injury, illness, or exposure to the ED and their employer (if applicable); the presence of an underlying chronic condition that was associated with their ED visit; and the nature of any other work-related chronic conditions they have experienced. The questionnaire was designed to take 30 minutes to complete and includes a brief series of questions to screen out individuals who were not seen in the ED for a work-related injury, illness, or exposure; who are younger than age 20 or older than age 64; who do not speak English or Spanish; or who were working as volunteers or day laborers when the injury, illness, or exposure occurred or was made worse.
Approximately 1,500 to 3,000 interviews will be completed over the two year period. The only cost to the respondent will be the cost of their time spent on the phone completing the telephone interview survey. The total estimated burden hours are 750.
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than two business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Kalyani Bhatt at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Health Resources and Services Administration, HHS.
Final Notice.
The Centers of Excellence (COE) program in health professions education for under-represented minority (URM) individuals is authorized by section 736 of the Public Health Service Act (PHS Act), 42 U.S.C. 293 (2011). The purpose of this final notice is to inform interested individuals of the criteria that will be used to determine the eligibility of designated health professions schools to apply for COE funding in fiscal year (FY) 2012 and subsequent fiscal years. The Supplementary Information in this Notice provides a brief synopsis of the public comments that the Health Resources and Services Administration (HRSA) received on the updates to the proposed eligibility criteria in response to the November 7, 2011
Dr. Joan Weiss, Director, Division of Public Health and Interdisciplinary Education, Bureau of Health Professions, Health Resources and Services Administration. Dr. Weiss may be reached in one of three following methods: 1) via written request to: Dr. Joan Weiss, Designated Federal Official, Bureau of Health Professions, Health Resources and Services Administration, Parklawn Building, Room 9–36, 5600 Fishers Lane Rockville, Maryland 20852; 2) via telephone at (301) 443–6950; or 3) via email at
For more than 20 years, the COE program has supported programs of excellence in health professions education for under-represented minority (URM) individuals in designated health professions schools. The authorized categories of designated health professions schools are: (1) Designated Historically Black Colleges and Universities (HBCUs), (2) Hispanic, (3) Native American, and (4) “other” health professions schools that meet the program requirements. COEs provide academic enhancement programs to URM individuals; develop a large and competitive applicant pool to pursue health professions careers; and improve the capacity of schools to recruit, train, and retain URM faculty. The COE program facilitates faculty and student research on health issues particularly affecting URM groups. In addition, the program carries out activities to improve information resources, clinical education, curricula and cultural competence of schools' graduates relating to minority health issues. COEs also train students to provide health services to URM individuals at community-based health facilities and provide financial assistance, as available and appropriate. To be eligible for funding, the PHS Act requires designated schools to meet each of four general conditions. The schools must: (1) Have a significant number of URM individuals enrolled in the school, including individuals accepted for enrollment in the school; (2) have been effective in assisting URM students of the school to complete the program of education and receive the degree involved; (3) have been effective in recruiting URM individuals to enroll in and graduate from the school, including providing scholarships and other financial assistance to such individuals and encouraging URM students from all levels of the educational pipeline to pursue health professions careers; and (4) have made significant recruitment efforts to increase the number of URM individuals serving in faculty or administrative positions at the school (See PHS Act, Section 736(c)(1)(B)(i)—(iv)).
The
One commenter requested removing the graduation rate as an eligibility requirement, and instead using it as one factor to evaluate a school's qualifications for a COE grant due to the number of medical schools that have recently opened and are undergoing accreditation and do not yet have a graduating class to meet the graduation threshold. However, section 736(c)(1)(B)(ii) of the PHS Act requires health professions schools to demonstrate that they have “been effective in assisting under-represented minority students of the school to complete the program of education and receive the degree involved.” Newly opened health professions schools that are undergoing accreditation may be unable to meet this statutory requirement.
Another commenter expressed concern that the graduation threshold gives preference to institutions in the top quartile nationally for graduating URM students and may encourage institutions that have data below the threshold to inappropriately expand the number. The previous COE funding opportunity announcement (FY 2009) provided that, “[t]he reviewers will determine if the health professions school has been effective in assisting URM students of the school to complete the program of education and receive the degree involved. Reviewers will verify that the applicant school meets the required URM graduation rate of at least 85% over 4 or 5 years. If the applicant is a Native American COE, reviewers will verify that the applicant school has a URM graduation rate of at least 75%.” The criterion implements a statutory provision requiring effectiveness in assisting URM students to complete their degree programs, and we believe that the current formulation serves to standardize the minimum threshold by setting it at 75 percent. If the result is an increase in the graduation rate, that would be consistent with the goals of the program.
One commenter noted that the word “its” that was in the criterion, “requires designated health professions schools to be effective in assisting its URM students to successfully complete the program of education and to receive the appropriate professional degree” disconnects the intent of the criterion from the calculation. To avoid miscommunication on the intent of graduation threshold criteria and calculation, the word “its” is not used in this context in this Final Notice and will not be used when this criteria is reiterated in the COE funding opportunity announcement.
The general conditions of a designated health professions school to be eligible for COE funding, as authorized by the PHS Act, Title VII, Section 736, include meeting the four criteria mentioned previously in the Background section. A public comment recommended deleting part or all of the first, third, and fourth eligibility criteria. Because the statute clearly states these four conditions are required for eligible applicants to receive COE funding, none can be deleted, partially or in full.
Another commenter raised concern about the underlying statute, rather than the proposed criteria; these concerns are beyond the scope of this notice. The COE program, first authorized by Public Law 100–97 (“Excellence in Minority Health Education and Care Act”) in 1987, funds minority health professions schools to recruit, retain, and graduate URMs to increase the supply and quality of URMs in the health professions workforce. As demonstrated by national data sources, there continues to be a low number of URMs applying to U.S. medical schools (
The catalog of Federal Domestic Assistance Number for the COE program is 93.157. This program is not subject to the provisions of Executive Order 12372, Intergovernmental Review of Federal Programs (as implemented through 45 CFR part 100). Further, these programs are not subject to the Public Health Systems Reporting Requirements.
The Centers of Excellence Program application is approved under OMB No. 0915–0060.
For the reasons stated above, the Heath Resources and Services Administration (HSRA) is adopting the Proposed Notice, published at 76 FR 0215 on Monday, November 7, 2011, as a Final Notice with the change to clarify Criterion Two.
The COE program aims to support institutions with a commitment to URMs, including having demonstrated effectiveness in recruiting, teaching, training, and retaining current and future URM health professionals, both as practitioners and as faculty. This announcement details the proposed approach that the Secretary will use to assess whether schools and other eligible entities meet the eligible criteria defined in statute. Beginning in FY 2012, the following approach would be
A.
B.
1. Health professions schools and programs will be ranked according to the percentage of URMs (
2. The top quartile (75th percentile) will serve as the threshold and eligibility percentage for Hispanic, Native American, and “Other” COE applicants.
3. The Integrated Postsecondary Education Data System Completions survey will provide the raw data for threshold analysis. The Integrated Postsecondary Education Data System (IPEDS) is a system of interrelated completed surveys conducted annually by the U.S. Department of Education's National Center for Education Statistics (NCES). IPEDS collects data on postsecondary education in the United States, including the number of students who complete a postsecondary education program by type of program and level of award (certificate or degree). The IPEDS is available at
Individual schools will be responsible for calculating their percentage of URM graduates with degrees. Each school's graduation rate percentage will be compared to the thresholds established through the methodology described above. If a school meets or exceeds the threshold, it will meet the graduation eligibility criterion for the COE program. To calculate their URM graduation percentage, health professions schools would:
1. Sum the appropriate URM (Hispanic, Native American, or “Other”) population that completed and successfully graduated from the health professions school with degrees across the most recent three years (A).
2. Sum the total student population that completed and successfully graduated from the health professions school with degrees across the most recent three years (B).
3. Divide A by B to arrive at the average designated URM percentage of successful graduates from the health professions schools with degrees across the past three years.
To be eligible for the COE program, Hispanic, Native American and “Other” applicants must meet or exceed the proposed graduation thresholds. The proposed graduation threshold in each of the eligible fields of study is the 75th percentile of URM graduation rates as reported to the IPEDS. The 75th percentile was determined based on an analysis of the IPEDS completion survey of 2009 data within the appropriate field of study, as defined by the Classification of Instructional Program (CIP) code system. The CIP is the accepted federal government statistical standard on instructional program classifications. The “Total Programs” per discipline represents the number of programs reporting a completions rate for the given CIP code in the U.S. within the IPEDS system.
The analysis would be as follows:
ALLOPATHIC AND OSTEOPATHIC MEDICINE PROGRAMS (Doctors of Medicine, Doctors of Osteopathy):
TOTAL PROGRAMS REPORTED IN IPEDS = 142.
Hispanic graduation rate eligibility threshold = 6.3 percent.
Native American graduation rate eligibility threshold = 1.0 percent.
“Other” COE graduation rate eligibility threshold = 14.1 percent.
DENTISTRY (Doctors of Dental Surgery, Doctors of Dental Medicine):
TOTAL PROGRAMS REPORTED IN IPEDS = 59.
Hispanic graduation rate eligibility threshold = 7.1 percent.
Native American graduation rate eligibility threshold = 1.4 percent.
“Other” COE graduation rate eligibility threshold = 13.5 percent.
PHARMACY (Doctor of Pharmacy):
TOTAL PROGRAMS REPORTED IN IPEDS = 94.
Hispanic graduation rate eligibility threshold = 3.5 percent.
Native American graduation rate eligibility threshold = 0.5 percent. *
Other COE graduation rate eligibility threshold = 10.0 percent.
BEHAVIORAL OR MENTAL HEALTH:
TOTAL PROGRAMS REPORTED IN IPEDS = 1928.
Hispanic graduation rate eligibility threshold = 7.7 percent.
Native American graduation rate eligibility threshold = 0.66 percent. *
Other COE graduation rate eligibility threshold = 26.1percent.
* Due to the limited number of Native Americans graduating with a Doctor of Pharmacy or a graduate degree in Behavioral or Mental Health from the school of discipline, the proposed graduation rate eligibility threshold for these two disciplines is based on the mean percentage and not on the 75th percentile of Native Americans graduating with the required degree.
C
D.
The burden of results submission consists of the time and effort needed to summarize information from a clinical trial, format it, and enter it into the databank. We estimate that of the 5,500 applicable clinical trials that are registered each year, approximately 1,845 will be required to submit results each year (1,500 trials of drugs and biological products, and 345 trials of devices). We estimate that each results record will submitted once and updated twice to reflect changes in the data analysis, additional results of subsequent pre-specified outcome measures, or additional adverse event information. Based on information available from various organizations about results submission times, comments made at a public meeting held in April 2009, responses to estimates in previous OMB clearance documents (73 FR 58972, Oct. 8, 2008), and feedback from respondents who have submitted results to ClinicalTrials.gov, we have increased our estimate of the average response time to 25 hours from the 10 hour estimate included in the previous OMB clearance request. We estimate that updates take 8 hours, an increase over the 5 hour estimate included in the previous OMB clearance request for adverse event information. In addition,
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact: David Sharlip, National Library of Medicine, Building 38A, Room B2N12, 8600 Rockville Pike, Bethesda, MD 20894, or call non-toll free number 301–402–9680 or Email your request to
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the Board of Scientific Counselors of the NIH Clinical Center.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the Clinical Center, including consideration of personnel qualifications and performance, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Protection and Programs Directorate, DHS.
Committee Management; Notice of an Open Federal Advisory Committee Teleconference.
The President's National Security Telecommunications Advisory Committee (NSTAC) will meet on Tuesday, February 28, 2012, via a conference call. The meeting will be open to the public.
The NSTAC will meet Tuesday, February 28, 2012, from 2 p.m. to 3:15 p.m. Please note that the meeting may close early if the committee has completed its business.
The meeting will be held via a conference call. For access to the conference bridge, contact Ms. Deirdre Gallop-Anderson by email at
To facilitate public participation, we are inviting public comment on the issues to be considered by the committee as listed in the “Supplementary Information” section below. Documents associated with the issues to be discussed during the conference call are available at
•
•
•
•
A public comment period will be held during the meeting on February 28, 2012, from 2:45 p.m. to 3:15 p.m. Speakers that wish to participate in the public comment period must register in advance no later than February 21, 2012 at 5 p.m. by emailing Deirdre Gallop-Anderson at
Allen F. Woodhouse, NSTAC Designated Federal Officer, Department of Homeland Security, telephone (703) 235–4900.
Notice of this meeting is given under the Federal Advisory Committee Act (FACA), 5 U.S.C. App. (Pub. L. 92–463). The NSTAC advises the President on matters related to national security and emergency preparedness telecommunications policy.
During the conference call, the NSTAC members will receive a quarterly update on NSTAC Recommendations from Mr. Gregory Schaffer, Assistant Secretary for Cybersecurity and Communications, an update on the Cloud Computing Subcommittee from Mr. Mark McLaughlin, Chair of the Cloud Computing Subcommittee, and an update on the National Public Safety Broadband Network scoping effort from Mr. Scott Charney and Mr. Michael Laphen, Co-Chairs of the National Public Safety Broadband Network Subcommittee.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the Commonwealth of Virginia (FEMA–4042–DR), dated November 4, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–3886.
The notice of a major disaster declaration for the Commonwealth of Virginia is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of November 4, 2011.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Texas (FEMA–4029–DR), dated September 9, 2011, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–3886.
The notice of a major disaster declaration for the State of Texas is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of September 9, 2011.
Bosque County for Public Assistance, including direct federal assistance. Caldwell, Fayette, and Grimes Counties for emergency protective measures (Category B), including direct federal assistance, under the Public Assistance program (already designated for Individual Assistance).
Bowie, Camp, Crockett, Foard, Franklin, Grayson, Hardin, Hunt, Jefferson, Kendall, La Salle, Lee, Limestone, Matagorda, McCulloch, Newton, Orange, Pecos, Polk, Red River, Reeves, Roberts, San Augustine, Shelby, Titus, and Tyler Counties for emergency protective measures (Category B), including direct federal assistance, under the Public Assistance program.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households in Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
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.
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 Bonded Warehouse Proprietor's Submission (CBP Form 300). 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 April 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
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.
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 Country of Origin Marking Requirements for Containers or Holders. 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 April 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 cost burden to respondents or record keepers from the collection of information (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:
Fish and Wildlife Service, Interior.
Notice of issuance of endangered species emergency permit.
Between September 4 and October 10, 2011, more than 34,000
Documents and other information concerning the permit are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act. Documents will be available for public inspection, by appointment only, during normal business hours at the U.S. Fish and Wildlife Service, 500 Gold Ave. SW., Room 6034, Albuquerque, NM 87103.
Susan Jacobsen, Chief, Endangered Species Division, P.O. Box 1306, Albuquerque, NM 87103; (505) 248–6920.
The Federal Emergency Management Agency (FEMA) clean-up in Bastrop County, Texas, after the September 4 through October 10, 2011, fire may be delayed or the endangered Houston toad (
Salvage of Houston toads may include the following activities: collect as adults, juveniles, tadpoles, or eggs from areas or under conditions that will likely result in their dessication or destruction; transport to the Welsh property in Bastrop County, Texas, and release into exclosures or the headstarting facility until they can be returned to the wild; or transported to the Houston toad captive breeding or captive assurance colony at the Houston Zoo.
16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications to conduct certain activities with endangered species. With some exceptions, the Endangered Species Act (ESA) prohibits activities with listed species unless Federal authorization is acquired that allows such activities.
We must receive comments or requests for documents on or before March 12, 2012.
Brenda Tapia, Division of Management Authority, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 212, Arlington, VA 22203; fax (703) 358–2280; or email
Brenda Tapia, (703) 358–2104 (telephone); (703) 358–2280 (fax);
Send your request for copies of applications or comments and materials concerning any of the applications to the contact listed under
Please make your requests or comments as specific as possible. Please confine your comments to issues for which we seek comments in this notice, and explain the basis for your comments. Include sufficient information with your comments to allow us to authenticate any scientific or commercial data you include.
The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) those that include citations to, and analyses of, the applicable laws and regulations. We will not consider or include in our administrative record comments we receive after the close of the comment period (see
Comments, including names and street addresses of respondents, will be available for public review at the address listed under
To help us carry out our conservation responsibilities for affected species, and in consideration of section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests amendment and renewal of his captive-bred wildlife registration under 50 CFR 17.21(g) to include the barasingha (
The applicant requests amendment of their captive-bred wildlife registration under 50 CFR 17.21(g) to add scimitar-horned oryx (
The applicant requests amendment of their permit authorizing interstate and foreign commerce, export and cull to include scimitar-horned oryx (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess scimitar-horned oryx (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the blue-throated parakeet (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the scimitar-horned oryx (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess scimitar-horned oryx (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the scimitar-horned oryx (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess scimitar-horned oryx (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the scimitar-horned oryx (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess scimitar-horned oryx (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the barasingha (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess barasingha (
The applicant requests amendment of their captive-bred wildlife registration under 50 CFR 17.21(g) to add addax (
The applicant requests amendment of their permit authorizing interstate and foreign commerce, export and cull to include addax (
The applicant requests amendment and renewal of his captive-bred wildlife registration under 50 CFR 17.21(g) to include the barasingha (
The applicant requests renewal and amendment of their permit authorizing interstate and foreign commerce, export and cull to include barasingha (
The applicant requests renewal of their captive-bred wildlife registration under 50 CFR 17.21(g) for the following families, genus, and species, to enhance their propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests renewal of their captive-bred wildlife registration under 50 CFR 17.21(g) for the following families, genus, and species, to enhance their propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests amendment of their captive-bred wildlife registration under 50 CFR 17.21(g) to add maned wolf (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the scimitar-horned oryx (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the barasingha (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess barasingha (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the addax (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess Addax (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the barasingha (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess barasingha (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the addax (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess Addax (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the scimitar-horned oryx (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess scimitar-horned oryx (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the scimitar-horned oryx (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess scimitar-horned oryx (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the scimitar-horned oryx (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess scimitar-horned oryx (
The applicant requests amendment of their captive-bred wildlife registration under 50 CFR 17.21(g) to add addax (
The applicant requests amendment of their permit authorizing interstate and foreign commerce, export and cull to include addax (
The applicant requests a permit to export and re-import nonliving museum specimens of endangered and threatened species previously accessioned into the applicant's collection for scientific research. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests a permit to import a sport-hunted trophy of one male bontebok (
Bureau of Land Management, Interior.
Notice of Filing of Plats of Survey.
Notice of Filing of Plats of Survey; Alaska.
The plat of survey described above is scheduled to be officially filed in the Alaska State Office, Bureau of Land Management, Anchorage, Alaska, March 12, 2012.
Bureau of Land Management, Alaska State Office; 222 W. 7th Ave., Stop 13; Anchorage, AK 99513–7599.
Michael H. Schoder, Chief Cadastral Surveyor, Division of Cadastral Survey, BLM-Alaska State Office; 222 W. 7th Ave., Stop 13; Anchorage, AK 99513–7599; Tel: 907–271–5481; fax: 907–271–4549; email:
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, seven days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The survey plat(s) and field notes will be available for inspection in the Public Information Center, Alaska State Office, Bureau of Land Management, 222 West 7th Avenue, Anchorage, Alaska, 99513–7599; telephone (907) 271–5960. Copies may be obtained from this office for a minimum recovery fee.
If a protest against the survey is received prior to the date of official filing, the filing will be stayed pending consideration of the protest. A plat will not be officially filed until the day after all protests have been dismissed.
A person or party who wishes to protest against this survey must file a written response with the Alaska State Director, Bureau of Land Management, stating that they wish to protest.
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.
A statement of reasons for a protest may be filed with the notice of protest to the State Director; the statement of reasons must be filed with the State Director within thirty days after the protest is filed.
43 U.S.C. 3; 53.
National Park Service (NPS), Interior.
Notice; request for comments.
We (National Park Service) will ask the Office of Management and Budget (OMB) to approve the information collection (IC) described below. This collection will survey participants of Biodiversity Discovery efforts. To comply with the Paperwork Reduction Act of 1995 and as a part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other federal agencies to comment on this IC. The PRA (44 U.S.C. 3501, et seq.) provides that we may not conduct or sponsor and a person is not required to respond to a collection unless it displays a currently valid OMB control number and current expiration date.
Please submit your comment on or before April 9, 2012.
Please send your comments to the IC to Phadrea Ponds, Information Collections Coordinator, National Park Service, 1201 Oakridge Drive, Fort Collins, CO 80525 (mail); or
Gerard Kyle by mail at Texas A&M University, 2261 TAMU, College Station, TX 77843 or
Biodiversity Discovery refers to a variety of efforts to discover living organisms through public involvement. Examples include Bioblitzes and All Taxa Biodiversity Inventories (ATBIs). A Bioblitz is a field study where NPS and other scientists lead members of the public in an intensive 24-hour (or 48-hour) biological inventory to identify and record all species of living organisms in a given area. The term “Bioblitz” was coined by NPS naturalist Susan Rudy while assisting with the first Bioblitz at Kenilworth Aquatic Gardens in Washington DC in 1996. Approximately 1,000 species were identified at that event. The first All Taxa Biodiversity Inventory began in Great Smoky Mountains National Park in 1998 and is still ongoing. The effort has engaged hundreds of participants and resulted in the discovery of thousands of species, including many that are new records for the park. In addition to collecting taxonomic data, there appears to be important secondary benefits gained by visitors who have taken part in Biodiversity Discovery activities. A 2009 study found that such participants felt an increased sense of stewardship, a connection to the host park, and a better understanding about the species of concern after their Biodiversity Discovery experience. The information collected will provide NPS managers and planners with a greater understanding of public attitudes, preferences, and behaviors related to stewardship and resource conservation in their National Parks.
Please note that the comments submitted in response to this notice are a matter of public record. 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 OMB in your comment to withhold your personal identifying information from public review, we cannot guarantee that it will be done.
United States International Trade Commission.
February 10, 2012 at 11 a.m.
Room 101, 500 E Street SW., Washington, DC 20436, Telephone: (202) 205–2000.
Open to the public.
1. Agendas for future meetings: None.
2. Minutes.
3. Ratification List.
4. Vote in Inv. Nos. 701–TA–486 and 731–TA–1195–1196 (Preliminary) (Utility Scale Wind Towers from China and Vietnam). The Commission is currently scheduled to transmit its determinations to the Secretary of
5. Vote in Inv. Nos. 701–TA–487 and 731–TA–1197–1198 (Preliminary) (Steel Wire Garment Hangers from Taiwan and Vietnam). The Commission is currently scheduled to transmit its determinations to the Secretary of Commerce on or before February 13, 2012; Commissioners' opinions are currently scheduled to be transmitted to the Secretary of Commerce on or before February 21, 2012.
6. Vote in Inv. Nos. 701–TA–488 and 731–TA–1199–1200 (Preliminary) (Certain Large Residential Washers from Korea and Mexico). The Commission is currently scheduled to transmit its determinations to the Secretary of Commerce on or before February 13, 2012; Commissioners' opinions are currently scheduled to be transmitted to the Secretary of Commerce on or before February 21, 2012.
7. Outstanding action jackets: None
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the presiding administrative law judge (ALJ) has issued a Final Initial Determination and Recommended Determination on Remedy and Bonding (ID/RD) in the above-captioned investigation. The Commission is soliciting comments on public interest issues raised by the recommended relief, specifically a limited exclusion order directed to infringing products of any respondent that the Commission finds in violation of section 337, and a cease and desist order to any respondent found to be in violation of section 337 and to have a commercially significant infringing inventory.
James R. Holbein, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. The public version of the ALJ's ID/RD will be accessible on the Commission's electronic docket (EDIS) at
General information concerning the Commission may also be obtained by accessing its Internet server (
Section 337 of the Tariff Act of 1930 provides that if the Commission finds a violation it shall exclude the articles concerned from the United States:
Unless, after considering the effect of such exclusion upon the public health and welfare, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, and United States consumers, it finds that such articles should not be excluded from entry.
The Commission is interested in further development of the record on the public interest in these investigations. Accordingly, members of the public are invited to file submissions of no more than five (5) pages, inclusive of attachments, concerning the public interest in light of the administrative law judge's Recommended Determination on Remedy and Bonding issued in this investigation on February 1, 2012 (confidential version). Comments should address whether issuance of a limited exclusion order and cease and desist orders in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the recommended orders are used in the United States;
(ii) Identify any public health, safety, or welfare concerns in the United States relating to the recommended orders;
(iii) Identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) Indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the recommended exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) Explain how any limited exclusion order and cease and desist order would impact consumers in the United States.
Written submissions must be filed no later than by close of business on March 2, 2012.
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the investigation number (“Inv. No. 337–TA–756”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. § 1337), and of sections 201.10 and 210.50 of the
By order of the Commission.
Notice is hereby given that on January 30, 2012, a proposed Consent Decree in
In this action, the United States sought civil penalties and injunctive relief against Columbus Manufacturing Inc. (“CMI”) for violations of Section 112(r)(1) and 112(r)(7) of the Clean Air Act, 42 U.S.C. 7412(r)(1) and 7412(r)(7) (“CAA”), Section 103 of the Comprehensive Environmental Response, Compensation and Liability Act, § 42 U.S.C. 9603 (“CERCLA”), and/or Sections 304 and 312 of the Emergency Preparedness and Community Right-To-Know Act, 42 U.S.C. 11004 and 11022 (“EPCRA”), with respect to CMI's two meat processing facilities located in South San Francisco and Hayward, California.
The United States has agreed to resolve these claims under the proposed Consent Decree wherein CMI has agreed to pay $685,446 in civil penalties, and perform injunctive relief valued at over $6 million.
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 may be examined at U.S. EPA Region IX at 75 Hawthorne Street, San Francisco, California 94105. During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site:
Office of Justice Programs (OJP), Justice.
Notice of hearing.
This is an announcement of the second hearing of the Attorney General's National Task Force on Children Exposed to Violence (the “Task Force”). The Task Force is chartered to provide OJP, a component of the Department of Justice, with valuable advice in the areas of children exposed to violence for the purpose of addressing the epidemic levels of exposure to violence faced by our nation's children. Based on the testimony at four public hearings; comprehensive research; and extensive input from experts, advocates, and impacted families and communities nationwide, the Task Force will issue a final report to the Attorney General presenting its findings and comprehensive policy recommendations in the fall of 2012.
The hearing will take place on Tuesday, January 31, from 8:30 a.m. to 5:30 p.m., MST; and Wednesday, February 1, 2012, from 8:30 a.m. to 2 p.m., MST.
The portion of the hearing occurring on Tuesday, January 31, 2012, will take place at One Civic Center Plaza, Albuquerque, New Mexico (87102). The portion of the hearing occurring on Wednesday, February 1, 2012, will take place at the United States Attorney's Office for the District of New Mexico, 201 3rd St. NW., Albuquerque, New Mexico (87102).
Will Bronson, Designated Federal Officer (DFO) and Deputy Associate Administrator, Child Protection Division, Office of Juvenile Justice & Delinquency Prevention, Office of Justice Programs, 810 7th Street NW., Washington, DC 20531. Phone: (202) 305–2427 [
This hearing is being convened to brief the Task Force members about the issue of children's exposure to violence. The final agenda is subject to adjustment, but it is anticipated that on January 31, there will be a morning and afternoon session, with a break for lunch. The morning session will likely include welcoming remarks and introductions, and panel presentations from invited guests on the impact of children's exposure to violence. The afternoon session will likely include presentations from experts invited to brief the Task Force on describing children's exposure to violence in rural and American Indian/Alaska Native communities and several existing programs that attempt to address this epidemic. On February 1, there will be a morning session that will include a review of material presented during the previous day, presentation from the subcommittee that participated in a community listening session, and a discussion on the structure of the final report.
This meeting is open to the public. Members of the public who wish to attend this meeting must provide photo identification upon entering the facility. Those wishing to provide public testimony during the hearings should register with Will Bronson at
Anyone requiring special accommodations should notify Mr. Bronson at least seven (7) days in advance of the meeting.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Office of Workers' Compensation Programs is soliciting comments concerning its proposal to extend OMB approval of the information collection: Statement of Recovery (SOR) Forms (CA–1108 and CA–1122). A copy of the proposed information collection request can be obtained by contacting the office listed below in the addresses section of this Notice.
Written comments must be submitted to the office listed in the addresses section below on or before April 9, 2012.
Ms. Yoon Ferguson, U.S. Department of Labor, 200 Constitution Ave. NW., Room S–3201, Washington, DC 20210, telephone (202) 693–0701, fax (202) 693–1447, Email
• 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;
• Evaluate 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;
• Enhance the quality, utility and clarity of the information to be collected; and
• 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 submissions of responses.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Office of Workers' Compensation Programs is soliciting comments concerning the proposed collection: Rehabilitation Maintenance Certificate (OWCP–17). A copy of the proposed information collection request can be obtained by contacting the office listed below in the addresses section of this Notice.
Written comments must be submitted to the office listed in the addresses section below on or before April 9, 2012.
Ms. Yoon Ferguson, U.S. Department of Labor, 200 Constitution Ave. NW., Room S–3201, Washington, DC 20210, telephone (202) 693–0701, fax (202) 693–1447, Email
• 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;
• Evaluate 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;
• Enhance the quality, utility and clarity of the information to be collected; and
• 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,
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92–462, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Science Committee of the NASA Advisory Council (NAC). This Committee reports to the NAC. The meeting will be held for the purpose of soliciting, from the scientific community and other persons, scientific and technical information relevant to program planning.
Tuesday, March 6, 2012, 8:30 a.m. to 4 p.m., and Wednesday, March 7, 2012, 8:30 a.m. to 2 p.m., Local Time.
NASA Headquarters, 300 E Street SW., Room 3H46 and 7H45, respectively, Washington, DC 20546.
Ms. Marian Norris, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358–4452, fax (202) 358–1377, or
The meeting will be open to the public up to the capacity of the room. This meeting is also available telephonically and by WebEx. Any interested person may call the USA toll free conference call number 888–997–8509, pass code Science Committee, to participate in this meeting by telephone. The WebEx link is
It is imperative that the meeting be held on these dates to accommodate the scheduling priorities of the key participants. Attendees will be requested to sign a register and to comply with NASA security requirements, including the presentation of a valid picture ID to Security before access to NASA Headquarters. Foreign nationals attending this meeting will be required to provide a copy of their passport and visa in addition to providing the following information no less than 10 working days prior to the meeting: full name; gender; date/place of birth; citizenship; visa information (number, type, expiration date); passport information (number, country, expiration date); employer/affiliation information (name of institution, address, country, telephone); title/position of attendee; and home address to Marian Norris via email at
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92–463, as amended, the National Aeronautics and Space Administration announces a meeting of the Information Technology Infrastructure Committee of the NASA Advisory Council.
Wednesday, March 7, 2012, 8:30 a.m.–12 p.m., local time. Meet-Me-Number: 1–866 818–0788, Participant—9453583.
NASA Headquarters, 300 E. Street SW., Washington, DC 20546, Room MIC 3B.
Ms. Karen Harper, Executive Secretary for the Information Technology Infrastructure Committee, National Aeronautics and Space Administration, Headquarters, Washington, DC 20546, (202) 358–1807.
The topics of discussion for the meeting are the following:
• Proposed NAC Recommendations from the Information Technology Infrastructure Committee
• Future mission data needs
The meeting will be open to the public up to the seating capacity of the room. It is imperative that these meetings be held on this date to accommodate the scheduling priorities of the key participants. Attendees will be required to comply with NASA security procedures, including the presentation of a valid picture ID to Security before access to NASA Headquarters. Foreign Nationals attending this meeting will be required to provide a copy of their passport and visa in addition to providing the following information no later than February 24, 2012, prior to the meeting: full name; gender; date/place of birth; citizenship; visa information (number, type, expiration date); passport information (number, country, expiration date); employer/affiliation information (name of institution, address, country, telephone); title/position of attendee; and home address to Ms. Karen Harper via email at
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92–463, as amended, the National Aeronautics and Space Administration announces a meeting of the Human Exploration and Operations Committee of the NASA Advisory Council.
Tuesday, March 6, 2012, 8:30 a.m.–3:30 p.m. and Wednesday, March 7, 2012; 8:30 a.m.–2:30 p.m., local time.
National Aeronautics and Space Administration, 300 E Street SW., Glennan Conference Room 1Q39, Washington, DC 20546–0001.
Dr. Bette Siegel, Human Exploration and Operations Mission Directorate, National Aeronautics and Space Administration Headquarters, 300 E Street SW., Washington, DC 20546, 202–358–2245;
The agenda topics for the meeting will include:
National Science Foundation.
Notice of permit applications received under the Antarctic Conservation Act of 1978, Public Law 95–541.
The National Science Foundation (NSF) is required to publish a notice of permit applications received to conduct activities regulated under the Antarctic Conservation Act of 1978. NSF has published regulations under the Antarctic Conservation Act at Title 45 part 670 of the Code of Federal Regulations. This is the required notice of permit applications received.
Interested parties are invited to submit written data, comments, or views with respect to this permit application by March 12, 2012. This application may be inspected by interested parties at the Permit Office, address below.
Comments should be addressed to Permit Office, Room 755, Office of Polar Programs, National Science Foundation, 4201 Wilson Boulevard, Arlington, Virginia 22230.
Polly A. Penhale at the above address or (703) 292–7420.
The National Science Foundation, as directed by the Antarctic Conservation Act of 1978 (Pub. L. 95–541), as amended by the Antarctic Science, Tourism and Conservation Act of 1996, has developed regulations for the establishment of a permit system for various activities in Antarctica and designation of certain animals and certain geographic areas a requiring special protection. The regulations establish such a permit system to designate Antarctic Specially Protected Areas.
The applications received are as follows:
1.
2.
In accordance with the Federal Advisory Committee Act (Pub. L. 92–463, as amended), the National Science Foundation announces the following meeting:
• Update on NSF environmental research and education activities
• Update on national and international collaborations
• Meeting with the NSF Director
• Update on NSF's Science, Engineering and Education for Sustainability portfolio (SEES)
In accordance with the Federal Advisory Committee Act (Pub. L. 92–463 as amended), the National Science Foundation announces the following meeting:
Nuclear Regulatory Commission.
Notice of pending NRC action to submit an information collection request to the Office of Management and Budget (OMB) and solicitation of public comment.
The Nuclear Regulatory Commission (NRC) invites public comment about our intention to request the OMB's approval for renewal of an existing information collection that is summarized below. We are required to publish this notice in the
Information pertaining to the requirement to be submitted:
1.
2.
3.
4.
5.
6.
7.
Submit, by April 9, 2012, comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the burden estimate accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection be minimized, including the use of automated collection techniques or other forms of information technology?
The public may examine and have copied for a fee publicly available documents, including the draft supporting statement, at the NRC's Public Document Room, Room O–1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. OMB clearance requests are available at the NRC worldwide Web site:
You may submit your comments by any of the following methods. Electronic comments: Go to
Questions about the information collection requirements may be directed to the NRC Clearance Officer, Tremaine Donnell (T–5 F53), U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, by telephone at 301–415–6258, or by email to
Dated at Rockville, Maryland, this
For the Nuclear Regulatory Commission.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Railroad Retirement Board (RRB) is forwarding an Information Collection Request (ICR) to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget (OMB). Our ICR describes the information we seek to collect from the public. Review and approval by OIRA ensures that we impose appropriate paperwork burdens.
The RRB invites comments on the proposed collection of information to determine (1) the practical utility of the collection; (2) the accuracy of the estimated burden of the collection; (3) ways to enhance the quality, utility, and clarity of the information that is the subject of collection; and (4) ways to minimize the burden of collections on respondents, including the use of automated collection techniques or other forms of information technology. Comments to the RRB or OIRA must contain the OMB control number of the ICR. For proper consideration of your comments, it is best if the RRB and OIRA receive them within 30 days of the publication date.
Under section 2(e)(3) of the Railroad Retirement Act (RRA), an annuity is not payable for any month in which a beneficiary works for a railroad. In addition, an annuity is reduced for any month in which the beneficiary works for an employer other than a railroad employer and earns more than a prescribed amount. Under the 1988 amendments to the RRA, the Tier II portion of the regular annuity and any supplemental annuity must be reduced by one dollar for each two dollars of Last Pre-Retirement Non-Railroad Employment (LPE) earnings for each month of such service. However, the reduction cannot exceed fifty percent of the Tier II and supplemental annuity amount for the month to which such
The RRB utilizes Form G–19L,
The burden estimate for the ICR is as follows:
Estimated Completion Time for Form G–19L: 15 minutes.
Estimated annual number of respondents: 300.
Total annual responses: 300.
Total annual reporting hours: 75.
Comments regarding the information collection should be addressed to Charles Mierzwa, Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois, 60611–2092 or
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Exchange Rule 1082, Firm Quotations, by modifying Exchange Rules 1017, Openings in Options, and 1082, Firm Quotations, to describe the manner in which the PHLX XL® automated options trading system
In addition, the current rules describing the Exchange's disseminated quotations during an Opening Imbalance and a Quote Exhaust condition are subject to a pilot scheduled to expire February 29, 2012. The Exchange proposes to discontinue the pilot and to adopt the proposed new rules on a permanent basis.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to establish a quote condition in which one side of an option quotation (bid or offer) disseminated by the Exchange will be designated as non-firm during an “Opening Imbalance” or a “Quote Exhaust” while the opposite side of the market from the “non-firm” bid or offer remains firm for the Exchange's disseminated price and size. The proposed rule would not be effective on a pilot basis. The Exchange is proposing that this rule change would be effective on a permanent basis.
In June, 2009, the Exchange added several significant enhancements to its automated options trading platform (now known as PHLX XL), and adopted rules to reflect those enhancements.
Accordingly, the Exchange proposed, on a pilot basis, to disseminate quotations in such a circumstance with a (i) a bid price of $0.00, with a size of one contract if the remaining size is a seller, or (ii) an offer price of $200,000, with a size of one contract if the remaining size is a buyer.
The Exchange subsequently modified the manner in which the PHLX XL system disseminated quotes when one side of the quote was exhausted but the opposite side still had marketable size at the disseminated price, as described in detail below.
On October 7, 2010, the U.S. options exchanges, as participants in the OPRA Plan, voted to make technological changes that would enable OPRA to support a one-sided non-firm quote condition. These technological changes presented the opportunity for OPRA and the participants to design, test, and deploy modifications to their systems, and to disseminate this quote condition to quotation vendors, that will support the one-sided non-firm quote condition.
On November 9, 2010, OPRA submitted to the Commission, for immediate effectiveness, an amendment to the Plan for Reporting of Consolidated Options Last Sale Reports and Quotation Information (the “OPRA Plan”).
Pursuant to the amendment to the OPRA Plan (and the conforming amendments cited above), the Exchange now proposes to adopt, on a permanent basis, rules describing the PHLX XL system's disseminated quotations during an Opening Imbalance and during a Quote Exhaust condition.
An Opening Imbalance occurs when all opening marketable size cannot be completely executed at or within an established Opening Quote Range (“OQR”) for the affected series.
The Exchange proposes to amend Rule 1017(l)(vi)(C)(7) to reflect the new manner in which the Exchange will disseminate quotations during the Opening Imbalance display period. Specifically, during this display time period, the PHLX XL system will disseminate, on the opposite side of the market from remaining unexecuted contracts: (i) A non-firm bid for the price and size of the next available bid(s) on the Exchange if the imbalance is a sell imbalance, or (ii) a non-firm offer for the price and size of the next available offer(s) on the Exchange if the imbalance is a buy imbalance.
Quote Exhaust occurs when the market at a particular price level on the Exchange includes a quote, and such market is exhausted by an inbound contra-side quote or order (“initiating quote or order”), and following such exhaustion, contracts remain to be executed from the initiating quote or order.
Rather than immediately executing at the next available price, the PHLX XL system employs a timer (a “Quote Exhaust Timer”), not to exceed one second, in order to allow market participants to refresh their quotes. During the Quote Exhaust Timer, PHLX XL currently disseminates the “Reference Price” (the most recent execution price) for the remaining size, provided that such price does not lock an away market, in which case, the Exchange currently disseminates a bid and offer that is one Minimum Price Variation (“MPV”) from the away market price. During the Quote Exhaust Timer, the Exchange disseminates, on the opposite side of the market from the remaining contracts: (i) A bid price of $0.00, with a size of zero contracts if the remaining size is a seller, or (ii) an offer price of $0.00, with a size of zero contracts if the remaining size is a buyer.
The Exchange proposes to amend Rules 1082(a)(ii)(B)(3)(b), 1082(a)(ii)(B)(3)(g)(iv)(A)(3), 1082(a)(ii)(B)(3)(g)(iv)(A)(4), 1082(a)(ii)(B)(3)(g)(iv)(B)(2), and 1082(a)(ii)(B)(3)(g)(iv)(C) to reflect the new manner in which the Exchange will disseminate quotations during a Quote Exhaust condition. Specifically, during Quote Exhaust, the PHLX XL system will disseminate, on the opposite side of the market from remaining unexecuted contracts: (i) A non-firm bid for the price and size of the next available bid(s) on the Exchange if the remaining size is a seller, or (ii) a non-firm offer for the price and size of the next available offer(s) on the Exchange if the remaining size is a buyer.
Current Rule 1082(a)(ii)(B)(3)(g)(vi) describes what the PHLX XL system does if, after trading at the PHLX and/or routing, there are unexecuted contracts from the initiating order that are still marketable. In this situation, remaining contracts are posted for a period of time not to exceed 10 seconds and then cancelled after such period of time has elapsed, unless the member that submitted the original order has instructed the Exchange in writing to re-enter the remaining size, in which case the remaining size will be automatically submitted as a new order. Currently, during the up to 10 second time period, the Exchange disseminates, on the opposite side of the market from remaining unexecuted contracts: (i) A bid price of $0.00, with a size of zero contracts if the remaining size is a seller, or (ii) an offer price of $0.00, with a size of zero contracts if the remaining size is a buyer.
The Exchange proposes to amend Rule 1082(a)(ii)(B)(3)(g)(vi) to reflect the new manner in which the Exchange will disseminate quotations during the up to 10 second time period. Specifically, during the up to 10 second time period, the PHLX XL system will disseminate, on the opposite side of the market from remaining unexecuted contracts: (i) A non-firm bid for the price and size of the next available bid(s) on the Exchange if the remaining size is a seller, or (ii) a non-firm offer for the price and size of the next available offer(s) on the Exchange if the remaining size is a buyer. The purpose of this provision is to indicate that the Exchange has exhausted all marketable quotations on one side of the market, yet has remaining unexecuted contracts on the opposite side of the market that are firm at the disseminated price and size.
The current rules describing the Exchange's disseminated quotations during an Opening Imbalance and a Quote Exhaust condition are subject to a pilot scheduled to expire February 29, 2012. The Exchange proposes to discontinue the pilot and to adopt the proposed new rules on a permanent basis.
The Exchange intends to implement the proposed changes to Rules 1017 and 1082 on March 1, 2012.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange further believes that the proposal is consistent with the SEC Quote Rule's provisions regarding non-firm quotations.
By disseminating a non-firm bid (offer), together with a firm offer (bid) in certain situations delineated above, the Exchange believes that it is adequately communicating that it is non-firm on the affected side of the market in compliance with the Quote Rule.
The proposed rule change promotes just and equitable principles of trade by informing investors that one side of the Exchange's disseminated quotation is exhausted and therefore non-firm, thus providing transparency to investors. This also removes impediments to and perfects the mechanism of a free and open market and a national market system by providing information to market participants who may be in the process of determining where to send their orders for execution. The proposed rule change protects investors and the public interest because it provides accurate information to the investing public concerning the Exchange's disseminated market.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate, it has become effective pursuant to 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission,
To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
NASDAQ is proposing to modify NASDAQ's transaction execution fee and credit schedule in Rules 7014 and 7018. NASDAQ will implement the proposed change on February 1, 2012. The text of the proposed rule change is available at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
NASDAQ is amending its fee and credit schedule for transaction executions in Rules 7014 and 7018. First, NASDAQ is amending the rebate associated with its recently introduced “Pre-Market Investor Program” (the “PMI Program”). The goal of the PMI Program is to encourage the development of a deeper, more liquid trading book during pre-market hours, while also recognizing the correlation observed by NASDAQ between levels of liquidity provided during pre-market hours and levels provided during regular trading hours. Under the program, a member is required to designate one or more market participant identifiers (“MPIDs”) for use under the program. The member will then qualify for an extra rebate with respect to all displayed liquidity provided through a designated MPID that executes at a price of $1 or more during the month if the following conditions are met:
(1) The MPID's “PMI Execution Ratio” for the month is less than 10. The PMI Execution Ratio is defined as the ratio of (A) the total number of liquidity-providing orders entered by a member through a PMI-designated MPID during the specified time period to (B) the number of liquidity-providing orders entered by such member through such PMI-designated MPID and executed (in full or partially) in the Nasdaq Market Center during such time period; provided that: (i) No order shall be counted as executed more than once; and (ii) no Pegged Orders, odd-lot orders, or MIOC or SIOC
(2) The member provides an average daily volume of 2 million or more shares of liquidity during the month using orders that are executed prior to NASDAQ's Opening Cross. NASDAQ has observed that members that provide higher volumes of liquidity-providing orders during the pre-market hours generally do so throughout the rest of the trading day. Accordingly, the PMI pays a credit with respect to all liquidity-providing orders, but only in the event that comparatively large volumes of such orders execute in pre-market hours.
(3) The ratio between shares of liquidity provided through the MPID and total shares accessed, provided, or routed through the MPID during the month is at least 0.80. This requirement reflects the PMI's goal of encouraging members that provide high levels of liquidity in pre-market hours to also do so during the rest of the trading day.
Under the proposed change, NASDAQ is raising the extra rebate under the program from $0.0001 per share executed to $0.0002 per share executed. As is currently the case, the rebate is paid with respect to all displayed liquidity provided through a designated MPID that executes at a price of $1 or more during the month. NASDAQ is making the change to encourage more market participants to join the program.
Second, NASDAQ is amending Rule 7018(a)(3)
NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The proposed new tiers for members that use NASDAQ to trade significant amounts of Tape B Securities are reasonable because they will result in a fee reduction for members that qualify for the tiers, but will not increase the costs borne by other members or limit the availability of other, pre-existing pricing incentives. Moreover, the proposed change is consistent with an equitable allocation of fees because it charges lower fees for executing Tape B Securities to members that make significant contributions to NASDAQ market quality and price discovery by accessing and providing high volumes of liquidity in Tape B Securities. NASDAQ believes that the change is not unfairly discriminatory because the price reduction offered to qualifying members is linked to the volume of trading in the securities to which the discount applies. NASDAQ further believes that the program may encourage members to become more active in trading Tape B Securities through NASDAQ, thereby benefitting other market participants that may be able to trade larger volumes of stocks without affecting the price of those stocks. Finally, NASDAQ believes that it is reasonable, equitable, and not unfairly discriminatory to stipulate that members qualifying for the pricing tiers must achieve the requisite volume thresholds through a single MPID, thereby enhancing market quality through unified management of the member's quotes/orders and discouraging aggregation arrangements that exist solely for pricing reasons. NASDAQ believes that firms that engage in more unified management of their quotes and orders are most likely to promote price discovery and market stability.
As described in the filing that instituted it,
Finally, NASDAQ notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive. In such an environment, NASDAQ must continually adjust its fees to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. NASDAQ
NASDAQ does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. Because the market for order execution is extremely competitive, members may readily opt to disfavor NASDAQ's execution services if they believe that alternatives offer them better value. The proposed changes will enhance competition by reducing certain of NASDAQ's fees. Notably, the proposed pricing tiers for Tape B Securities will enhance NASDAQ's ability to compete with NYSEArca, which currently offers reduced fees to access liquidity in Tape B Securities.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to adopt rules applicable to the qualification, listing, trading, and delisting of certain securities on NASDAQ (“Listing Rules”). Specifically, NASDAQ proposes to adopt Listing Rules applicable to the following securities: Equity Index-Linked Securities, Commodity-Linked Securities,
The proposal would adopt listing standards based on the relevant listing standards of the NYSE Arca, Inc. (“NYSEArca”) Equities Rules, as set forth below. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to adopt listing standards for each of the products specified above. The Section 5000 series of the NASDAQ rules govern the qualification, listing and delisting of securities on the NASDAQ Stock Market. Section 5000 also sets forth, among other things, definitions,
Proposed new Rule 5711, Trading of Certain Derivative Securities, would include listing standards for Index-Linked Exchangeable Notes, Equity Gold Shares, Trust Certificates, Commodity-Based Trust Shares, Currency Trust Shares, Commodity Index Trust Shares, Commodity Futures Trust Shares, Partnership Units, Trust Units, Managed Trust Securities, and Currency Warrants.
The instant proposed rule change is intended to define the specific products (see above) that NASDAQ intends to list and trade, and the listing and qualification requirements for each such product.
The proposed amendments to Rule 5710 would state that NASDAQ will consider for listing and trading the Linked Securities set forth in the introductory paragraphs of the rule. These paragraphs describe the basis for the payment at maturity of the various securities, which is the performance of “Reference Assets,” as defined below.
Specifically:
• Equity Index-Linked Securities are securities that provide for the payment at maturity of a cash amount based on the performance of an underlying equity index or indexes (“Equity Reference Asset”).
• The payment at maturity with respect to Commodity-Linked Securities is based on one or more physical Commodities or Commodity futures, options or other Commodity derivatives, Commodity-Related Securities, or a basket or index of any of the foregoing (“Commodity Reference Asset”). The terms “Commodity” and “Commodity-Related Security” are defined in Rule 4630.
• The payment at maturity with respect to Fixed Income Index-Linked Securities is based on the performance of one or more indexes or portfolios of notes, bonds, debentures or evidence of indebtedness that include, but are not limited to, U.S. Department of the Treasury securities (“Treasury Securities”), government-sponsored entity securities (“GSE Securities”), municipal securities, trust preferred securities, supranational debt and debt of a foreign country or a subdivision thereof or a basket or index of any of the foregoing (“Fixed Income Reference Asset”).
• The payment at maturity with respect to Futures-Linked Securities is based on the performance of an index of (a) futures on Treasury Securities, GSE Securities, supranational debt and debt of a foreign country or a subdivision thereof, or options or other derivatives on any of the foregoing; or (b) interest rate futures or options or derivatives on the foregoing in this subparagraph (b); or (c) CBOE Volatility Index (VIX) Futures (“Futures Reference Asset”).
• The payment at maturity with respect to Multifactor Index-Linked Securities is based on the performance of any combination of two or more Equity Reference Assets, Commodity Reference Assets, Fixed Income Reference Assets or Futures Reference Assets (“Multifactor Reference Asset,” and together with Equity Reference Assets, Commodity Reference Assets, Fixed Income Reference Assets and Futures Reference Assets, “Reference Assets”). A Multifactor Reference Asset may include as a component a notional investment in cash or a cash equivalent based on a widely accepted overnight loan interest rate, LIBOR, Prime Rate, or an implied interest rate based on observed market spot and foreign currency forward rates.
Linked Securities may or may not provide for the repayment of the original principal investment amount. NASDAQ may submit a rule filing pursuant to Section 19(b)(2) of the Act to permit the listing and trading of Linked Securities that do not otherwise meet the standards set forth in Rule 5710.
NASDAQ is not proposing any amendments to Rules 5710(a)–(f), and such provisions would apply to all Linked Securities.
(a) Both the issue and the issuer of such security meet the criteria for other securities set forth in Rule 5730(a), except that if the security is traded in $1,000 denominations or is redeemable at the option of holders thereof on at least a weekly basis, then no minimum number of holders and no minimum public distribution of trading units shall be required.
(b) The issue has a term of not less than one (1) year and not greater than thirty (30) years.
(c) The issue must be the non-convertible debt of the Company.
(d) The payment at maturity may or may not provide for a multiple of the direct or inverse performance of an underlying index, indexes or Reference Asset; however, in no event will a loss (negative payment) at maturity be accelerated by a multiple that exceeds twice the performance of an underlying index, indexes or Reference Asset.
(e) The Company will be expected to have a minimum tangible net worth in excess of $250,000,000 and to exceed by at least 20% the earnings requirements set forth in Rule 5405(b)(1)(A). In the alternative, the Company will be expected: (i) To have a minimum tangible net worth of $150,000,000 and to exceed by at least 20% the earnings requirement set forth in Rule 5405(b)(1)(A), and (ii) not to have issued securities where the original issue price of all the Company's other index-linked note offerings (combined with index-linked note offerings of the Company's affiliates) listed on a national securities exchange exceeds 25% of the Company's net worth.
(f) The Company is in compliance with Rule 10A–3 under the Act.
Proposed Rule 5710(k) would adopt listing standards for the various Linked Securities.
Proposed Rule 5710(k)(i)(A) would set forth the initial listing criteria for Equity Index-Linked Securities found in current Rule 5710(g), which would be deleted and replaced in proposed Rule 5710(k)(i)(A). Specifically:
In the case of an Equity Index-Linked Security, each underlying index is required to have at least ten (10) component securities. In addition, the index or indexes to which the security is linked shall either: (1) Have been reviewed and approved for the trading of options or other derivatives by the Commission under Section 19(b)(2) of the Act and rules thereunder, and the conditions set forth in the Commission's approval order, including comprehensive surveillance sharing agreements for non-U.S. stocks, continue to be satisfied, or (2) the index or indexes meet the following criteria:
• Each component security has a minimum market value of at least $75 million, except that for each of the lowest weighted component securities in the index that in the aggregate account for no more than 10% of the weight of the index, the market value can be at least $50 million;
• Each component security shall have trading volume in each of the last six months of not less than 1,000,000 shares, except that for each of the lowest weighted component securities in the index that in the aggregate account for no more than 10% of the weight of the index, the trading volume shall be at least 500,000 shares in each of the last six months;
• Indexes based upon the equal-dollar or modified equal-dollar weighting method will be rebalanced at least semiannually;
• In the case of a capitalization-weighted or modified capitalization-weighted index, the lesser of the five highest weighted component securities in the index or the highest weighted component securities in the index that in the aggregate represent at least 30% of the total number of component securities in the index, each have an average monthly trading volume of at least 2,000,000 shares over the previous six months;
• No underlying component security will represent more than 25% of the weight of the index, and the five highest weighted component securities in the index do not in the aggregate account for more than 50% of the weight of the index (60% for an index consisting of fewer than 25 component securities);
• 90% of the index's numerical value and at least 80% of the total number of component securities will meet the then current criteria for standardized option trading on a national securities exchange or a national securities association, provided, however, that an index will not be subject to this requirement if (a) no underlying component security represents more than 10% of the dollar weight of the index and (b) the index has a minimum of 20 components; and
• All component securities shall be either (A) securities (other than securities of a foreign issuer and American Depository Receipts (“ADRs”)) that are (i) issued by a 1934 Act reporting company or by an investment company registered under the Investment Company Act of 1940 that, in each case, has securities listed on a national securities exchange and (ii) an “NMS stock” (as defined in Rule 600 of Regulation NMS under the Act), or (B) securities of a foreign issuer or ADRs, provided that securities of a foreign issuer (including when they underlie ADRs) whose primary trading market outside the United States is not a member of the Intermarket Surveillance Group (“ISG”) or a party to a comprehensive surveillance sharing agreement with NASDAQ will not in the aggregate represent more than 20% of the dollar weight of the index.
Rule 5710(k)(i)(B) would adopt continued listing criteria for Equity Index-Linked Securities. Specifically, NASDAQ will commence delisting or removal proceedings (unless the Commission has approved the continued trading of the subject Equity Index-Linked Security), if any of the standards set forth above are not continuously maintained, except that:
• The criteria that no single component represent more than 25% of the dollar weight of the index and the five highest dollar weighted components in the index cannot represent more than 50% (or 60% for indexes with less than 25 components) of the dollar weight of the index, need only be satisfied at the time the index is rebalanced; and
• Component stocks that in the aggregate account for at least 90% of the weight of the index each shall have a minimum global monthly trading volume of 500,000 shares, or minimum global notional volume traded per month of $12,500,000, averaged over the last six months.
In connection with an Equity Index-Linked Security that is based on an index that has been reviewed and approved for the trading of options or other derivatives by the Commission under Section 19(b)(2) of the Act and rules thereunder and the conditions set forth in the Commission's approval order, NASDAQ will commence delisting or removal proceedings (unless the Commission has approved the continued trading of the subject Equity Index-Linked Security) if an underlying index or indexes fails to satisfy the maintenance standards or conditions for such index or indexes as set forth by the Commission in its order under Section 19(b)(2) of the Act approving the index or indexes for the trading of options or other derivatives.
Additionally, NASDAQ will commence delisting or removal proceedings (unless the Commission has approved the continued trading of the subject Equity Index-Linked Security), under any of the following circumstances:
• If the aggregate market value or the principal amount of the Equity Index-Linked Securities publicly held is less than $400,000;
• If the value of the index or composite value of the indexes is no longer calculated or widely disseminated on at least a 15-second basis with respect to indexes containing only securities listed on a national securities exchange, or on at least a 60-second basis with respect to indexes containing foreign country securities, provided, however, that, if the official index value does not change during some or all of the period when trading
• If such other event shall occur or condition exists which in the opinion of NASDAQ makes further dealings on NASDAQ inadvisable.
Equity-Linked Indexes will be rebalanced at least annually.
The proposed rule change relating to Equity-Linked Securities is based on NYSEArca Equities Rule 5.2(j)(6)(B)(I).
Proposed Rule 5710(k)(ii) would adopt the initial listing criteria (found in current Rule 5710(h), which would be deleted and replaced in proposed Rule 5710(k)(ii)(A)) and continued listing criteria for Commodity-Linked Securities.
The Reference Asset must meet one of the following criteria:
• The Reference Asset to which the security is linked shall have been reviewed and approved for the trading of Commodity-Related Securities or options or other derivatives by the Commission under Section 19(b)(2) of the Act and rules thereunder and the conditions set forth in the Commission's approval order, including with respect to comprehensive surveillance sharing agreements, continue to be satisfied; or
• The pricing information for each component of a Reference Asset other than a Currency must be derived from a market which is an ISG member or affiliate or with which NASDAQ has a comprehensive surveillance sharing agreement. Notwithstanding the previous sentence, pricing information for gold and silver may be derived from the London Bullion Market Association. The pricing information for each component of a Reference Asset that is a Currency must be either: (1) The generally accepted spot price for the currency exchange rate in question; or (2) derived from a market of which (a) is an ISG member or affiliate or with which NASDAQ has a comprehensive surveillance sharing agreement and (b) is the pricing source for a currency component of a Reference Asset that has previously been approved by the Commission. A Reference Asset may include components representing not more than 10% of the dollar weight of such Reference Asset for which the pricing information is derived from markets that do not meet the requirements of subparagraph (2) of the proposed rule; provided, however, that no single component subject to this exception exceeds 7% of the dollar weight of the Reference Asset. The term “Currency,” as used in the proposed rule, means one or more currencies, or currency options, futures, or other currency derivatives, Commodity-Related Securities if their underlying Commodities are currencies or currency derivatives, or a basket or index of any of the foregoing.
Proposed Rule 5710(k)(ii)(B) would establish continued listing criteria for Commodity-Linked Securities. Specifically, NASDAQ will commence delisting or removal proceedings if any of the initial listing criteria described above are not continuously maintained. Additionally, NASDAQ will also commence delisting or removal proceedings under any of the following circumstances:
• If the aggregate market value or the principal amount of the Commodity-Linked Securities publicly held is less than $400,000;
• If the value of the Commodity Reference Asset is no longer calculated or available and a new Commodity Reference Asset is substituted, unless the new Commodity Reference Asset meets the requirements of the proposed rule; or
• If such other event shall occur or condition exists which in the opinion of NASDAQ makes further dealings on NASDAQ inadvisable.
The proposed rule change relating to Commodity-Linked Securities is based on NYSEArca Equities Rule 5.2(j)(6)(B)(II).
Proposed Rule 5710(k)(iii) would set forth the listing criteria for Fixed Income Index-Linked Securities.
Proposed Rule 5710(k)(iii)(A) states that either the Fixed Income Reference Asset to which the security is linked shall have been reviewed and approved for the trading of options, Index Fund Shares, or other derivatives by the Commission under Section 19(b)(2) of the Securities Exchange Act of 1934 and rules thereunder and the conditions set forth in the Commission's approval order continue to be satisfied or the issue must meet the following initial listing criteria:
• Components of the Fixed Income Reference Asset that in the aggregate account for at least 75% of the weight of the Fixed Income Reference Asset must each have a minimum original principal amount outstanding of $100 million or more;
• A component of the Fixed Income Reference Asset may be a convertible security, however, once the convertible security component converts to the underlying equity security, the component is removed from the Fixed Income Reference Asset;
• No component of the Fixed Income Reference Asset (excluding Treasury Securities and GSE Securities) will represent more than 30% of the dollar weight of the Fixed Income Reference Asset, and the five highest dollar weighted components in the Fixed Income Reference Asset will not in the aggregate account for more than 65% of the dollar weight of the Fixed Income Reference Asset;
• An underlying Fixed Income Reference Asset (excluding one consisting entirely of exempted securities) must include a minimum of 13 non-affiliated issuers; and
• Component securities that in the aggregate account for at least 90% of the dollar weight of the Fixed Income Reference Asset must be from one of the following: (a) Issuers that are required to file reports pursuant to Sections 13 and 15(d) of the Act; or (b) issuers that have a worldwide market value of outstanding common equity held by non-affiliates of $700 million or more; or (c) issuers that have outstanding securities that are notes, bonds, debentures, or evidence of indebtedness having a total remaining principal amount of at least $1 billion; or (d) exempted securities as defined in Section 3(a)(12) of the Act, or (e) issuers that are a government of a foreign country or a political subdivision of a foreign country.
In addition, the value of the Fixed Income Reference Asset must be widely disseminated to the public by one or more major market vendors at least once per business day.
Proposed Rule 5710(k)(iii)(C) would provide that NASDAQ will commence delisting or removal proceedings if any of the initial listing criteria described above are not continuously maintained, and that NASDAQ will also commence delisting or removal proceedings:
• If the aggregate market value or the principal amount of the Fixed Income Index-Linked Securities publicly held is less than $400,000;
• If the value of the Fixed Income Reference Asset is no longer calculated or available and a new Fixed Income Reference Asset is substituted, unless the new Fixed Income Reference Asset
• If such other event shall occur or condition exists which in the opinion of NASDAQ makes further dealings inadvisable.
The proposed rule change relating to Fixed-Income Linked Securities is based on NYSEArca Equities Rule 5.2(j)(6)(B)(IV).
Proposed Rule 5710(k)(iv) would establish listing standards for Futures-Linked Securities.
Proposed Rule 5710(k)(iv)(A) states that the issue must meet either of the following the initial listing standards:
• The Futures Reference Asset to which the security is linked shall have been reviewed and approved for the trading of Futures-Linked Securities or options or other derivatives by the Commission under Section 19(b)(2) of the Act and rules thereunder and the conditions set forth in the Commission's approval order, including with respect to comprehensive surveillance sharing agreements, continue to be satisfied, or
• The pricing information for components of a Futures Reference Asset must be derived from a market which is an ISG member or affiliate or with which NASDAQ has a comprehensive surveillance sharing agreement. A Futures Reference Asset may include components representing not more than 10% of the dollar weight of such Futures Reference Asset for which the pricing information is derived from markets that do not meet the requirements of proposed Rule 5710(k)(iv)(A)(2); provided, however, that no single component subject to this exception exceeds 7% of the dollar weight of the Futures Reference Asset.
In addition, the issue must meet both of the following initial listing criteria:
• The value of the Futures Reference Asset must be calculated and widely disseminated by one or more major market data vendors on at least a 15-second basis during the Regular Market Session, as defined in Rule 4120; and
• In the case of Futures-Linked Securities that are periodically redeemable, the value of a share of each series (“Intraday Indicative Value”) of the subject Futures-Linked Securities must be calculated and widely disseminated by NASDAQ or one or more major market data vendors on at least a 15-second basis during the Regular Market Session (as defined in Rule 4120).
Proposed Rule 5710(k)(iv)(C) states that NASDAQ will commence delisting or removal proceedings if any of the initial listing criteria described above are not continuously maintained, and that NASDAQ will also commence delisting or removal proceedings under any of the following circumstances:
• If the aggregate market value or the principal amount of the Futures-Linked Securities publicly held is less than $400,000;
• If the value of the Futures Reference Asset is no longer calculated or available and a new Futures Reference Asset is substituted, unless the new Futures Reference Asset meets the requirements of proposed Rule 5710(k); or
• If such other event shall occur or condition exists which in the opinion of NASDAQ makes further dealings on NASDAQ inadvisable.
The proposed rule change relating to Futures-Linked Securities is based on NYSEArca Equities Rule 5.2(j)(6)(B)(V).
Proposed Rule 5710(k)(v) would govern the listing standards for Multifactor Index-Linked Securities.
Proposed Rule 5710(k)(v)(A) states that the issue must meet one of the following initial listing standards:
• Each component of the Multifactor Reference Asset to which the security is linked shall have been reviewed and approved for the trading of either options, Index Fund Shares, or other derivatives under Section 19(b)(2) of the Act and rules thereunder and the conditions set forth in the Commission's approval order continue to be satisfied; or
• Each Reference Asset included in the Multifactor Reference Asset must meet the applicable initial and continued listing criteria set forth in the relevant subsection of proposed Rule 5710(k).
In addition to one of the initial listing standards set forth above, proposed Rule 5710(k)(v)(B) would state that the issue must meet both of the following initial listing criteria:
• The value of the Multifactor Reference Asset must be calculated and widely disseminated to the public on at least a 15-second basis during the time the Multifactor Index-Linked Security trades on NASDAQ; and
• In the case of Multifactor Index-Linked Securities that are periodically redeemable, the indicative value of the Multifactor Index-Linked Securities must be calculated and widely disseminated by one or more major market data vendors on at least a 15-second basis during the time the Multifactor Index-Linked Securities trade on NASDAQ.
Proposed Rule 5710(k)(v)(C) states that NASDAQ will commence delisting or removal proceedings:
• If any of the initial listing criteria described above are not continuously maintained;
• If the aggregate market value or the principal amount of the Multifactor Index-Linked Securities publicly held is less than $400,000;
• If the value of the Multifactor Reference Asset is no longer calculated or available and a new Multifactor Reference Asset is substituted, unless the new Multifactor Reference Asset meets the requirements of proposed Rule 5710(k); or
• If such other event shall occur or condition exists which in the opinion of NASDAQ makes further dealings on NASDAQ inadvisable.
The proposed rule change relating to Multifactor Index-Linked Securities is based on NYSEArca Equities Rule 5.2(j)(6)(B)(VI).
Commentary .01 to proposed Rule 5710(k) would establish certain regulatory requirements for registered Market Makers in Linked Securities. Specifically, the registered Market Maker in Linked Securities must file with NASDAQ, in a manner prescribed by NASDAQ, and keep current a list identifying all accounts for trading in the Reference Asset components, the commodities, currencies or futures underlying the Reference Asset components, or any derivative instruments based on the Reference Asset or based on any Reference Asset component or any physical commodity, currency or futures underlying a Reference Asset component, which the registered Market Maker may have or over which it may exercise investment discretion. No registered Market Maker in Linked Securities would be permitted to trade in the Reference Asset components, the commodities, currencies or futures underlying the Reference Asset components, or any derivative instruments based on the Reference Asset or based on any Reference Asset component or any physical commodity, or futures currency underlying a Reference Asset component, in an account in which a registered Market Maker, directly or
In addition to the existing obligations under NASDAQ rules regarding the production of books and records,
The proposed rule change relating to regulatory requirements for registered Market Makers in Linked Securities is based on NYSEArca Equities Rule 5.2(j)(6), Commentary .01.
NASDAQ proposes to adopt new Rule 5711, Trading of Certain Derivative Securities, which would set forth listing standards for the securities described below.
Proposed Rule 5711(a) would adopt listing standards for Index-Linked Exchangeable Notes.
Index-Linked Exchangeable Notes are exchangeable debt securities that are exchangeable at the option of the holder (subject to the requirement that the holder in most circumstances exchange a specified minimum amount of notes), on call by the issuer, or at maturity for a cash amount (“Cash Value Amount”) based on the reported market prices of the underlying stocks of an underlying index. Each Index-Linked Exchangeable Note is intended to provide investors with an instrument that closely tracks the underlying index. Notwithstanding that the notes are linked to an index, they will trade as a single security.
Index-Linked Exchangeable Notes will be considered for listing and trading by NASDAQ pursuant to Rule 19b–4(e) under the Act,
• Both the issue and the issuer of such security meet the requirements of Rule 5730, Listing Requirements for Securities Not Specified Above (Other Securities), except that the minimum public distribution shall be 150,000 notes with a minimum of 400 public note-holders, except, if traded in thousand dollar denominations or redeemable at the option of the holders thereof on at least a weekly basis, then no minimum public distribution and no minimum number of holders.
• The issue has a minimum term of one year.
• The issuer will be expected to have a minimum tangible net worth in excess of $250,000,000, and to otherwise substantially exceed the earnings requirements set forth in Rule 5405(b). In the alternative, the issuer will be expected: (A) to have a minimum tangible net worth of $150,000,000 and to otherwise substantially exceed the earnings requirements set forth in Rule 5405(b); and (B) not to have issued Index-Linked Exchangeable Notes where the original issue price of all the issuer's other Index-Linked Exchangeable Note offerings (combined with other index-linked exchangeable note offerings of the issuer's affiliates) listed on a national securities exchange exceeds 25% of the issuer's net worth.
• The index to which an exchangeable-note is linked shall either be (A) indices that have been created by a third party and been reviewed and have been approved for the trading of options or other derivatives securities (“Third-Party Index”) either by the Commission under Section 19(b)(2) of the Act and rules thereunder or by NASDAQ under rules adopted pursuant to Rule 19b–4(e); or (B) indices which the issuer has created and for which NASDAQ will have obtained approval from either the Commission pursuant to Section 19(b)(2) and rules thereunder or from NASDAQ under rules adopted pursuant to Rule 19b–4(e) (“Issuer Index”). The Issuer Indices and their underlying securities must meet one of the following: (A) The procedures and criteria set forth in NOM Rules, Chapter XIV, Section 6(b) and (c), or (B) the criteria set forth in Rules 5715(b)(3) and (4), the index concentration limits set forth in NOM Rule Chapter XIV, Section 6, and NOM Rule Chapter XIV, Section 6(b)(12) insofar as it relates to NOM Rule Chapter XIV, Section 6(b)(6). Index-Linked Exchangeable Notes will be treated as equity instruments.
Beginning twelve months after the initial issuance of a series of Index-Linked Exchangeable Notes, NASDAQ will consider the suspension of trading in or removal from listing of that series of Index-Linked Exchangeable Notes under any of the following circumstances:
• If the series has fewer than 50,000 notes issued and outstanding;
• If the market value of all Index-Linked Exchangeable Notes of that series issued and outstanding is less than $1,000,000; or
• If such other event shall occur or such other condition exists which in the opinion of NASDAQ makes further dealings of NASDAQ inadvisable.
The proposed rule change relating to Index-Linked Exchangeable Notes is based on NYSEArca Equities Rule 5.2(j)(4).
Proposed Rule 5711(b) would apply to Equity Gold Shares that represent units of fractional undivided beneficial interest in, and ownership of, the Equity Gold Trust. While Equity Gold Shares are not technically “Index Fund Shares,” and thus are not covered by NASDAQ Rule 5705, all other NASDAQ rules that reference “Index Fund Shares” shall also apply to Equity Gold Shares.
Except to the extent that specific provisions in proposed Rule 5711(b) govern, or unless the context otherwise requires, the provisions of all other NASDAQ Rules and policies would be applicable to the trading of Equity Gold Shares on NASDAQ. The provisions set forth in proposed Rule 5711(d) relating to Commodity-Based Trust Shares would also apply to Equity Gold Shares.
The proposed rule change relating to Equity Gold Shares is based on NYSEArca Equities Rule 5.2(j)(5).
Proposed Rule 5711(c) would govern the listing standards applicable to Trust Certificates. NASDAQ will consider for trading, whether by listing or pursuant to unlisted trading privileges, Trust Certificates.
Trust Certificates represent an interest in a special purpose trust (“Trust”) created pursuant to a trust agreement. The Trust will only issue Trust Certificates. Trust Certificates may or may not provide for the repayment of
• An underlying index or indexes of equity securities (“Equity Reference Asset”);
• Instruments that are direct obligations of the issuing company, either exercisable throughout their life (
• A combination of two or more Equity Reference Assets or Index Warrants.
NASDAQ will file separate proposals under Section 19(b) of the Act before trading, either by listing or pursuant to unlisted trading privileges, Trust Certificates.
Commentary .01 to proposed Rule 5711(c) would state that NASDAQ will commence delisting or removal proceedings with respect to an issue of Trust Certificates (unless the Commission has approved the continued trading of such issue), under any of the following circumstances:
• If the aggregate market value or the principal amount of the securities publicly held is less than $400,000;
• If the value of the index or composite value of the indexes is no longer calculated or widely disseminated on at least a 15-second basis with respect to indexes containing only securities listed on a national securities exchange, or on at least a 60-second basis with respect to indexes containing foreign country securities; provided, however, that, if the official index value does not change during some or all of the period when trading is occurring on the NASDAQ Stock Market (for example, for indexes of foreign country securities, because of time zone differences or holidays in the countries where such indexes' component stocks trade) then the last calculated official index value must remain available throughout NASDAQ trading hours; or
• If such other event shall occur or condition exists which in the opinion of NASDAQ makes further dealings on NASDAQ inadvisable.
Proposed Commentary .02 to Rule 5711(c) would provide that the stated term of the Trust shall be as stated in the Trust prospectus. However, a Trust may be terminated under such earlier circumstances as may be specified in the Trust prospectus.
Proposed Commentary .03 to Rule 5711(c) would provide that the trustee of a Trust must be a trust company or banking institution having substantial capital and surplus and the experience and facilities for handling corporate trust business. In cases where, for any reason, an individual has been appointed as trustee, a qualified trust company or banking institution must be appointed co-trustee. No change is to be made in the trustee of a listed issue without prior notice to and approval of NASDAQ.
Proposed Commentary .04 to Rule 5711(c) would provide that voting rights will be as set forth in the applicable Trust prospectus.
Proposed Commentary .05 to Rule 5711(c) would provide that NASDAQ will implement written surveillance procedures for Trust Certificates.
Proposed Commentary .06 to Rule 5711(c) would provide that the Trust Certificates will be subject to NASDAQ's equity trading rules.
Proposed Commentary .07 to Rule 5711(c) would provide that prior to the commencement of trading of a particular Trust Certificates listing pursuant to this Rule, NASDAQ will evaluate the nature and complexity of the issue and, if appropriate, distribute a circular to Members providing guidance regarding compliance responsibilities (including suitability recommendations and account approval) when handling transactions in Trust Certificates.
Proposed Commentary .08 to Rule 5711(c) would provide that Trust Certificates may be exchangeable at the option of the holder into securities that participate in the return of the applicable underlying asset. In the event that the Trust Certificates are exchangeable at the option of the holder and contain an Index Warrant, then a Member must ensure that the Member's account is approved for options trading in accordance with the rules of the NASDAQ Options Market (“NOM”) in order to exercise such rights.
Proposed Commentary .09 to Rule 5711(c) would provide that Trust Certificates may pass-through periodic payments of interest and principle of the underlying securities.
Proposed Commentary .10 to Rule 5711(c) would provide that the Trust payments may be guaranteed pursuant to a financial guaranty insurance policy which may include swap agreements.
Proposed Commentary .11 to Rule 5711(c) would provide that the Trust Certificates may be subject to early termination or call features.
The proposed rule change relating to Trust Certificates is based on NYSEArca Equities Rule 5.2(j)(7).
Proposed Rule 5711(d) would permit the listing and trading, or trading pursuant to unlisted trading privileges, of Commodity-Based Trust Shares on NASDAQ. Proposed Rule 5711(d) would be applicable only to Commodity-Based Trust Shares. Except to the extent inconsistent with this Rule, or unless the context otherwise requires, the provisions of the trust issued receipts rules, Bylaws, and all other rules and procedures of the Board of Directors shall be applicable to the trading on NASDAQ of such securities. Commodity-Based Trust Shares are included within the definition of “security” or “securities” as such terms are used in the Bylaws and Rules of NASDAQ.
“Commodity-Based Trust Shares,” as defined in proposed Rule 5711(d)(iii)(A), means a security (1) that is issued by a Trust that holds a specified commodity deposited with the Trust; (2) that is issued by such Trust in a specified aggregate minimum number in return for a deposit of a quantity of the underlying commodity; and (3) that, when aggregated in the same specified minimum number, may be redeemed at a holder's request by such Trust which will deliver to the redeeming holder the quantity of the underlying commodity. Proposed Rule 5711(d)(iii)(B) states that the term “commodity” is defined in Section 1(a)(4) of the Commodity Exchange Act.
Proposed Rule 5711(d)(iv) states that NASDAQ may trade, either by listing or pursuant to unlisted trading privileges, Commodity-Based Trust Shares based on an underlying commodity. Each issue of a Commodity-Based Trust Share will be designated as a separate series and will be identified by a unique symbol.
Proposed Rule 5711(d)(v)(A) states that NASDAQ will establish a minimum number of Commodity-Based Trust Shares required to be outstanding at the time of commencement of trading on NASDAQ.
Proposed Rule 5711(d)(v)(B) provides that following the initial 12 month period following commencement of trading on NASDAQ of Commodity-Based Trust Shares, NASDAQ will consider the suspension of trading in or removal from listing of such series under any of the following circumstances if:
• The Trust has more than 60 days remaining until termination and there are fewer than 50 record and/or beneficial holders of Commodity-Based Trust Shares for 30 or more consecutive trading days;
• The Trust has fewer than 50,000 receipts issued and outstanding;
• The market value of all receipts issued and outstanding is less than $1,000,000;
• The value of the underlying commodity is no longer calculated or available on at least a 15-second delayed basis from a source unaffiliated with the sponsor, Trust, custodian or NASDAQ or NASDAQ stops providing a hyperlink on its Web site to any such unaffiliated commodity value;
• The Intraday Indicative Value
• Such other event shall occur or condition exists which in the opinion of NASDAQ makes further dealings on NASDAQ inadvisable.
Upon termination of a Trust, NASDAQ requires that Commodity-Based Trust Shares issued in connection with such entity Trust be removed from NASDAQ listing. A Trust may terminate in accordance with the provisions of the Trust prospectus, which may provide for termination if the value of the Trust falls below a specified amount.
Proposed Rule 5711(d)(v)(C) provides that the stated term of the Trust shall be as stated in the Trust prospectus. However, a Trust may be terminated under such earlier circumstances as may be specified in the Trust prospectus.
Proposed Rule 5711(d)(v)(D) would apply the following requirements to the trustee of a Trust:
• The trustee of a Trust must be a trust company or banking institution having substantial capital and surplus and the experience and facilities for handling corporate trust business. In cases where, for any reason, an individual has been appointed as trustee, a qualified trust company or banking institution must be appointed co-trustee.
• No change is to be made in the trustee of a listed issue without prior notice to and approval of NASDAQ.
Proposed Rule 5711(d)(v)(E) states that voting rights shall be as set forth in the applicable Trust prospectus.
Proposed Rules 5711(d)(vi) and (vii) describe the limitation of NASDAQ liability and requirements for Market Makers in Commodity-Based Trust Shares (see below for a general discussion of these requirements).
Commentary .01 to proposed NASDAQ Rule 5711(d) provides that a Commodity-Based Trust Share is a Trust Issued Receipt that holds a specified commodity deposited with the Trust.
Commentary .02 to proposed NASDAQ Rule 5711(d) provides that NASDAQ requires that Members provide all purchasers of newly issued Commodity-Based Trust Shares a prospectus for the series of Commodity-Based Trust Shares.
Commentary .03 to proposed NASDAQ Rule 5711(d) provides that transactions in Commodity-Based Trust Shares will occur during the trading hours specified in Rule 4120.
Commentary .04 to proposed NASDAQ Rule 5711(d) provides that NASDAQ will file separate proposals under Section 19(b) of the Exchange Act before the listing and/or trading of Commodity-Based Trust Shares.
The proposed rule change relating to Commodity-Based Trust Shares is based on NYSEArca Equities Rule 8.201.
NASDAQ proposes to adopt new NASDAQ Rule 5711(e) for the purpose of permitting the listing and trading, or trading pursuant to unlisted trading privileges, of Currency Trust Shares. Proposed Rule 5711(e) would be applicable only to Currency Trust Shares. Except to the extent inconsistent with the proposed Rule, or unless the context otherwise requires, the provisions of the trust issued receipts rules, Bylaws, and all other rules and procedures of the Board of Directors shall be applicable to the trading on NASDAQ of such securities. Currency Trust Shares are included within the definition of “security” or “securities” as such terms are used in the Bylaws and Rules of NASDAQ
Proposed Rule 5711(e)(iii) provides that the term “Currency Trust Shares” as used in these proposed rules means, unless the context otherwise requires, a security that:
• Is issued by a Trust that holds a specified non-U.S. currency or currencies deposited with the Trust;
• When aggregated in some specified minimum number may be surrendered to the Trust by an Authorized Participant (as defined in the Trust's prospectus) to receive the specified non-U.S. currency or currencies; and
• Pays beneficial owners interest and other distributions on the deposited non-U.S. currency or currencies, if any, declared and paid by the Trust.
Proposed Rule 5711(e)(iv) states that NASDAQ may trade, either by listing or pursuant to unlisted trading privileges, Currency Trust Shares that hold a specified non-U.S. currency or currencies. Each issue of Currency Trust Shares would be designated as a separate series and shall be identified by a unique symbol.
NASDAQ will establish a minimum number of Currency Trust Shares required to be outstanding at the time of commencement of trading on NASDAQ.
Proposed Rule 5711(e)(v)(B) provides that, following the initial 12 month period following commencement of trading on NASDAQ of Currency Trust Shares, NASDAQ will consider the suspension of trading in or removal from listing of such series under any of the following circumstances:
• If the Trust has more than 60 days remaining until termination and there are fewer than 50 record and/or beneficial holders of Currency Trust Shares for 30 or more consecutive trading days;
• If the Trust has fewer than 50,000 Currency Trust Shares issued and outstanding;
• If the market value of all Currency Trust Shares issued and outstanding is less than $1,000,000;
• If the value of the applicable non-U.S. currency is no longer calculated or available on at least a 15-second delayed basis from a source unaffiliated with the sponsor, Trust, custodian or NASDAQ or NASDAQ stops providing a hyperlink on its Web site to any such unaffiliated applicable non-U.S. currency value;
• If the Intraday Indicative Value is no longer made available on at least a 15-second delayed basis; or
• If such other event shall occur or condition exists which in the opinion of NASDAQ makes further dealings on NASDAQ inadvisable.
Upon termination of a Trust, NASDAQ would require that Currency
Proposed Rule 5711(e)(v)(C) states that the stated term of the Trust shall be as stated in the Trust prospectus. However, a Trust may be terminated under such earlier circumstances as may be specified in the Trust prospectus.
Proposed Rule 5711(e)(v)(D) states that the following requirements apply to the trustee of a Trust:
• The trustee of a Trust must be a trust company or banking institution having substantial capital and surplus and the experience and facilities for handling corporate trust business. In cases where, for any reason, an individual has been appointed as trustee, a qualified trust company or banking institution must be appointed co-trustee.
• No change is to be made in the trustee of a listed issue without prior notice to and approval of NASDAQ.
Proposed Rule 5711(e)(v)(E) states that voting rights shall be as set forth in the applicable Trust prospectus.
Proposed Rules 5711(e)(vi) and (vii) set forth the requirements respecting limitation of NASDAQ liability and Market Maker Accounts (see below for a general discussion of these requirements).
Proposed Rule 5711(e)(viii) states that NASDAQ may submit a rule filing pursuant to Section 19(b)(2) of the Act to permit the listing and trading of Currency Trust Shares that do not otherwise meet the standards set forth in Commentary .04 to proposed Rule 5711(e).
Commentary .01 to proposed Rule 5711(e) states that a Currency Trust Share is a Trust Issued Receipt that holds a specified non-U.S. currency or currencies deposited with the Trust.
Commentary .02 to proposed Rule 5711(e) states that NASDAQ requires that Members provide all purchasers of newly issued Currency Trust Shares a prospectus for the series of Currency Trust Shares.
Commentary .03 to proposed Rule 5711(e) provides that transactions in Currency Trust Shares will occur during the trading hours specified in NASDAQ Rule 4120.
Commentary .04 to proposed Rule 5711(e) provides that NASDAQ may approve an issue of Currency Trust Shares for listing and/or trading (including pursuant to unlisted trading privileges) pursuant to Rule 19b–4(e) under the Act. Such issue shall satisfy the criteria set forth in the proposed rule, together with the following criteria:
• A minimum of 100,000 shares of a series of Currency Trust Shares is required to be outstanding at commencement of trading (this would not apply to issues trading pursuant to unlisted trading privileges);
• The value of the applicable non-U.S. currency, currencies or currency index must be disseminated by one or more major market data vendors on at least a 15-second delayed basis;
• The Intraday Indicative Value must be calculated and widely disseminated by NASDAQ or one or more major market data vendors on at least a 15-second basis during the Regular Market Session (as defined in NASDAQ Rule 4120; and
• NASDAQ will implement written surveillance procedures applicable to Currency Trust Shares.
Commentary .05 to proposed Rule 5711(e) states that if the value of a Currency Trust Share is based in whole or in part on an index that is maintained by a broker-dealer, the broker-dealer would be required to erect a “firewall” around the personnel responsible for the maintenance of such index or who have access to information concerning changes and adjustments to the index, and the index shall be calculated by a third party who is not a broker-dealer. Additionally, any advisory committee, supervisory board or similar entity that advises an index licensor or administrator or that makes decisions regarding the index or portfolio composition, methodology and related matters must implement and maintain, or be subject to, procedures designed to prevent the use and dissemination of material, non-public information regarding the applicable index or portfolio.
Commentary .06 to proposed Rule 5711(e) provides that Currency Trust Shares will be subject to NASDAQ's equity trading rules.
Proposed Commentary .07 to Rule 5711(e) states that if the Intraday Indicative Value or the value of the non-U.S. currency or currencies or the currency index applicable to a series of Currency Trust Shares is not being disseminated as required, NASDAQ may halt trading during the day on which such interruption first occurs. If such interruption persists past the trading day in which it occurred, NASDAQ will halt trading no later than the beginning of the trading day following the interruption. If NASDAQ becomes aware that the net asset value applicable to a series of Currency Trust Shares is not being disseminated to all market participants at the same time, it will halt trading in such series until such time as the net asset value is available to all market participants.
The proposed rule change relating to Currency Trust Shares is based on NYSEArca Equities Rule 8.202.
NASDAQ will consider for trading, whether by listing or pursuant to unlisted trading privileges, Commodity Index Trust Shares that meet the criteria of proposed Rule 5711(f).
Proposed Rule 5711(f)(ii) states that proposed Rule 5711(f) would be applicable only to Commodity Index Trust Shares. Except to the extent inconsistent with the proposed Rule, or unless the context otherwise requires, the provisions of the trust issued receipts rules, Bylaws, and all other rules and procedures of the Board of Directors shall be applicable to the trading on NASDAQ of such securities. Commodity Index Trust Shares are included within the definition of “security” or “securities” as such terms are used in the Bylaws and Rules of NASDAQ.
Proposed Rule 5711(f)(iii) defines the term “Commodity Index Trust Shares” to mean, as used in these proposed Rules (unless the context otherwise requires), a security that (A) is issued by a Trust that (1) is a commodity pool as defined in the Commodity Exchange Act and regulations thereunder, and that is managed by a commodity pool operator registered with the Commodity Futures Trading Commission; and (2) that holds long positions in futures contracts on a specified commodity index, or interests in a commodity pool which, in turn, holds such long positions; and (B) when aggregated in some specified minimum number may be surrendered to the Trust by the beneficial owner to receive positions in futures contracts on a specified index and cash or short term securities. The term “futures contract” is commonly known as a “contract of sale of a commodity for future delivery” set forth in Section 2(a) of the Commodity Exchange Act.
Proposed Rule 5711(f)(iv) states that NASDAQ may trade, either by listing or pursuant to unlisted trading privileges, Commodity Index Trust Shares based on one or more securities. The Commodity Index Trust Shares based on particular securities would be designated as a
Proposed Rule 5711(f)(v)(A) states that NASDAQ will establish a minimum number of Commodity Index Trust Shares required to be outstanding at the time of commencement of trading on NASDAQ.
Under proposed Rule 5711(f)(v)(B), NASDAQ will consider the suspension of trading in or removal from listing of a series of Commodity Index Trust Shares under any of the following circumstances:
• Following the initial twelve-month period beginning upon the commencement of trading of the Commodity Index Trust Shares, there are fewer than 50 record and/or beneficial holders of Commodity Index Trust Shares for 30 or more consecutive trading days;
• If the value of the applicable underlying index is no longer calculated or available on at least a 15-second delayed basis from a source unaffiliated with the sponsor, the Trust or the trustee of the Trust;
• If the net asset value for the trust is no longer disseminated to all market participants at the same time;
• If the Intraday Indicative Value is no longer made available on at least a 15-second delayed basis; or
• If such other event shall occur or condition exists which in the opinion of NASDAQ makes further dealings on NASDAQ inadvisable.
Upon termination of a Trust, NASDAQ would require that Commodity Index Trust Shares issued in connection with such entity Trust be removed from NASDAQ listing. A Trust may terminate in accordance with the provisions of the Trust prospectus, which may provide for termination if the value of the Trust falls below a specified amount.
Proposed Rule 5711(f)(v)(C) provides that the stated term of the Trust shall be as stated in the Trust prospectus. However, a Trust may be terminated under such earlier circumstances as may be specified in the Trust prospectus.
Proposed Rule 5711(f)(v)(D) states that the following requirements apply to the trustee of a Trust:
• The trustee of a Trust must be a trust company or banking institution having substantial capital and surplus and the experience and facilities for handling corporate trust business. In cases where, for any reason, an individual has been appointed as trustee, a qualified trust company or banking institution must be appointed co-trustee.
• No change is to be made in the trustee of a listed issue without prior notice to and approval of NASDAQ.
Proposed Rule 5711(f)(v)(E) provides that voting rights shall be as set forth in the applicable Trust prospectus.
Proposed Rules 5711(f)(vi) and (vii) set forth the requirements respecting limitation of NASDAQ liability and Market Maker Accounts (see below for a general discussion of these requirements).
Commentary .01 to proposed Rule 5711(f) states that a Commodity Index Trust Share is a Trust Issued Receipt that holds long positions in futures contracts on a specified commodity index, or interests in a commodity pool which, in turn, holds such long positions, deposited with the Trust.
Commentary .02 to proposed Rule 5711(f) states that NASDAQ requires that Members provide all purchasers of newly issued Commodity Index Trust Shares a prospectus for the series of Commodity Index Trust Shares.
Commentary .03 to proposed Rule 5711(f) states that transactions in Commodity Index Trust Shares will occur during the trading hours specified in Rule 4120.
Commentary .04 to proposed Rule 5711(f) states that NASDAQ will file separate proposals under Section 19(b) of the Act before trading, either by listing or pursuant to unlisted trading privileges, Commodity Index Trust Shares.
The proposed rule change relating to Commodity Index Trust Shares is based on NYSEArca Equities Rule 8.202.
Proposed Rule 5711(g) governs the listing of Commodity Futures Trust Shares. NASDAQ will consider for trading, whether by listing or pursuant to unlisted trading privileges, Commodity Futures Trust Shares that meet the criteria of proposed Rule 5711(g).
Proposed Rule 5711(g)(ii) states that proposed Rule 5711(g) would apply only to Commodity Futures Trust Shares. Except to the extent inconsistent with the proposed Rule, or unless the context otherwise requires, the provisions of the trust issued receipts rules, Bylaws, and all other rules and procedures of the Board of Directors shall be applicable to the trading on NASDAQ of such securities. Commodity Futures Trust Shares are included within the definition of “security” or “securities” as such terms are used in the Bylaws and Rules of NASDAQ.
Proposed Rule 5711(g)(iii) states that the term “Commodity Futures Trust Shares” as used in the proposed Rules means, unless the context otherwise requires, a security that: (i) is issued by a Trust that is a commodity pool as defined in the Commodity Exchange Act and regulations thereunder, and that is managed by a commodity pool operator registered with the Commodity Futures Trading Commission, and holds positions in futures contracts that track the performance of a specified commodity, or interests in a commodity pool which, in turn, holds such positions; and (ii) is issued and redeemed daily in specified aggregate amounts at net asset value. The term “futures contract” is a “contract of sale of a commodity for future delivery” set forth in Section 2(a) of the Commodity Exchange Act. The term “commodity” is defined in Section 1(a)(4) of the Commodity Exchange Act.
Proposed Rule 5711(g)(iv) states that NASDAQ may trade, either by listing or pursuant to unlisted trading privileges, Commodity Futures Trust Shares based on an underlying commodity futures contract. Each issue of Commodity Futures Trust Shares shall be designated as a separate series and shall be identified by a unique symbol.
Proposed Rule 5711(g)(v)(A) states that NASDAQ will establish a minimum number of Commodity Futures Trust Shares required to be outstanding at the time of commencement of trading on NASDAQ.
Proposed Rule 5711(g)(v)(B) states that NASDAQ will consider the suspension of trading in or removal from listing of a series of Commodity Futures Trust Shares under any of the following circumstances:
• If, following the initial twelve-month period beginning upon the commencement of trading of the Commodity Futures Trust Shares: (1) the Trust has fewer than 50,000 Commodity Futures Trust Shares issued and outstanding; or (2) the market value of all Commodity Futures Trust Shares issued and outstanding is less than $1,000,000; or (3) there are fewer than 50 record and/or beneficial holders of Commodity Futures Trust Shares for 30 consecutive trading days;
• If the value of the underlying futures contracts is no longer calculated or available on at least a 15-second
• If the net asset value for the Trust is no longer disseminated to all market participants at the same time;
• If the Intraday Indicative Value is no longer disseminated on at least a 15-second delayed basis during NASDAQ's Regular Market Session (as defined in NASDAQ Rule 4120); or
• If such other event shall occur or condition exists which in the opinion of NASDAQ makes further dealings on NASDAQ inadvisable.
Upon termination of a Trust, NASDAQ requires that Commodity Futures Trust Shares issued in connection with such trust be removed from NASDAQ listing. A Trust will terminate in accordance with the provisions of the Trust prospectus.
Proposed Rule 5711(g)(v)(C) states that the stated term of the Trust shall be as stated in the prospectus. However, a Trust may be terminated under such earlier circumstances as may be specified in the Trust prospectus.
Proposed Rule 5711(g)(v)(D) states that the following requirements apply to the trustee of a Trust:
• The trustee of a Trust must be a trust company or banking institution having substantial capital and surplus and the experience and facilities for handling corporate trust business. In cases where, for any reason, an individual has been appointed as trustee, a qualified trust company or banking institution must be appointed co-trustee.
• No change is to be made in the trustee of a listed issue without prior notice to and approval of NASDAQ.
Proposed Rule 5711(g)(v)(E) states that voting rights shall be as set forth in the applicable Trust prospectus.
Proposed Rules 5711(g)(vi) and (vii) describe the requirements for Market Makers and the limitation of NASDAQ liability in Commodity Futures Trust Shares (see below for a general discussion of these requirements).
Proposed Rule 5711(g)(viii) states that NASDAQ will file separate proposals under Section 19(b) of the Act before listing and trading separate and distinct Commodity Futures Trust Shares designated on different underlying futures contracts.
Commentary .01 to proposed Rule 5711(g) would require Members trading in Commodity Futures Trust Shares to provide all purchasers of newly issued Commodity Futures Trust Shares a prospectus for the series of Commodity Futures Trust Shares.
Commentary .02 to proposed Rule 5711(g) states that transactions in Commodity Futures Trust Shares will occur during the trading hours specified in Rule 4120.
Commentary .03 to proposed Rule 5711(g) states that if the Intraday Indicative Value or the value of the underlying futures contract is not being disseminated as required, NASDAQ may halt trading during the day in which the interruption to the dissemination of the Intraday Indicative Value or the value of the underlying futures contract occurs. If the interruption to the dissemination of the Intraday Indicative Value or the value of the underlying futures contract persists past the trading day in which it occurred, NASDAQ will halt trading no later than the beginning of the trading day following the interruption.
In addition, if NASDAQ becomes aware that the net asset value with respect to a series of Commodity Futures Trust Shares is not disseminated to all market participants at the same time, it will halt trading in such series until such time as the net asset value is available to all market participants.
Commentary .04 to proposed Rule 5711(g) states that NASDAQ's rules governing the trading of equity securities apply.
Commentary .05 to proposed Rule 5711(g) states that NASDAQ will implement written surveillance procedures for Commodity Futures Trust Shares.
The proposed rule change relating to Commodity Futures Trust Shares is based on NYSEArca Equities Rule 8.204.
Proposed Rule 5711(h) would govern the listing of Partnership Units. Under proposed Rule 5711(h)(i), NASDAQ will consider for trading, whether by listing or pursuant to unlisted trading privileges, Partnership Units that meet the criteria of proposed Rule 5711(h).
Under proposed Rule 5711(h)(ii), the following terms as used in the proposed Rule would, unless the context otherwise requires, have the meanings herein specified.
Proposed Rule 5711(h)(ii)(A) states that the term “commodity” is defined in Section 1(a)(4) of the Commodity Exchange Act.
Proposed Rule 5711(h)(ii)(B) defines a Partnership Unit for purposes of the proposed Rule as a security (a) that is issued by a partnership that invests in any combination of futures contracts, options on futures contracts, forward contracts, commodities and/or securities; and (b) that is issued and redeemed daily in specified aggregate amounts at net asset value.
Proposed Rule 5711(h)(iii) states that NASDAQ may list and trade Partnership Units based on an underlying asset, commodity or security. Each issue of a Partnership Unit would be designated as a separate series and would be identified by a unique symbol.
Proposed Rule 5711(h)(iv)(A) states that NASDAQ will establish a minimum number of Partnership Units required to be outstanding at the time of commencement of trading on NASDAQ.
Proposed Rule 5711(h)(iv)(B) provides that NASDAQ will consider removal of Partnership Units from listing under any of the following circumstances:
• If, following the initial twelve month period from the date of commencement of trading of the Partnership Units, (a) the partnership has more than 60 days remaining until termination and there are fewer than 50 record and/or beneficial holders of the Partnership Units for 30 or more consecutive trading days; (b) the partnership has fewer than 50,000 Partnership Units issued and outstanding; or (c) the market value of all Partnership Units issued and outstanding is less than $1,000,000;
• If the value of the underlying benchmark investment, commodity or asset is no longer calculated or available on at least a 15-second delayed basis or NASDAQ stops providing a hyperlink on its Web site to any such investment, commodity or asset value;
• If the Intraday Indicative Value is no longer made available on at least a 15- second delayed basis; or
• If such other event shall occur or condition exists which in the opinion of NASDAQ makes further dealings on NASDAQ inadvisable.
Upon termination of a partnership, NASDAQ requires that Partnership Units issued in connection with such partnership be removed from NASDAQ listing. A partnership will terminate in accordance with the provisions of the partnership prospectus.
Proposed Rule 5711(h)(iv)(C) provides that the stated term of the partnership shall be as stated in the prospectus. However, such entity may be terminated under such earlier circumstances as may be specified in the Partnership prospectus.
Proposed Rule 5711(h)(iv)(D) would adopt the following requirements that
• The general partner of a partnership must be an entity having substantial capital and surplus and the experience and facilities for handling partnership business. In cases where, for any reason, an individual has been appointed as general partner, a qualified entity must also be appointed as general partner.
• No change is to be made in the general partner of a listed issue without prior notice to and approval of NASDAQ.
Proposed Rule 5711(h)(iv)(E) states that voting rights shall be as set forth in the applicable partnership prospectus.
Proposed Rule 5711(h)(v) and (vi) describe the limitation of NASDAQ liability and requirements for Market Makers in Partnership Units (see below for a general discussion of these requirements).
Proposed Rule 5711(h)(vii) states that NASDAQ will file separate proposals under Section 19(b) of the Act before listing and trading separate and distinct Partnership Units designated on different underlying investments, commodities and/or assets.
Commentary .01 to proposed Rule 5711(h) states that NASDAQ requires that Members provide to all purchasers of newly issued Partnership Units a prospectus for the series of Partnership Units.
The proposed rule change relating to Partnership Units is based on NYSEArca Equities Rule 8.300.
NASDAQ proposes to add new Rule 5711(i) in order to permit trading, either by listing or pursuant to unlisted trading privileges, of Trust Units.
Proposed Rule 5711(i)(i) states that the provisions in proposed Rule 5711(i) are applicable only to Trust Units. In addition, except to the extent inconsistent with this Rule, or unless the context otherwise requires, the rules and procedures of the Board of Directors shall be applicable to the trading on NASDAQ of such securities. Trust Units are included within the definition of “security,” “securities” and “derivative securities products” as such terms are used in the Rules of NASDAQ.
Proposed Rule 5711(i)(ii) states that the following terms as used in the proposed Rule shall, unless the context otherwise requires, have the meanings herein specified:
• The term “commodity” is defined in Section 1(a)(4) of the Commodity Exchange Act.
• A Trust Unit is a security that is issued by a trust or other similar entity that is constituted as a commodity pool that holds investments comprising or otherwise based on any combination of futures contracts, options on futures contracts, forward contracts, swap contracts, commodities and/or securities.
Proposed Rule 5711(i)(iii) states that NASDAQ may list and trade Trust Units based on an underlying asset, commodity, security or portfolio. Each issue of a Trust Unit shall be designated as a separate series and shall be identified by a unique symbol.
Proposed Rule 5711(i)(iv)(A) states that NASDAQ will establish a minimum number of Trust Units required to be outstanding at the time of commencement of trading on NASDAQ. NASDAQ will obtain a representation from the issuer of each series of Trust Units that the net asset value per share for the series will be calculated daily and will be made available to all market participants at the same time.
Proposed Rule 5711(i)(iv)(B)(1) states that NASDAQ will remove Trust Units from listing under any of the following circumstances:
• If following the initial twelve month period following the commencement of trading of Trust Units, (i) the trust has more than 60 days remaining until termination and there are fewer than 50 record and/or beneficial holders of Trust Units for 30 or more consecutive trading days; (ii) the trust has fewer than 50,000 Trust Units issued and outstanding; or (iii) the market value of all Trust Units issued and outstanding is less than $1,000,000; or
• If such other event shall occur or condition exists which in the opinion of the NASDAQ makes further dealings on NASDAQ inadvisable.
Proposed Rule 5711(i)(iv)(B)(2) states that NASDAQ will halt trading in a series of Trust Units if the circuit breaker parameters in Rule 4120(a)(11) have been reached. In exercising its discretion to halt or suspend trading in a series of Trust Units, NASDAQ may consider any relevant factors. In particular, if the portfolio and net asset value per share are not being disseminated as required, NASDAQ may halt trading during the day in which the interruption to the dissemination of the portfolio holdings or net asset value per share occurs. If the interruption to the dissemination of the portfolio holdings or net asset value per share persists past the trading day in which it occurred, NASDAQ will halt trading no later than the beginning of the trading day following the interruption.
Upon termination of a trust, NASDAQ would require that Trust Units issued in connection with such trust be removed from NASDAQ listing. A trust will terminate in accordance with the provisions of the prospectus.
Proposed Rule 5711(i)(iv)(C) provides that the stated term of the trust shall be as stated in the prospectus. However, such entity may be terminated under such earlier circumstances as may be specified in the prospectus.
Proposed Rule 5711(i)(iv)(D) would adopt the following requirements applicable to the trustee of a Trust:
• The trustee of a trust must be a trust company or banking institution having substantial capital and surplus and the experience and facilities for handling corporate trust business. In cases where, for any reason, an individual has been appointed as trustee, a qualified trust company or banking institution must be appointed co-trustee.
• No change is to be made in the trustee of a listed issue without prior notice to and approval of NASDAQ.
Proposed Rule 5711(i)(iv)(E) states that voting rights shall be as set forth in the prospectus.
Proposed Rules 5711(i)(v) and (vi) describe the requirements for Market Makers and the limitation of NASDAQ liability respecting Trust Units (see below for a general discussion of these requirements).
Commentary .01 to proposed Rule 5711(i) states that NASDAQ requires that Members provide to all purchasers of newly issued Trust Units a prospectus for the series of Trust Units.
Commentary .02 to proposed Rule 5711(i) states that transactions in Trust Units will occur during the trading hours specified in NASDAQ Rule 4120.
Commentary .03 to proposed Rule 5711(i) states that NASDAQ will file separate proposals under Section 19(b) of the Act before listing and trading separate and distinct Trust Units designated on different underlying investments, commodities, assets and/or portfolios.
The proposed rule change relating to Trust Units is based on NYSEArca Equities Rule 8.500.
Proposed Rule 5711(j) would adopt listing standards for Managed Trust Securities. Under proposed Rule 5711(j)(i), NASDAQ will consider for
Proposed Rule 5711(j)(iii)(A) defines the term “Managed Trust Securities” to mean, unless the context otherwise requires, a security that is registered under the Securities Act of 1933, as amended, and which (1) is issued by a Trust that is a commodity pool as defined in the Commodity Exchange Act and regulations thereunder, and that is managed by a commodity pool operator registered with the Commodity Futures Trading Commission, and which holds long and/or short positions in exchange-traded futures contracts and/or certain currency forward contracts selected by the Trust's advisor consistent with the Trust's investment objectives, which will only include, exchange-traded futures contracts involving commodities, currencies, stock indices, fixed income indices, interest rates and sovereign, private and mortgage or asset backed debt instruments, and/or forward contracts on specified currencies, each as disclosed in the Trust's prospectus as such may be amended from time to time; and (2) is issued and redeemed continuously in specified aggregate amounts at the next applicable net asset value.
Proposed Rule 5711(j)(iii) also includes the following definitions concerning Managed Trust Securities:
• Disclosed Portfolio. Under proposed Rule 5711(j)(iii)(B), the term “Disclosed Portfolio” means the identities and quantities of the securities and other assets held by the Trust that will form the basis for the Trust's calculation of net asset value at the end of the business day.
• Intraday Indicative Value. Under proposed Rule 5711(j)(iii)(C), the term “Intraday Indicative Value” is the estimated indicative value of a Managed Trust Security based on current information regarding the value of the securities and other assets in the Disclosed Portfolio.
• Reporting Authority. Under proposed Rule 5711(j)(iii)(D), the term “Reporting Authority” in respect of a particular series of Managed Trust Securities means NASDAQ, an institution, or a reporting or information service designated by NASDAQ or by the Trust or the exchange that lists a particular series of Managed Trust Securities (if NASDAQ is trading such series pursuant to unlisted trading privileges) as the official source for calculating and reporting information relating to such series, including, but not limited to, the Intraday Indicative Value; the Disclosed Portfolio; the amount of any cash distribution to holders of Managed Trust Securities, net asset value, or other information relating to the issuance, redemption or trading of Managed Trust Securities. A series of Managed Trust Securities may have more than one Reporting Authority, each having different functions.
Proposed Rule 5711(j)(iv) states that NASDAQ may trade, either by listing or pursuant to unlisted trading privileges, Managed Trust Securities based on the underlying portfolio of exchange-traded futures and/or certain currency forward contracts described in the related prospectus. Each issue of Managed Trust Securities shall be designated as a separate trust or series and shall be identified by a unique symbol.
Under proposed Rule 5711(j)(v)(A), Managed Trust Securities will be listed and traded on NASDAQ subject to application of the following initial listing criteria:
• NASDAQ will establish a minimum number of Managed Trust Securities required to be outstanding at the time of commencement of trading on NASDAQ.
• NASDAQ will obtain a representation from the issuer of each series of Managed Trust Securities that the net asset value per share for the series will be calculated daily and that the net asset value and the Disclosed Portfolio will be made available to all market participants at the same time.
Under proposed Rule 5711(j)(v)(B), each series of Managed Trust Securities will be listed and traded on NASDAQ subject to application of the following continued listing criteria:
• The Intraday Indicative Value for Managed Trust Securities will be widely disseminated by one or more major market data vendors at least every 15 seconds during the time when the Managed Trust Securities trade on NASDAQ.
• The Disclosed Portfolio will be disseminated at least once daily and will be made available to all market participants at the same time.
• The Reporting Authority that provides the Disclosed Portfolio must implement and maintain, or be subject to, procedures designed to prevent the use and dissemination of material non-public information regarding the actual components of the portfolio.
Under proposed Rule 5711(j)(v)(B)(3), NASDAQ will consider the suspension of trading in or removal from listing of a series of Managed Trust Securities under any of the following circumstances:
• If, following the initial twelve-month period beginning upon the commencement of trading of the Managed Trust Securities: (A) The Trust has fewer than 50,000 Managed Trust Securities issued and outstanding; (B) the market value of all Managed Trust Securities issued and outstanding is less than $1,000,000; or (C) there are fewer than 50 record and/or beneficial holders of Managed Trust Securities for 30 consecutive trading days;
• If the Intraday Indicative Value for the Trust is no longer calculated or available or the Disclosed Portfolio is not made available to all market participants at the same time;
• If the Trust issuing the Managed Trust Securities has failed to file any filings required by the Securities and Exchange Commission or if NASDAQ is aware that the Trust is not in compliance with the conditions of any exemptive order or no-action relief granted by the Securities and Exchange Commission to the Trust with respect to the series of Managed Trust Securities; or
• If such other event shall occur or condition exists which in the opinion of NASDAQ makes further dealings on NASDAQ inadvisable.
Proposed Rule 5711(j)(v)(B)(4) states that, if the Intraday Indicative Value of a series of Managed Trust Securities is not being disseminated as required, NASDAQ may halt trading during the day in which the interruption to the dissemination of the Intraday Indicative Value occurs. If the interruption to the dissemination of the Intraday Indicative Value persists past the trading day in which it occurred, NASDAQ will halt trading no later than the beginning of the trading day following the interruption. If a series of Managed Trust Securities is trading on NASDAQ pursuant to unlisted trading privileges, NASDAQ will halt trading in that series as specified in Rule 4120(a) or (b) as applicable. In addition, if NASDAQ becomes aware that the net asset value or the Disclosed Portfolio with respect to a series of Managed Trust Securities is not disseminated to all market participants at the same time, it will halt trading in such series until such time as the net asset value or the Disclosed
Proposed Rule 5711(j)(v)(B)(5) states that upon termination of a Trust, NASDAQ requires that Managed Trust Securities issued in connection with such Trust be removed from NASDAQ listing. A Trust will terminate in accordance with the provisions of the Trust prospectus.
Proposed Rule 5711(j)(v)(C) states that the term of the Trust shall be as stated in the prospectus. However, a Trust may be terminated under such earlier circumstances as may be specified in the Trust prospectus.
Proposed Rule 5711(j)(v)(D) would state that the following requirements apply to the trustee of a Trust:
• The trustee of a Trust must be a trust company or banking institution having substantial capital and surplus and the experience and facilities for handling corporate trust business. In cases where, for any reason, an individual has been appointed as trustee, a qualified trust company or banking institution must be appointed co-trustee.
• No change is to be made in the trustee of a listed issue without prior notice to and approval of NASDAQ.
Proposed Rule 5711(j)(v)(E) states that voting rights shall be as set forth in the applicable Trust prospectus.
Proposed Rules 5711(j)(vi) and (vii) describe the regulatory requirements for registered Market Makers in Managed Trust Securities, and the limitation of NASDAQ liability respecting Managed Trust Securities (see below for a general discussion of these requirements).
Proposed Rule 5711(j)(viii) states that NASDAQ will file separate proposals under Section 19(b) of the Act before listing and trading separate and distinct Managed Trust Securities.
In addition to the above, the Commentary to proposed Rule 5711(j) includes the following provisions:
Commentary .01 to proposed Rule 5711(j) states that NASDAQ requires that Members provide all purchasers of newly issued Managed Trust Securities a prospectus for the series of Managed Trust Securities.
Commentary .02 to proposed Rule 5711(j) states that transactions in Managed Trust Securities will occur during the trading hours specified in Rule 4120.
Commentary .03 to proposed Rule 5711(j) states that NASDAQ's rules governing the trading of equity securities apply.
Commentary .04 to proposed Rule 5711(j) states that NASDAQ will implement written surveillance procedures for Managed Trust Securities.
Commentary .05 to proposed Rule 5711(j) states that if the Trust's advisor is affiliated with a broker-dealer, the broker-dealer shall erect a “fire wall” around the personnel who have access to information concerning changes and adjustments to the Disclosed Portfolio. Personnel who make decisions on the Trust's portfolio composition must be subject to procedures designed to prevent the use and dissemination of material nonpublic information regarding the applicable Trust portfolio.
The proposed rule change relating to Managed Trust Securities is based on NYSEArca Equities Rule 8.700.
Proposed Rule 5711(k) would govern the listing of Currency Warrants. Under proposed Rule 5711(k)(i), the listing of Currency Warrant issues is considered on a case-by-case basis. Currency Warrant issues will be evaluated for listing against the following criteria:
Proposed Rule 5711(k)(i)(A) requires the warrant issuer to have a minimum tangible net worth in excess of $250,000,000 and otherwise to exceed substantially the earnings requirements set forth in Rule 5405(b).
Proposed Rule 5711(k)(i)(B) states that the term must be one to five years from date of issuance.
Proposed Rule 5711(k)(i)(C) requires that there must be a minimum public distribution of 1,000,000 warrants together with a minimum of 400 public holders, and an aggregate market value of $4,000,000. In the alternative, there must be a minimum public distribution of 2,000,000 warrants together with a minimum number of public warrant holders determined on a case by case basis, an aggregate market value of $12,000,000 and an initial warrant price of $6.
Under proposed Rule 5711(k)(i)(D), the warrants will be cash settled in U.S. dollars.
Under proposed Rule 5711(k)(i)(E), all currency warrants must include in their terms provisions specifying the time by which all exercise notices must be submitted, and that all unexercised warrants that are in the money will be automatically exercised on their expiration date or on or promptly following the date on which such warrants are delisted by NASDAQ (if such warrant issue has not been listed on another organized securities market in the United States).
Under proposed Rule 5711(k)(ii), NASDAQ will file separate proposals under Section 19(b) of the Act before listing and trading separate and distinct Currency Warrants.
Proposed Rule 5711(k)(iii) describes regulatory matters applicable to Currency Warrants. Specifically:
• No Member shall accept an order from a customer to purchase or sell a Currency Warrant unless the customer's account has been approved for options trading pursuant to NOM Rules Chapter XI, Section 7.
• Suitability. The provisions of NOM Rules Chapter XI, Section 9 shall apply to recommendations in Currency Warrants and the term “option” as used therein shall be deemed for purposes of this Rule to include such warrants.
• Discretionary Accounts. Any account in which a Member exercises discretion to trade in Currency Warrants shall be subject to the provisions of NOM Rules, Chapter XI, Section 10 with respect to such trading. For purposes of this Rule, the terms “option” and “options contract” as used in Chapter XI, Section 10 shall be deemed to include Currency Warrants.
• Supervision of Accounts. NOM Rules, Chapter XI, Section 8 shall apply to all customer accounts of a Member in which transactions in Currency Warrants are effected. The term “option” as used in Chapter XI, Section 8 shall be deemed to include Currency Warrants.
• Public Customer Complaints. NOM Rules, Chapter XI, Section 24 shall apply to all public customer complaints received by a Member regarding Currency Warrants. The term “option” as used in Chapter XI, Section 24 shall be deemed to include such warrants.
• Communications with Public Customers. Members participating in Currency Warrants shall be bound to comply with the Communications and Disclosures rule of FINRA, as
Under proposed Rule 5711(k)(iv), trading on NASDAQ in any Currency Warrant will be halted whenever NASDAQ deems such action appropriate in the interests of a fair and orderly market or to protect investors. Trading in Currency Warrants that have been the subject of a halt or suspension by NASDAQ may resume if NASDAQ determines that the conditions which led to the halt or suspension are no longer present, or that the interests of a fair and orderly market are best served by a resumption of trading.
Proposed Rule 5711(k)(v) would govern reporting of warrant positions. Proposed Rule 5711(k)(v)(A) would require each Member to file with NASDAQ a report with respect to each account in which the Member has an interest, each account of a partner, officer, director, or employee of such Member, and each customer account that has established an aggregate position (whether long or short) of 100,000 warrants covering the same underlying currency, combining for purposes of the proposed Rule: (1) Long positions in put warrants and short positions in call warrants, and (2) short positions in put warrants with long positions in call warrants. The report shall be in such form as may be prescribed by NASDAQ and shall be filed no later than the close of business on the next day following the day on which the transaction or transactions requiring the filing of such report occurred.
Proposed Rule 5711(k)(v)(B) states that whenever a report shall be required to be filed with respect to an account pursuant to the proposed Rule, the Member filing the same must file with NASDAQ such additional periodic reports with respect to such account as NASDAQ may from time to time require.
Proposed Rule 5711(k)(v)(C) states that all reports required by the proposed Rule shall be filed with NASDAQ in such manner and form as prescribed by NASDAQ.
The proposed rule change relating to Currency Warrants is based on NYSEArca Equities Rules 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 8.9, 8.12, and 8.13.
To the extent not specifically addressed in the respective proposed rules, the following general provisions apply to all of the proposed rules and subject securities affected by the proposed rules (“securities”):
Prior to the commencement of trading, NASDAQ will inform its Members in an Information Circular of the special characteristics and risks associated with trading the securities. Specifically, the Information Circular will discuss the following: (1) The procedures for purchases and redemptions of the securities (and/or that the securities are not individually redeemable); (2) NASDAQ Rule 2310, which imposes suitability obligations on NASDAQ Members with respect to recommending transactions in the securities to customers; (3) how information regarding the Intraday Indicative Value is disseminated; (4) the requirement that Members deliver a prospectus to investors purchasing newly issued securities prior to or concurrently with the confirmation of a transaction; and (5) trading information.
In addition, the Information Circular will advise Members, prior to the commencement of trading, of the prospectus delivery requirements applicable to the securities. Members purchasing securities for resale to investors will deliver a prospectus to such investors. The Information Circular will also discuss any exemptive, no-action and interpretive relief granted by the Commission from any rules under the Act.
In addition, the Information Circular will reference that the securities are subject to various fees and expenses described in the registration statement. If applicable, the Information Circular will also reference that the CFTC has regulatory jurisdiction over the trading of futures contracts.
The Information Circular will also disclose the trading hours of the securities and, if applicable, the Net Asset Value (“NAV”) calculation time for the securities. The Information Circular will disclose that information about the securities and the corresponding indexes, if applicable, will be publicly available on the Web site for the securities. The Information Circular will also reference, if applicable, the fact that there is no regulated source of last sale information regarding physical commodities, and that the Commission has no jurisdiction over the trading of physical commodities or futures contracts on which the value of the securities may be based.
The Information Circular will also reference the risks involved in trading the securities during the Opening Process and the Post-Market Session when an updated Intraday Indicative Value will not be calculated or publicly disseminated and, if applicable, the risks involved in trading the securities during the Regular Market Session when the Intraday Indicative Value may be static or based in part on the fluctuation of currency exchange rates when the underlying markets have closed prior to the close of NASDAQ's Regular Market Session.
Neither NASDAQ, any agent of NASDAQ, nor the Reporting Authority (if applicable), shall have any liability for damages, claims, losses or expenses caused by any errors, omissions, or delays in calculating or disseminating any applicable underlying index or asset value; the current value of the applicable positions or interests required to be deposited to a Trust, if applicable, in connection with issuance of the securities; net asset value; or any other information relating to the purchase, redemption, or trading of the securities, resulting from any negligent act or omission by NASDAQ, any agent of NASDAQ, or the Reporting Authority (if applicable), or any act, condition or cause beyond the reasonable control of NASDAQ, any agent of NASDAQ, or the Reporting Authority (if applicable), including, but not limited to, an act of God; fire; flood; extraordinary weather conditions; war; insurrection; riot; strike; accident; action of government; communications or power failure; equipment or software malfunction; or any error, omission or delay in the reports of transactions in the applicable positions or interests.
A registered Market Maker in the securities described below must file with NASDAQ, in a manner prescribed by NASDAQ, and keep current a list identifying all accounts for trading in:
• In the case of Commodity-Based Trust Shares, the applicable underlying commodity, related commodity futures or options on commodity futures, or any other related commodity derivatives, which the registered Market Maker may have or over which it may exercise investment discretion (“Underlying Commodities”);
• In the case of Currency Trust Shares, the applicable underlying non-U.S. currency, options, futures or options on futures on such currency, or any other derivatives based on such currency, which the registered Market Maker may have or over which it may exercise investment discretion (“Underlying Currencies”);
• In the case of Commodity Index Trust Shares, the applicable physical commodities included in, or options, futures or options on futures on, an index underlying an issue of Commodity Index Trust Shares or any other derivatives based on such index or based on any commodity included in such index, which the registered Market Maker may have or over which it may exercise investment discretion (“Underlying Commodity Index Assets”);
• In the case of Commodity Futures Trust Shares, the applicable underlying commodity, related futures or options on futures, or any other related derivatives, which the registered Market Maker may have or over which it may exercise investment discretion (“Underlying Commodity Futures”);
• In the case of Partnership Units, the applicable underlying asset or commodity, related futures or options on futures, or any other related derivatives, which the registered Market Maker may have or over which it may exercise investment discretion (“Underlying Partnership Unit Assets”);
• In the case of Trust Units, the applicable underlying commodity, related commodity futures or options on commodity futures, or any other related commodity derivatives, which the registered Market Maker may have or over which it may exercise investment discretion (“Underlying Trust Unit Assets”); and
• In the case of Managed Trust Securities, the underlying commodity or applicable currency, related futures or options on futures, or any other related derivatives, which a registered Market Maker may have or over which it may exercise investment discretion (“Underlying Managed Trust Assets”).
No registered Market Maker in the above mentioned securities shall trade in the respective Underlying Commodities, Underlying Currencies, Underlying Commodity Index Assets, Underlying Commodity Futures, Underlying Partnership Unit Assets, Underlying Trust Unit Assets, and/or the Underlying Managed Trust Assets (collectively, “Underlying Assets”) in an account in which a market maker, directly or indirectly, controls trading activities, or has a direct interest in the profits or losses thereof, which has not been reported to NASDAQ.
In addition to the existing obligations under NASDAQ rules regarding the production of books and records (
NASDAQ deems the securities to be equity securities, thus rendering trading in the securities subject to NASDAQ's existing rules governing the trading of equity securities. The securities will trade on NASDAQ from 8 a.m. to 8 p.m. E.T. NASDAQ has appropriate rules to facilitate transactions in the securities during all trading sessions. The minimum price increment for quoting and entry of orders in equity securities traded on NASDAQ is $0.01, with the exception of securities that are priced less than $1.00 for which the minimum price increment for order entry is $0.0001.
Regulation NMS Rule 612, Minimum Pricing Increment, provides:
a. No national securities exchange, national securities association, alternative trading system, vendor, or broker or dealer shall display, rank, or accept from any person a bid or offer, an order, or an indication of interest in any NMS stock priced in an increment smaller than $0.01 if that bid or offer, order, or indication of interest is priced equal to or greater than $1.00 per share.
b. No national securities exchange, national securities association, alternative trading system, vendor, or broker or dealer shall display, rank, or accept from any person a bid or offer, an order, or an indication of interest in any NMS stock priced in an increment smaller than $0.0001 if that bid or offer, order, or indication of interest is priced less than $1.00 per share.
c. The Commission, by order, may exempt from the provisions of this section, either unconditionally or on specified terms and conditions, any person, security, quotation, or order, or any class or classes of persons, securities, quotations, or orders, if the Commission determines that such exemption is necessary or appropriate in the public interest, and is consistent with the protection of investors.
17 CFR 242.612.
NASDAQ believes that its surveillance procedures are adequate to address any concerns about the trading of the securities on NASDAQ. Trading of the securities on NASDAQ will be subject to FINRA's surveillance procedures for derivative products.
In addition, to the extent that a fund invests in futures contracts, not more than 10% of the weight of such futures contracts in the aggregate shall consist of components whose principal trading market is not a member of ISG or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement. NASDAQ has a general policy prohibiting the distribution of material, non-public information by its employees.
As a general matter, NASDAQ has regulatory jurisdiction over its Members and their associated persons, which includes any person or entity controlling a Member, as well as a subsidiary or affiliate of a Member that is in the securities business. A subsidiary or affiliate of a Member that does business only in commodities or futures contracts would not be subject to NASDAQ jurisdiction, but NASDAQ could obtain information regarding the activities of such subsidiary or affiliate through surveillance sharing agreements with regulatory organizations of which such subsidiary or affiliate is a Member.
With respect to trading halts, in addition to the halt requirements in the proposed rules, NASDAQ may consider all relevant factors in exercising its discretion to halt or suspend trading in the securities. Trading in the securities may be halted because of market conditions or for reasons that, in the view of NASDAQ, make trading in the securities inadvisable. These may include: (1) The extent to which trading in the underlying asset or assets is not occurring; or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present. In addition, trading in the securities will be subject to trading halts caused by extraordinary market volatility pursuant to NASDAQ's “circuit breaker” Rule 4120(a)(11) or by the halt or suspension of the trading of the current underlying asset or assets.
If the applicable Intraday Indicative Value, value of the underlying index, or the value of the underlying asset or assets (
Currently, NASDAQ Rule 2310 governs Recommendations to Customers (Suitability), Fair Dealing with Customers, Suitability Obligations to Institutional Customers, and Direct Participation Programs.
Prior to the commencement of trading of any inverse, leveraged, or inverse leveraged securities, NASDAQ will inform its Members of the suitability requirements of NASDAQ Rule 2310 in an Information Circular. Specifically, Members will be reminded in the Information Circular that, in recommending transactions in these securities, they must have a reasonable basis to believe that (1) the recommendation is suitable for a customer given reasonable inquiry concerning the customer's investment objectives, financial situation, needs, and any other information known by such Member, and (2) the customer can evaluate the special characteristics, and is able to bear the financial risks, of an investment in the securities. In connection with the suitability obligation, the Information Circular will also provide that members must make reasonable efforts to obtain the following information: (1) The customer's financial status; (2) the customer's tax status; (3) the customer's investment objectives; and (4) such other information used or considered to be reasonable by such Member or registered representative in making recommendations to the customer.
In addition, FINRA has implemented increased sales practice and customer margin requirements for FINRA members applicable to inverse, leveraged, and inverse leveraged securities and options on such securities, as described in FINRA Regulatory Notices 09–31 (June 2009), 09–53 (August 2009) and 09–65 (November 2009) (“FINRA Regulatory Notices”). Members that carry customer accounts will be required to follow the FINRA guidance set forth in the FINRA Regulatory Notices. The Information Circular will reference the FINRA Regulatory Notices regarding sales practice and customer margin requirements for FINRA members applicable to inverse, leveraged, and inverse leveraged securities and options on such securities.
NASDAQ notes that, for such inverse, leveraged, and inverse leveraged securities, the corresponding funds seek leveraged, inverse, or leveraged inverse returns on a daily basis, and do not seek to achieve their stated investment objective over a period of time greater than one day because compounding prevents the funds from perfectly achieving such results. Accordingly, results over periods of time greater than one day typically will not be a leveraged multiple (+200%), the inverse (−100%) or a leveraged inverse multiple (−200%) of the period return of the applicable benchmark and may differ significantly from these multiples. NASDAQ's Information Circular, as well as the applicable registration statement, will provide information regarding the suitability of an investment in such securities.
The proposed rule change, as amended, is consistent with section 6(b) of the Act,
Specifically, NASDAQ believes that the proposed rule change should enhance depth and liquidity, and should promote narrower markets in the subject securities. Furthermore, NASDAQ's listing requirements as proposed herein are at least as stringent as those of any other national securities exchange and, consequently, the proposed rule change is consistent with the protection of investors and the public interest.
Additionally, the proposal is designed to prevent fraudulent and manipulative acts and practices, as all of the proposed new products are subject to existing NASDAQ trading rules, together with specific requirements for registered market makers, books and record production, surveillance procedures, suitability and prospectus requirements, and requisite NASDAQ approvals, all set forth above.
The proposal is also designed to promote just and equitable principles of trade by way of initial and continued listing standards which, if not maintained, will result in the discontinuation of trading in the affected products. These requirements, together with the applicable NASDAQ equity trading rules (which apply to the proposed products), ensure that no investor would have an unfair advantage over another respecting the trading of the subject products. On the contrary, all investors will have the same access to, and use of, information concerning the specific products and trading in the specific products, all to the benefit of public customers and the marketplace as a whole.
Furthermore, the proposal is designed to remove impediments to and perfect the mechanism of a free and open market and a national market system by adopting listing standards that will lead ultimately to the trading of the proposed new products on NASDAQ, just as they are currently traded on other exchanges. NASDAQ believes that individuals and entities permitted to make markets on NASDAQ in the proposed new products should enhance competition within the mechanism of a free and open market and a national market system, and customers and other investors in the national market system should benefit from more depth and liquidity in the market for the proposed new products.
NASDAQ does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act.
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On December 13, 2011, NYSE Arca, Inc. (“Exchange” or “NYSE Arca”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to list and trade the Shares of the Fund pursuant to NYSE Arca Equities Rule 8.600, which governs the listing and trading of Managed Fund Shares on the Exchange. The Shares will be offered by PIMCO ETF Trust (“Trust”), a statutory trust organized under the laws of the State of Delaware and registered with the Commission as an open-end management investment company.
The Adviser is affiliated with a broker-dealer and has implemented a “fire wall” with respect to such broker-dealer regarding access to information concerning the composition and/or changes to the Fund's portfolio. If PIMCO elects to hire a sub-adviser for the Fund that is also affiliated with a broker-dealer, such sub-adviser will implement a fire wall with respect to such broker-dealer regarding access to information concerning the composition and/or changes to the portfolio.
The Fund will seek maximum total return, consistent with preservation of capital and prudent investment management. The Fund will invest under normal market circumstances
Securities issued by U.S. Government agencies or government-sponsored enterprises may not be guaranteed by the U.S. Treasury.
In selecting Fixed Income Instruments for the Fund, PIMCO will develop an outlook for interest rates, currency exchange rates, and the economy, analyze credit and call risks, and use other security selection techniques. The proportion of the Fund's assets committed to investments in Fixed Income Instruments with particular characteristics (such as quality, sector, interest rate, or maturity) will vary based on PIMCO's outlook for the U.S. economy and the economies of other countries in the world, the financial markets, and other factors.
PIMCO will attempt to identify areas of the bond market that are undervalued relative to the rest of the market. PIMCO will identify these areas by grouping Fixed Income Instruments into sectors, such as money markets, governments, corporates, mortgages, asset-backed and international. Once investment opportunities are identified, PIMCO will shift assets among sectors depending upon changes in relative valuations and credit spreads.
The Fund may invest in debt securities and instruments that are economically tied to foreign countries. PIMCO generally considers an instrument to be economically tied to a non-U.S. country if the issuer is a foreign government (or any political subdivision, agency, authority or instrumentality of such government), or if the issuer is organized under the laws of a non-U.S. country. In the case of certain money market instruments, such instruments will be considered economically tied to a non-U.S. country if either the issuer or the guarantor of such money market instrument is organized under the laws of a non-U.S. country.
The Fund may invest up to 30% of its total assets in securities denominated in foreign currencies and may invest beyond this limit in U.S. dollar-denominated securities of foreign issuers, subject to the Fund's 10% of total assets limit on investments in preferred stock, convertible securities, and other equity related securities.
The Fund may invest up to 15% of its total assets in securities and instruments that are economically tied to emerging market countries. PIMCO has broad discretion to identify countries that it considers to qualify as emerging markets but generally considers an instrument to be economically tied to an emerging market country if the issuer or guarantor is a government of an emerging market country (or any political subdivision, agency, authority or instrumentality of such government), if the issuer or guarantor is organized under the laws of an emerging market country, or if the currency of settlement of the security is a currency of an emerging market country. While corporate debt securities and debt securities economically tied to an emerging market country generally must have $200 million or more par amount outstanding and significant par value traded to be considered as an eligible investment for the Fund, at least 80% of issues of such securities held by the Fund must have $200 million or more par amount outstanding.
The Fund may invest, without limitation, in mortgage- or asset-backed securities. The Fund may purchase or sell debt and equity securities on a when-issued, delayed delivery, or forward commitment basis. In addition, the Fund may, without limitation, seek to obtain market exposure to the securities in which it primarily invests by entering into a series of purchase and sale contracts or by using other investment techniques (such as buy backs or dollar rolls). The “total return” sought by the Fund will consist of income earned on the Fund's investments, plus capital appreciation, if any, which generally arises from decreases in interest rates, foreign currency appreciation, or improving credit fundamentals for a particular sector or security.
The Fund may invest in Brady Bonds, which are debt securities created through the exchange of existing commercial bank loans to sovereign entities for new obligations in connection with a debt restructuring, as well as in municipal bonds. The types of municipal bonds in which the Fund may invest include municipal lease obligations, municipal general obligation bonds, municipal cash equivalents, and pre-refunded and escrowed to maturity municipal bonds. The Fund may also invest in industrial development bonds, which are municipal bonds issued by a government agency on behalf of a private sector company and which, in most cases, are not backed by the credit of the issuing municipality. The Fund may invest in pre-refunded municipal bonds, which are tax-exempt bonds that have been refunded to a call date on or before the final maturity of principal and remain outstanding in the municipal market. Furthermore, the Fund may invest in securities issued by entities whose underlying assets are municipal bonds.
The Fund may invest in Lower Tier II, Upper Tier II, and Tier I bank capital securities, which are issued by banks to help fulfill their regulatory capital requirements. Bank capital is generally, but not always, investment grade. The Fund may invest in variable and floating rate debt securities, floating rate debt instruments, and engage in credit spread trades. The Fund may make short sales as part of its overall portfolio management strategies or to offset a potential decline in value of a security.
The Fund may engage in foreign currency transactions on a spot (cash) basis and enter into forward foreign currency exchange contracts. The Fund may enter into these contracts to hedge against foreign exchange risk, to increase exposure to a foreign currency, or to shift exposure to foreign currency fluctuations from one currency to another. The Fund may use one currency (or a basket of currencies) to hedge against adverse changes in the value of another currency (or a basket of currencies) when exchange rates between the two currencies are positively correlated. The Fund will segregate or “earmark” assets determined to be liquid by PIMCO in accordance with the procedures established by the Fund's Board of Trustees (or, as permitted by applicable law, enter into certain offsetting positions) to cover its obligations under forward foreign currency exchange contracts entered into for non-hedging purposes.
If PIMCO believes that economic or market conditions are unfavorable to investors, PIMCO may temporarily invest up to 100% of the Fund's assets in certain defensive strategies, including holding a substantial portion of the Fund's assets in cash, cash equivalents, or other highly rated, short-term debt securities, including debt securities issued or guaranteed by the U.S. government, its agencies or instrumentalities, and affiliated money market and/or short-term bond funds.
The Fund may invest in, to the extent permitted by Section 12(d)(1)(A) of the 1940 Act, other affiliated and unaffiliated funds, such as open-end or closed-end management investment companies, including other exchange traded funds, provided that the Fund's investment in units or shares of investment companies and other open-end collective investment vehicles will not exceed 10% of the Fund's net assets. The Fund may invest securities lending collateral in one or more money market funds to the extent permitted by Rule 12d1–1 under the 1940 Act, including series of PIMCO Funds, an affiliated open-end management investment company managed by PIMCO.
The Fund may invest up to 10% of its total assets in preferred stock, convertible securities and other equity related securities. Consistent with the Exemptive Order, the Fund will not invest in options contracts, futures contracts, or swap agreements.
The Fund may not concentrate its investments in a particular industry, as that term is used in the 1940 Act, and as interpreted, modified, or otherwise permitted by regulatory authority having jurisdiction from time to time. The Fund may not, with respect to 75% of the Fund's total assets, purchase the securities of any issuer, except securities issued or guaranteed by the U.S. government or any of its agencies or instrumentalities, if, as a result (i) more than 5% of the Fund's total assets would be invested in the securities of that issuer, or (ii) the Fund would hold more than 10% of the outstanding voting securities of that issuer. For the purpose of this restriction, each state and each separate political subdivision, agency, authority, or instrumentality of such state, each multi-state agency or authority, and each guarantor are treated as separate issuers of municipal bonds.
The Fund may hold up to 15% of its net assets in illiquid securities. Certain financial instruments, including, but not limited to, Rule 144A securities, loan participations and assignments, delayed funding loans, revolving credit facilities, and fixed- and floating-rate loans will be included in the 15% limitation on illiquid securities.
The Fund intends to qualify annually and elect to be treated as a regulated investment company under Subchapter M of the Internal Revenue Code. The Fund will not invest in any non-U.S registered equity securities, except if such securities are traded on exchanges that are ISG members. The Fund's investments will be consistent with the Fund's investment objective and will not be used to enhance leverage. That is, while the Fund will be permitted to borrow as permitted under the 1940 Act, the Fund's investments will not be used to seek performance that is the multiple or inverse multiple of the Fund's broad-based securities market index.
Additional information regarding the Trust, Fund, Shares, Fund's investment strategies, risks, creation and redemption procedures, fees, portfolio holdings and disclosure policies, distributions and taxes, and information relating to the daily disclosure of the Fund's holdings, Portfolio Indicative Value (“PIV”), and net asset value (“NAV”), among others, can be found in the Notice and the Registration Statement, as applicable.
The Commission has carefully reviewed the proposed rule change and finds that it is consistent with the requirements of Section 6 of the Act
The Commission finds that the proposal to list and trade the Shares on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of the Act,
The Commission further believes that the proposal to list and trade the Shares is reasonably designed to promote fair disclosure of information that may be necessary to price the Shares appropriately and to prevent trading when a reasonable degree of transparency cannot be assured. The Commission notes that the Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market
The Exchange further represents that the Shares are deemed to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. In support of this proposal, the Exchange has made representations, including:
(1) The Shares will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600.
(2) The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions.
(3) The Exchange's surveillance procedures applicable to derivative products, which include Managed Fund Shares, are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws.
(4) Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Specifically, the Information Bulletin will discuss the following: (a) The procedures for purchases and redemptions of Shares in Creation Unit aggregations (and that Shares are not individually redeemable); (b) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its Equity Trading Permit Holders to learn the essential facts relating to every customer prior to trading the Shares; (c) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated PIV will not be calculated or publicly disseminated; (d) how information regarding the PIV is disseminated; (e) the requirement that Equity Trading Permit Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (f) trading information.
(5) For initial and/or continued listing, the Fund will be in compliance with Rule 10A–3 under the Act,
(6) The Fund will not: (a) Hold more than 15% of its net assets in illiquid securities, including, but not limited to, Rule 144A securities, loan participations and assignments, delayed funding loans, revolving credit facilities, and fixed- and floating-rate loans; (b) pursuant to the terms of the Exemptive Order, invest in options contracts, futures contracts, or swap agreements; or (c) invest in any non-U.S. registered equity securities, except if such securities are traded on exchanges that are ISG members.
(7) The Fund's investments will be consistent with the Fund's investment objective and will not be used to enhance leverage.
(8) A minimum of 100,000 Shares of the Fund will be outstanding at the commencement of trading on the Exchange.
This approval order is based on the Exchange's representations.
For the foregoing reasons, the Commission finds that the proposed rule change is consistent with Section 6(b)(5) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104–13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes revisions of OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize burden on respondents,
I. The information collections below are pending at SSA. SSA will submit them to OMB within 60 days from the date of this notice. To be sure we consider your comments, we must receive them no later than April 9, 2012. Individuals can obtain copies of the collection instruments by calling the SSA Reports Clearance Officer at (410) 965–8783 or by writing to the above email address.
1.
2.
II. SSA submitted the information collections below to OMB for clearance. Your comments regarding the information collection would be most useful if OMB and SSA receive them within 30 days from the date of this publication. To be sure we consider your comments, we must receive them no later than March 12, 2012. Individuals can obtain copies of the OMB clearance package by calling the SSA Reports Clearance Officer at (410) 965–8783 or by writing to the above email address.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Request for public comment on proposed collection of information.
Before a Federal agency can collect certain information from the public, it must receive approval from the Office of Management and Budget (OMB). Under procedures established by the Paperwork Reduction Act of 1995, before seeking OMB approval, Federal agencies must solicit public comment on proposed collections of information, including extensions and reinstatement of previously approved collections.
This document describes one collection of information for which NHTSA intends to seek OMB approval.
Comments must be received on or before April 9, 2012.
Comments must refer to the docket notice numbers cited at the beginning of this notice and be submitted to Docket Management, Room W12–140, Ground Floor, 1200 New Jersey Ave. SE., Washington, DC 20590 by any of the following methods.
•
•
•
•
Complete copies of each request for collection of information may be obtained at no charge from Mr. Hisham Mohamed, NHTSA, 1200 New Jersey Ave. SE., West Building, Room W43–437, NVS–131, Washington, DC 20590.
Mr. Mohamed's telephone number is (202) 366–0307. Please identify the relevant collection of information by referring to its OMB Control Number.
Under the Paperwork Reduction Act of 1995, before an agency submits a proposed collection of information to OMB for approval, it must first publish a document in the
(i) 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;
(ii) 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;
(iii) how to enhance the quality, utility, and clarity of the information to be collected;
(iv) how 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,
In compliance with these requirements, NHTSA asks for public comments on the following proposed collection of information for which the agency is seeking approval from OMB:
Based on prior years' manufacturer submissions, the agency estimates that 15 responses will be submitted annually. Currently 12 light truck manufacturers comply with 49 CFR part 575. These manufacturers file one response annually and submit a additional response when they introduce a new model. Changes are rarely filed with the agency, but we estimate that at least three manufacturers will alter their information because of model changes. The light truck manufacturers gather only pre-existing data for the purposes of this regulation. Based on previous years' manufacturer information, the agency estimates that light truck manufacturers use a total of 20 hours to gather and arrange the data in its proper format (9 hours), to distribute the information to its dealerships and attach labels to light trucks that are capable of accommodating slide-in campers (4 hours), and to print the labels and
Comments are invited on: whether the proposed collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; the accuracy of the Department's estimate of the burden of the proposed information collection; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.
National Highway Traffic Safety Administration, Department of Transportation.
Notice and request for comments.
The Department of Transportation (DOT) invites public comments about our intention to request the Office of Management and Budget (OMB) approval to extend information collection. The collection involves preparation of certifications, and documents detailing how specific grant criteria will be met. The information to be collected will be used to and/or is necessary because it is required under 23 CFR part 1313, to apply for Section 410 grant funds. We are required to publish this notice in the
Written comments should be submitted by April 9, 2012.
You may submit comments identified by Docket No. DOT–NHTSA–2012–0012 through one of the following methods:
Jackie Schraf, (202) 366–3990, NHTSA, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC, 20590.
States may also qualify through meeting specified program criteria. To demonstrate compliance using program criteria, a State must submit an application that shows how they meet the specified criteria. Three of eight criteria are required in FY 2006, four of eight criteria are required in FY 2007 and five of eight criteria are required in FY 2008, FY 2009 and beyond. A State designated as a high fatality rate State may also submit an application to qualify by meeting specified program criteria.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1:48.
National Highway Traffic Safety Administration, DOT.
Receipt of petition.
Volkswagen Group of America, Inc., (Volkswagen),
Pursuant to 49 U.S.C. 30118(d) and 30120(h) (see implementing rule at 49 CFR part 556), Volkswagen has
This notice of receipt of Volkswagen's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or other exercise of judgment concerning the merits of the petition.
Affected are approximately 463 model year 2011 Volkswagen Jetta passenger cars equipped with a TDI engine and Goodyear Eagle Vector 205/55 R16 94V XL tires, and manufactured between March 18, 2011 and March 23, 2011.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, these provisions only apply to the 463
Paragraph S4.2.1.2 of FMVSS No. 110 requires:
S4.2.1.2 The vehicle normal load on the tire shall not be greater than 94 percent of the load rating at the vehicle manufacturer's recommended cold inflation pressure for that tire.
Volkswagen explains that the noncompliance is that the recommended cold tire inflation pressure stated on the tire and loading information label is less than that calculated as prescribed by paragraph S4.2.1.2 of FMVSS No. 110 for the Goodyear Eagle Vector 205/55 R16 94V XL tires installed on the subject vehicles. The tire and loading information label shows a recommended tire pressure of 33 psi, however, it should read 34 psi.
Volkswagen argues that this noncompliance is inconsequential to motor vehicle safety because the noncompliant vehicle placards do not create an unsafe condition and all other labeling requirements have been met.
In summation, Volkswagen believes that the described noncompliance of its tire and loading information labels to meet the requirements of FMVSS No. 110 is inconsequential to motor vehicle safety, and that its petition, to exempt from providing recall notification of noncompliance as required by 49 U.S.C. 30118 and remedying the recall noncompliance as required by 49 U.S.C. 30120 should be granted.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited at the beginning of this notice and be submitted by any of the following methods:
a.
b.
c.
Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that your comments were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to
Documents submitted to a docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the Internet at
The petition, supporting materials, and all comments received before the close of business on the closing date indicated below will be filed and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the extent possible. When the petition is granted or denied, notice of the decision will be published in the
49 U.S.C. 30118, 30120: delegations of authority at CFR 1.50 and 501.8.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice of workshop.
The recent passage of the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 has set forth several mandates and reports to Congress that PHMSA must complete. Reports on leak detection and automatic/remote control valves are among these mandates. PHMSA is sponsoring these public meetings to further study how to encourage operators to expand the use of leak detection systems (LDS) and improve system effectiveness on the Nation's pipeline infrastructure and how remote control and automatic control valves can be installed to lessen the volume of natural gas and hazardous liquid released during catastrophic pipeline events.
The public meeting on Improving Pipeline Leak Detection System Effectiveness will be held on Tuesday, March 27, 2012, from 8 a.m. to 6 p.m. EDT. The public meeting on Understanding the Application of Automatic and Remote Control Valves will be held on Wednesday, March 28, 2012, from 8 a.m. to 4 p.m. EDT. Name badge pick-up and on-site registration will be available starting at 7:30 a.m.
The public meetings will be held at The Hilton Washington, DC/Rockville Hotel, 1750 Rockville Pike, Rockville, MD 20852, Phone: 301–468–1100, Fax: 301–468–0308,
Public Meetings Registration: Please visit
Patricia Jasion at 202–366–4774, or by email at
PHMSA will be holding two public meetings designed to provide an open forum for exchanging information on the challenges associated with LDS and automatic/remote control valves. Specifically, these public meetings will facilitate individual panel discussions for the following objectives:
1. Inform the public, Federal and state regulatory agencies and legislators in Congress on state-of-the-art leak detection systems and the practical considerations involved with deploying and maintaining these systems.
2. Identify the constraints and issues with deploying systems on existing and new construction pipelines.
3. Collect public input that will help guide a PHMSA study investigating and documenting detection system challenges and considerations. Information from that study will help craft a future report to Congress.
1. Gather and disseminate information on the state-of-the-art of automatic/remote control valve operations on the practical considerations involved with installing, operating and maintaining these valves.
2. Identify the constraints with deploying systems on existing versus new construction pipelines.
3. Collect public input that will help guide a PHMSA study investigating and documenting automatic control and remote control valve challenges and considerations. Information from that final report will help craft a future report to Congress.
Please note that there are objectives for each panel and that they are posted on the meeting Web site. This information will explicitly illustrate the rigor of considerations regarding the subject matter and how they tie to the event goals.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Notice 2011–87, Alabama Low-Income Housing Relief Credit.
Written comments should be received on or before April 9, 2012 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of notice should be directed to Allan Hopkins, at (202) 622–6665, or at Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)).
Written comments should be received on or before April 9, 2012 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulation should be directed to R. Joseph Durbala at Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or at (202) 622–3634, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Revenue Procedure 97–22, Examination of returns and claims for refund, credits
Written comments should be received on or before April 9, 2012 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the revenue procedure should be directed to R. Joseph Durbala, at (202) 622–3634, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Revenue Procedure 2009–14, Pre-filing Agreement Program.
Written comments should be received on or before April 9, 2012 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to R. Joseph Durbala at Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or at (202) 622–3634, or through the Internet at
The following paragraph applies to all the collections of information covered by this notice.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 5498–ESA, Coverdell ESA Contribution Information.
Written comments should be received on or before April 9, 2012 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to R. Joseph Durbala, at (202) 622–3634, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13(44 U.S.C. 3506(c)(2)(A)).
Written comments should be received on or before April 9, 2012 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulation should be directed to R. Joseph Durbala, at (202) 622–3634, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Revenue Procedure 99–50, Combined Information Reporting.
Written comments should be received on or before April 9, 2012 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of revenue procedure should be directed to R. Joseph Durbala, at (202) 622–3634, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Revenue Procedure 96–60, Procedure for filing Forms in certain acquisitions.
Written comments should be received on or before April 9, 2012 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the revenue procedure should be directed to R. Joseph Durbala, at (202) 622–3634, or at Internal Revenue
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning VITA/TCE Program Forms 14310, 8653, 8654, and 14024.
Written comments should be received on or before April 9, 2012 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Allan Hopkins, at (202) 622–6665, or at Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent
Written comments should be received on or before April 9, 2012 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to R. Joseph Durbala, (202) 622–3634, at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning designated Roth contributions under Section 402A.
Written comments should be received on or before April 9, 2012 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of this regulation should be directed to Allan Hopkins, (202) 622–6665, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Notice 2011–83, Pennsylvania Low-Income Housing Relief Credit.
Written comments should be received on or before April 9, 2012 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of notice should be directed to Allan Hopkins, at (202) 622–6665, or at Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
United States Mint, Department of the Treasury.
Notice.
The United States Mint is announcing adjusted pricing for the 2012 Infantry Soldier Silver Dollar and 2012 Star-Spangled Banner Commemorative Coin products:
The introductory pricing period for the 2012 Infantry Soldier Silver Dollar begins February 16, 2012, and ends March 19, 2012. The introductory pricing period for the 2012 Star-Spangled Banner Commemorative Coin Program begins March 5, 2012, and ends April 5, 2012.
B. B. Craig, Associate Director for Sales and Marketing; United States Mint; 801 9th Street NW., Washington, DC 20220; or call (202) 354–7500.
Public Law 110–357, sec. 5a; Public Law 111–232, sec. 6a; 31 U.S.C. 5111 & 9701.
United States Patent and Trademark Office, Commerce.
Request for Comments.
The Leahy-Smith America Invents Act establishes several new trial proceedings to be conducted by the Patent Trial and Appeal Board (Board) including
Written comments must be received on or before April 9, 2012 to ensure consideration.
Comments on the practice guide should be sent by electronic mail message over the Internet addressed to:
Comments may also be sent by electronic mail message over the Internet via the Federal eRulemaking Portal.
Although comments may be submitted by postal mail, the Office prefers to receive comments by electronic mail message over the Internet because sharing comments with the public is more easily accomplished. Electronic comments are preferred to be submitted in plain text, but also may be submitted in ADOBE® portable document format or MICROSOFT WORD® format. Comments not submitted electronically should be submitted on paper in a format that facilitates convenient digital scanning into ADOBE® portable document format.
The comments will be available for public inspection at the Board of Patent Appeals and Interferences, currently located in Madison East, Ninth Floor, 600 Dulany Street, Alexandria, Virginia. Comments also will be available for viewing via the Office's Internet Web site (
Michael Tierney, Lead Administrative Patent Judge, Board of Patent Appeals and Interferences, by telephone at (571) 272–9797.
The proposed regulations lay out a framework for conducting the proceedings aimed at streamlining and converging the issues for decision. In doing so, the Office's goal is to conduct proceedings in a timely, fair and efficient manner. Further, the Office designed the proceedings to allow each party to determine the preferred manner of putting forward its case, subject to the disinterested guidance of judges who determine the needs of a particular case through procedural and substantive rulings throughout the proceedings.
The Leahy-Smith America Invents Act (AIA) establishes several new trial proceedings to be conducted by the Board including: (1)
In developing the proposed rules and this guide, the Office expresses its gratitude for the thoughtful and comprehensive comments provided by the public, which are available on the USPTO Web site:
The AIA provides certain minimum requirements for each of the new proceedings. Provided below is a brief overview of these requirements.
Proceedings begin with the filing of a petition to institute a trial. The petition must be timely filed and be accompanied by the evidence the petitioner seeks to rely upon. For IPR, PGR, and CBM, the patent owner is afforded an opportunity to file a preliminary response. 35 U.S.C. 313, as amended, and 35 U.S.C. 323.
The Director may institute a trial where the petitioner establishes that the standards for instituting the requested trial are met. Conversely, the Director may not authorize a trial where the information presented in the petition, taking into account any preliminary patent owner response, fails to meet the requisite standard for instituting the trial,
The AIA requires that the Board conduct AIA trials and that the Director prescribe regulations concerning the conduct of those trials. 35 U.S.C. 6, 135 and 316, as amended, and 35 U.S.C. 326. For example, for IPR, PGR, and CBM, the AIA mandates the promulgation of rules including motions to seal, procedures for filing supplemental information, standards and procedures for discovery, sanctions for improper use of the proceeding, entry of protective orders, and oral hearings. Additionally, the AIA mandates the promulgation of rules for IPR, PGR, and CBM concerning the submission of a patent owner response with supporting evidence and allowing the patent owner a motion to amend the patent.
A petitioner and a patent owner may terminate the proceeding with respect to the petitioner by filing a written agreement with the Office, unless the Office has already decided the merits of the proceeding,
For IPR, PGR and CBM, the AIA requires that the Office consider the effect of the regulations on the economy, the integrity of the patent system, the efficient administration of the Office, and the ability of the Office to timely complete the proceedings. 35 U.S.C. 316, as amended, and 35 U.S.C. 326. In developing the general trial rules, as well as the individual proceeding specific rules, the Office has taken these considerations into account. Further, the individual proceeding specific rules take into account the jurisdictional and timing requirements for the particular proceedings.
Generally, the proceedings begin with the filing of a petition that identifies all of the claims challenged and the grounds and supporting evidence on a claim-by-claim basis. Within two months of notification of a filing date, the patent owner in an IPR, PGR, or CBM proceeding may file a preliminary response to the petition, including a simple statement that patent owner elects not to respond to the petition prior to the institution of a review. The Board will determine whether to institute the requested proceeding within three months of the date the patent owner's preliminary response was due or was filed, whichever is first.
In instituting a trial, the Board will narrow the issues for final decision by authorizing the trial to proceed only on the challenged claims for which the threshold requirements for the proceeding have been met. Further, the Board will identify which of the grounds the trial will proceed upon on a claim-by-claim basis. Any claim or issue not included in the authorization for review is not part of the trial. A party dissatisfied with the Board's determination may request rehearing as to points believed to have been overlooked or misapprehended.
The Board will enter a Scheduling Order (Appendix A) concurrent with the decision to institute the proceeding. The Scheduling Order will set due dates for the proceeding taking into account the complexity of the proceeding but ensuring that the trial is completed within one year of institution.
For example, a Scheduling Order for an IPR might provide a four month deadline for patent owner discovery and for filing a patent owner response and motion to amend. Once the patent owner's response and motion to amend have been filed, the Scheduling Order might provide the petitioner with two months for discovery and for filing a petitioner's reply to the response and the petitioner's opposition to the amendment. The Scheduling Order might then provide the patent owner with one month for discovery and for filing a patent owner reply to petitioner's opposition to a patent owner amendment. A representative timeline is provided below:
The following is a general summary of the rules for the proceedings.
The rules are to be implemented so as to ensure the just, speedy, and inexpensive resolution of a proceeding
1.
2.
Electronic filing is the default manner in which documents are to be filed with the Board. Proposed § 42.6(b). Electronic filing of legal documents is being implemented across the country in state and federal courts. The use of electronic filing aids in the efficient administration of the proceeding, improves public accessibility, and provides a more effective document management system for the Office and parties. The manner of submission will be established by the Board and will be published on the Web site of the Office (
Paper filing may be used where appropriate, but must be accompanied by a motion explaining the need for non-electronic filing. Based upon experience with contested cases, the Board does not expect to receive many requests to file paper submissions. Circumstances where a paper filing may be warranted include those occasions where the Office's electronic filing system is unable to accept filings. Alternatively, if a problem with electronic filing arises during normal business hours, a party may contact the Board and request a one-day extension of time for due dates that are set by rule or orders of the Board.
The rules require that parties to a proceeding provide certain mandatory notices, including identification of the real parties in interest, related matters, lead and back-up counsel and service information. Proposed § 42.8. Where there is a change of information, a party must file a revised notice within 21 days of the change. Proposed § 42.8(a)(3).
1.
Whether a party who is not a named participant in a given proceeding nonetheless constitutes a “real party in interest” or “privy” to that proceeding is a highly fact-dependent question.
While there are multiple bases upon which a non-party may be recognized as a “real party in interest” or “privy,” a common consideration is whether the non-party exercised or could have exercised control over a party's participation in a proceeding.
Many of the same considerations that apply in the context of “res judicata” will likely apply in the “real party in interest” or “privy” contexts.
2.
3.
The proposed rules aim to strike a balance between the public's interest in maintaining a complete and understandable file history and the parties' interest in protecting truly sensitive information.
1.
2.
3.
4.
5.
The proposed rule seeks to streamline the process of seeking protective orders prior to the institution of the review while balancing the need to protect confidential information against an opponent's ability to access information used to challenge the opponent's claims.
6.
Discovery is a tool to develop a fair record and to aid the Board in assessing the credibility of witnesses. To streamline the proceedings, the rules and Scheduling Order provide a sequenced discovery process upon institution of the trial. Specifically, each party will be provided respective discovery periods, with the patent owner going first. The sequenced discovery allows parties to conduct meaningful discovery before they are required to submit their respective motions and oppositions. Thus, discovery before the Board is focused on what the parties reasonably need to respond to the grounds raised by an opponent. In this way, the scope of the trial continually narrows.
1.
2.
3.
4.
5.
The Board has issued such Orders in contested cases and has not experienced problems arising from such Orders.
1.
2.
Typically, authorization for a motion is obtained during an initial conference call, which generally occurs within one month of the institution of IPR, PGR, CBM, and derivation proceedings. Additionally, where more immediate relief is required or the request arises after the initial conference call, a party should institute a conference call to obtain such authorization. The Board has found that this practice simplifies a proceeding by focusing the issues early, reducing costs and efforts associated with motions that are beyond the scope of the proceeding. By taking an active role in the proceeding, the Board can eliminate delay in the proceeding and ensure that attorneys are prepared to resolve the relevant disputed issues.
3.
Federal courts routinely use page limits to manage motions practice as “[e]ffective writing is concise writing.”
Although parties are given wide latitude in how they present their cases, the Board's experience is that the presentation of an overwhelming number of issues tends to detract from the argument being presented, and can cause otherwise meritorious issues to be overlooked or misapprehended. Thus, parties should avoid submitting a repository of all the information that a judge could possibly consider, and instead focus on simple, well organized, easy to follow arguments supported by readily identifiable evidence of record. Another factor to keep in mind is that the judges of the Board are familiar with the general legal principles involved in issues which come before the Board. Accordingly, extended discussions of general patent law principles are not necessary.
4.
5.
6.
1.
2.
3.
4.
The following claim drafting techniques would not typically render a patent a technological invention:
(a) Mere recitation of known technologies, such as computer hardware, communication or computer networks, software, memory, computer-readable storage medium, scanners, display devices or databases, or specialized machines, such as an ATM or point of sale device.
(b) Reciting the use of known prior art technology to accomplish a process or method, even if that process or method is novel and non-obvious.
(c) Combining prior art structures to achieve the normal, expected, or predictable result of that combination.
The following are examples of covered business method patents that are subject to a CBM review proceeding:
(a) A patent that claims a method for hedging risk in the field of commodities trading.
(b) A patent that claims a method for verifying validity of a credit card transaction.
The following are examples of patents that claim a technological invention that would not be subject to a CBM review proceeding:
(a) A patent that claims a novel and non-obvious hedging machine for hedging risk in the field of commodities trading.
(b) A patent that claims a novel and non-obvious credit card reader for verifying the validity of a credit card transaction.
5.
For IPR, PGR, and CBM proceedings, a patent owner may file a preliminary response no later than two months after the grant of a filing date. Proposed §§ 42.107(b) and 42.207(b). The preliminary response may present evidence other than testimonial evidence to demonstrate that no review should be instituted. Proposed §§ 42.107(c) and 42.207(c).
Potential preliminary responses include:
(1) The petitioner is statutorily barred from pursuing a review.
(2) The references asserted to establish that the claims are unpatentable are not in fact prior art.
(3) The prior art lacks a material limitation in all of the independent claims.
(4) The prior art teaches or suggests away from a combination that the petitioner is advocating.
(5) The petitioner's claim interpretation for the challenged claims is unreasonable.
(6) If a petition for post-grant review raises 35 U.S.C. 101 grounds, a brief explanation as to how the challenged claims are directed to a patent-eligible invention.
Where a patent owner seeks to expedite the proceeding, the patent owner may file an election to waive the preliminary patent owner response. Proposed §§ 42.107(b) and 42.207(b). No adverse inference will be taken by such an election. Moreover, a patent owner may file a statutory disclaimer of one or more challenged claims to streamline the proceedings. Where no challenged claims remain, the Board would terminate the proceeding. Where one or more challenged claims remain, the Board's decision on institution would be based solely on the remaining claims. See
1.
(a)
(b)
(c)
(d)
2.
3.
The Board expects that a Scheduling Order (Appendix A) will be provided concurrent with the decision to institute the proceeding. The Scheduling Order will set due dates for taking action accounting for the complexity of the proceeding but ensuring that the trial is completed within one year of institution.
Where no trial is instituted, a decision to that effect will be provided. The Board expects that the decision will contain a short statement as to why the requirements were not met, although this may not be necessary in all cases. A party dissatisfied with a decision may file a request for rehearing before the Board, but the Board's determination on whether to institute a trial is final and nonappealable. 35 U.S.C. 135(a) and 314(d), as amended, 35 U.S.C. 324(e); and proposed § 42.71(c).
The Board expects to initiate a conference call within about one month from the date of institution of the trial to discuss the Scheduling Order and any motions that the parties anticipate filing during the trial. Generally, the Board would require a list of proposed motions to be filed no later than two business days prior to the conference call. An accurate motions list is necessary to provide the Board and the opposing parties adequate notice to prepare for the conference call and to plan for the proceeding. The Board's contested cases experience demonstrates that discussing the proposed motions aids the administration of justice by (1) helping the Board and counsel adjust the schedule for taking action, (2) permitting the Board to determine whether the listed motions are both necessary and sufficient to resolve the issues raised, and (3) revealing the possibility that there may be a dispositive issue that may aid the settlement of the trial. Submission of a list would not preclude the filing of additional motions not contained in the list. However, the Board may require prior authorization to file an additional motion and the set times are not likely to change as a consequence of the new motion.
For IPR, PGR, and CBM, the patent owner will be provided an opportunity to respond to the petition once a trial has been instituted. 35 U.S.C. 316(a)(8), as amended, and 35 U.S.C. 326(a)(8). For a derivation proceeding, the applicant or patent owner alleged to have derived the invention will be provided an opportunity to respond to the petition once the trial has been instituted, App. A–2, Scheduling Order.
The response is filed as an opposition to the petition and is subject to the page limits for oppositions. Proposed §§ 42.120 and 42.220. The response should identify all the involved claims that are believed to be patentable and state the basis for that belief. Additionally, the response should include any affidavits or additional factual evidence sought to be relied upon and explain the relevance of such evidence. As with the petition, the response may contain a claim chart identifying key features of a claim and comparing those features with specific evidence. Where the patent owner elects not to file a response, the patent owner will arrange for a conference call with the Board to discuss whether or not the patent owner is abandoning the contest.
1.
2.
3.
Amendments should clearly state “original,” “cancelled,” “replaced by proposed substitute,” or “proposed substitute for original claim X.”
Amendments should clearly state where the specification and any drawings disclose all the limitations in
Amendments should clearly state the patentably distinct features for proposed substitute claims. This will aid the Board in determining whether the amendment narrows the claims and if the amendment is responsive to the grounds of unpatentability involved in the trial.
The number of substitute claims must be “reasonable.” There is a general presumption that only one substitute claim would be needed to replace each challenged claim. This presumption may be rebutted by a demonstration of need. The presumption balances the one-year timeline for final decision against the patent owner's need to appropriately define their invention.
A petitioner will be afforded an opportunity to fully respond to a patent owner's amendment. The time for filing an opposition will generally be set in a Scheduling Order. No authorization is needed to file an opposition to an amendment. Petitioners may supplement evidence submitted with their petition to respond to new issues arising from proposed substitute claims. This includes the submission of new expert declarations that are directed to the proposed substitute claims.
A reply may only respond to arguments raised in the corresponding opposition. Proposed § 42.23. While replies can help crystalize issues for decision, a reply that raises a new issue or belatedly presents evidence will not be considered and may be returned. The Board will not attempt to sort proper from improper portions of the reply. Examples of indications that a new issue has been raised in a reply include new evidence necessary to make out a prima facie case for the patentability or unpatentability of an original or proposed substitute claim, and new evidence that could have been presented in a petition or amendment.
There are many types of motions that may be filed in a proceeding in addition to motions to amend. Examples of additional motions include motions to exclude evidence, motions to seal, motions for joinder, motions to file supplemental information, motions for judgment based on supplemental information, motions for observations on cross-examination, etc.
Where a party believes it has a basis to request relief on a ground not identified in the rules, the party should contact the Board and arrange for a conference call to discuss the requested relief with the judge handling the proceeding.
Each party to a proceeding will be afforded an opportunity to present their case before at least three members of the Board. The time for requesting an oral argument is normally set in the Scheduling Order but may be modified on a case-by-case basis.
Generally, a petitioner to a hearing will go first followed by the patent owner or respondent after which a rebuttal may be given by the petitioner. The order may be reversed,
There are strong public policy reasons to favor settlement between the parties to a proceeding. The Board will be available to facilitate settlement discussions, and where appropriate, may require a settlement discussion as part of the proceeding. The Board expects that a proceeding will terminate after the filing of a settlement agreement, unless the Board has already decided the merits of the proceeding.
For IPR, PGR and CBM, the Board will enter a final written decision not more than one year from the date a trial is instituted, except that the time may be extended up to six months for good cause. The Board expects that a final written decision will address the issues necessary for resolving the proceedings.
In the case of derivation proceedings, although not required by statute, the Board expects to provide a final decision not more than one year from the institution of the proceeding. The Board will provide a final decision as to whether an inventor named in the earlier application derived the claimed invention from an inventor named in the petitioner's application and filed the earlier application claiming such invention without authorization.
A party dissatisfied with a decision of the Board may file a request for rehearing. Proposed § 42.71. The burden of showing that a decision should be modified lies with the party challenging the decision. The request must specifically identify all matters the party believes the Board misapprehended or overlooked, and where each matter was previously addressed in a motion, an opposition, or a reply. Evidence not already of record at the time of the decision will not be admitted absent a showing of good cause.
This order sets due dates for the parties to take action after institution of the proceeding. The parties may stipulate different dates for Due Dates 1 through 5 (earlier or later, but no later than Due Date 6). A notice of the stipulation, specifically identifying the changed due dates, must be promptly filed. The parties may not stipulate an extension of Due Dates 6–7.
In stipulating different times, the parties should consider the effect of the stipulation on times to object to evidence (proposed § 42.64(b)(1)), to supplement evidence (proposed § 42.64(b)(2)), to conduct cross examination, and to draft papers depending on the evidence and cross examination testimony (
The patent owner is not required to file anything in response to the petition. The patent owner may file—
a. A response to the petition, and
b. A motion to amend the patent, if authorized.
Any response or amendment must be filed by Due Date 1. If the patent owner elects not to file anything, the patent owner must arrange a conference call with the parties and the Board.
Any reply to the patent owner's response and opposition to amendment filed by petitioner under proposed § 42.23 must be filed by this date.
The patent owner must file any reply to the petitioner's opposition by this date.
a. The petitioner must file any motion for an observation on the cross examination testimony of a reply witness (see section C, below). Proposed § 42.20.
b. Each party must file any motion to exclude evidence (proposed § 42.64(c)) and any request for oral argument (proposed § 42.70(a)).
a. The patent owner must file any response to a petitioner observation on cross examination testimony.
b. Each party must file any opposition to a motion to exclude.
Each party must file any reply for a motion to exclude.
Except as the parties might otherwise agree, for each due date—
1. Cross examination begins after any supplemental evidence is due (proposed § 42.64(b)).
2. Cross examination ends five business days before the next due date (proposed § 42.64(b)).
A motion for observation on cross examination provides the petitioner with a mechanism to draw the Board's attention to relevant cross examination testimony of a reply witness, since no further substantive paper is permitted after the reply. The observation must be a concise statement of the relevance of the precisely identified testimony to a precisely identified argument or portion of an exhibit. Each observation should not exceed a single, short paragraph. The patent owner may respond to the observation. Any response must be equally concise and specific.
This order sets due dates for the parties to take action in this proceeding. The parties may stipulate different dates for Due Dates 1 through 5 (earlier or later, but not later than Due Date 6). A notice of the stipulation, specifically identifying the changed due dates, must be promptly filed. The parties may not stipulate an extension of Due Dates 6–7.
In stipulating different times, the parties should consider the effect of the stipulation on times to object to evidence (proposed § 42.64 (b)(1)), to supplement evidence (proposed § 42.64(b)(2)), to conduct cross examination, and to draft papers depending on the evidence and cross examination testimony (
The respondent is not required to file anything in response to the petition. The respondent may file—
a. A response to the petition, and
b. A motion to amend, if authorized.
Any such response or motion to amend must be filed by Due Date 1. If the respondent elects not to file anything, the respondent must arrange a conference call with the parties and the Board.
The petitioner must file any reply to the respondent's response and opposition to amendment.
The respondent must file any reply to the petitioner's opposition by this date.
a. The petitioner must file any observation on the cross examination testimony of a reply witness (see section C, below).
b. Each party must file any motion to exclude evidence (proposed § 42.64(c)) and any request for oral argument (proposed § 42.70(a)).
a. The respondent must file any response to a petitioner observation on cross examination testimony.
b. Each party must file any opposition to a motion to exclude.
Each party must file any reply for a motion to exclude.
Except as the parties might otherwise agree, for each due date—
1. Cross examination begins after any supplemental evidence is due (proposed § 42.64(b)(2)).
2. Cross examination ends five business days before the next due date.
A motion for observation on cross examination provides the petitioner with a mechanism to draw the Board's attention to relevant cross examination testimony of a reply witness, since no further substantive paper is permitted after the reply. The observation must be a concise statement of the relevance of the precisely identified testimony to a precisely identified argument or portion of an exhibit. Each observation should not exceed a single, short paragraph.
(a)
(b)
(c)
(d)
(1)
(2)
(A)
(B)
(C)
(D)
(E)
(F)
(G)
(3)
(i) Maintaining such information in a secure location to which persons not authorized to receive the information shall not have access;
(ii) Otherwise using reasonable efforts to maintain the confidentiality of the information, which efforts shall be no less rigorous than those the recipient uses to maintain the confidentiality of information not received from the disclosing party;
(iii) Ensuring that support personnel of the recipient who have access to the confidential information understand and abide by the obligation to maintain the confidentiality of information received that is designated as confidential; and
(iv) Limiting the copying of confidential information to a reasonable number of copies needed to conduct the proceeding and maintaining a record of the locations of such copies.
(4)
(A)
(i) A party may file documents or information with the Board under seal, together with a non-confidential description of the nature of the confidential information that is under seal and the reasons why the information is confidential and should not be made available to the public. The submission shall be treated as confidential and remain under seal, unless upon motion of a party and after a hearing on the issue, or
(ii) Where confidentiality is alleged as to some but not all of the information submitted to the Board, the submitting party shall file
(B)
(5)
(6)
(7)
(A) The person has read the Protective Order and understands its terms;
(B) The person agrees to be bound by the Protective Order and will abide by its terms;
(C) The person will use the confidential information only in connection with that proceeding and for no other purpose;
(D) The person shall only extend access to the confidential information to support personnel, such as administrative assistants, clerical staff, paralegals and the like, who are reasonably necessary to assist him or her in the proceeding. The person shall inform such support personnel of the terms and requirements of the Protective Order prior to disclosure of any confidential information to such support personnel and shall be personally responsible for their compliance with the terms of the Protective Order; and
(E) The person agrees to submit to the jurisdiction of the Office for purposes of enforcing the terms of the Protective Order and providing remedies for its breach.
(e)
(f)
(g)
(h)
(i)
The following Standing Protective Order will be automatically entered into the proceeding upon the filing of a petition for review or institution of a derivation:
This standing protective order governs the treatment and filing of confidential information, including documents and testimony.
1. Confidential information shall be clearly marked “PROTECTIVE ORDER MATERIAL.”
2. Access to confidential information is limited to the following individuals who have executed the acknowledgment appended to this order:
(A)
(B)
(C)
(D)
(E)
(F)
(G)
3. Persons receiving confidential information shall use reasonable efforts to maintain the confidentiality of the information, including:
(A) Maintaining such information in a secure location to which persons not authorized to receive the information shall not have access;
(B) Otherwise using reasonable efforts to maintain the confidentiality of the information, which efforts shall be no less rigorous than those the recipient uses to maintain the confidentiality of information not received from the disclosing party;
(C) Ensuring that support personnel of the recipient who have access to the confidential information understand and abides by the obligation to maintain the confidentiality of information received that is designated as confidential; and
(D) Limiting the copying of confidential information to a reasonable number of copies needed for conduct of the proceeding and maintaining a record of the locations of such copies.
4. Persons receiving confidential information shall use the following procedures to maintain the confidentiality of the information:
(A)
(i) A party may file documents or information with the Board under seal, together with a non-confidential description of the nature of the confidential information that is under seal and the reasons why the information is confidential and should not be made available to the public. The submission shall be treated as confidential and remain under seal, unless, upon motion of a party and after a hearing on the issue, or
(ii) Where confidentiality is alleged as to some but not all of the information submitted to the Board, the submitting party shall file confidential and non-confidential versions of its submission, together with a Motion to Seal the confidential version setting forth the reasons why the information redacted from the non-confidential version is confidential and should not be made available to the public. The nonconfidential version of the submission shall clearly indicate the locations of information that has been redacted. The confidential version of the submission shall be filed under seal. The redacted information shall remain under seal unless, upon motion of a party and after a hearing on the issue, or
(B)
Information designated as confidential that is disclosed to another party during discovery or other proceedings before the Board shall be clearly marked as “PROTECTIVE ORDER MATERIAL” and shall be produced in a manner that maintains its confidentiality.
(k)
I _____________, affirm that I have read the Protective Order; that I will abide by its terms; that I will use the confidential information only in connection with this proceeding and for no other purpose; that I will only allow access to support staff who are reasonably necessary to assist me in this proceeding; that prior to any disclosure to such support staff I informed or will inform them of the requirements of the Standing Protective Order; that I am personally responsible for the requirements of the terms of the Standing Protective Order and I agree to submit to the jurisdiction of the Office and the United States District Court for the Eastern District of Virginia for purposes of enforcing the terms of the Protective Order and providing remedies for its breach.
United States Patent and Trademark Office, Commerce.
Notice of proposed rulemaking.
The United States Patent and Trademark Office (Office or USPTO) proposes new rules of practice to implement the provisions of the Leahy-Smith America Invents Act that provide for trials before the Patent Trial and Appeal Board (Board). The proposed rules would provide a consolidated set of rules relating to Board trial practice for
The Office solicits comments from the public on this proposed rulemaking. Written comments must be received on or before April 9, 2012 to ensure consideration.
Comments should be sent by electronic mail message over the Internet addressed to:
Comments may also be sent by electronic mail message over the Internet via the Federal eRulemaking Portal.
Although comments may be submitted by postal mail, the Office prefers to receive comments by electronic mail message over the Internet because sharing comments with the public is more easily accomplished. Electronic comments are preferred to be submitted in plain text, but also may be submitted in ADOBE® portable document format or MICROSOFT WORD® format. Comments not submitted electronically should be submitted on paper in a format that facilitates convenient digital scanning into ADOBE® portable document format.
The comments will be available for public inspection at the Board of Patent Appeals and Interferences, currently located in Madison East, Ninth Floor, 600 Dulany Street, Alexandria, Virginia. Comments also will be available for viewing via the Office's Internet Web site (
Michael Tierney, Lead Administrative Patent Judge, Scott Boalick, Lead Administrative Patent Judge, Robert Clarke, Administrative Patent Judge, and Joni Chang, Administrative Patent Judge, Board of Patent Appeals and Interferences, by telephone at (571) 272–9797.
On September 16, 2011, the Leahy-Smith America Invents Act was enacted into law (Pub. L. 112–29, 125 Stat. 284 (2011)). The purpose of the Leahy-Smith America Invents Act and these proposed regulations is to establish a more efficient and streamlined patent system that will improve patent quality and limit unnecessary and counterproductive litigation costs. The preamble of this notice sets forth in detail the procedures by which the Board will conduct trial proceedings. The USPTO is engaged in a transparent process to create a timely, cost-effective alternative to litigation. Moreover, the rulemaking process is designed to ensure the integrity of the trial procedures.
This notice proposes rules to implement the provisions of the Leahy-Smith America Invents Act that provide for trials to be conducted by the Board. In particular, the proposed rules would provide a consolidated set of rules relating to Board trial practice for
Additionally, the Office in separate rulemakings proposes to add a new subpart B to 37 CFR part 42 (RIN 0651–AC71) to provide rules specific to
The instant notice refers to the proposed rules in subparts B through E of part 42 set forth in the other notices. Moreover, rather than repeating the statutory provisions set forth in the Leahy-Smith America Invents Act for the implementation of
Section 7 of the Leahy-Smith America Invents Act amends 35 U.S.C. 6 and provides for the constitution and duties of the Patent Trial and Appeal Board. 35 U.S.C. 6(a), as amended, provides that the Patent Trial and Appeal Board members will include the Director, Deputy Director, Commissioner for Patents, Commissioner for Trademarks, and administrative patent judges. 35 U.S.C. 6(a), as amended, further provides that “administrative patent judges shall be persons of competent legal knowledge and scientific ability and are appointed by the Secretary, in consultation with the Director.” 35 U.S.C. 6(b), as amended, specifies that the duties of the Patent Trial and Appeal Board are to: (1) Review adverse decisions of examiners upon an application for patent; (2) review appeals of reexaminations pursuant to section 134(b); (3) conduct derivation proceedings pursuant to 35 U.S.C. 135; and (4) conduct
The Leahy-Smith America Invents Act amends title 35, United States Code, to provide for certain changes to the provisions for judicial review of Board decisions, such as amending 35 U.S.C. 134, 141, 145, 146, and 306 to change the Board's name to “Patent Trial and Appeal Board” and to provide for judicial review of the final decisions of the Board in
In particular, § 3(j) of the Leahy-Smith America Invents Act eliminates references to interferences. Section 3(j)(1) of the Leahy-Smith America Invents Act amends each of 35 U.S.C. 145 and 146 by striking the phrase “Board of Patent Appeals and Interferences” each place it appears and inserting “Patent Trial and Appeal Board.” Section (3)(j)(2)(A) of the Leahy-Smith America Invents Act amends 35 U.S.C. 146 by: (i) Striking “an interference” and inserting “a derivation proceeding;” and (ii) striking “the interference” and inserting “the derivation proceeding.” Section (3)(j)(3) of the Leahy-Smith America Invents Act amends the section heading for 35 U.S.C. 134 to read as follows: “§ 134. Appeal to the Patent Trial and Appeal Board.” Section (3)(j)(4) of the Leahy-Smith America Invents Act amends the section heading for 35 U.S.C. 146 to read as follows: “§ 146. Civil action in case of derivation proceeding.” Section (3)(j)(6) of the Leahy-Smith America Invents Act amends the item relating to 35 U.S.C. 146 in the table of sections for chapter 13 of title 35, United States Code, to read as follows: “146. Civil action in case of derivation proceeding.”
Section 6(f)(3)(C) of the Leahy-Smith America Invents Act provides that the authorization to appeal or have remedy from derivation proceedings in 35 U.S.C. 141(d) and 35 U.S.C. 146, as amended, and the jurisdiction to entertain appeals from derivation proceedings under 28 U.S.C. 1295(a)(4)(A), as amended, shall be deemed to extend to any final decision in an interference that is commenced before the effective date (the date that is one year after the enactment date) and that is not dismissed pursuant to § 6(f)(3)(A) of the Leahy-Smith America Invents Act.
Section 6(h)(2)(A) of the Leahy-Smith America Invents Act amends 35 U.S.C. 306 by striking “145” and inserting “144.”
Section 7(c)(1) of the Leahy-Smith America Invents Act amends 35 U.S.C. 141, entitled “Appeal to Court of Appeals for the Federal Circuit.” 35 U.S.C. 141(a), as amended, will provide that an applicant who is dissatisfied with the final decision in an appeal to the Patent Trial and Appeal Board under 35 U.S.C. 134(a) may appeal the Board's decision to the United States Court of Appeals for the Federal Circuit. 35 U.S.C. 141(a), as amended, will further provide that, by filing an appeal to the United States Court of Appeals for the Federal Circuit, the applicant waives his or her right to proceed under 35 U.S.C. 145.
Section 7(c)(1) of the Leahy-Smith America Invents Act amends 35 U.S.C. 141(b) to make clear that a patent owner who is dissatisfied with the final decision in an appeal of a reexamination to the Patent Trial and Appeal Board under 35 U.S.C. 134(b) may appeal the Board's decision only to the United States Court of Appeals for the Federal Circuit.
Section 7(c)(1) of the Leahy-Smith America Invents Act amends 35 U.S.C. 141(c) to provide that a party to an
Section 7(c)(1) of the Leahy-Smith America Invents Act amends 35 U.S.C. 141(d) to provide that a party to a derivation proceeding who is dissatisfied with the final decision of the Patent Trial and Appeal Board in the proceeding may appeal the decision to the United States Court of Appeals for the Federal Circuit, but such appeal shall be dismissed if any adverse party to such derivation proceeding, within 20 days after the appellant has filed notice of appeal in accordance with 35 U.S.C. 142, files notice with the Director that the party elects to have all further proceedings conducted as provided in 35 U.S.C. 146, as amended. 35 U.S.C. 141(d), as amended, will also provide that if the appellant does not, within 30 days after the filing of such notice by the adverse party, file a civil action under 35 U.S.C. 146, the Board's decision shall govern the further proceedings in the case.
Section 7(c)(2) of the Leahy-Smith America Invents Act amends 28 U.S.C. 1295(a)(4)(A) to read as follows:
“(A) the Patent Trial and Appeal Board of the United States Patent and Trademark Office with respect to a patent application, derivation proceeding, reexamination, post-grant review, or inter partes review under title 35, at the instance of a party who exercised that party's right to participate in the applicable proceeding before or appeal to the Board, except that an applicant or a party to a derivation proceeding may also have remedy by civil action pursuant to section 145 or 146 of title 35; an appeal under this subparagraph of a decision of the Board with respect to an application or derivation proceeding shall waive the right of such applicant or party to proceed under section 145 or 146 of title 35;”
Section 7(c)(3) of the Leahy-Smith America Invents Act amends 35 U.S.C. 143 by striking the third sentence and inserting the following:
In an ex parte case, the Director shall submit to the court in writing the grounds for the decision of the Patent and Trademark Office, addressing all of the issues raised in the appeal. The Director shall have the right to intervene in an appeal from a decision entered by the Patent Trial and Appeal Board in a derivation proceeding under section 135 or in an inter partes or post-grant review under chapter 31 or 32
Section 7(c)(3) of the Leahy-Smith America Invents Act further amends 35 U.S.C. 143 by striking the last sentence.
Section 7(e) of the Leahy-Smith America Invents Act provides that the amendments made by § 7 of the Leahy-Smith America Invents Act shall take effect upon the expiration of the 1-year period beginning on the date of the enactment of the Leahy-Smith America Invents Act and shall apply to proceedings commenced on or after that effective date, with the following exceptions. First, that the extension of jurisdiction to the United States Court of Appeals for the Federal Circuit to entertain appeals of decisions of the Patent Trial and Appeal Board in reexaminations under the amendment made by § 7(c)(2) shall be deemed to take effect on the date of the enactment of the Leahy-Smith America Invents Act and shall extend to any decision of the Board of Patent Appeals and Interferences with respect to a reexamination that is entered before, on, or after the date of the enactment of this Act. Second, that the provisions of 35 U.S.C. 6, 134, and 141, in effect on the day before the effective date of the amendments made by § 7 of the Leahy-Smith America Invents Act shall continue to apply to
Section 9(a) of the Leahy-Smith America Invents Act amends 35 U.S.C. 32, 145, 146, 154(b)(4)(A), and 293 by striking “United States District Court for the District of Columbia” each place that term appears and inserting “United States District Court for the Eastern District of Virginia.” Section 9(b) of the Leahy-Smith America Invents Act provides that amendments made by § 9 of the Leahy-Smith America Invents Act shall take effect on the date of the enactment of this Act and shall apply to any civil action commenced on or after that date.
The proposed rules would provide a consolidated set of rules relating to Board trial practice for
Title 37 of the Code of Federal Regulations, Parts 42 and 90, are proposed to be added as follows:
Proposed § 42.1(a) would define the scope of the rules.
Proposed § 42.1(b) would provide a rule of construction for all the rules in proposed part 42. The proposed rule would mandate that all the Board's rules be construed to achieve the just, speedy, and inexpensive resolution of Board proceedings. This proposed rule reflects considerations identified in 35 U.S.C. 316(b) and 326(b), which state that the Office is to take into account the integrity of the patent system, the efficient administration of the Office, and the ability of the Office to complete timely the proceedings in promulgating regulations.
Proposed § 42.1(c) would require that decorum be exercised in Board proceedings, including dealings with opposing parties. Board officials would be similarly expected to treat parties with courtesy and decorum.
Proposed § 42.1(d) would provide that the default evidentiary standard for each issue in a Board proceeding is a preponderance of the evidence. This proposed rule implements the statute, which directs that unpatentability issues must be proven by a preponderance of the evidence. 35 U.S.C. 316(e), as amended, and 35 U.S.C. 326(e). The proposed rule is also consistent with 35 U.S.C. 135(b), which provides that the Director shall establish regulations requiring sufficient evidence to prove and rebut a claim of derivation.
The proposed definition of affidavit would provide that
The proposed definition of Board would rename “the Board of Patent Appeals and Interferences” to “the Patent Trial and Appeal Board.” The proposed definition would also provide that
The proposed definition of business day would provide that
The proposed definition of confidential information would provide that
The proposed definition of final would provide that
The proposed definition of hearing would make it clear that a
The proposed definition of involved would provide that
The proposed definition of judgment would provide that
The proposed definition of motion would clarify that
The proposed definition of Office would provide that
The proposed definition of panel would provide that a
The proposed definition of
The proposed definition of petition would provide that a
The proposed definition of petitioner would provide that a
The proposed definition of preliminary proceeding would provide that a
The proposed definition of proceeding would provide that a
The proposed definition of rehearing would provide that
The proposed definition of trial would provide that a
Proposed § 42.3(a) would provide the Board with jurisdiction over applications and patents involved in a Board proceeding. This is consistent with 35 U.S.C. 6(b), as amended, which provides that the Board is to conduct derivation proceedings,
Proposed § 42.3(b) would provide that a petition to institute a trial must be filed with the Board in a timely manner.
Proposed § 42.4(a) would specifically delegate the determination to institute a trial to an administrative patent judge.
Proposed § 42.4(b) would provide that the Board will send a notice of a trial to every party to the proceeding.
Proposed § 42.4(c) would provide that the Board may authorize additional modes of notice. Note that the failure to maintain a current correspondence address may result in adverse consequences.
Proposed §§ 42.5(a) and (b) would permit administrative patent judges wide latitude in administering the proceedings to balance the ideal of precise rules against the need for flexibility to achieve reasonably fast, inexpensive, and fair proceedings. The decision to waive a procedural requirement, for example default times for taking action, would be committed to the discretion of the administrative patent judge. By permitting the judges to authorize relief under parts 1, 41, and 42, the proposed rule avoids delay and permits related issues to be resolved in the same proceeding in a uniform and efficient manner.
Proposed § 42.5(c) would provide that the Board may set times by order. The proposed rule also provides that good cause must be shown for extensions of
Proposed § 42.5(d) would prohibit
Proposed § 42.6(a) would provide guidance for the filing of papers. Under proposed § 42.6(a), papers to be filed would be required to meet standards similar to those required in patent prosecution, § 1.52(a), and in the filings at the Federal Circuit under Fed. R. App. P. 32. The proposed prohibition against incorporation by reference would minimize the chance that an argument would be overlooked and would eliminate abuses that arise from incorporation and combination. In
Proposed § 42.6(b) would set electronic filing as the default manner in which documents in a proceeding are filed with the Board. The procedures for electronic filings in the proposed rule would be consistent with the procedures for submission of electronic filings set forth in § 2.126(b). Section 2.126(b) is a rule of the Trademark Trial and Appeal Board (TTAB) which provides that submissions may be made to the TTAB electronically according to parameters established by the Board and published on the Web site of the Office.
The use of electronic filing, such as that used with the Board's Interference Web Portal, facilitates public accessibility and is consistent with the requirements of 35 U.S.C. 316(a)(1), as amended, and 35 U.S.C. 326(a)(1), which state that the files of a proceeding are to be made available to the public, except for those documents filed with the intent that they be sealed. Where needed, a party may file by means other than electronic filing but a motion explaining such a need must accompany the non-electronic filing. In determining whether alternative filing methods would be authorized, the Office would consider the entity size and the ability of the party to file electronically.
Proposed § 42.6(c) would require that exhibits be filed with the first document in which the exhibit is cited so as to allow for uniformity in citing to the record.
Proposed § 42.6(d) would prohibit the filing of duplicate documents absent Board authorization.
Proposed § 42.6(e) would require service simultaneous with the filing of the document, as well as require certificates of service. Additional procedures to be followed when filing documents may be provided via a standing order of the Board.
Examples of related administrative matters that would be affected by a decision in the proceeding include every application and patent claiming, or which may claim, the benefit of the priority of the filing date of the party's involved patent or application as well as any
The need for identification of the real party in interest helps identify potential conflicts of interests for the Office. In the case of the Board, a conflict would typically arise when an official has an investment in a company with a direct interest in a Board proceeding. Such conflicts can only be avoided if the parties promptly provide information necessary to identify potential conflicts. The identity of a real party-in-interest might also affect the credibility of evidence presented in a proceeding. The Board would consider, on a case-by case basis, relevant case law to resolve a real party in interest or privy dispute that may arise during a proceeding. Further, in
Proposed § 42.10(b) would provide that a power of attorney must be filed for counsel not of record in the party's involved patent or application.
Proposed § 42.10(c) would allow for
The proposed rule, if adopted, would allow for this practice in the new proceedings authorized by the Leahy-Smith America Invents Act.
Proposed § 42.10(d) would provide a limited delegation to the Board under 35 U.S.C. 2(b)(2) and 32 to regulate the conduct of counsel in Board proceedings. The proposed rule would delegate to the Board the authority to conduct counsel disqualification proceedings while the Board has jurisdiction over a proceeding. The rule would delegate to the Chief Administrative Patent Judge the authority to make final a decision to disqualify counsel in a proceeding before the Board for the purposes of judicial review. This delegation would not derogate from the Director the prerogative to make such decisions, nor would it prevent the Chief Administrative Patent Judge from further delegating authority to an administrative patent judge.
Proposed § 42.10(e) provides that counsel may not withdraw from a proceeding before the Board unless the Board authorizes such withdrawal.
Proposed § 42.12(a) would identify types of misconduct for which the Board may impose sanctions. The proposed rule would explicitly provide that misconduct includes failure to comply with an applicable rule, abuse of discovery, abuse of process, improper use of the proceeding and misrepresentation of a fact. An example of a failure to comply with an applicable rule includes failure to disclose a prior relevant inconsistent statement.
Proposed § 42.12(b) would recite the list of sanctions that may be imposed by the Board.
Sections 10(d) and (e) of the Leahy-Smith America Invents Act set out a process that must be followed when the Office is using its authority under section 10(a) to set or adjust patent fees.
The Office is also in the process of developing a proposal to adjust patent fees under section 10 of the Leahy-Smith America Invents Act. The fees proposed in this notice will be revisited in furtherance of the Director's fee setting efforts in this area.
Proposed § 42.15(a) would set the fee for a petition to institute an
To understand the scope of a dependent claim, the claims from which the dependent claim depends must be construed along with the dependent claim. Accordingly, for fee calculation purposes, each claim challenged will be counted as well as any claim from which a claim depends, unless the parent claim is also separately challenged. The following examples are illustrative.
Claims 1–30 are challenged where each of claims 2–30 are dependent claims and depend only upon claim 1. There are 30 claims challenged for purposes of fee calculation.
Claims 20–40 are challenged where each of claims 20–40 are dependent claims and depend only upon claim 1. As claims 20–40 depend from claim 1, claim 1 counts toward the total number of claims challenged. Thus, there are 21 claims challenged for fee calculation purposes.
Claims 1, 11–20, and 31–40 are challenged. Each of claims 1 and 31–40 are independent claims. Each of claims 11–20 are dependent claims and depend upon claim 9, which in turn depends upon claim 8, which in turn depends upon claim 1. As claims 11–20 depend upon parent claims 8 and 9, claims 8 and 9 would count as challenged claims towards the total number of claims challenged. As claim 1 is separately challenged, it would not count twice towards the total number of claims challenged. Thus, there are 23 claims challenged for fee calculation purposes.
Claims 1, 11–20, and 31–40 are challenged. Each of claims 1 and 31–40 are independent claims. Claim 11 depends upon claim 1 and claims 12–20 depend upon claim 11. As each of the challenged claims is based on a separately challenged independent claim, we need not include any further claims for fee calculations purposes. Thus, there are 21 challenged claims.
Proposed § 42.15(b) would set the fee for a petition to institute a post-grant review or a covered business method patent review of a patent based upon the number of challenged claims, and would reflect the requirements of 35 U.S.C. 321, as amended, and 35 U.S.C. 322(a) that the Director set fees for the petition and that the petition be accompanied by payment of the fee established. The analysis of the number of claims challenged for fee calculation purposes would be the same as for proposed § 42.15(a).
Item (C) of the Rulemaking Considerations section of this notice,
Proposed § 42.15(c) would set the fee for a petition to institute a derivation proceeding in the amount of $400. Derivation proceedings concern allegations that an inventor named in an earlier application, without authorization, derived the claimed invention from an inventor named in the petition. The fee is set to recover the treatment of the petition as a request to transfer jurisdiction from the examining corps to the Board and not the costs of instituting and performing the derivation trial which is necessary to complete the examination process for the applicant seeking the derivation.
Proposed § 42.15(d) would set the fee for filing written requests to make a settlement agreement available in the amount of $400.
Proposed § 42.20(b) would provide that motions will not be entered absent Board authorization, and authorization may be provided in an order of general applicability or during the proceeding. Generally, the Board expects that authorization would follow the current Board practice where a conference call would be required before an opposed motion is filed as quite often the relief requested in such motions can be granted (or denied) in a conference call. This practice has significantly increased the speed and reduced the costs in contested cases.
Proposed § 42.20(c) would place the burden of proof on the moving party. A motion that fails to justify the relief on its face could be dismissed or denied without regard to subsequent briefing.
Proposed § 42.20(d) would provide that the Board may order briefing on any issue appropriate for a final written determination on patentability. Specifically, 35 U.S.C. 318(a), as amended, and 328(a) require that where a review is instituted and not dismissed the Board shall issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner and any new claim added. The proposed rule would provide for Board ordered briefing where appropriate in order to efficiently and effectively render its final decision on patentability.
Proposed § 42.21(b) would state the effect of a notice. The proposed rule would make it clear that failure to state a sufficient basis for relief would warrant a denial of the request.
Proposed § 42.21(c) would permit correction of a notice after the time set for filing the notice, but would set a high threshold for entry of the correction,
Proposed § 42.22(a) would require that each petition or motion be filed as a separate paper to reduce the chance that an argument would be overlooked and reduce the complexity of any given paper. Proposed § 42.22(a)(1)–(3) would provide for a statement of precise relief requested, a statement of material facts, and statement of the reasons for relief. Vague arguments and generic citations to the record are fundamentally unfair to an opponent and do not provide sufficient notice to an opponent and creates inefficiencies for the Board.
Proposed § 42.22(b) would require the movant to make showings ordinarily required for the requested relief in other parts of the Office. Many actions, particularly corrective actions like changes in inventorship, filing reissue applications, and seeking a retroactive foreign filing license, are governed by other rules of the Office. By requiring the same showings the proposed rule would keep practice uniform throughout the Office.
Proposed § 42.22(c) would provide that a petition or motion shall contain
Proposed § 42.22(d) would allow the Board to order additional showings or explanations as a condition for authorizing a motion. Experience has shown that placing conditions on motions helps provide guidance to the parties as to what issues and facts are of particular importance and ensures that the parties are aware of controlling precedent that should be addressed in a particular motion.
Federal courts routinely use page limits in managing motions practice as “[e]ffective writing is concise writing.”
Federal courts have found that page limits ease the burden on both the parties and the courts, and patent cases are no exception.
The Board's experience with page limits in interference motions practice is consistent with that of the federal courts. The Board's use of page limits has shown it to be beneficial without it being unduly restrictive for the parties. Page limits have encouraged the parties to focus on dispositive issues, easing the burden of motions practice on the parties and on the Board.
The Board's experience with page limits in interference practice is informed by its use of different approaches over the years. In the early 1990s, page limits were not routinely used for motions, and the practice suffered from lengthy and unacceptable delays. To reduce the burden on the parties and on the Board and thereby reduce the time to decision, the Board instituted page limits in the late 1990s for every motion. Page limit practice was found to be effective in reducing the burdens on the parties and improving decision times at the Board. In 2006, the Board revised the page limit practice and allowed unlimited findings of fact and generally limited the number of pages containing argument. Due to abuses of the system, the Board recently reverted back to page limits for the entire motion (both argument and findings of fact).
Proposed § 42.24(a) would provide specific page limits for petitions and motions. The proposed rule would set a limit of 50 pages for petitions requesting
The Board's current practice in interferences is to limit motions for judgment on priority of invention to 50 pages, miscellaneous motions to 15 pages and other motions to 25 pages. Hence, non-priority motions for judgment of unpatentability are currently limited to 25 pages. The Board's current page limits are consistent with the 25 page limits in the Northern, Central, and Southern Districts of California, and the Middle District of Florida and exceed the limits in the District of Delaware (20), the Northern District of Illinois (15), the District of Massachusetts (20), the Eastern District of Michigan (20), the Southern District of Florida (20), and the Southern District of Illinois (20).
In a typical proceeding before the Board, a party may be authorized to file: A single motion for unpatentability based on prior art; a single motion for unpatentability based upon failure to comply with 35 U.S.C. 112, lack of written description and/or enablement; and potentially another motion for lack of compliance with 35 U.S.C. 101, although a 35 U.S.C. 101 motion may be required to be combined with the 35 U.S.C. 112 motion. Each of these motions is currently limited to 25 pages in length, unless good cause is shown that the page limits are unduly restrictive for a particular motion.
A petition requesting the institution of a trial proceeding would be similar to motions currently filed with the Board. Specifically, petitions to institute a trial seek a final written decision that the challenged claims are unpatentable, where derivation is a form of unpatentability. Accordingly, a petition to institute a trial based on prior art would under current practice be limited to 25 pages, and by consequence, a petition raising unpatentability based on prior art and unpatentability under 35 U.S.C. 101 and/or 112 would be limited to 50 pages.
Under the proposed rules, an
Under the proposed rules, a post-grant review petition would be based upon any grounds identified in 35 U.S.C. 321(b),
Covered business method patent review is similar in scope to that of post-grant review as there is substantial overlap in the statutory grounds permitted for review. Thus, the proposed page limit for proposed covered business method patent reviews of 70 pages is the same as that proposed for post-grant review.
Petitions to institute derivation proceedings raise a subset of the issues that are currently raised in interferences in a motion for judgment on priority of invention. Currently, motions for judgment on priority of invention, including issues such as conception, corroboration, and diligence, are generally limited to 50 pages in length. Thus, the 50 proposed page limit is considered sufficient in all but exceptional cases.
The proposed rule would provide that petitions to institute a trial must comply with the stated page limits but may be accompanied by a motion that seeks to waive the page limits. The petitioner must show in the motion how a waiver of the page limits is in the interests of justice. A copy of the desired non-page limited petition must accompany the motion. Generally, the Board would decide the motion prior to deciding whether to institute the trial.
Current Board practice provides a limit of 25 pages for other motions and 15 pages for miscellaneous motions. The Board's experience is that such page limits are sufficient for the filing parties and do not unduly burden the opposing party and the Board. Petitions for instituting a trial would generally replace the current practice of filing motions for unpatentability. Most motions for relief are expected to be similar to the current interference miscellaneous motion practice. Accordingly, the proposed rule would provide a 15 page limit for motions as this is considered sufficient for most motions but may be adjusted where the limit is determined to be unduly restrictive for the relief requested. A party may contact the Board and arrange for a conference call to discuss the need for additional pages for a particular motion. Except for a motion to waive the page limit accompanying a petition seeking review, any motion to waive a page limit must be granted in advance of filing a motion, opposition or reply for which the waiver is necessary.
Proposed § 42.24(b) would provide page limits for oppositions. Current interference practice provides an equal number of pages for an opposition as its corresponding motion. This is generally consistent with motions practice in federal courts. The proposed rule would continue the current practice.
Proposed § 42.24(c) would provide page limits for replies. Current interference practice provides a 15-page limit for priority motion replies, a 5 page limit for miscellaneous (procedural) motion replies, and a 10 page limit for all other motions. The proposed rule is consistent with current interference practice for procedural motions. The proposed rule would provide a 15 page limit for reply to petitions requesting a trial, which the Office believes is sufficient based on current practice. Current interference practice has shown that such page limits do not unduly restrict the parties and, in fact, provide sufficient flexibility to parties to not only reply to the motion but also help to focus on the issues.
The proposed rules would provide limitations for discovery and testimony. Unlike in proceedings under the Federal Rules of Civil Procedure, the burden of justifying discovery in Board proceedings would lie with the party seeking discovery.
Proceedings before the Board differ from most civil litigation in that the proponent of an argument before the Board generally has access to relevant evidence that is comparable to its opponent's access. Consequently, the expense and complications associated with much of discovery can be avoided. For instance, since rejections are commonly based on the contents of the specification or on publicly available references, there is no reason to presume that the patent owner has better access to evidence of unpatentability on these grounds than the petitioner. Exceptions occur particularly when the ground of unpatentability arises out of conduct, particularly conduct of a purported inventor. In such cases, discovery may be necessary to prove such conduct, in which case the proponent of the evidence may move for additional discovery. The Board may impose conditions on such discovery to prevent abuse.
Proposed § 42.51(b)(1) and (b)(2) would provide for routine discovery of exhibits cited in a paper or testimony and provide for cross examination of affidavit testimony without the need to request authorization from the Board. The proposed rule would eliminate many routine discovery requests and disputes. The rule would not require a party to create materials or to provide materials not cited.
Proposed § 42.51(b)(3) would ensure the timeliness of the proceedings by requiring that parties, and individuals associated with the parties, provide information that is inconsistent with a position advanced by the patent owner or petitioner during the course of the proceeding. The Office recognizes that this requirement may differ from the proposed changes to § 1.56. But, Board experience has shown that the information covered by proposed 42.51(b)(3) is typically sought through additional discovery and that such information leads to the production of relevant evidence. However, this practice of authorizing additional discovery for such information risks significant delay to the proceeding and increased burdens on both the parties and the Office. To avoid these issues, and to reduce costs and insure the integrity and timeliness of the proceeding, the proposed rule makes the production of such information routine. Similarly, while the Office recognizes that some parties may be hesitant to use the new proceedings because of this requirement, the benefit of the requirement outweighs any impact on participation. Lastly this requirement does not override legally-recognized privileges such as attorney-client or attorney work product.
The proposed rule would require that the information be provided as a petition, motion, opposition, reply, preliminary patent owner response, or
Proposed § 42.51(c) would provide for additional discovery. Additional discovery increases trial costs and increases the expenditures of time by the parties and the Board. To promote effective discovery, the proposed rule would require a showing that the additional discovery sought in a proceeding other than a post-grant review is in the interests of justice, which would place an affirmative burden upon a party seeking the discovery to show how the proposed discovery would be productive. A separate rule (§ 42.224) governs additional discovery in post-grant proceedings. The Board's interference experience, however, is that such showings are often lacking and authorization for additional discovery is expected to be rare.
The proposed interests-of-justice standard for additional discovery is consistent with considerations identified in 35 U.S.C. 316(b), as amended, including the efficient administration of the Board and the Board's ability to complete timely trials. Further, the proposed interests-of-justice standard is consistent with 35 U.S.C. 316(a)(5), as amended, which states that discovery other than depositions of witnesses submitting affidavits and declarations be what is otherwise necessary in the interests of justice.
While the Board will employ an interests-of-justice standard in granting additional discovery in
Proposed § 42.52 would provide procedures for compelling testimony. Under 35 U.S.C. 23, the Director may establish rules for affidavit and deposition testimony. Under 35 U.S.C. 24, a party in a contested case may apply for a subpoena to compel testimony in the United States, but only for testimony to be used in the contested case. Proposed § 42.52(a) would require the party seeking a subpoena to first obtain authorization from the Board; otherwise, the compelled evidence would not be admitted in the proceeding. Proposed § 42.52(b) would impose additional requirements on a party seeking testimony or production outside the United States because the use of foreign testimony generally increases the cost and complexity of the proceeding for both the parties and the Board. The Board would give weight to foreign deposition testimony to the extent warranted in view of all the circumstances, including the laws of the foreign country governing the testimony.
Proposed § 42.53(c)(2) would provide for the time period for cross-examination and would set a norm for the conference proposed in § 42.53(c)(1). A party seeking to move the deposition outside this period would need to show good cause.
Proposed § 42.53(d) would require that the party calling the witness initiate a conference with the Board at least five business days before a deposition with an interpreter is taken. Board experience suggests that the complexity of foreign language depositions can be so great that in many cases the resulting testimony is not useful to the fact-finder. To avoid a waste of resources in the production of an unhelpful record, the proposed rules would require that the Board approve of the deposition format in advance. Occasionally the Board will require live testimony where the Board considers the demeanor of a witness critical to assessing credibility.
Proposed § 42.53(e) would provide for the manner of taking testimony.
Proposed § 42.53(e)(1) would require that each witness before giving deposition testimony be duly sworn according to law by the officer before whom the deposition is to be taken. Proposed § 42.53(e)(1) would also require that the officer be authorized to take testimony under 35 U.S.C. 23.
Proposed § 42.53(e)(2) would require that testimony be taken in answer to interrogatories with any questions and answers recorded in their regular order by the officer, or by some other disinterested person in the presence of the officer, unless the presence of the officer is waived on the record by agreement of all parties.
Proposed § 42.53(e)(3) would require that any exhibits used during the deposition be numbered as required by § 42.63(b), and must, if not previously served, be served at the deposition. Proposed § 42.53(e)(3) would also provide that exhibits objected to be accepted pending a decision on the objection.
Proposed § 42.53(e)(4) would require that all objections be made at the time of the deposition to the qualifications of the officer taking the deposition, the manner of taking it, the evidence presented, the conduct of any party, and that any other objection to the deposition be noted on the record by the officer.
Proposed § 42.53(e)(5) would require the witness to read and sign (in the form of an affidavit) a transcript of the
The certification of proposed § 42.53(e)(6)(vi) would provide a standard for disqualifying an officer from administering a deposition. The use of financial interest as a disqualification, however, would be broader than the employment interest currently barred. Payment for ordinary services rendered in the ordinary course of administering the deposition and preparing the transcript would not be a disqualifying financial interest. An interest acknowledged by the parties on the record without objection would not be a disqualifying interest.
Proposed § 42.53(e)(7) would require the proponent of the testimony to file the transcript of the testimony. If the original proponent of the testimony declined to file the transcript (for instance, because that party no longer intended to rely on the testimony), but another party wished to rely on the testimony, the party that wishes to file the testimony would become the proponent and would be permitted to file the transcript as its own exhibit.
Proposed § 42.64(a) would provide that objections to the admissibility of deposition evidence must be made during the deposition. Proposed § 42.64(b) would provide guidance as to objections and supplemental evidence for evidence other than deposition testimony. The default time for serving an objection to evidence other than testimony would be ten business days after service of the evidence for evidence in the petition and five business days for subsequent objections, and the party relying on evidence to which an objection was timely served would have ten business days after service of the objection to cure any defect in the evidence. The Board would not ordinarily address an objection unless the objecting party filed a motion to exclude under proposed § 42.64(c) because the objection might have been cured or might prove unimportant in light of subsequent developments. Proposed § 42.64(d) would permit a party to file a motion in limine to obtain a ruling on admissibility.
Proposed § 42.65(a) would remind parties that unsupported expert testimony may be given little or no weight.
Proposed § 42.65(b) would provide guidance on how to present tests and data. A party should not presume that the technical competence of the trier-of-fact extends to a detailed knowledge of the test at issue.
Proposed § 42.70(a) would provide that a party may request oral argument on an issue raised in a paper. The time for requesting oral argument would be set by the Board.
Proposed § 42.70(b) would provide that a party serve demonstrative exhibits at least five business days before the oral argument. Experience has shown that parties are more effective in communicating their respective positions at oral argument when demonstrative exhibits have been exchanged prior to the hearing. Cumbersome exhibits, however, tend to detract from the user's argument and would be discouraged. The use of a compilation with each demonstrative exhibit separately tabbed would be encouraged, particularly when a court reporter is transcribing the oral argument because the tabs provide a convenient way to record which exhibit is being discussed. It is helpful to provide a copy of the compilation to each member of the panel hearing the argument so that the judges may better follow the line of argument presented.
Proposed § 42.71(a) would provide that a petition or motion may be taken up in any order so that issues may be addressed in a fair and efficient manner. This rule is consistent with 35 U.S.C. 316(b), as amended, and 35 U.S.C. 326(b), which state that, among other things, that the Director shall consider the efficient administration of the Office in prescribing regulations. Further, such a practice was noted with approval in
Proposed § 42.71(b) would provide for interlocutory decisions. The proposed rule would make clear that a decision short of judgment is not final, but a decision by a panel would govern the trial. Experience has shown that the practice of having panel decisions bind further proceedings has eliminated much of the uncertainty and added cost that result from deferring any final decision until the end of the proceeding. In such instances, a party dissatisfied with an interlocutory decision on motions should promptly seek rehearing rather than waiting for a final judgment. A panel could, when the interests of justice require it, reconsider its decision at any time in the proceeding prior to final judgment. A belated request for rehearing would rarely be granted, however, because its untimeliness would detract from the efficiencies that result from making interlocutory decisions binding.
Proposed § 42.71(c) would provide for rehearings and would set times for requesting rehearing. Since 35 U.S.C. 6(b), as amended, requires a panel decision for finality, a party should request rehearing by a panel to preserve an issue for judicial review. The panel would then apply the deferential abuse-of-discretion standard to decisions on rehearing.
Proposed § 42.73(a) would provide that a judgment disposes of all issues that were, or by motion could have been, properly raised and decided.
Proposed § 42.73(b) would provide guidance as to the conditions under which the Board would infer a request for adverse judgment.
Proposed § 42.73(c) would provide for recommendations for further action by an examiner or the Director.
Proposed § 42.73(d) would provide for estoppel.
Proposed § 42.73(d)(1) would apply to non-derivation proceeding trials and is consistent with 35 U.S.C. 315(e)(1), as amended, and 35 U.S.C. 325(e)(1), which provide for estoppel in proceedings before the Office where a final written decision was entered under 35 U.S.C. 318(a), as amended, or 35 U.S.C. 328(a).
Proposed § 42.73(d)(2) would provide estoppel provisions in derivation proceedings. The proposed rule would also be consistent with 35 U.S.C. 135(d), as amended, which provides for the effect of a final decision in a derivation proceeding. Proposed § 42.73(d)(2) differs from proposed § 42.73(d)(1) to take into account the differences in statutory language between 35 U.S.C. 135(d) and 315(e)(1), as amended, and 35 U.S.C. 325(e)(2).
Proposed § 42.73(d)(3) would apply estoppel against a party whose claim was cancelled or who requested an amendment to the specification or drawings that was denied.
Proposed § 42.74(a) would reflect that the Board is not a party to a settlement agreement and may take any necessary action, including determination of patentability notwithstanding a settlement. This proposed rule is consistent with 35 U.S.C. 135(e), as amended, where the Board is not required to follow the settlement agreement if it is inconsistent with the evidence. The proposed rule is also consistent with 35 U.S.C. 317, as amended, and 35 U.S.C. 327, which provide that the Board may proceed to a final written decision even if no petitioner remains in the proceeding.
Proposed § 42.74(b) would provide that settlement agreements must be in writing and filed with the Board prior to termination of the proceeding. This proposed rule is consistent with 35 U.S.C. 317(b), as amended, and 327(b), which require the agreement to be in writing and filed before termination of the proceeding. The proposed rule is also consistent with 35 U.S.C. 135(e), as amended, which provides that parties may seek to terminate the derivation proceeding by filing a written statement.
Proposed § 42.74(c) would provide that a party to a settlement may request that the settlement be kept separate from an involved patent or application. The proposed rule is consistent with the requirements of 35 U.S.C. 135(e) and 317(b), as amended, and 35 U.S.C. 327(b).
The Leahy-Smith America Invents Act amends chapter 13 of title 35, United States Code, to provide for certain changes to the provisions for judicial review of Board decisions. A new part 90 of title 37, Code of Federal Regulations is proposed to be added to permit consolidation of rules relating to court review of Board decisions and to simplify reference to such practices. The proposed rules in part 90 would also implement the provisions of the Leahy-Smith America Invents Act associated with judicial review of agency actions addressed by the Leahy-Smith America Invents Act.
Current §§ 1.301 through 1.304, which relate to rules of practice in patent cases, would be removed from part 1 and relocated to part 90. Paraphrasing of the statute in those rules would be eliminated in the proposed new rules in favor of directing the reader to the relevant statutory provisions. This change would avoid the need for the Office to amend the rules when statutory amendments are made. It would also avoid undue public reliance on the Office's paraphrase of statutory text. The proposed rules in part 90 would better state the existing practice and are not intended to change the existing practice except as explicitly provided.
Proposed § 90.1 would clarify that the rules in effect on July 1, 2012, would continue to govern appeals from
Proposed § 90.2 would require parties filing an appeal under 35 U.S.C. 141, initiating a civil action pursuant to 35 U.S.C. 146, or electing under 35 U.S.C. 141(d) to proceed under 35 U.S.C. 146, to file a copy of the notice of appeal, complaint, or notice of election, respectively, with the Board in the appropriate manner provided in § 41.10(a), 41.10(b), or 42.6(b). The proposed rule would also require that a complaint under 35 U.S.C. 146 be filed with the Board no later than five business days after filing the complaint in district court. These requirements would ensure that the Board is aware of such proceedings and would prevent further action within the Office consistent with the Board decision at issue in the appeal or civil action. Proposed § 90.2 would further require that the complaint be filed with the Office pursuant to § 104.2 within the same five business day time period. That requirement similarly assures that the Office has adequate notice of the pending judicial review proceeding.
Proposed § 90.3(a) would address the time for filing a notice of appeal or a civil action seeking judicial review of a Board decision. The proposed rule would extend the period for filing a notice of appeal or a civil action under § 1.304 to sixty-three (63) days. This proposed change would avoid confusion regarding that period, which was two months except when the two-month period included February 28, in which case the period was two months and one day. The proposed sixty-three (63) day period would result in the deadline for filing a notice of appeal or a civil action falling on the same day of the week as the Board decision. Thus, the proposed rule would minimize calculations regarding extensions of time pursuant to
Proposed § 90.3(a) would also remove language regarding the time for cross-appeals from § 1.304. Instead, the proposed rule would refer to the pertinent rules in the Federal Rules of Appellate Procedure and the Rules for the United States Court of Appeals for the Federal Circuit to avoid confusion or inconsistency. The proposed rule would also add a reference to 35 U.S.C. 141(d) for both the relevant time for filing a notice of election under that statute and the relevant time for commencing a civil action pursuant to a notice of election under that statute.
Proposed § 90.3(b) and (c) would incorporate provisions from current § 1.304 addressing computation of time and extensions of time.
Accordingly, prior notice and opportunity for public comment are not required pursuant to 5 U.S.C. 553(b) or (c) (or any other law), and thirty-day advance publication is not required pursuant to 5 U.S.C. 553(d) (or any other law).
The Office received 281 requests for
The Office received 374 requests for
Additionally, the Office takes into consideration the recent growth rate in the number of requests for
In fiscal year 2013, it is expected that no post-grant review petitions will be received, other than those filed under the transitional program for covered business method patents. Thus, the estimated number of post-grant review petitions including covered business method patent review petitions is based on the number of
The following is the class definition and description for Class 705:
This is the generic class for apparatus and corresponding methods for performing
This class also provides for apparatus and corresponding methods for performing
This class additionally provides for subject matter described in the two paragraphs above in combination with cryptographic apparatus or method.
Subclasses 705/300–348 were established prior to complete reclassification of all project documents. Documents that have not yet been reclassified have been placed in 705/1.1. Until reclassification is finished a complete search of 705/300–348 should include a search of 705/1.1. Once the project documents in 705/1.1 have been reclassified they will be moved to the appropriate subclasses and this note will be removed.
1. The
2. Mere designation of an arrangement as a “business machine” or a document as a “business form” or “business chart” without any particular business function will not cause classification in this class or its subclasses.
3. For classification herein, there must be significant claim recitation of the data processing system or calculating computer and only nominal claim recitation of any external art environment. Significantly claimed apparatus external to this class, claimed in combination with apparatus under the class definition, which perform data processing or calculation operations are classified in the class appropriate to the external device unless specifically excluded therefrom.
4. Nominally claimed apparatus external to this class in combination with apparatus under the class definition is classified in this class unless provided for in the appropriate external class.
5. In view of the nature of the subject matter included herein, consideration of the classification schedule for the diverse art or environment is necessary for proper search.
Accordingly, patents subject to covered business method patent review are anticipated to be typically classifiable in Class 705. It is anticipated that the number of patents in Class 705 that do not qualified as covered business method patents would approximate the number of patents classified in other classes that do qualify.
The Office received 20 requests for
The Office expects the number of newly declared interferences to decrease as some parties file
The Office has reviewed the entity status of patents for which
Based on the number of patents issued during fiscal years 1995 through 1999 that paid the small entity third stage maintenance fee, the number of patents issued during fiscal years 2000 through 2003 that paid the small entity second stage maintenance fee, the number of patents issued during fiscal years 2004 through 2007 that paid the first stage maintenance fee, and the number of patents issued during fiscal years 2008 through 2011 that paid a small entity issue fee, there are no less than 375,000 patents owned by small entities in force as of October 1, 2011.
Furthermore, the Office recognizes that there would be an offset to this number for patents that expire earlier than 20 years from their filing date due to a benefit claim to an earlier application or due to a filing of a terminal disclaimer. The Office likewise recognizes that there would be an offset in the opposite manner due to the accrual of patent term extension and adjustment. The Office, however, does not maintain data on the date of expiration by operation of a terminal disclaimer. Therefore, the Office has not adjusted the estimate of 375,000 patents owned by small entities in force as of October 1, 2011. While the Office maintains information regarding patent term extension and adjustment accrued by each patent, the Office does not collect data on the expiration date of patents that are subject to a terminal disclaimer. As such, the Office has not adjusted the estimated of 375,000 patents owned by small entities in force as of October 1, 2011, for accrual of patent term extension and adjustment, because in view of the incomplete terminal disclaimer data issue, would be incomplete and any estimate adjustment would be administratively burdensome. Thus, it is estimated that the number of small entity patents in force in fiscal year 2013 will be at least 375,000.
Based on the estimated number of patents in force, the number of small entity owned patents impacted by
1. Description of the Reasons That Action by the Office Is Being Considered: On September 16, 2011, the Leahy-Smith America Invents Act was
2. Succinct Statement of the Objectives of, and Legal Basis for, the Proposed Rules: The proposed rules seek to implement
3. Description and Estimate of the Number of Affected Small Entities: The Small Business Administration (SBA) small business size standards applicable to most analyses conducted to comply with the Regulatory Flexibility Act are set forth in 13 CFR 121.201. These regulations generally define small businesses as those with fewer than a specified maximum number of employees or less than a specified level of annual receipts for the entity's industrial sector or North American Industry Classification System (NAICS) code. As provided by the Regulatory Flexibility Act, and after consultation with the Small Business Administration, the Office formally adopted an alternate size standard as the size standard for the purpose of conducting an analysis or making a certification under the Regulatory Flexibility Act for patent-related regulations.
Unlike the SBA small business size standards set forth in 13 CFR 121.201, the size standard for USPTO is not industry-specific. The Office's definition of a small business concern for Regulatory Flexibility Act purposes is a business or other concern that: (1) Meets the SBA's definition of a “business concern or concern” set forth in 13 CFR 121.105; and (2) meets the size standards set forth in 13 CFR 121.802 for the purpose of paying reduced patent fees, namely an entity: (a) Whose number of employees, including affiliates, does not exceed 500 persons; and (b) which has not assigned, granted, conveyed, or licensed (and is under no obligation to do so) any rights in the invention to any person who made it and could not be classified as an independent inventor, or to any concern which would not qualify as a non-profit organization or a small business concern under this definition.
As discussed above, it is anticipated that 460 petitions for
For derivation proceedings, the Office has reviewed the percentage of applications and patents for which an interference was declared in fiscal year 2011. Applications and patents known to be owned by a small entity represent 19.62% of applications and patents for which interference was declared in FY 2011. Based on the assumption that the same percentage of applications and patents owned by small entities will be involved in a derivation proceeding, 20 small entity owned applications or patents would be affected by derivation proceeding.
The USPTO estimates that 2.5% of patent owners will file a request for adverse judgment prior to a decision to institute and that another 2.5% will file
Under the proposed rules, prior to determining whether to institute a review, the patent owner may file an optional patent owner preliminary response to the petition. Given the new time period requirements to file a petition for review before the Board relative to patent enforcement proceedings and the desire to avoid the cost of a trial and delays to related infringement actions, it is anticipated that 90% of petitions, other than those for which a request for adverse judgment is filed, will result in the filing of a patent owner preliminary response. Where an
Under the proposed rules, the Office will determine whether to institute a trial within three months after the earlier of: (1) The submission of a patent owner preliminary response, (2) the waiver of filing a patent owner preliminary response, or (3) the expiration of the time period for filing a patent owner preliminary response. If the Office decides not to institute a trial, the petitioner may file a request for reconsideration of the Office's decision. In estimating the number of requests for reconsideration, the Office considered the percentage of
The Office predicts that it will institute 10 derivation proceedings based on petitions seeking derivation filed in fiscal year 2013. This estimate is based on the low number of interference proceedings declared, as well as the limited number of eligible applications.
During fiscal year 2011, the Office issued 21 decisions following a request for reconsideration of a decision on appeal in
Based on the assumption that the same rate of reconsideration (21 divided by 63 or 33.333%) will occur, the Office estimates that 19 requests for reconsideration will be filed. Based on the percentage of small entity owned patents that were the subject of
The Office reviewed motions, oppositions, and replies in a number of contested trial proceedings before the trial section of the Board. The review included determining whether the motion, opposition, and reply were directed to patentability grounds and non-priority non-patentability grounds. Based on the review, it is anticipated that: (1)
After a trial has been instituted but prior to a final written decision, parties to a review or derivation proceeding may request an oral hearing. It is anticipated that 466 requests for oral hearings will be filed based on the number of requests for oral hearings in
Parties to a review or derivation proceeding may file requests to treat a settlement as business confidential, and requests for adverse judgment. A written request to make a settlement agreement available may also be filed. Parties to derivation proceedings may also file arbitration agreements and awards. Given the short time period set for conducting trials, it is anticipated that the alternative dispute resolution options will be infrequently used. The Office estimates that 20 requests to treat a settlement as business confidential; 103 requests for adverse judgment, default adverse judgment, or settlement notices; and 2 arbitration agreements and awards will be filed. The Office also estimates that 20 requests to make a settlement available will be filed. Based on the percentage of small entity owned patents that were the subject of
Parties to a review or derivation proceeding may seek judicial review of the final decision of the Board. Historically, 33% of examiner's decisions in
4. Description of the Reporting, Recordkeeping, and Other Compliance Requirements of the Proposed Rule, Including an Estimate of the Classes of Small Entities Which Will Be Subject to the Requirement and the Type of Professional Skills Necessary for Preparation of the Report or Record: Based on the filing trends of
Based on the trends of declared contested cases in fiscal year 2011, it is anticipated that petitions for derivation will be filed across all technologies with approximately 16% in electrical technologies, approximately 17% in mechanical technologies, and the remaining 67% in chemical technologies and design. A derivation petition is likely to be filed by an entity practicing in the same or similar field as the patent. Therefore, it is anticipated that 16% of the petitions for review will be filed in the electronic field, 17% in the mechanical field, and 67% in the chemical or design fields.
Preparation of the petition would require analyzing the patent claims, locating evidence supporting arguments of unpatentability, and preparing the petition seeking review of the patent. This notice provides the proposed procedural requirements that are common for the new trials. Additional requirements are provided in contemporaneous trial specific proposed rulemaking. The procedures for petitions to institute an
The skills necessary to prepare a petition for review and to participate in a trial before the Patent Trial and Appeal Board would be similar to those needed to prepare a request for
The cost of preparing a petition for
The cost of preparing a petition for post-grant or covered business method patent review is estimated to be 33.333% higher than the cost of preparing a petition for
The filing of a petition for review would also require payment by the petitioner of the appropriate petition fee to recover the aggregate cost for providing the review. The appropriate petition fee would be determined by the number of claims for which review is sought and the type of review. The proposed fees for filing a petition for
In setting fees, the estimated information technology cost to establish the process and maintain the filing and storage system through 2017 is to be recovered by charging each petition an IT fee that has a base component of $1,705 for requests to review 20 or fewer claims. The IT component fees would be $2,122 for requesting review of 21–30 claims, $2,557 for requesting review of 31–40 claims, $3,409 for requesting review of 41–50 claims, $4,267 for requesting review of 51–60 claims, and an additional $1,705 for requesting review of additional groups of 10 claims. The remainder of the fee is to recover the cost for judges to determine whether to institute a review and conduct the review, together with a proportionate share of indirect costs,
For a petition for
For a petition for post-grant or covered business method patent review with 20 or fewer challenged claims, it is anticipated that 132 hours of judge time will be required. For 21 to 30 challenged claims, an additional 33 hours is anticipated for a total of 165 hours of judge time. For 31 to 40 challenged claims, an additional 66 hours is anticipated for a total of 198 hours of judge time. For 41 to 50 challenged claims, an additional 132 hours is anticipated for a total of 264 hours of judge time. For 51 to 60 challenged claims, an additional 198 hours is anticipated for a total of 330 hours of judge time. The increase in adjustment reflects the added complexity that typically occurs as more claims are in dispute.
The proposed rules would permit the patent owner to file a preliminary response to the petition setting forth the reasons why no review should be initiated. The procedures for a patent owner to file a preliminary response as an opposition are proposed in §§ 42.6, 42.8, 42.11, 42.13, 42.21, 42.23, 42.24(b), 42.51, 42.52, 42.53, 42.54, 42.63, 42.64, 42.65, 42.107, 42.120, 42.207, and 42.220. The patent owner is not required to file a preliminary response. The Office estimates that the preparation and filing of a patent owner preliminary response would require 100 hours of professional time and cost $34,000 (including expert costs). The
The Office will determine whether to institute a trial within three months after the earlier of: (1) The submission of a patent owner preliminary response, (2) the waiver of filing a patent owner preliminary response, or (3) the expiration of the time period for filing a patent owner preliminary response. If the Office decides not to institute a trial, the petitioner may file a request for reconsideration of the Office's decision. It is anticipated that a request for reconsideration will require 80 hours of professional time to prepare and file, for a cost of $27,200. This estimate is based on the complexity of the issues and desire to avoid time bars imposed by 35 U.S.C. 315(b), as amended, and 35 U.S.C. 325(b).
Following institution of a trial, the parties may be authorized to file various motions,
The
After a trial has been instituted but prior to a final written decision, parties to a review or derivation proceeding may request an oral hearing. The procedure for filing requests for oral argument is proposed in § 42.70. The
Parties to a review or derivation proceeding may file requests to treat a settlement as business confidential, request for adverse judgment, and arbitration agreements and awards. A written request to make a settlement agreement available may also be filed. The procedures to file requests that a settlement be treated as business confidential are proposed in §§ 42.74(c) and 42.409. The procedures to file requests for adverse judgment are proposed in § 42.73(b). The procedures to file arbitration agreements and awards are proposed § 42.410. The procedures to file requests to make a settlement agreement available are proposed in § 42.74(c)(2). It is anticipated that requests to treat a settlement as business confidential will require 2 hours of professional time or $680. It is anticipated that requests for adverse judgment will require 1 hour of professional time or $340. It is anticipated that arbitration agreements and awards will require 4 hours of professional time or $1,360. It is anticipated that requests to make a settlement agreement available will require 1 hour of professional time or $340. The requests to make a settlement agreement available will also require payment of a fee of $400 specified in proposed § 42.15(d). The fee proposed would be the same as currently set forth in § 41.20(a) for petitions to the Chief Administrative Patent Judge.
Parties to a review proceeding may seek judicial review of the judgment of the Board. The procedures to file notices of judicial review of a Board decision, including notices of appeal and notices of election provided for in 35 U.S.C. 141, 142, 145, and 146, are proposed in §§ 90.1 through 90.3. The submission of a copy of a notice of appeal or a notice of election is anticipated to require 6 minutes of professional time at a cost of $34.
5. Description of Any Significant Alternatives to the Proposed Rules Which Accomplish the Stated Objectives of Applicable Statutes and Which Minimize Any Significant Economic Impact of the Rules on Small Entities:
Size of petitions and motions: The Office considered whether to apply a page limit and what an appropriate page limit would be. The Office does not currently have a page limit on
By contrast, the Office has a page limit on the motions filed in contested cases, except where parties are specifically authorized to exceed the limitation. The typical contested case proceeding is subject to a standing order that sets a 50 page limit for motions and oppositions on priority, a 15 page limit for miscellaneous motions (§ 41.121(a)(3)) and oppositions (§ 41.122), and a 25 page limit for other motions (§ 41.121(a)(2)) and oppositions to other motions. In typical proceedings, replies are subject to a 15 page limit if directed to priority, 5 page limit for miscellaneous issues, and 10 page limit for other motions. The average contested case was terminated in 10.1 months in fiscal year 2009, in 12 months in fiscal year 2010, and 9 months in fiscal year 2011. The percentage of contested cases terminated within 2 years was 93.7% in fiscal year 2009, 88.0% in fiscal year 2010, and 94.0% in fiscal year 2011.
Comparing the average time period for terminating a contested case, 10.0 to 12.0 months, with the average time period, during fiscal years 2009 through 2011, for completing an
Federal courts routinely use page limits in managing motions practice as “[e]ffective writing is concise writing.”
Federal courts have found that page limits ease the burden on both the parties and the courts, and patent cases are no exception.
The Board's contested cases experience with page limits in motions practice is consistent with that of the federal courts. The Board's use of page limits has shown it to be beneficial without being unduly restrictive for the parties. Page limits have encouraged the parties to focus on dispositive issues, easing the burden of motions practice on the parties and on the Board.
The Board's contested cases experience with page limits is informed by its use of different approaches over the years. In the early 1990s, page limits were not routinely used for motions, and the practice suffered from lengthy
The Board's current page limits are consistent with the 25 page limits in the Northern, Central, and Southern Districts of California, and the Middle District of Florida and exceed the limits in the District of Delaware (20), the Northern District of Illinois (15), the District of Massachusetts (20), the Eastern District of Michigan (20), the Southern District of Florida (20), and the Southern District of Illinois (20).
In a typical proceeding before the Board, a party may be authorized to file a single motion for unpatentability based on prior art, a single motion for unpatentability based upon failure to comply with 35 U.S.C. 112, lack of written description, and/or enablement, and potentially another motion for lack of compliance with 35 U.S.C. 101, although a 35 U.S.C. 101 motion may be required to be combined with the 35 U.S.C. 112 motion. Each of these motions is currently limited to 25 pages in length, unless good cause is shown that the page limits are unduly restrictive for a particular motion.
A petition requesting the institution of a trial proceeding would be similar to motions currently filed with the Board. Specifically, petitions to institute a trial seek a final written decision that the challenged claims are unpatentable, where derivation is a form of unpatentability. Accordingly, a petition to institute a trial based on prior art would, under current practice, be limited to 25 pages, and by consequence, a petition raising unpatentability based on prior art and unpatentability under 35 U.S.C. 101 and/or 112 would be limited to 50 pages.
Under the proposed rules, an
Under the proposed rules, a post-grant review petition would be based upon any grounds identified in 35 U.S.C. 321(b),
Covered business method patent review is similar in scope to that of post-grant review, as there is substantial overlap in the statutory grounds permitted for review. Thus, the proposed page limit for proposed covered business method patent reviews is 70 pages, which is the same as that proposed for post-grant review.
Petitions to institute derivation proceedings raise a subset of issues that are currently raised in interferences in a motion for judgment on priority of invention. Currently, motions for judgment on priority of invention, including issues such as conception, corroboration, and diligence, are generally limited to 50 pages. Thus, the proposed 50 page limit is considered sufficient in all but exceptional cases.
The proposed rule would provide that petitions to institute a trial must comply with the stated page limits but may be accompanied by a motion that seeks to waive the page limits. The petitioner must show in the motion how a waiver of the page limits is in the interests of justice. A copy of the desired non-page limited petition must accompany the motion. Generally, the Board would decide the motion prior to deciding whether to institute the trial.
Current Board practice provides a limit of 25 pages for other motions and 15 pages for miscellaneous motions. The Board's experience is that such page limits are sufficient for the parties filing them and do not unduly burden the opposing party or the Board. Petitions to institute a trial would generally replace the current practice of filing motions for unpatentability, as most motions for relief are expected to be similar to the current interference miscellaneous motion practice. Accordingly, the proposed 15 page limit is considered sufficient for most motions but may be adjusted where the limit is determined to be unduly restrictive for the relief requested.
Proposed § 42.24(b) would provide page limits for oppositions filed in response to motions. Current contested case practice provides an equal number of pages for an opposition as its corresponding motion. This is generally consistent with motions practice in federal courts. The proposed rule would continue the current practice.
Proposed § 42.24(c) would provide page limits for replies. Current contested case practice provides a 15 page limit for priority motion replies, a 5 page limit for miscellaneous (procedural) motion replies, and a 10 page limit for all other motions. The proposed rule is consistent with current contested case practice for procedural motions. The proposed rule would provide a 15 page limit for reply to petitions requesting a trial, which the Office believes is sufficient based on current practice. Current contested case practice has shown that such page limits do not unduly restrict the parties and, in fact, have provided sufficient flexibility to parties to not only reply to the motion but also help to focus on the issues. Thus, it is anticipated that default page limits would minimize the economic impact on small entities by focusing on the issues in the trials.
The Leahy-Smith America Invents Act requires that the Director, in prescribing rules for the
Fee Setting: 35 U.S.C. 311(a), as amended, and 35 U.S.C. 321(a) require the Director to establish fees to be paid
35 U.S.C. 312(a)(1), as amended, and 35 U.S.C. 322(a)(1) further require that the fee established by the Director under 35 U.S.C. 311(a), as amended, or 35 U.S.C. 321 accompany the petition on filing. Accordingly, in interpreting the fee setting authority in 35 U.S.C. 311(a), as amended, and 35 U.S.C. 321(a), it is reasonable that the Director should set a number of fees for filing a petition based on the anticipated aggregate cost of conducting the review depending on the complexity of the review, and require payment of the fee upon filing of the petition.
Based on experience with contested cases and
I.
II.
III.
In addition, the trial section of the Board recently experimented with motions having a fixed page limit for the argument section and an unlimited number of pages for the statement of facts. Unlimited pages for the statement of facts led to a dramatic increase in the number of alleged facts and pages associated with those facts. For example, one party used approximately 10 pages for a single “fact” that merely cut and pasted a portion of a declarant's cross-examination. Based upon the trial section's experience with unlimited pages of facts, the Board recently reverted back to a fixed page limit for the entire motion (argument and facts). Accordingly, this alternative is inconsistent with objectives of the Leahy-Smith America Invents Act that the Director, in prescribing rules for the
IV.
V.
Discovery: The Office considered a procedure for discovery similar to the one available during district court litigation. Discovery of that scope has been criticized sharply, particularly when attorneys use discovery tools as tactical weapons, which hinder the “just, speedy, and inexpensive determination of every action and proceedings.”
Additional discovery increases trial costs and increases the expenditures of time by the parties and the Board. The Board's experience in contested cases, however, is that such showings are often lacking and authorization for additional discovery is expected to be rare. While an interests-of-justice standard would be employed in granting additional discovery in
To promote effective discovery, the proposed rule would require a showing that additional requested discovery would be productive in
Good cause and interests of justice are closely related standards, but the interests-of-justice standard is slightly higher than good cause. While a good cause standard requires a party to show a specific factual reason to justify the needed discovery, under the interests-of-justice standard, the Board would look at all relevant factors. Specifically, to show good cause, a party would be required to make a particular and specific demonstration of fact. Under the interests-of-justice standard, the moving party would also be required to show that it was fully diligent in seeking discovery and that there is no undue prejudice to the non-moving party. The interests-of-justice standard covers considerable ground, and in using such a standard, the Board expects to consider whether the additional discovery is necessary in light of the totality of the relevant circumstances.
The Office is proposing a default scheduling order to provide limited discovery as a matter of right and provide parties with the ability to seek additional discovery on a case-by-case basis. In weighing the need for additional discovery, should a request be made, the Board would consider the economic impact on the opposing party. This would tend to limit additional discovery where a party is a small entity.
The Board's past practice has required the filing of a motion by a registered patent practitioner seeking
The proposed rules would provide a limited delegation to the Board under 35 U.S.C. 2(b)(2) and 32 to regulate the conduct of counsel in Board proceedings. The proposed rule would delegate to the Board the authority to conduct counsel disqualification proceedings while the Board has jurisdiction over a proceeding. The rule would also delegate to the Chief Administrative Patent Judge the authority to make final a decision to disqualify counsel in a proceeding before the Board for the purposes of judicial review. This delegation would not derogate from the Director the prerogative to make such decisions, nor would it prevent the Chief Administrative Patent Judge from further delegating authority to an administrative patent judge.
The Office considered broadly permitting practitioners not registered to practice by the Office to represent parties in trial as well as categorically prohibiting such practice. A prohibition on the practice would be inconsistent with the Board's experience, and more importantly, might result in increased costs particularly where a small entity has selected its district court litigation team for representation before the Board and has a patent review filed after litigation efforts have commenced. Alternatively, broadly making the practice available would create burdens on the Office in administering the trials and in completing the trial within the established time frame, particularly if the selected practitioner does not have the requisite skill. In weighing the desirability of admitting a practitioner
Threshold for Instituting a Review: The Office considered whether the threshold for instituting a review could be set as low as or lower than the threshold for
Default Electronic Filing: The Office considered a paper filing system and a mandatory electronic filing system (without any exceptions) as alternatives to the proposed requirement that all papers are to be electronically filed, unless otherwise authorized.
Based on the Office's experience, a paper based filing system increases delay in processing papers, delay in public availability, and the chance that a paper may be misplaced or made available to an improper party if confidential. Accordingly, the alternative of a paper based filing system would have been inconsistent with objectives of the Leahy-Smith
An electronic filing system (without any exceptions) that is rigidly applied would result in unnecessary cost and burdens, particularly where a party lacks the ability to file electronically. By contrast, if the proposed option is adopted, it is expected that the entity size and sophistication would be considered in determining whether alternative filing methods would be authorized.
6. Identification, to the Extent Practicable, of All Relevant Federal Rules Which May Duplicate, Overlap, or Conflict With the Proposed Rules:
37 CFR 1.99 provides for the submission of information after publication of a patent application during examination by third parties.
37 CFR 1.171–1.179 provide for applications to reissue a patent to correct errors, including where a claim in a patent is overly broad.
37 CFR 1.291 provides for the protest against the issuance of a patent during examination.
37 CFR 1.321 provides for the disclaimer of a claim by a patentee.
37 CFR 1.501 and 1.502 provide for
37 CFR 1.902–1.997 provide for
Other countries have their own patent laws, and an entity desiring a patent in a particular country must make an application for patent in that country, in accordance with the applicable law. Although the potential for overlap exists internationally, this cannot be avoided except by treaty (such as the Paris Convention for the Protection of Industrial Property, or the Patent Cooperation Treaty (PCT)). Nevertheless, the Office believes that there are no other duplicative or overlapping foreign rules.
The notice also proposes changes to the rule of practice to consolidate the procedure for notifying the Office and other parties in the proceeding when a party seeks judicial review of a Board decision. In fiscal year 2010, the Board issued 7,312 decisions, and only 61 notices of appeal were filed with the Office and no civil action was commenced. In fiscal year 2011, the Board issued 7,551 decisions, and only 100 notices of appeal were filed with the Office and 7 civil actions were commenced. As such, the average rate for fiscal years 2010 and 2011 was 1.13% ((61/7,312 + 107/7,551)/2 × 100). Based on current projections with additional resources, it is anticipated that the Board will issue 10,500 decisions in fiscal year 2013. Thus, it is estimated that 137 notices of appeal (and notices of election) would be filed with the Office. Historically, one third of
The proposed rule also requires that a copy of the notice of appeal or notice of election and complaint be provided to the Board, thus an additional 194 (137 + 57) copies would be required.
The Office estimates that the aggregate burden of the proposed rules for implementing the new review procedures is approximately $80.6 million for fiscal year 2013. The USPTO considered several factors in making this estimate.
Based on the petition and other filing requirements for initiating a review proceeding, the USPTO initially estimated the burden of the proposed rules on the public to be $209,131,529 in fiscal year 2013, which represents the sum of the estimated total annual (hour) respondent cost burden ($190,280,456) plus the estimated total annual non-hour respondent cost burden ($18,851,073) provided in Item (O)(II) of the Rulemaking Considerations section of this notice,
It is estimated that 460 new requests for
The public burden due to a reduction in the number of interferences declared, from 64 to 51, is estimated at $9,484,400 based on the assumption that the current percentage of interferences decided in the preliminary phase (80%) would continue on the lower number of proceedings instituted and based on cost to the public. To calculate this public burden due to a reduction in the number of interferences declared ($9,484,400), the following information was used. The average public burden for a two party interference decided in the preliminary phase reported in the
Thus, a total of $129,930,400 in public burden will be eliminated by the reduction in the number of interferences that would be declared and by eliminating new filings of
The USPTO expect several benefits to flow from the Leahy-Smith America Invents Act and these proposed rules. It is anticipated that the proposed rules will reduce the time for reviewing patents at the USPTO. Specifically, 35 U.S.C. 316(a), as amended, and 35 U.S.C. 326(a) provide that the Director prescribe regulations requiring a final determination by the Board within one year of initiation, which may be extended for up to six months for good cause. In contrast, currently for
Likewise, it is anticipated that the proposed rules will minimize duplication of efforts. In particular, the Leahy-Smith America Invents Act provides more coordination between district court infringement litigation and
The
The USPTO is submitting the information collection to OMB for its review and approval because this notice of proposed rulemaking will add the following to a collection of information:
(1) Petitions to institute an
(2) Petitions to institute a post-grant review (§§ 42.5, 42.6, 42.8, 42.11, 42.13, 42.20, 42.21, 42.22, 42.24(a)(2), 42.63, 42.65, and 42.201 through 42.205);
(3) Petitions to institute a covered business method patent review (§§ 42.5, 42.6, 42.8, 42.11, 42.13, 42.20, 42.21, 42.22, 42.24(a)(3), 42.63, 42.65, 42.203, 42.205, and 42.302 through 42.304);
(4) Petitions to institute a derivation proceeding (§§ 42.5, 42.6, 42.8, 42.11, 42.13, 42.20, 42.21, 42.22, 42.24(a)(4),42.63, 42.65, and 42.402 through 42.406);
(5) Motions (§§ 42.6, 42.8, 42.11, 42.13, 42.21, 42.22, 42.24(a)(5), 42.51, through 42.54, 42.63, 42.64, 42.65, 42.121, 42.221, 42.123, and 42.223);
(6) Oppositions (§§ 42.6, 42.8, 42.11, 42.13, 42.21, 42.23, 42.24(b), 42.51, 42.52, 42.53, 42.54, 42.63, 42.64, 42.65, 42.107, 42.120, 42.207, and 42.220);
(7) Replies provided for in 35 U.S.C. 135 and 311–318, as amended, and new 35 U.S.C. 319 and 321–329 (§§ 42.6, 42.8, 42.11, 42.13, 42.21, 42.23, 42.24(c), 42.51, 42.52, 42.53, 42.54, 42.63, and 42.65); and
(8) Notices of judicial review of a Board decision, including notices of appeal and notices of election provided for 35 U.S.C. 141, 142, 145 and 146 (§§ 90.1 through 90.3).
The proposed rules also permit filing requests for oral argument (§ 42.70) provided for in 35 U.S.C. 316(a)(10), as amended, and 35 U.S.C. 326(a)(10), requests for rehearing (§ 42.71(c)), requests for adverse judgment (§ 42.73(b)), requests that a settlement be treated as business confidential (§ 42.74(b) and 42.409) provided for in 35 U.S.C. 317, as amended, and 35 U.S.C. 327, and arbitration agreements and awards (§ 42.410) to a collection of information.
Chapter 31 of title 35, United States Code, in effect on September 16, 2012, provides for
Chapter 32 of title 35 U.S.C. in effect on September 16, 2012, provides for post-grant review proceeding allowing third parties to petition the USPTO to review the patentability of an issued patent under any ground authorized under 35 U.S.C. 282(b)(2). If a trial is initiated by the USPTO based on the petition, as authorized by the USPTO, additional motions may be filed by the petitioner. A patent owner may file a response to the petition and if a trial is instituted, as authorized by the USPTO, may file additional motions.
Section 18 of the Leahy-Smith America Invents Act provides for a transitional program for covered business method patents, which will employ the standards and procedures of the post-grant review proceeding with a few exceptions. 35 U.S.C. 135 in effect on March 16, 2013, provides for petitions to institute a derivation proceeding at the USPTO for certain applications. The new rules for initiating and conducting these proceedings are proposed in this notice as new part 42 of title 37 of the Code of Federal Regulations.
In estimating the number of hours necessary for preparing a petition to institute an
In estimating the number of hours necessary for preparing motions after instituting and participating in the review, the USPTO considered in the
The USPTO also reviewed recent contested cases before the trial section of the Board to make estimates on the average number of motions for any matter including priority, the subset of those motions directed to non-priority issues, the subset of those motions directed to non-priority patentability issues, and the subset of those motions directed to patentability issues based on a patent or printed publication on the basis of 35 U.S.C. 102 or 103. The review of current contested cases before the trial section of the Board indicated that approximately 15% of motions were directed to prior art grounds, 18% of motions were directed to other patentability grounds, 27% were directed to miscellaneous issues, and 40% were directed to priority issues. It was estimated that the cost per motion to a party in current contested cases before the trial section of the Board declines because of overlap in subject matter, expert overlap, and familiarity with the technical subject matter. Given the overlap of subject matter, a proceeding with fewer motions will have a somewhat less than proportional decrease in costs since the overlapping costs will be spread over fewer motions.
It is estimated that the cost of an
It is estimated that the cost of a post-grant review or covered business method patent review would be 75% of the cost of current contested cases before the trial section of the Board to the end of the preliminary motion period. The basis for this estimate is similar to the basis for the
Derivations will be more like current contested cases before the trial section of the Board inasmuch as they may have a period which sets the stage for determining derivation and a derivation period. One half of derivations are anticipated to end in the preliminary motion period, while the other half are anticipated to proceed to decision on derivation. While it is recognized that fewer than half of all current contested cases before the trial section of the Board proceed to a priority decision, derivation contests are often more protracted than other current contested cases before the trial section of the Board. The costs associated with derivations through the preliminary motion period and through the derivation period should be comparable to the corresponding costs of current contested cases before the trial section of the Board.
The title, description, and respondent description of the information collection are shown below with an estimate of the annual reporting burdens. Included in this estimate is the time for reviewing instructions, gathering and maintaining the data needed, and completing and reviewing the collection of information. The principal impact of the proposed changes in this notice of proposed rulemaking is to implement the changes to Office practice necessitated by §§ 3(i), 6, and 18 of the Leahy-Smith America Invents Act.
The public uses this information collection to request review and derivation proceedings and to ensure that the associated fees and documentation are submitted to the USPTO.
Therefore, the total cost burden in fiscal year 2013 is estimated to be $209,131,529 (the sum of the estimated total annual (hour) respondent cost burden ($190,280,456) plus the estimated total annual non-hour respondent cost burden ($18,851,073)).
The agency is soliciting comments to: (1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) evaluate the accuracy of the agency's estimate of the burden; (3) enhance the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of collecting the information on those who are to respond, including by using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Interested persons are requested to send comments regarding this information collection by April 9, 2012, to: (1) The Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10202, 725 17th Street NW., Washington, DC 20503, Attention: Nicholas A. Fraser, the Desk Officer for the United States Patent and Trademark Office, and via email at
Notwithstanding any other provision of law, no person is required to respond
Administrative practice and procedure, Inventions and patents, Lawyers.
Administrative practice and procedure, Inventions and patents, Lawyers.
For the reasons stated in the preamble, the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office proposes to amend 37 CFR chapter I as follows:
1. Add part 42 to read as follows:
35 U.S.C. 2(b)(2), 6, 21, 23, 41, 135, 311, 312, 316, 321–326 and Leahy-Smith America Invents Act, Pub. L. 112–29, sections 6(c), 6(f) and 18, 125 Stat. 284, 304, 311, and 329 (2011).
(a)
(b)
(c)
(d)
The following definitions apply to this part:
(a) The Board may exercise exclusive jurisdiction within the Office over every involved application and patent during the proceeding, as the Board may order.
(b) A petition to institute a trial must be filed with the Board in a timely manner.
(a) Institution of trial. The Board institutes the trial on behalf of the Director.
(b) Notice of a trial will be sent to every party to the proceeding. The entry of the notice institutes the trial.
(c) The Board may authorize additional modes of notice, including:
(1) Sending notice to another address associated with the party, or
(2) Publishing the notice in the Official Gazette of the United States Patent and Trademark Office or the
(a) The Board may determine a proper course of conduct in a proceeding for any situation not specifically covered by this part and may enter non-final orders to administer the proceeding.
(b) The Board may waive or suspend a requirement of parts 1, 41, and 42 and may place conditions on the waiver or suspension.
(c)
(2)
(3)
(d)
(a)
(2) In documents, including affidavits, created for the proceeding:
(i) Markings must be in black or must otherwise provide an equivalent dark, high-contrast image;
(ii) Either a proportional or monospaced font may be used:
(A) The proportional font must be 14-point or larger, and
(B) The monospaced font must not contain more than 4 characters per centimeter (10 characters per inch);
(iii) Double spacing must be used except in headings, tables of contents, tables of authorities, indices, signature blocks, and certificates of service. Block quotations may be 1.5 spaced, but must be indented from both the left and the right margins; and
(iv) Margins must be at least 2.5 centimeters (1 inch) on all sides.
(3)
(4)
(b)
(2)(i)
(A) Be accompanied by a motion requesting acceptance of the submission; and
(B) Identify a date of transmission where a party seeks a filing date other than the date of receipt at the Board.
(ii) Mailed correspondence shall be sent to: Mail Stop PATENT BOARD, Patent Trial and Appeal Board, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, Virginia 22313–1450.
(c)
(d)
(e)
(2)
(3)
(ii) For an exhibit filed separately, a transmittal letter incorporating the certificate of service must be filed. If more than one exhibit is filed at one time, a single letter should be used for all of the exhibits filed together. The letter must state the name and exhibit number for every exhibit filed with the letter.
(iii) The certificate of service must state:
(A) The date and manner of service; and
(B) The name and address of every person served.
(a) The Board may expunge any paper directed to a proceeding or filed while an application or patent is under the jurisdiction of the Board that is not authorized under this part or in a Board order or that is filed contrary to a Board order.
(b) The Board may vacate or hold in abeyance any non-Board action directed to a proceeding while an application or patent is under the jurisdiction of the Board unless the action was authorized by the Board.
(a) Each notice listed in paragraph (b) of this section must be filed with the Board:
(1) By the petitioner, as part of the petition;
(2) By the patent owner, or applicant in the case of derivation, within 21 days of service of the petition; or
(3) By either party, within 21 days of a change of the information listed in paragraph (b) of this section stated in an earlier paper.
(b) Each of the following notices must be filed as a separate paper with a caption identical to the title of the paragraph:
(1)
(2)
(3)
(4)
(i) An electronic mail address;
(ii) A postal mailing address;
(iii) A hand-delivery address, if different than the postal mailing address;
(iv) A telephone number; and
(v) A facsimile number.
(a)
(b)
(a) If a party is represented by counsel, the party should designate a lead counsel and a back-up counsel who can conduct business on behalf of the lead counsel.
(b) A power of attorney must be filed with the designation of counsel, except the patent owner should not file an additional power of attorney if the designated counsel is already counsel of record in the subject patent or application.
(c) The Board may recognize counsel
(d) A panel of the Board may disqualify counsel for cause after notice and opportunity for hearing. A decision to disqualify is not final for the purposes of judicial review until certified by the Chief Administrative Patent Judge.
(e) Counsel may not withdraw from a proceeding before the Board unless the Board authorizes such withdrawal.
Parties and individuals associated with the parties have a duty of candor and good faith to the Office during the course of a proceeding.
(a) The Board may impose a sanction against a party for misconduct, including:
(1) Failure to comply with an applicable rule or order in the proceeding;
(2) Advancing a misleading or frivolous argument or request for relief;
(3) Misrepresentation of a fact;
(4) Engaging in dilatory tactics;
(5) Abuse of discovery;
(6) Abuse of process; or
(7) Any other improper use of the proceeding, including actions that harass or cause unnecessary delay or an unnecessary increase in the cost of the proceeding.
(b) Sanctions include entry of:
(1) An order holding facts to have been established in the proceeding;
(2) An order expunging, or precluding a party from filing a paper;
(3) An order precluding a party from presenting or contesting a particular issue;
(4) An order precluding a party from requesting, obtaining, or opposing discovery;
(5) An order excluding evidence;
(6) An order providing for compensatory expenses, including attorney fees;
(7) An order requiring terminal disclaimer of patent term; or
(8) Judgment in the trial or dismissal of the petition.
(a) For any United States Supreme Court decision, citation must be to the United States Reports.
(b) For any decision other than a United States Supreme Court decision, citation must be to the West Reporter System.
(c) Citations to authority must include pinpoint citations whenever a specific holding or portion of an authority is invoked.
(d) Non-binding authority should be used sparingly. If the authority is not an authority of the Office and is not reproduced in the United States Reports or the West Reporter System, a copy of the authority should be provided.
The record of a proceeding, including documents and things, shall be made available to the public, except as otherwise ordered. A party intending a document or thing to be sealed shall file a motion to seal concurrent with the filing of the document or thing to be sealed. The document or thing shall be provisionally sealed on receipt of the motion and remain so pending the outcome of the decision on the motion.
(a) On filing a petition for
(1) 1 to 20 claims—$27,200.00.
(2) 21 to 30 claims—$34,000.00.
(3) 31 to 40 claims— $40,800.00.
(4) 41 to 50 claims— $54,400.00.
(5) 51 to 60 claims— $68,000.00.
(6) Additional fee for each additional 10 claims or portion
thereof—$27,200.00.
(b) On filing a petition for post-grant review or covered business method patent review of a patent, payment of the following fee is due based upon the number of challenged claims:
(1) 1 to 20 claims—$35,800.00.
(2) 21 to 30 claims—$44,750.00.
(3) 31 to 40 claims—$53,700.00.
(4) 41 to 50 claims—$71,600.00.
(5) 51 to 60 claims—$89,500.00.
(6) Additional fee for each additional 10 claims or portion thereof—$35,800.00.
(c) On the filing of a petition for a derivation proceeding a fee of:—$400.00.
(d) Any request requiring payment of a fee under this part, including a written request to make a settlement agreement available:—$400.00.
(a)
(b)
(c)
(d)
(a)
(b)
(c)
(1) A failure to state a sufficient basis for relief may result in a denial of the relief requested;
(2) A party will be limited to filing motions consistent with the notice; and
(3) Ambiguities in the notice will be construed against the party.
(d)
(a) Each petition or motion must be filed as a separate paper and must include:
(1) A statement of the precise relief requested;
(2) A statement of material facts (
(3) A full statement of the reasons for the relief requested, including a detailed explanation of the significance of the evidence including material facts, and the governing law, rules, and precedent.
(b)
(c)
(d) The Board may order additional showings or explanations as a condition for authorizing a motion (
(a) Oppositions and replies must comply with the content requirements for motions and must include a statement identifying material facts in dispute. Any material fact not specifically denied may be considered admitted.
(b) All arguments for the relief requested in a motion must be made in the motion. A reply may only respond to arguments raised in the corresponding opposition.
(a)
(i) Petition requesting
(ii) Petition requesting post-grant review: 70 pages
(iii) Petition requesting covered business method patent review: 70 pages
(iv) Petition requesting derivation proceeding: 50 pages
(v) Motions: 15 pages.
(2) Petitions to institute a trial must comply with the stated page limits but may be accompanied by a motion to waive the page limits. The petitioner must show in the motion how a waiver of the page limits is in the interests of justice and must append a copy of proposed petition exceeding the page limit to the motion. If the motion is not granted, the proposed petition exceeding the page limit may be expunged or returned. Any other motion to waive page limits must be granted in advance of filing a motion, opposition or reply for which the waiver is necessary.
(b)
(c)
(1) Replies to patent owner responses to petitions: 15 pages
(2) Replies to motions: 5 pages.
(a) A motion may only be filed according to a schedule set by the Board. The default times for acting are:
(1) An opposition is due one month after service of the motion; and
(2) A reply is due one month after service of the opposition.
(b) A party should seek relief promptly after the need for relief is identified. Delay in seeking relief may justify a denial of relief sought.
(a)
(b)
(1) Unless previously served, any exhibit cited in a paper or in testimony must be served with the citing paper or testimony.
(2) Cross examination of affidavit testimony is authorized within such time period as the Board may set.
(3) Unless previously served, noncumulative information that is inconsistent with a position advanced by the patent owner or petitioner during the proceeding. The information is to be filed as soon as practicable in a motion identifying supplemental information or as part of a petition, motion, opposition, reply, preliminary patent owner response to petition, or patent owner response to petition. The party submitting the information must specify the relevance of the information, including where the information is presented in a document and, where applicable, how the information is pertinent to the claims.
(c)
(2) When appropriate, a party may obtain production of documents and things during cross examination of an opponent's witness or during authorized compelled testimony under § 42.52.
(a)
(1) In the case of testimony, identify the witness by name or title; and
(2) In the case of a document or thing, the general nature of the document or thing.
(b)
(1)
(ii) Demonstrate that the party has made reasonable efforts to secure the agreement of the witness to testify in the United States but has been unsuccessful in obtaining the agreement, even though the party has offered to pay the travel expenses of the witness to testify in the United States.
(2)
(ii) Demonstrate that the party has made reasonable efforts to obtain the agreement of the individual or entity having possession, custody, or control of the document or thing to produce the document or thing in the United States but has been unsuccessful in obtaining that agreement, even though the party has offered to pay the expenses of producing the document or thing in the United States.
(a)
(b)
(2) Except as the Board otherwise orders, during the testimony period, deposition testimony may be taken at any reasonable time and location within the United States before any disinterested official authorized to administer oaths at that location.
(3) Deposition testimony outside the United States may only be taken as the Board specifically directs.
(c)
(2) Cross-examination should ordinarily take place after any supplemental evidence relating to the direct testimony has been filed and more than a week before the filing date for any paper in which the cross-examination testimony is expected to be used. A party requesting cross-examination testimony of more than one witness may choose the order in which the witnesses are to be cross-examined.
(3) In the case of direct deposition testimony, at least 3 business days prior to the conference in paragraph (c)(1) of this section, the party seeking the direct testimony must serve:
(i) A list and copy of each document under the party's control and on which the party intends to rely; and
(ii) A list of, and proffer of reasonable access to, anything other than a document under the party's control and on which the party intends to rely.
(4) The party seeking the deposition must file a notice of the deposition at least 2 business days before a deposition.
(5) Scope and content—(i) For direct deposition testimony, the notice limits the scope of the testimony and must list:
(A) The time and place of the deposition;
(B) The name and address of the witness;
(C) A list of the exhibits to be relied upon during the deposition; and
(D) A general description of the scope and nature of the testimony to be elicited.
(ii) For cross-examination testimony, the scope of the examination is limited to the scope of the direct testimony.
(iii) The notice must list the time and place of the deposition.
(6) Motion to quash—Objection to a defect in the notice is waived unless the objecting party promptly seeks authorization to file a motion to quash.
(d)
(e)
(2) The testimony shall be taken in answer to interrogatories with any questions and answers recorded in their regular order by the officer, or by some other disinterested person in the presence of the officer, unless the presence of the officer is waived on the record by agreement of all parties.
(3) Any exhibits used during the deposition must be numbered as required by § 42.63(b), and must, if not previously served, be served at the deposition. Exhibits objected to shall be accepted pending a decision on the objection.
(4) All objections made at the time of the deposition to the qualifications of the officer taking the deposition, the manner of taking it, the evidence presented, the conduct of any party, and any other objection to the deposition shall be noted on the record by the officer.
(5) When the testimony has been transcribed, the witness shall read and sign (in the form of an affidavit) a transcript of the deposition unless:
(i) The parties otherwise agree in writing;
(ii) The parties waive reading and signature by the witness on the record at the deposition; or
(iii) The witness refuses to read or sign the transcript of the deposition.
(6) The officer shall prepare a certified transcript by attaching a certificate in the form of an affidavit signed and sealed by the officer to the transcript of the deposition. Unless the parties waive any of the following requirements, in which case the certificate shall so state, the certificate must state:
(i) The witness was duly sworn by the officer before commencement of testimony by the witness;
(ii) The transcript is a true record of the testimony given by the witness;
(iii) The name of the person who recorded the testimony and, if the officer did not record it, whether the testimony was recorded in the presence of the officer;
(iv) The presence or absence of any opponent;
(v) The place where the deposition was taken and the day and hour when the deposition began and ended;
(vi) The officer has no disqualifying interest, personal or financial, in a party; and
(vii) If a witness refuses to read or sign the transcript, the circumstances under which the witness refused.
(7) The officer must promptly provide a copy of the transcript to all parties. The testimony must be filed by proponent as an exhibit.
(8) Any objection to the content, form, or manner of taking the deposition, including the qualifications of the officer, is waived unless made on the record during the deposition and preserved in a timely filed motion to exclude.
(f)
(a) A party or any person from whom discovery of confidential information is sought may file a motion to seal where the motion to seal contains a proposed protective order. The motion must include a certification that the moving party has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute. The Board may, for good cause, issue an order to protect a party or person from disclosing confidential information, including, but not limited to, one or more of the following:
(1) Forbidding the disclosure or discovery;
(2) Specifying terms, including time and place, for the disclosure or discovery;
(3) Prescribing a discovery method other than the one selected by the party seeking discovery;
(4) Forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
(5) Designating the persons who may be present while the discovery is conducted;
(6) Requiring that a deposition be sealed and opened only by order of the Board;
(7) Requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and
(8) Requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the Board directs.
(b) [Reserved].
A petitioner filing confidential information with a petition may, concurrent with the filing of the petition, file a motion to seal with a proposed protective order as to the confidential information. The petitioner may serve the confidential information under seal. The patent owner may only access the sealed confidential information prior to the institution of the trial by agreeing to the terms of the proposed protective order. The institution of the requested trial will constitute a grant of the motion to seal unless otherwise ordered by the Board.
After denial of a petition to institute a trial or after final judgment in a trial, a party may file a motion to expunge confidential information from the record.
(a) Evidence that is not taken, sought, or filed in accordance with this subpart is not admissible.
(b)
(c)
(a)
(b)
(c)
(d) In determining foreign law, the Board may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.
(a)
(b)
(c)
(d)
(1) Each exhibit must have an exhibit label.
(i) An exhibit filed with the petition must include the petitioner's name followed by a unique exhibit number.
(ii) For exhibits not filed with the petition, the exhibit label must include the party's name followed by a unique exhibit number, the names of the parties, and the trial number.
(2) When the exhibit is a paper:
(i) Each page must be uniquely numbered in sequence; and
(ii) The exhibit label must be affixed to the lower right corner of the first page of the exhibit without obscuring information on the first page or, if obscuring is unavoidable, affixed to a duplicate first page.
(e)
(a)
(b)
(1)
(2)
(c)
(d)
(a) Expert testimony that does not disclose the underlying facts or data on which the opinion is based is entitled to little or no weight. Testimony on United States patent law or patent examination practice will not be admitted.
(b) If a party relies on a technical test or data from such a test, the party must provide an affidavit explaining:
(1) Why the test or data is being used;
(2) How the test was performed and the data was generated;
(3) How the data is used to determine a value;
(4) How the test is regarded in the relevant art; and
(5) Any other information necessary for the Board to evaluate the test and data.
(a)
(b) Demonstrative exhibits must be served at least 5 business days before the oral argument and filed no later than the time of the oral argument.
(a)
(b)
(c)
(1) Within 14 days of the entry of non-final decision; or
(2) Within 30 days of the entry of a final decision.
The Board may terminate a trial without rendering judgment, where appropriate, including where the trial is consolidated with another proceeding or pursuant to a joint request under 35 U.S.C. 317(a) or 327(a).
(a) A judgment disposes of all issues that were, or by motion could have properly been, raised and decided.
(b)
(1) Disclaimer of the involved application or patent;
(2) Cancellation or disclaimer of a claim such that the party has no remaining claim in the trial;
(3) Concession of unpatentability or derivation of the contested subject matter; and
(4) Abandonment of the contest.
(c)
(d)
(2)
(3)
(i) A claim to substantially the same invention as the finally refused or cancelled claim;
(ii) A claim that could have been filed in response to any properly raised ground of unpatentability for a finally refused or cancelled claim; or
(iii) An amendment of a specification or of a drawing that was denied during the trial proceeding.
(a)
(b)
(c)
(1) To a Government agency on written request to the Board; or
(2) To any other person upon written request to the Board to make the settlement agreement available, along with the fee specified in § 42.15(d) and on a showing of good cause.
After the Board issues a final written decision in an
2. Part 90 is added to read as follows:
35 U.S.C. 2(b)(2).
The provisions herein govern judicial review for Patent Trial and Appeal Board decisions under chapter 13 of title 35, United States Code. Judicial review of decisions arising out of
(a)
(2) In all appeals, the party initiating the appeal must comply with the requirements of the Federal Rules of Appellate Procedure and Rules for the United States Court of Appeals for the Federal Circuit, including:
(i) Serving the requisite number of copies on the Court; and
(ii) Paying the requisite fee for the appeal.
(3)
(ii) In appeals arising out of an
(b)
(2) A copy of the notice of election must also be filed with the Patent Trial and Appeal Board in the manner provided in § 42.6(b).
(3) A copy of the notice of election must also be served where necessary pursuant to § 42.6(e).
(c)
(a)
(2)
(3)
(ii) The time for commencing a civil action pursuant to a notice of election under 35 U.S.C. 141(d) is governed by 35 U.S.C. 141(d).
(b)
(2)
(c)
(i) Requested before the expiration of the period for filing an appeal or commencing a civil action, and upon a showing of good cause; or
(ii) Requested after the expiration of the period for filing an appeal of commencing a civil action, and upon a showing that the failure to act was the result of excusable neglect.
(2) The request must be filed as provided in § 104.2 of this title.
Architectural and Transportation Barriers Compliance Board.
Notice of proposed rulemaking.
The Architectural and Transportation Barriers Compliance Board (Access Board) is proposing accessibility standards for medical diagnostic equipment. The proposed standards contain minimum technical criteria to ensure that medical diagnostic equipment, including examination tables, examination chairs, weight scales, mammography equipment, and other imaging equipment used by health care providers for diagnostic purposes are accessible to and usable by individuals with disabilities. The standards will allow independent entry to, use of, and exit from the equipment by individuals with disabilities to the maximum extent possible. The standards do not impose any mandatory requirements on health care providers or medical device manufacturers. However, other agencies, referred to as an enforcing authority in the standards, may issue regulations or adopt policies that require health care providers subject to their jurisdiction to acquire accessible medical diagnostic equipment that conforms to the standards.
Submit comments by June 8, 2012. Hearings will be held on the proposed standards on the following dates:
1. March 14, 2012, 9:30 a.m. to 12 p.m., Washington, DC.
2. May 8, 2012, 9:30 a.m. to 12 p.m., Atlanta, GA.
Submit comments by any of the following methods:
•
•
•
•
All comments, including any personal information provided, will be posted without change to
The hearing locations are:
1.
2.
Earlene Sesker, Office of Technical and Information Services, Architectural and Transportation Barriers Compliance Board, 1331 F Street NW., Suite 1000, Washington, DC 20004–1111. Telephone: (202) 272–0022 (voice) or (202) 272–0091 (TTY). Email address
The preamble includes questions that request comments on issues that the Access Board is particularly interested in receiving information from the public. The Access Board encourages all persons interested in the rulemaking to submit comments on the proposed standards and the questions in the preamble. Instructions for submitting and viewing comments are provided above under Addresses. The Access Board will consider all the comments and may change the proposed standards based on the comments.
The Access Board has used advisory committees consisting of representatives of interest groups that are affected by its guidelines and standards to assist in developing the guidelines and standards. Advisory committees provide significant expertise on issues and an opportunity for interest groups to reach consensus on issues. The Access Board plans to convene an advisory committee when the comment period on the rulemaking closes to assist the Board in reviewing the comments and make recommendations on issues addressed in the rulemaking. The Access Board will issue a separate notice in the
The Access Board is an independent Federal agency established by Section 502 of the Rehabilitation Act (29 U.S.C. 792).
Section 4203 of the Patient Protection and Affordable Care Act (Pub. L. 111–148, 124 Stat. 570) amended Title V of the Rehabilitation Act, which establishes rights and protections for individuals with disabilities, by adding Section 510. Section 510 of the Rehabilitation Act (29 U.S.C. 794f) requires the Access Board, in consultation with the Commissioner of the Food and Drug Administration, to issue standards that contain minimum technical criteria to ensure that medical diagnostic equipment used in or in conjunction with medical settings such as physicians' offices, clinics, emergency rooms, and hospitals is accessible to and usable by individuals with disabilities. The statute provides that the standards must allow for independent access to and use of the equipment by individuals with disabilities to the maximum extent possible. The statute lists examination tables, examination chairs, weight scales, mammography equipment, and other imaging equipment as examples of equipment to which the standards will apply. However, this list is not exclusive and the statute covers any equipment used by health care providers for diagnostic purposes. The statute does not cover medical devices used for monitoring or treating medical conditions such as glucometers and infusion pumps.
Section 510 of the Rehabilitation Act requires the standards to be issued not later than 24 months after the enactment of the Patient Protection and Affordable Care Act. The Patient Protection and Affordable Care Act was enacted on March 23, 2010. Accordingly, the statutory deadline for issuing the standards is March 23, 2012. The statute also requires the Access Board, in consultation with the Commissioner of the Food and Drug Administration, to periodically review and amend the standards, as appropriate.
Section 510 of the Rehabilitation Act does not require any entity to comply with the standards that the Access Board issues under this law. Compliance with the standards becomes mandatory only when an enforcing authority adopts the standards as mandatory requirements for entities subject to its jurisdiction. As discussed below, the Department of Justice (DOJ) may adopt the standards as mandatory requirements for health care providers pursuant to its authority under Titles II and III of the Americans with Disabilities Act. Other Federal agencies may adopt the standards as mandatory requirements for health care providers pursuant to their authority under Section 504 of the Rehabilitation Act.
The Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act are civil rights laws that prohibit discrimination on the basis of disability. Title II of the ADA (42 U.S.C. 12131 to 12165) applies to state and local governments, and Title III of the ADA (42 U.S.C. 12189 to 12189) applies to private entities that are public accommodations such as health care providers. Section 504 of the Rehabilitation Act (29 U.S.C. 792) applies to recipients of Federal financial assistance such as Medicaid and federally conducted programs. DOJ is responsible for issuing regulations to implement Titles II and III of the ADA.
Pursuant to the ADA and Section 504 of the Rehabilitation Act, health care providers must provide individuals with disabilities full and equal access to their health care services and facilities. DOJ has entered into settlement agreements with health care providers to enforce the ADA and Section 504 of the Rehabilitation Act.
In July 2010, DOJ and the Department of Health and Human Services issued a guidance document for health care providers regarding their responsibilities to make their services and facilities accessible to individuals with mobility disabilities under the ADA and Section 504 of the Rehabilitation Act. See Access to Medical Care for Individuals with Mobility Disabilities available at:
In July 2010, DOJ also issued an advance notice of proposed rulemaking (ANPRM) announcing that, pursuant to the obligation that has always existed
Private parties, including individuals with disabilities, have also entered into settlement agreements with health care providers to enforce the ADA and Section 504 of the Rehabilitation Act.
The Commissioner of the Food and Drug Administration has designated the Director of the Center for Devices and Radiological Health (FDA–CDRH) to consult with the Access Board on the development of standards for accessible medical diagnostic equipment. The Access Board has worked closely with the FDA–CDRH in developing the proposed standards. The FDA–CDRH may develop a guidance document to inform manufacturers how it intends to apply its regulatory authority to clearance or approval of medical devices addressed in the Access Board's standards. If the FDA–CDRH develops such a guidance document, it will provide the public notice and opportunity to comment on a draft of the guidance document in accordance with its procedures for issuing guidance documents. See 21 CFR 10.115.
In 2009, the Association for the Advancement of Medical Instrumentation issued ANSI/AAMI HE 75, a recommended practice on human factors design principles for medical devices. Chapter 16 of ANSI/AAMI HE 75 contains recommended practices regarding accessibility for patients and health care personnel with disabilities. Chapter 16 of ANSI/AAMI HE 75 is available at:
The Access Board is committed to using voluntary consensus standards where practical and consistent with the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note). The Access Board has considered the recommended practices in Chapter 16 of ANSI/AAMI HE 75 in developing the technical criteria for the proposed standards. The technical criteria are generally consistent with and supplement the recommended practices in Chapter 16 of ANSI/AAMI HE 75. The Access Board seeks to promote harmonization of its guidelines and standards with voluntary consensus standards and plans to participate in future revisions to ANSI/AAMI HE 75.
The Rehabilitation Engineering Research Center on Accessible Medical Instrumentation conducted a national survey in 2004 to collect information on the types of medical equipment that is most difficult for individuals with disabilities to access and use.
• 75 percent rated examination tables as moderately difficult to impossible to use;
• 68 percent rated radiology equipment as moderately difficult to impossible to use;
• 53 percent rated weight scales as moderately difficult to impossible to use; and
• 50 percent rated examination chairs as moderately difficult to impossible to use.
A subsequent study that involved focus group sessions of individuals with diverse disabilities provided additional information on barriers that affect the accessibility and usability of examination tables, examination chairs, imaging equipment, and weight scales.
The Access Board held a public meeting in July 2010 that featured panel discussions and presentations by experts and researchers on medical equipment accessibility, health care providers, medical device manufacturers, and other interested parties to provide information for developing the proposed standards. The transcript of the meeting is available at:
The technical criteria in the proposed standards address most of the barriers that have been identified as affecting the accessibility and usability of medical diagnostic equipment. However, it is not possible to address every barrier in the proposed standards, especially given the statutory deadline for issuing the standards. Research may be needed on some equipment characteristics that affect the accessibility and usability of equipment such as stiffness, comfort, and color contrast of contact surfaces. Section 510 of the Rehabilitation Act requires the Access Board to periodically review and amend the standards, as appropriate. The Access Board will address other barriers in future updates to the standards.
Medical diagnostic equipment is typically designed to support patients in certain positions. For example, imaging equipment can be designed for use by patients lying on a platform bed, in a standing or seated position, or seated in a wheelchair. Examination chairs can be designed to recline and be used as examination tables. The technical criteria for providing patients with disabilities access to and use of each of these equipment types would differ based on the patient positions that the equipment is designed to support. Therefore, the technical criteria in the proposed standards are organized functionally by the patient positions that the equipment is designed to support instead of by types of equipment. Where equipment is designed to support more than one patient position, the equipment would have to meet the technical criteria for each position supported.
The table below shows the four basic patient positions that medical diagnostic equipment can be designed to support; the equipment features that are addressed in the technical criteria for each of the patient positions; and the types of equipment to which the technical criteria apply for each of the patient positions. For example, X-ray equipment that is designed for use in a standing position for certain procedures would have to meet the technical criteria for slip resistant standing surface and standing supports for patients who use mobility aids such as canes or crutches, or who have limited stamina or other conditions that affect their ability to maintain balance. Mammography equipment that is designed for use by patients seated in a wheelchair would have to meet the technical criteria for wheelchair spaces, changes in level at entry to the wheelchair space, and height of the breast platform. The types of equipment listed in the last column of the table are meant to be illustrative. The technical criteria apply to any type of medical diagnostic equipment that is designed to support the patient positions indicated.
The proposed standards also include technical criteria for supports (see M305), for instructions or other information communicated to patients through the equipment (see M306), and for operable parts used by patients (see M307).
The proposed standards consist of three chapters. Chapter M1 addresses the application and administration of the proposed standards. Chapter M2
The Access Board is committed to writing standards that are clear, concise, and easy to understand so that persons who use the standards know what is required.
The proposed standards contain technical criteria for medical diagnostic equipment that is accessible to and usable by patients with disabilities. The standards provide for independent access to and use of diagnostic equipment by patients with disabilities to the maximum extent possible.
As discussed above under Organization of Technical Criteria, the technical criteria are to be applied to medical diagnostic equipment based on the following patient positions that the equipment is designed to support:
• Equipment used by patients in a supine, prone, or side-lying position (see M301);
• Equipment used by patients in a seated position (see M302);
• Equipment used by patients seated in a wheelchair (see M303); and
• Equipment used by patients in a standing position (see M304).
The diagnostic equipment's labeling, instructions, and promotional material usually identify the patient positions that the equipment is designed to support. Where diagnostic equipment is designed to support more than one patient position, the technical criteria for each patient position supported are to be applied to the equipment. Advisory M101.2 includes examples of diagnostic equipment designed to support more than one patient position and the technical criteria that apply to the equipment.
The use of alternative designs and technologies that result in substantially equivalent or greater accessibility than specified in the proposed standards is permitted. Generally, alternative designs or technologies that rely on assisted transfer only (e.g., use of a patient lift) are not permitted because they do not provide for independent access to and use of diagnostic equipment by patients with disabilities to the maximum extent possible. However, the standards include technical criteria for clearance in or around the base of the equipment for lift compatibility to allow the use of a patient lift by patients with disabilities for whom independent transfer may not be possible, and the use of alternative designs or technologies for lift compatibility is permitted.
The standards are based on adult dimensions and anthropometrics. Dimensions that are not stated as “maximum” or “minimum” are absolute.
Dimensions are subject to conventional industry tolerances for manufacturing processes, material properties, and field conditions.
The following terms are defined in the proposed standards: Enforcing authority, medical diagnostic equipment, operable parts, and transfer surface.
The definition of medical diagnostic equipment is based on Section 510 of the Rehabilitation Act and means equipment used in or in conjunction with medical settings by health care providers for diagnostic purposes. For convenience purposes, the shorter term diagnostic equipment is used in place of medical diagnostic equipment after that term is first used in the standards. Examination tables, examination chairs, weight scales, mammography equipment, and other imaging equipment are examples of diagnostic equipment to which the standards apply.
The definitions of enforcing authority, transfer surface, and operable parts are discussed respectively under M201.1; M301.2 and M302.2; and M307.
Collegiate dictionaries are used to define terms that are not defined in the proposed standards or in regulations or policies issued by the enforcing authority.
Singular and plural words, terms, and phrases are used interchangeably.
The proposed standards do not include scoping requirements that specify the minimum number of types of accessible diagnostic equipment required in different types of health care facilities because Section 510 of the Rehabilitation Act authorizes the Access Board to issue only technical criteria. Other agencies, referred to as an enforcing authority in the standards (see defined terms in M102.1), may adopt the standards as mandatory requirements for entities subject to their jurisdiction. An enforcing authority can be a Federal, State, or local government agency that enforces laws prohibiting discrimination on the basis of disability, or regulates health care facilities. As discussed above under Department of Justice Activities Related to Health Care Providers and Medical Equipment, DOJ issued an ANPRM in July 2010 announcing that it was considering amending its regulations implementing Titles II and III of the ADA to specifically require health care providers to acquire accessible medical equipment and that it would consider adopting the standards issued by the Access Board. DOJ also indicated its intention to include in its ADA regulations scoping requirements that specify the minimum number of types of accessible medical equipment required in different types of health care facilities.
Chapter M3 provides technical criteria for accessible diagnostic equipment based on the patient positions that the equipment is designed to support, including equipment used by patients in a supine, prone, or side-lying position (see M301); equipment
Figures showing example applications of the technical criteria to diagnostic equipment are available on the Access Board's Web site at:
The sources discussed below were used to develop the technical criteria.
The Access Board has developed and updated accessibility guidelines for buildings and facilities for over 30 years. The Access Board's current guidelines for buildings and facilities were issued in 2004 and are known as the Americans with Disabilities Act and Architectural Barriers Act Accessibility Guidelines (hereinafter referred to as the “2004 ADA and ABA Accessibility Guidelines”). The 2004 ADA and ABA Accessibility Guidelines are codified at 36 CFR part 1191 and are available at:
The following technical criteria in the proposed standards are based on the 2004 ADA and ABA Accessibility Guidelines:
• Height of transfer surfaces on diagnostic equipment used by patients in a supine, prone, or side-lying position and diagnostic equipment used by patients in a seated position (see M301.2.1 and M302.2.1);
• Wheelchair spaces, including knee and toe clearance, and change in level at entry to the wheelchair spaces at diagnostic equipment used by patients seated in a wheelchair (see M303.2 and M303.3);
• Structural strength of transfer supports (see M305.2.2); and
• Operable parts (see M307).
The Access Board is also considering additional technical criteria based on the 2004 ADA and ABA Accessibility Guidelines for cross section dimensions and clearances around gripping surfaces on transfer and standing supports, and for reach ranges for operable parts on diagnostic equipment that are used by patients. Questions are included under the applicable sections requesting comments on whether the additional technical criteria under consideration would be appropriate for the equipment features or whether alternative technical criteria would be appropriate.
There have been dramatic changes in mobility devices and the characteristics of people who use these devices. The Access Board and the National Institute on Disability and Rehabilitation Research sponsored a Wheeled Mobility Anthropometry Project to collect measurements of approximately 500 people using a variety of mobility devices, including manual wheelchairs, power wheelchairs, and scooters. The Wheeled Mobility Anthropometry Project was conducted by the Center for Inclusive Design and Environmental Access. The final report on the Wheeled Mobility Anthropometry Project was issued in 2010 and is available at:
Data from the Wheeled Mobility Anthropometry Project showed that the seat heights of many mobility devices are above the range specified in the 2004 ADA and ABA Accessibility Guidelines for certain architectural features that involve transfers and that the dimensions for wheelchair spaces, including knee and toe clearance, do not accommodate many people in the sample. Data from the Wheeled Mobility Anthropometry Project also showed that many people in the sample needed a lower operating force to activate certain operable parts. The Wheeled Mobility Anthropometry Project included recommendations for specifications that would accommodate a broader range of people who use mobility devices. The data and recommendations from the Wheeled Mobility Anthropometry Project are discussed in connection with the following technical criteria:
• Height of transfer surfaces on diagnostic equipment used by patients in a supine, prone, or side-lying position and diagnostic equipment used by patients in a seated position (see M301.2.1 and M302.2.1);
• Wheelchair spaces, including knee and toe clearance, at diagnostic equipment used by patients while seated in a wheelchair (see M303.2); and
• Operating force required to activate operable parts used by patients (see M307.4).
The Access Board is considering specifying alternative technical criteria in the final standards based on the Wheeled Mobility Anthropometry Project. Questions are included under the applicable sections requesting comments on the alternative technical criteria.
As discussed in the relevant sections below, the Access Board considered the recommended practices regarding accessibility in Chapter 16 of ANSI/AAMI HE 75 in developing the technical criteria. The technical criteria are generally consistent with and supplement the recommended practices in ANSI/AAMI HE 75.
The Access Board used anthropometric data and other standards for the width of transfer surfaces on diagnostic equipment used by patients in a seated position (see M302.2.2), height of breast platforms on mammography equipment used by patients seated in a wheelchair (see M303.4.1), and standing supports in a vertical position for diagnostic equipment used by patients in a standing position (see M305.3.2). The sources are referenced in the relevant sections below.
The Access Board also considered information provided at the July 2010 public meeting that featured panel discussions and presentations by experts and researchers on medical equipment accessibility, health care providers, medical device manufacturers, and other interested parties. The transcript of the meeting is available at:
The technical criteria in Chapter 3 address the features that make diagnostic equipment accessible to and
M301 provides technical criteria for diagnostic equipment used by patients in a supine, prone, or side-lying position, and M302 provides technical criteria for diagnostic equipment used by patients in a seated position. The purpose of these sections is to facilitate independent transfer onto and off of diagnostic equipment by patients with disabilities, including those who use mobility devices or aids, and to provide supports for patients with disabilities when positioning their bodies on the equipment. The sections also include provisions for clearance in and around the base of the equipment for lift compatibility to allow the use of a patient lift by patients with disabilities for whom independent transfer may not be possible. Except for the size of the transfer surface (see M301.2.2 and M302.2.2) and certain supports (see M301.3.2 for stirrups, and M302.3.2 for armrests), the technical criteria in these sections are the same and are discussed together below. The technical criteria for transfer surface size and for stirrups and armrests are discussed separately for diagnostic equipment used by patients in a supine, prone, or side-lying position and for diagnostic equipment used by patients in a seated position.
The technical criteria in M301.2 and M302.2 address the height and size of the transfer surface, and the transfer sides. The transfer surface is the part of the diagnostic equipment onto which patients who use mobility devices or aids transfer when moving onto and off of the equipment (see defined terms in M102.1). Depending on the configuration of the equipment, the transfer surface may coincide with the seat area of an examination chair, or occupy only a portion of an examination table or imaging bed platform. The technical criteria do not address the overall width and depth of patient support surfaces because of the diverse shape and size of these surfaces.
For many patients who use mobility devices, independent transfer is possible only if the height of the transfer surface is at or near the seat height of their mobility device. The transfer surface height is also critical for patients who use mobility aids such as walkers and canes and may find it difficult to get up onto or down from an examination chair or table or imaging bed platform, and for facilitating assisted transfers.
M301.2.1 and M302.2.1 would require the height of the transfer surface during patient transfer to be 17 inches minimum and 19 inches maximum measured from the floor to the top of the transfer surface. This height range is based on provisions in the 2004 ADA and ABA Accessibility Guidelines for architectural features that involve transfers (e.g., toilet seats, shower seats, dressing benches). Patient support surfaces can be adjusted to heights outside the specified dimensions when not needed for patient transfer such as when performing diagnostic procedures.
Where patient support surfaces are contoured or upholstered for patient comfort or to support patient positioning during diagnostic procedures, the height of the transfer surface measured from the floor may vary across the transfer surface. The highest and lowest points of the transfer surface on such equipment would have to be within the specified dimensions.
Where patient support surfaces are cushioned (e.g., polyurethane on top of cell foam), the upholstery may compress or deflect during use. If the height of the transfer surface is measured from the floor to the rigid platform under the cushion, the top of the upholstery may be outside the specified dimensions. Measuring the height of the transfer surface from the floor to the top of the upholstery under static conditions, without compression or deflection in the transfer surface, would provide a consistent method of measurement given the variety of materials used to cushion patient support surfaces and the differences in how the materials compress or deflect during use.
The technical criteria allow the height of transfer surfaces to be either fixed or adjustable within the 17 inches minimum and 19 inches maximum range. Based on the information discussed below, the Access Board is considering requiring in the final standards that the height of transfer surfaces be adjustable from 17 inches minimum to 25 inches maximum during
Many types of diagnostic equipment used by patients in a supine, prone, or side-lying position, and diagnostic equipment used by patients in a seated position currently provide adjustable height patient support surfaces. ANSI/AAMI HE75 recommends that the height of patient support surfaces “should be easy to adjust (ideally, powered) to suit the needs of health care professionals and patients.” ANSI/AAMI HE75 further recommends that the height of patient support surfaces “should be adjustable to a position high enough to accommodate tall health care providers and the range of medical procedures that could occur * * * [and] to a position low enough [19 inches maximum] to allow for the comfort of providers who choose to work in a seated position, to enable patients to keep their feet on the floor while seated, and to accommodate patients who need to transfer laterally between the platform and a chair or wheelchair alongside.” See
Transfer surfaces that are adjustable to the same heights as the seat heights of mobility devices reduce the effort needed to transfer since patients do not have to lift their body weight to make up the difference between the two surfaces, in one direction or the other. The Wheeled Mobility Anthropometry Project shows the occupied seat heights for people who use mobility devices vary considerably. See Analysis of Seat Heights for Wheeled Mobility Devices at:
Ideally, transfer surfaces should be adjustable to any height within the 17 inches minimum and 25 inches maximum range. However, intermediate heights may need to be established within the range because of different methods for providing adjustability (e.g., power, mechanical) or other equipment limitations. The distance between the intermediate heights should be small.
(a) What types of equipment currently provide patient support surfaces that are height adjustable? If there are several models of the same type of equipment, does at least one model provide patient support surfaces that are height adjustable? What is the range of adjustable heights? If the range of adjustable heights does not include 17 inches to 25 inches, what would be the incremental costs to achieve this range?
(b) What types of equipment do not currently provide patient support surfaces that are height adjustable? What would be the incremental costs for the design or redesign and manufacture of the equipment to provide patient support surfaces that are height adjustable within the above range?
(c) Are there types of equipment that cannot provide patient support surfaces that are height adjustable within the above range because of the structural or operational characteristics of the equipment? Comments should discuss alternative methods for making the equipment accessible to patients with disabilities.
(d) Should intermediate heights be established within the above range? What intermediate heights within the above range would be appropriate to facilitate independent transfer by patients who use mobility devices and aids?
As noted earlier, the technical criteria do not address the overall width and depth of patient support surfaces because of the diverse shape and size of these surfaces. ANSI/AAMI HE75 recommends that patient support surfaces “should allow patients to transfer themselves on and off safely and easily and to assume and maintain positions safely and comfortably.” For surfaces on which patients lie down, ANSI/AAMI HE75 recommends that “patients should be able to roll to a side or prone position with minimal need to lift or shift their center of gravity.” ANSI/AAMI HE75 notes that a standard examination table is 27 inches wide and a bariatric table is approximately 30 to 32 inches wide and recommends wider surfaces to make repositioning easier. See ANSI/AAMI HE 75, section 16.4.7.
On diagnostic equipment used by patients in a supine, prone, or side-lying position, M301.2.2 would require the size of the transfer surface (i.e., part of the diagnostic equipment onto which patients who use mobility devices or aids transfer when moving onto and off of the equipment) to be 30 inches wide minimum and 15 inches deep minimum. The 30 inches minimum width is based on comments submitted by the Disability Rights Education and Defense Fund (DREDF) regarding medical equipment dimensions in response to DOJ's ANPRM on equipment and furniture. The 30 inches minimum width and 15 inches minimum depth also are generally consistent with the dimensions specified in the 2004 ADA and ABA Accessibility Guidelines for rectangular seats in roll-in showers.
The transfer surface dimensions do not include headrests, footrests, or similar supports for body extremities that do not support the patient's overall body position. A transfer surface is permitted to be contoured; however, the minimum dimensions would have to fit within the contoured surface and cannot be reduced to accommodate an asymmetrical shape.
As discussed under the technical criteria for transfer sides (see M301.2.3 and M302.2.3), the transfer surface would be located at a corner of the diagnostic equipment (e.g., foot of an examination table) to allow different approaches to the surface and a variety of transfers. The Access Board is considering requiring in the final standards that transfer surfaces be provided at more than one location on diagnostic equipment used by patients in a supine, prone, or side-lying position to accommodate the different ways patients with disabilities may transfer and reposition their bodies from a sitting to a lying position on such equipment.
(a) Do the above dimensions provide sufficient space for patients with disabilities to safely and easily transfer to the equipment?
(b) Should the width of the patient support surface be at least as wide as the width of the transfer surface (30 inches minimum) to allow patients with disabilities to reposition their bodies to a lying down position and maintain positions safely and comfortably? What would be the incremental costs for the design or redesign and manufacture of the equipment to make the patient support surface at least as wide as the width of the transfer surface?
(c) Would alternative dimensions be appropriate for transfer surfaces? Comments should include information on sources to support alternative dimensions, where possible.
(d) Should an adjustable feature (e.g., extendable platform) be permitted to meet the transfer surface dimensions?
(e) If transfer surfaces are required to be provided at more than one location on the equipment, where should the transfer surfaces be located?
Seats on diagnostic equipment used by patients in a seated position typically provide back and arm support for patient comfort and stability. The space available for transfer on diagnostic equipment used by patients in a seated position is smaller than the space available on diagnostic equipment used by patients in a supine, prone, or side-lying position.
On diagnostic equipment used by patients in a seated position, M302.2.2 would require the size of the transfer surface to be 21 inches wide minimum and 15 inches deep minimum. The 21 inches minimum width is based on the ideal chair width recommended in Architectural Graphic Standards for auditorium seating. See The American Institute of Architects, Architectural Graphic Standards (10th edition, 2000), page 919. The 15 inches minimum depth is generally consistent with the dimension specified in the 2004 ADA and ABA Accessibility Guidelines for rectangular seats in roll-in showers.
The transfer surface dimensions do not include headrests, footrests, or similar supports for body extremities that do not support the patient's overall body position. A transfer surface is permitted to be contoured; however, the minimum dimensions would have to fit within the contoured surface and cannot be reduced to accommodate an asymmetrical shape.
(a) Do the above dimensions provide sufficient space for patients with disabilities to safely and easily transfer to the equipment?
(b) Would alternative dimensions be appropriate for transfer surfaces? Comments should include information on sources to support alternative dimensions, where possible.
M301.2.3 and M302.2.3 would require the transfer surface to be located so as to provide patients who use mobility devices the option to transfer onto the short side and the long side of the surface, and that each transfer side provide unobstructed access to the transfer surface. These sections would result in the transfer surface being located at a corner of the equipment and the two transfer sides adjoining at the edges of the equipment (e.g., foot of an examination table). Patients who use mobility devices would have the choice to approach parallel to the deep dimension of the transfer surface, parallel to the wide dimension of the transfer surface, or at an angle to the corner of the transfer surface and be able to perform a variety of transfers. Locating the transfer surface at a corner of the equipment and providing unobstructed access to the two transfer sides also would facilitate assisted transfers. Enforcing authorities may specify the clear floor space to be provided adjacent to the transfer sides of equipment in health care facilities.
The transfer sides are permitted to be obstructed temporarily by features such as armrests, side rails, footrests, and stirrups provided they can be repositioned (e.g., folding armrests, removable side rails, retractable footrests and stirrups) to permit transfer. This is consistent with ANSI/AAMI HE 75 which recommends that “side rails, arm rests, leg supports * * * should be positioned, or able to be moved out of the way, so as not to interfere with the ability of users to transfer.” See
The Access Board is considering whether the final standards should permit equipment parts to extend horizontally 3 inches maximum beyond the edge of the transfer sides provided they do not extend above the top of the transfer surface. This would allow handholds and other features which may facilitate transfer to be located on the transfer sides. The 2004 ADA and ABA Accessibility Guidelines provide a gap of 3 inches between the edge of a shower seat and the shower compartment entry, and the gap does not appear to interfere with transferring onto and off of the shower seat.
(a) Should equipment parts be permitted to extend horizontally 3 inches maximum beyond the edge of the transfer sides provided they do not extend above the top of the transfer surface?
(b) If equipment parts are not permitted to extend horizontally 3 inches maximum beyond the edge of the transfer sides, would any diagnostic equipment need to be redesigned?
ANSI/AAMI HE 75 recommends that handholds be “integrated into the device * * * [to] increase safety and assist patients in transferring on and off, positioning or repositioning their bodies, and maintaining static position.” See
M301.3.1 and M302.3.1 would require transfer supports to be provided for use with the transfer sides. M305.2.1 would require the transfer supports to be located within reach of the transfer surface and not obstruct transfer onto the surface when in position. M305.2.2
(a) Are transfer supports that can be repositioned (e.g., folding armrests, removable side rails) currently capable of resisting vertical and horizontal forces of 250 pounds applied to all points of the transfer support? If the transfer supports are not currently capable of resisting these forces, what would be the incremental costs for the design or redesign and manufacture of the equipment to provide transfer supports that are capable of resisting these forces?
(b) Would alternative technical criteria be appropriate for the structural strength of transfer supports? Comments should include information on sources to support the alternative technical criteria, where possible.
As discussed below, the Access Board is considering whether additional technical criteria would be appropriate for transfer supports.
Midmark Corporation provided information based on input from accessibility experts regarding side rails on examination tables in comments submitted in response to the DOJ's ANPRM on equipment and furniture. The side rails are similar in shape to grab bars and are located on each of the long sides of the table. Each side rail can be removed to permit patients to transfer onto and off of the table, and to permit health care personnel to perform diagnostic procedures. The side rails can also be relocated along the table surface (from foot-end to head-end) for patients to position or reposition their bodies, and to maintain static positions. The side rails are 20 inches minimum in length, 6 inches minimum in height above the table surface, and 1 inch measured horizontally from the adjacent edge of the table surface.
The Access Board is considering whether the following technical criteria would be appropriate for the location and size of transfer supports on diagnostic equipment used by patients in a supine, prone, or side-lying position, and diagnostic equipment used by patients in a seated position:
• At least one transfer support would be provided on the side of the transfer surface that is 15 inches deep minimum. The transfer support would be located on the side of the transfer surface that is opposite the transfer side (see M301.2.3 and M302.2.3) similar to the provisions in the 2004 ADA and ABA Accessibility Guidelines for grab bars provided at bathtubs and shower compartments with seats. This would be a minimum requirement. Where possible, it is recommended that supports be provided on each side of the transfer surface that is 15 inches deep minimum for patients to maintain position after they have transferred onto the equipment, and that the supports be repositionable to permit transfer.
• The transfer support would extend horizontally the entire depth of the transfer surface and would be 15 inches minimum in length.
• The gripping surface of the transfer support would be located 1
The above technical criteria would likely result in the transfer surface being located at the foot end of examination tables and allow the use of transfer supports similar to the side rails described in the information provided by Midmark Corporation.
(a) Are the above technical criteria for the location and size of transfer supports sufficient to facilitate transfer and maintain position on the equipment?
(b) Can transfer supports on different types of equipment meet the above technical criteria for the location and size of the supports?
(c) What would be the incremental costs for the design or redesign and manufacture of transfer supports that meet the above criteria?
(d) Would alternative technical criteria be appropriate for the location and size of transfer supports? Comments should include information on sources to support the alternative technical criteria, where possible.
(e) Should angled or vertical transfer supports be permitted?
The Access Board is considering whether 6 inches minimum and 19 inches maximum above the transfer surface would be an appropriate height for transfer supports on diagnostic equipment used by patients in a supine, prone, or side-lying position, and diagnostic equipment used by patients in a seated position. The minimum height is consistent with the information provided by Midmark Corporation on examination table side rails, and the maximum height is generally consistent with the height of grab bars above shower seats in the 2004 ADA and ABA Accessibility Guidelines.
(a) Are transfer supports within the above height range usable by patients with disabilities?
(b) Can transfer supports on different types of equipment meet the above height range?
(c) Would alternative technical criteria be appropriate for the height of transfer supports? Comments should include information on sources to support the alternative technical criteria, where possible.
The 2004 ADA and ABA Accessibility Guidelines specify the following dimensions for grab bars to enable individuals with disabilities to firmly grasp the grab bars and support themselves during transfers:
• Grab bars with circular cross sections must have an outside diameter of 1
• Grab bars with non-circular cross sections must have a cross section dimension of 2 inches maximum and a perimeter dimension of 4 inches minimum and 4.8 inches maximum.
The Access Board is considering whether the above cross section dimensions would be appropriate for the gripping surfaces of transfer supports on diagnostic equipment used by patients in a supine, prone, or side-lying position, and diagnostic equipment used by patients in a seated position.
(a) Can the gripping surfaces of transfer supports on different types of equipment meet the above cross section dimensions?
(b) Can handholds that meet the above cross section dimensions be integrated into the design of armrests that are cushioned to support arms and elbows?
(c) Are there alternative designs for the gripping surfaces of transfer supports that enable patients with disabilities to firmly grasp the supports and support themselves during transfer?
The 2004 ADA and ABA Accessibility Guidelines specify the following clearances around grab bars to ensure sufficient space for a person to grasp the grab bar: 1
The Access Board is considering whether 1
Where stirrups are provided on diagnostic equipment used by patients in a supine, prone, or side-lying position, M301.3.2 would require the stirrups to provide a method of supporting, positioning, and securing the patient's legs. This is consistent with ANSI/AAMI HE75 which recommends that “[f]or patients with limited leg strength and control, instead of stirrups that support only the foot and require active user leg strength, leg supports that support both the foot and the leg should be used to assist patients in keeping their legs in an appropriate position.” See
(a) What would be the incremental costs for the design or redesign and manufacture of stirrups that provide a method of supporting, positioning, and securing the patient's legs?
(b) Should diagnostic equipment used by patients in a seated position that provide stirrups such as urodynamics study chairs be required to provide a method of supporting, positioning, and securing the patient's legs?
M302.3.2 would require armrests to be provided on diagnostic equipment used by patients in a seated position. This is consistent with ANSI/AAMI HE75 which recommends that “[f]or support surfaces that require the patient to assume a seated position, armrests should be provided to enhance patient comfort, stability, and ease of transfer.” See
Where diagnostic equipment used by patients in a supine, prone, or side-lying position, and diagnostic equipment used by patients in a seated position can be adjusted to reclined positions, M301.3.3 and M302.3.3 would require head and back support to be provided throughout the entire range of the incline. This is consistent with ANSI/AAMI HE75 which recommends that the “support surface needs to be adjustable or have adjustable support features (e.g., for the head, neck, back, lumbar region, leg, knee, and foot, as appropriate) to support patients in various postures and body positions in a manner that optimizes their comfort.” See
The Board is considering requiring in the final standards positioning supports such as rails, bars, or panels with handholds to be provided along the sides of diagnostic equipment used by patients in a supine, prone or side-lying position, and diagnostic equipment used by patients in a seated position that can be adjusted to a reclined position. As noted above, ANSI/AAMI recommends that handholds be “integrated into the device * * * [to] increase safety and assist patients in transferring on and off, positioning or repositioning their bodies, and maintaining static position.” See
(a) Should the technical criteria address the configuration of positioning supports (e.g., length, height above the patient support surface, location) to ensure their effectiveness? Or should the technical criteria require that positioning supports be provided within reach and provide flexibility for designing the supports based on the intended use of the equipment?
(b) What would be the incremental costs for the design or redesign and manufacture of positioning supports?
(c) Are there types of equipment that cannot provide positioning supports along the sides of the equipment because of the structural or operational characteristics of the equipment? Comments should discuss alternative methods to assist patients with disabilities safely position or reposition their bodies, and maintain a static position.
M301.4 and M302.4 would require diagnostic equipment used by patients in a supine, prone, or side-lying position, and diagnostic equipment used by patients in a seated position to be usable with a patient lift for patients with disabilities for whom independent transfer may not be possible. A patient lift may be the only means of providing access to certain equipment that cannot meet the technical criteria for transfer surface height (see M301.2.1 and M302.2.1) because of the structural or operational characteristics of the equipment. For example, full body bone densitometers usually have components that move beneath the length of the patient support surface and may prevent the equipment from meeting the technical criteria for transfer surface height. Requiring the equipment to be usable with a patient lift is critical for ensuring the safety of both patients with
ANSI/AAMI HE 75 recommends that the “base of the device needs to have space underneath or along both sides (if the equipment is narrow) to accommodate the legs of portable mechanical lift equipment so that the patient can be suspended over the support surface before being lowered onto it.” See
As discussed below, the technical criteria provide two options for accommodating portable floor lifts consistent with ANSI/AAMI HE75: clearance in the base or clearance around the base. The clearances would be required at the side of the equipment where the portable floor lift is deployed so that the boom of the lift can maneuver far enough over the equipment and safely lower and raise the patient onto and off of the examination surface. The clearances do not restrict the overall size of the equipment base.
Clearance in the base of the equipment allows the legs of a portable floor lift to fit under the base of the equipment. The clearance can be an open area between the supporting posts beneath the equipment, or the equipment can be configured with a wide slot that is recessed into the base enclosure. M301.4.1 and M302.4.1 would require the clearance in the base to be 44 inches wide minimum, 6 inches high minimum measured from the floor, and 36 inches deep minimum measured from the edge of the examination surface. Where the width of the examination surface is less than 36 inches, the clearance depth would be required to extend the full width of the equipment. Equipment components are permitted to be located within 8 inches maximum of the centerline of the clearance width.
(a) Are the proposed dimensions for clearance in the base sufficient to accommodate the various portable floor lifts used in health care facilities?
(b) Do the proposed dimensions exclude certain types of lifts?
(c) Should the clearance in the base be configured differently to allow additional flexibility for the use of portable floor lifts and, if so, how should it be configured?
Clearance around the base of the equipment allows the legs of a portable floor lift to straddle the base. This option accommodates equipment with solid base enclosures that sit on or close to a floor. M301.4.2 and M302.4.2 would require the base of the equipment to provide a clearance 6 inches high minimum measured from the floor and 36 inches deep minimum measured from the edge of the examination surface. The width of the base permitted within this clearance would be 26 inches wide maximum at the edge of the examination surface and is permitted to increase at a rate of 1 inch in width for each 3 inches in depth. The permitted rate of increase in width can be distributed to each side of the base.
(a) Are the proposed dimensions sufficient to accommodate the various portable floor lifts used in health care facilities?
(b) Do the proposed dimensions exclude certain types of lifts?
(c) Should the clearance around the base be configured differently to allow additional flexibility for the use of portable floor lifts and, if so, how should it be configured?
The technical criteria do not address overhead lifts that are usually mounted on the ceiling and operate on tracks suspended over the diagnostic equipment because the configuration of the equipment does not affect the operation of overhead lifts. Overhead lifts and portable floor lifts are used in health care facilities, and the technical criteria should not be viewed as preferring portable floor lifts. Overhead lifts may be the only option for certain diagnostic equipment because the structural or operational characteristics of the equipment prevent sufficient clearance in or around the base of the equipment for a portable floor lift.
M302.4 includes an exception for diagnostic equipment that is designed for use by patients seated in a wheelchair and provides a folding seat. The exception does not require the equipment to comply with the technical criteria for lift compatibility because patients can use the equipment seated in a wheelchair. However, the folding seat would be required to meet the other technical criteria in M302 for transfer surfaces and supports.
M303 provides technical criteria for diagnostic equipment used by patients seated in a wheelchair. M303 allows patients who use wheelchairs to position their wheelchairs at equipment typically used in a standing position such as mammography equipment, and also applies to equipment specifically designed for patients seated in a wheelchair such as weight scales and examination chairs.
M303.2 would require a wheelchair space to be provided at diagnostic equipment used by patients seated in a wheelchair. M303.2 includes technical criteria for orientation, width, depth, and knee and toe clearance at wheelchair spaces.
M303.2.1 would require wheelchair spaces to be designed so that patients seated in a wheelchair orient in the same direction that patients not seated in a wheelchair orient when using the equipment. For example, if an equipment component used to make images of body parts can be placed at different angles when used by patients who stand and by patients seated in a wheelchair, and patients who stand orient facing the component when it is in place for them, then the wheelchair space would be designed so that patients seated in a wheelchair orient facing the component when it is place for them. If the equipment is designed so that patients not seated in a wheelchair can orient their bodies in various directions when using the equipment, the wheelchair space would
M303.2.2 would require wheelchair spaces to be 36 inches (915 mm) wide minimum. This dimension is based on provisions in the 2004 ADA and ABA Accessibility Guidelines for maneuvering clearance where a clear floor or ground space is confined on all or part of three sides.
M303.2.3 would require wheelchair spaces that can be entered from the front or rear to be 48 inches deep minimum, and wheelchair spaces that can be entered only from the side to be 60 inches deep minimum. These dimensions are based on provisions in the 2004 ADA and ABA Accessibility Guidelines. The Wheeled Mobility Anthropometry Project showed that the 48 inches deep dimension for wheelchair spaces entered from the front or rear does not accommodate many people in the sample, and that increasing the depth of wheelchair spaces entered from the front or rear to 58 inches minimum would accommodate 95 percent of the people in the sample. See
(a) What would be the incremental costs for the design or redesign and manufacture of the equipment to provide a wheelchair space that is 58 inches deep minimum?
(b) Are there types of equipment that cannot provide a wheelchair space that is 58 inches deep minimum because of the structural or operational characteristics of the equipment?
Diagnostic equipment with wheelchair spaces on raised platforms such as weight scales typically provide low barriers or curbs on the sides of the platform that are not used for entering and exiting the equipment to prevent wheelchairs from slipping off the platform (i.e., edge protection). The Access Board is considering requiring edge protection at wheelchair spaces on raised platforms in the final standards.
The Access Board is considering adding exceptions in the final standards to the minimum width in M303.2.2 and the minimum depth in M303.2.3 for diagnostic equipment with wheelchair spaces on raised platforms.
The exception to the minimum width in M303.2.2 would apply where ramped surfaces are provided on the opposite sides of the raised platform so that patients using wheelchairs can enter and exit the platform facing the same direction. The exception would permit the width of the wheelchair space between the edge protection to be reduced to 32 inches wide minimum at the platform level. This dimension is based on provisions in the 2004 ADA and ABA Accessibility Guidelines that allow accessible routes, which normally must be 36 inches wide minimum, to be 32 inches wide minimum for short distances such as at door openings. The exception would require a space 36 inches wide minimum to be provided outside the perimeter of the raised platform and above any edge protection so that patients using a manual wheelchair can extend their arms and elbows when they push on the wheel rims to maneuver onto and off of the platforms.
The exception to the minimum depth in M303.2.3 for wheelchair spaces entered from the front or rear would permit a portion of the 48 inch minimum depth of the wheelchair space that accommodates the wheelchair footrests to extend beyond the raised platform and over any edge protection. For example, the wheelchair footrests would be allowed to extend beyond the depth of the raised platform and over any edge protection on wheelchair weight scales used by patients seated in a wheelchair.
If exceptions are permitted to the minimum width and depth of wheelchair spaces on raised platforms, the technical criteria would specify the minimum and maximum height for any edge protection to prevent wheelchairs from slipping off the platform, but also allow the wheelchair footrests to extend over the edge protection where the wheelchair space extends beyond the depth of the platform.
(a) What is the typical distance between the front caster wheels of manual and power wheelchairs and the tips of the toes of the wheelchair user? How much of the 48 inch minimum depth of a wheelchair space that can be entered from the front or rear should be permitted to extend beyond the raised platform and over any edge protection? Comments should include information on sources to support the dimensions, where possible.
(b) What should be the maximum height for any edge protection to allow the wheelchair footrests to extend over the edge protection where the wheelchair space extends beyond the depth of the platform? Comments should include information on sources to support the dimensions, where possible.
(c) Where the equipment provides supports for patients who stand (e.g., handrails), should the exceptions prohibit the supports from obstructing the 36 inch wide minimum and 48 inch deep minimum space outside the perimeter of the raised platform and above any edge protection?
Scooters have different wheelbases than manual and power wheelchairs. Diagnostic equipment with wheelchair spaces on raised platforms should also be usable by patients who use scooters. Patients who use scooters may have other options for using equipment with wheelchair spaces on raised platforms. For example, a weight scale with a raised platform for wheelchair use may provide a folding seat and supports for patients who can transfer independently from their mobility device to the scale.
(a) Is equipment with wheelchair spaces on raised platforms such as wheelchair scales currently usable by patients who use scooters?
(b) If the equipment is not currently usable by patients who use scooters, should the width and depth of the raised platform be changed so that the equipment is usable by patients who use scooters? Comments should include
(c) Should folding seats and supports be required on equipment with wheelchair spaces on raised platforms for patients who can transfer independently from their mobility device to the raised platform?
(d) If folding seats and supports are provided on equipment with wheelchair spaces on raised platforms, should the raised platform also accommodate scooters?
(a) What would be the incremental costs for the design or redesign and manufacture of equipment with raised platforms to provide a wheelchair space that that can be entered from the front or rear and conforms to the dimensions proposed in M303.2.2 and M303.2.3 (i.e., 36 inches wide minimum and 48 inches deep minimum)?
(b) What would be the incremental costs for the design or redesign and manufacture of equipment with raised platforms to provide a wheelchair space that can be entered from the front or rear and conforms to the dimensions recommended by the Wheeled Mobility Anthropometry Project (i.e., 36 inches wide minimum and 58 inches deep minimum)?
M303.2.4 would require the depth of wheelchair spaces to include knee and toe clearance of 17 inches minimum and 25 inches maximum. Knee and toe clearance under breast platforms would be 25 inches deep. Knee and toe clearance are critical where patients seated in a wheelchair need to position their knees and toes next to or underneath a component of the diagnostic equipment. The component can be deeper than the 25 inches maximum depth required for knee and toe clearance, but a portion of the wheelchair space would be required to include knee and toe clearance of 17 inches minimum and 25 inches maximum under the component.
The dimensions for toe clearance in M303.2.4.1 and knee clearance in M303.2.4.2 are based on the 2004 ADA and ABA Accessibility Guidelines and are shown in the second column of the table below. The Wheeled Mobility Anthropometry Project showed that these dimensions do not accommodate many people in the sample and recommended alternative dimensions that would accommodate 95 percent of the people in the sample. The alternative dimensions recommended by Wheeled Mobility Anthropometry Project are shown in the last column of the table below. See
(a) What would be the incremental costs for the design or redesign and manufacture of the equipment to include toe clearance and knee clearance that meets the dimensions recommended by the Wheeled Mobility Anthropometry Project?
(b) Are there types of equipment that cannot include toe clearance and knee clearance that meets the dimensions recommended by the Wheeled Mobility Anthropometry Project because of the structural or operational characteristics of the equipment?
M303.2.5 would require wheelchair space surfaces to not slope more than 1:48 in any direction. This is consistent with the 2004 ADA and ABA Accessibility Guidelines.
M303.3 includes technical criteria for changes in level at the entry to a wheelchair space as may occur at wheelchair weight scales with raised platforms. The technical criteria are consistent with the 2004 ADA and ABA Accessibility Guidelines. Level changes up to
M303.3.3.5 would require handrails to be provided on each side of the ramp when the vertical rise of the ramp exceeds 6 inches. This is consistent with the 2004 ADA and ABA Accessibility Guidelines. The Access Board is considering whether the technical criteria for handrails on ramps in section 505 of the 2004 ADA and ABA Accessibility Guidelines would be appropriate for handrails on diagnostic equipment ramps. These technical criteria are available at
(a) Can handrails on diagnostic equipment ramps meet these technical criteria?
(b) What would be the incremental costs for the design or redesign and manufacture of the equipment to provide handrails on diagnostic equipment ramps that conform to these technical criteria?
M303.4 would require the components of diagnostic equipment used to examine specific body parts to be capable of examining the body parts of a patient seated in a wheelchair. The height of the component and any adjustable feature would have to accommodate patients seated in a wheelchair. For example, an X-ray platform on which a patient places their arm or hand would have to be capable of examining the arm or hand of a patient seated in a wheelchair.
Mammography equipment was the subject of considerable discussion at the public meeting held by the Access Board in July 2010. The discussion highlighted the need for mammography equipment that is accessible to patients seated in a wheelchair. In addition to providing knee and toe clearance at the breast platform (see M303.2.4), the height of the breast platform was identified as critical to ensuring that mammography equipment is accessible to patients seated in a wheelchair. Mammography equipment with adjustable breast platforms is available. M303.4.1 would require the height of the breast platform to be 30 inches (760 mm) high minimum and 42 inches (1065 mm) high maximum above the floor when mammography equipment is used by patients seated in a wheelchair. The Wheeled Mobility Anthropometry Project showed that the seat heights of 96 percent of women using manual wheelchairs and 98 percent of women using power wheelchairs in the sample was between 17 inches and 24 inches above the floor. See Analysis of Seat Heights for Wheeled Mobility Devices at:
(a) Is the proposed height range for the breast platform (30 inches high minimum and 42 inches high maximum above the floor) sufficient to accommodate patients seated in a wheelchair?
(b) Are there other features of the breast platform that the technical criteria should address to ensure accessibility and, if so, how should they be addressed? Comments should include information on sources to support the technical criteria for the features, where possible.
M304 provides technical criteria for diagnostic equipment used by patients in a standing position such as a weight scale and X-ray equipment that is used in a standing position for certain diagnostic procedures. M304.2 and M304.3 would require a slip resistant standing surface and standing supports to accommodate patients with mobility disabilities who ambulate, patients who have limited stamina, and patients who have other conditions that affect their ability to maintain the balance needed to position themselves on the equipment or to maintain a standing posture at an equipment component.
The proposed standards do not require diagnostic equipment to support more than one position. Where possible, it is recommended that diagnostic equipment be usable by patients with disabilities in as many positions as possible (i.e., standing position, seated position, and seated in a wheelchair). For example, mammography equipment with adjustable breast plates can be used by patients with disabilities in a standing position where standing supports are provided, in a seated position where a folding or removable seat is provided, and seated in a wheelchair where a wheelchair space is provided. A weight scale with a wheelchair space and ramped entry also can be used by patients with disabilities in a standing position where standing supports are provided and in a seated position where a folding or removable seat is provided.
(a) Should a folding or removable seat be required on weight scale platforms?
(b) Should a folding or removable seat be required on other types of diagnostic equipment used by patients in a standing position?
(c) What would be the incremental costs for the design or redesign and manufacture of the equipment to provide a folding or removable seat on weight scale platforms or other types of diagnostic equipment used by patients in a standing position?
(d) If folding or removable seats are provided on diagnostic equipment used by patients in a standing position, should the equipment be required to meet the technical criteria in M302 regarding transfer surfaces, supports, and lift compatibility for diagnostic equipment used by patients in a seated position?
M304.3 would require standing supports to be provided on each side of the standing surface on diagnostic equipment used by patients in a standing position. M305.3 would require the standing supports to provide continuous support throughout the use of the diagnostic equipment and to not rotate within their fittings.
M305.3 also provides technical criteria for standing supports in horizontal and vertical positions. Standing supports can be provided in a horizontal position, vertical position, or a combination of horizontal and vertical positions, as long as the minimum length of gripping surface is provided for the support position used on each side of the standing surface. Standing supports that adjust from horizontal to vertical positions and at angles in between, such as a bar that folds up and locks into multiple positions, can be used. These kinds of adjustable supports are not required but would accommodate a broad range of patients with disabilities, particularly where a patient needs to assume multiple body positions for a diagnostic procedure or needs to step up onto a surface and then maintain balance afterwards.
For standing supports in a horizontal position, M305.3.1 would require the gripping surface to be 4 inches long minimum. The top of the gripping surface would be required to be 34 inches minimum and 38 inches maximum above the standing surface. The minimum length of the gripping surface is based on anthropometric data that provides specifications for men and women grasping cylinder grips which are stated as a range from 3.6 inches to 4.5 inches. See Henry Dreyfuss Associates and Alvin R. Tilley, The
For standing supports in a vertical position, M305.3.2 would require the gripping surface to be 18 inches long minimum. The bottom of the support would be required to be 34 inches minimum and 37 inches maximum above the standing surface. The minimum length of the gripping surface is based on provisions for vertical grab bars at accessible bathing fixtures and toilets in ICC A117.1–2009 Accessible and Usable Buildings and Facilities. The minimum and maximum height of the bottom of the support above the standing surface is based on anthropometric data for the 1th percentile woman (minimum) and the 99th percentile man (maximum). See Henry Dreyfuss Associates and Alvin R. Tilley, The Measure of Man & Woman: Human Factors in Design, (New York, John Wiley and Sons, 2002), pages 13, 14, and 28.
(a) What standing support configurations are currently provided and are they effective for patients with disabilities?
(b) Would alternative technical criteria for standing supports be appropriate? Comments should include information on sources to support the alternative technical criteria, where possible.
(c) Are angled standing supports effective for patients with disabilities and should technical criteria be provided for angled standing supports? Comments should include information on sources to support the technical criteria for angled standing supports, where possible.
(d) Are there industry standards for the structural strength of standing supports?
The 2004 ADA and ABA Accessibility Guidelines specify the following dimensions for grab bars to enable individuals with disabilities to firmly grasp the grab bars and support themselves during transfers:
• Grab bars with circular cross sections must have an outside diameter of 1
• Grab bars with non-circular cross sections must have a cross section dimension of 2 inches maximum and a perimeter dimension of 4 inches minimum and 4.8 inches maximum.
The Access Board is considering whether the above cross section dimensions would be appropriate for the gripping surfaces of standing supports on diagnostic equipment used by patients in a standing position.
(a) Can the gripping surfaces of standing supports on different types of equipment meet the above cross section dimensions?
(b) Are there alternative designs for the gripping surfaces of standing supports that enable patients with disabilities to firmly grasp the supports?
The Access Board is also considering whether a 1
M305 provides the technical criteria for transfer supports and standing supports. The technical criteria for transfer supports are discussed under M301 Diagnostic Equipment Used by Patients in Supine, Prone, or Side-Lying Position and M302 Diagnostic Equipment Used by Patients in Seated Position. The technical criteria for standing supports are discussed under M304 Diagnostic Equipment Used by Patients in Standing Position.
Where diagnostic equipment communicates instructions or other information to the patient, M306 would require the instructions or other information to be provided in at least two of the following methods: audible, visible, or tactile. For example, magnetic resonance imaging (MRI) and X-ray computed tomography (CT) equipment may instruct the patient to hold their breath for a short period during a scan by means of a flashing light or icon. A flashing light or icon would be sufficient to notify a patient who is deaf to hold their breath, but a voice prompt, sound alert, or tactile vibration would be needed to notify a patient who is blind to hold their breath. For MRI equipment, auditory methods may not be effective due to the noise generated by the equipment and a tactile vibration may be the only effective method to notify a patient who is blind to hold their breath. ANSI/AAMI HE 75 recommends that vibration “be used as a redundant mode for transmitting information such as an attention getting signal.” See
(a) Should diagnostic equipment that communicates instructions or other information to the patient be required to provide the instructions or other information in all three methods of communication (i.e., audible, visible, and tactile)?
(b) What would be the incremental costs for the design or redesign and manufacture of the equipment to provide all three methods of communication (i.e., audible, visible, and tactile)?
M307 provides technical criteria for operable parts used by patients to activate, deactivate, or adjust the diagnostic equipment (see defined terms in M102.1). For example, equipment used for an auditory examination may require the patient to press a button when sounds are heard. M307 does not apply to controls used only by health care personnel or others who are not patients.
M307.2 would require operable parts to be tactilely discernible without activation. Patients who are blind or have low vision have difficulty distinguishing a flat membrane button or similar control unless it is tactilely discernible from the surrounding surface and any adjacent controls. The most common method to ensure that buttons and similar controls are tactilely discernible is to raise part or all of the control surface above the surrounding surface and at a distance from any adjacent controls such that a relief of each individual control can be determined by touch. This also prevents unintended or accidental activation of the operable parts. M307.2 is consistent with recommendations in ANSI/AAMI HE 75 that “features should be operable from controls that are tactilely discernible and that can be explored without being activated.”
M307.3 would require operable parts such as dials, switches, and levers to be operable with one hand without tight grasping, pinching, or twisting of the wrist. M307.4 would require the force to activate operable parts to not exceed 5 pounds. M307.3 and M307.4 are based on provisions for operable parts in the 2004 ADA and ABA Accessibility Guidelines. M307.3 and M307.4 are also consistent with recommendations in ANSI/AAMI HE 75 that “devices should have at least one mode of use that does not require fine motor control or the performance of simultaneous actions.” ANSI/AAMI HE 75 includes additional recommended practices for accessible controls. See
The Wheeled Mobility Anthro-
(a) What would be the incremental costs for the design or redesign and manufacture of the equipment to provide operable parts that meet the above operating force?
(b) Are there types of equipment that cannot provide operable parts that meet the above operating force because of the structural or operational characteristics of the equipment?
The 2004 ADA and ABA Accessibility Guidelines require that operable parts be placed within certain reach ranges. For an unobstructed forward reach or side reach, the reach ranges are 48 inches maximum for a high reach and 15 inches minimum for a low reach. ANSI/AAMI HE 75 provides guidance on reach ranges based on provisions in an earlier version of accessibility guidelines for buildings and facilities issued by the Access Board, the 1991 Americans with Disabilities Act Accessibility Guidelines (ADAAG). ANSI/AAMI HE 75 also recommends a remote control as an alternative to a direct reach. See
(a) Would the reach ranges in the 2004 ADA and ABA Accessibility Guidelines for an unobstructed forward reach or side reach (48 inches maximum for a high reach and 15 inches minimum for a low reach) be appropriate for operable parts on diagnostic equipment that are used by patients?
(b) Would alternative technical criteria be appropriate for reach ranges for operable parts on diagnostic equipment that are used by patients? Comments should include information on sources to support the alternative technical criteria, where possible.
The Office of Management and Budget has reviewed this proposed rule in accordance with Executive Orders 13563 and 12866. Among other things, Executive Order 13563 directs agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; tailor the regulation to impose the least burden on society, consistent with obtaining the regulatory objectives; and, in choosing among alternative regulatory approaches, select those approaches that maximize net benefits. Executive Order 13563 recognizes that some benefits and costs are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.
The Access Board has prepared a preliminary regulatory assessment for the proposed standards. The preliminary regulatory assessment is available on the Access Board's Web site at:
The U.S. Census Bureau reports that 54.4 million Americans, about one in five U.S. residents, reported some level of disability in 2005.
• 27.4 million (11.9 percent) had difficulty with ambulatory activities of the lower body;
• 22.6 million (9.8 percent) had difficulty walking a quarter of a mile;
• 21.8 million (9.4 percent) had difficulty climbing a flight of stairs;
• 10.2 million (4.4 percent) used a cane, crutches, or walker to assist with mobility;
• 3.3 million (1.4 percent) used a wheelchair or other wheeled mobility device;
• 7.8 million (3 percent) had difficulty seeing words or letters in ordinary newspaper print, including 1.8 million who are completely unable to see; and
• 7.8 million (3 percent) had difficulty hearing conversations, including 1 million who are unable to hear conversations at all.
The prevalence of disability increases with age. The Administration on Aging reports that there were 39.6 million persons age 65 or older in the United States in 2009, and that this population is expected to increase to 55 million in 2020.
A national survey collected information on the types of medical equipment that is most difficult for individuals with disabilities to access and use.
• 75 percent rated examination tables as moderately difficult to impossible to use;
• 68 percent rated radiology equipment as moderately difficult to impossible to use;
• 53 percent rated weight scales as moderately difficult to impossible to use; and
• 50 percent rated examination chairs as moderately difficult to impossible to use.
Survey respondents reported difficulties with getting on and off the equipment, positioning their bodies on the equipment, physical comfort and safety, and communication issues. Focus group sessions of individuals with disabilities reported that participants find examination tables, imaging equipment, and other diagnostic equipment not only difficult but unsafe to use, and that these negative health care experiences can result in their not scheduling regular medical examinations and diagnostic procedures.
A report on the “The Current State of Health Care for People with Disabilities” issued by the National Council on Disability found that individuals with disabilities experienced significant health disparities and barriers to health care, as compared to individuals without disabilities.
The proposed standards address many of the barriers that have been identified as affecting the accessibility and usability of diagnostic equipment by individuals with disabilities. The standards will improve the quality of health care for individuals with disabilities and ensure that they receive examinations, diagnostic procedures, and other health care services equal to those received by individuals without disabilities. The standards will facilitate independent transfers by individuals with disabilities onto and off of diagnostic equipment, and enable them to maintain their independence, confidence, and dignity. The standards will lessen the need for health care personnel to assist individuals with disabilities when transferring on and off of diagnostic equipment. Where assisted transfers are necessary, the proposed standards will also facilitate such transfers. The proposed standards will reduce the risk of injury during transfers to both health care personnel and patients.
The proposed standards do not impose any mandatory requirements on health care providers or medical device manufacturers. Thus, there are no compliance costs that can be attributed to the proposed standards. As discussed below, if an enforcing authority such as DOJ adopts the standards as mandatory requirements for entities subject to its jurisdiction, health care providers may experience some compliance costs. Medical device manufacturers may have an economic incentive to produce accessible products that conform to the standards for health care providers who need to acquire accessible medical diagnostic equipment.
As discussed under Department of Justice Activities Related to Health Care Providers and Medical Equipment, health care providers must provide individuals with disabilities full and equal access to their health care services and facilities to comply with the ADA and Section 504 of the Rehabilitation Act. Both the Federal government through DOJ and private parties, including individuals with disabilities, have entered into settlement agreements with health care providers to enforce the ADA and Section 504 of the Rehabilitation Act. In July 2010, DOJ and the Department of Health and Human Services issued a guidance document for health care providers regarding their responsibilities to make their services and facilities accessible to individuals with mobility disabilities under the ADA and Section 504 of the Rehabilitation Act. See Access to Medical Care for Individuals with Mobility Disabilities available at:
If DOJ amends its ADA regulations as announced in the ANPRM, medical device manufacturers may have an
Many medical device manufacturers currently incorporate accessible features in some of their products such as patient support surfaces that are height adjustable, transfer and positioning supports, and scales designed for use by patients seated in a wheelchair. The incremental costs for manufacturers to conform these products to the standards are expected to be small because the features may already meet or closely meet the standards. The incremental costs may be greater for manufacturers that do not currently incorporate accessible features in their products but plan to do so in future designs or redesigns of their products. The incremental costs to design or redesign and manufacture accessible products that conform to the standards will be incurred voluntarily by manufacturers that choose to produce them for health care providers who need to acquire accessible medical diagnostic equipment. Some manufacturers may choose not to design or redesign and manufacture accessible products that conform to the standards, or may produce accessible products with less market appeal than that of their competitors, thereby losing market share and incurring losses. These economic impacts are not regulatory costs and are not generally social costs because for the most part, one manufacturer's loss is another manufacturer's gain.
The following questions in the preamble request comments on the incremental costs to design or redesign and manufacture accessible products that conform to the technical criteria in the proposed standards, as well as alternative and additional technical criteria that the Access Board is considering:
• Questions 9 and 10 on the technical criteria in Chapter M3;
• Questions 14 (a) and (b) on height adjustable patient support surfaces;
• Question 15 (b) on width of patient support surfaces on equipment used by patients in a supine, prone, or side-lying position;
• Question 18 (a) on structural strength of repositionable transfer supports;
• Question 19 (c) on location and size of transfer supports;
• Question 23 (a) on stirrups;
• Question 24 (b) on positioning supports;
• Question 29 (a) on alternative dimension for minimum depth of wheelchair spaces;
• Question 30 on edge protection for wheelchair spaces on raised platforms:
• Question 33 on dimensions for wheelchair spaces on raised platforms;
• Question 34 (a) on alternative dimensions for toe clearance and knee clearance at wheelchair spaces;
• Question 35 (b) on handrails on diagnostic equipment ramps;
• Question 37 (c) on a folding or removable seat on weight scale platforms or other types of diagnostic equipment used by patients in a standing position;
• Question 41 (b) on audible, visible, and tactile communications; and
• Question 42 (a) on operating force for operable parts.
The Access Board will consider the information provided in the comments when preparing the final standards, and will provide an analysis of the incremental costs with the final standards.
The Access Board and its contractor, Eastern Research Group, collected product data and unit costs for a broad sample of examination tables and weight scales, including products with accessible features. The Access Board and Eastern Research Group did not evaluate the products for conformance with the proposed standards and do not endorse any of the products included in the sample. The Access Board and Eastern Research Group used the Internet to collect the product data and unit costs. Medical equipment suppliers typically list the manufacturer suggested retail price (MSRP) for the products on their Web sites and sell the products at discounted prices. The discounted prices for the same product can vary widely among medical equipment suppliers. Health care providers typically purchase the products for less than the MSRP (i.e., actual price paid is less than MRSP). The unit costs in the tables below are the MSRP, and are shown as a range of lower cost and higher cost products rounded to the nearest $50. The data shows that there are a wide variety of examination tables and weight scales available to meet almost every budget.
Product data and unit costs for examination chairs and imaging equipment will be provided when the final standards are issued.
Product data and unit costs were collected for examination tables produced by five manufacturers. The manufacturer's Web sites typically grouped the tables by the following types: Treatment tables, manual tables, and power tables. The number of each type of table made by the manufacturers, the number of tables included in the sample, and range of lower cost and higher cost products are summarized below.
Treatment tables typically have a flat top. Some models have adjustable backrests, but the backrests typically cannot support patients in a sitting position. Treatment tables typically have a fixed height of 31 inches measured from the floor to the top of the table. The lower cost products have an open base with an H-brace or shelf. The higher cost products have cabinets, drawers, or shelves. Adjustable height treatment tables are available, but are not included in the sample. The MSRP for adjustable height treatment tables ranged from $1,500 to $2,400.
Manual tables typically have a fully articulated, pneumatic backrest. The backrests typically can support patients in a seated position and recline to a lying position. Manual tables typically have a fixed height of 32 inches
Power tables have an electric motor that can adjust the table height to as low as 18 inches and as high as 40 inches above the floor on some products. The higher cost products have a fully articulated, pneumatic or powered, backrest that can support patients in a seated position and recline to a lying position. Some power tables have armrests, grab rails, side rails, and cabinets or drawers.
Product data and unit costs were collected for weight scales produced by eight manufacturers. The scales are grouped by the following types: Stand-on scales and wheelchair scales. Within each group, there are mechanical and digital scales. Unit costs are presented for stand-on scales with and without handrails. Unit costs are presented for wheelchair scales with raised platforms and with flush platforms in the floor. The number of each type of scale made by the manufacturers, the number of scales included in the sample, and range of lower cost and higher cost products are summarized below.
Stand-on mechanical scales typically have a weight capacity ranging from 400 to 500 pounds. Stand-on digital scales without handrails typically have a weight capacity ranging from 400 to 750 pounds, and the higher cost products typically have larger platforms. Stand-on digital scales with handrails typically have a weight capacity ranging from 500 to 1,000 pounds, and the higher cost products typically are bariatric scales.
Wheelchair mechanical scales with a ramped platform typically have a weight capacity ranging from 350 to 500 pounds. Wheelchair digital scales with a ramped platform typically have a weight capacity ranging from 800 to 1,000 pounds. Wheelchair digital scales with a flush platform in the floor typically have a weight capacity of 1,000 pounds. Some wheelchair digital scales have standard or optional handrails for use as a stand-on bariatric scale.
The Access Board has made a preliminary determination based on the preliminary regulatory assessment that the benefits of the proposed standards will justify the costs; that the proposed standards will impose the least burden on society, consistent with obtaining the regulatory objectives; and that the regulatory approach selected will maximize net benefits.
The Regulatory Flexibility Act requires agencies to consider the impacts of their regulatory proposals on small entities, analyze alternatives that minimize the impacts on small entities, and make the analysis available for public comment. The proposed standards do not impose any mandatory requirements on any entity, including small entities. Nonetheless, in keeping with the Regulatory Flexibility Act, the Access Board has prepared this initial regulatory flexibility analysis.
Section 510 of the Rehabilitation Act (29 U.S.C. 794f) requires the Access Board, in consultation with the Commissioner of the Food and Drug Administration, to issue standards that contain minimum technical criteria to ensure that medical diagnostic equipment used in or in conjunction with medical settings such as physicians' offices, clinics, emergency rooms, and hospitals is accessible to and usable by individuals with disabilities.
The objective of the proposed standards is to ensure that medical diagnostic equipment is accessible to and usable by individuals with disabilities. The proposed standards address barriers that affect the accessibility and usability of medical diagnostic equipment by individuals with disabilities. The legal basis for the proposed standards is Section 510 of the Rehabilitation Act.
The proposed standards do not impose any mandatory requirements on health care providers or medical device manufacturers. As discussed below, if an enforcing authority such as DOJ adopts the standards as mandatory requirements for entities subject to its jurisdiction, small health care providers may experience some compliance costs. Small medical device manufacturers may have an economic incentive to produce accessible products that conform to the standards for health care providers who need to acquire accessible medical diagnostic equipment.
As discussed under Department of Justice Activities Related to Health Care Providers and Medical Equipment, health care providers must provide individuals with disabilities full and equal access to their health care services and facilities to comply with the ADA
If DOJ amends its ADA regulations as announced in the ANPRM, small medical device manufacturers may have an economic incentive to produce accessible products that conform to the standards for health care providers who need to acquire accessible medical diagnostic equipment. The size of the economic incentive will depend on the amount of accessible medical diagnostic equipment health care providers need to acquire and the manufacturers' incremental costs to design or redesign and manufacture accessible products that conform to the standards.
Many medical device manufacturers currently incorporate accessible features in some of their products such as patient support surfaces that are height adjustable, transfer and positioning supports, and scales designed for use by patients seated in a wheelchair. The incremental costs for manufacturers to conform these products to the standards are expected to be small because the features may already meet or closely meet the standards. The incremental costs may be greater for manufacturers that do not currently incorporate accessible features in their products but plan to do so in future designs or redesigns of their products. The incremental costs to design or redesign and manufacture accessible products that conform to the standards will be incurred voluntarily by manufacturers that choose to produce them for health care providers who need to acquire accessible medical diagnostic equipment. Some manufacturers may choose not to design or redesign and manufacture accessible products that conform to the standards, or may produce accessible products with less market appeal than that of their competitors, thereby losing market share and incurring losses. These economic impacts are not regulatory costs and are not generally social costs because for the most part, one manufacturer's loss is another manufacturer's gain.
The preamble requests comments on the incremental costs to design or redesign and manufacture products that conform to the technical criteria in the proposed standards, as well as alternative and additional technical criteria that the Access Board is considering. The Access Board will consider the information provided in the comments when preparing the final standards, and will provide an analysis of the incremental costs with the final standards.
The proposed standards contain technical criteria for accessible medical diagnostic equipment. The proposed standards do not impose any mandatory requirements on medical device manufacturers or health care providers.
As discussed above, DOJ and the Department of Health and Human Services issued a guidance document for health care providers regarding their responsibilities to make their services and facilities accessible to individuals with mobility disabilities under the ADA and Section 504 of the Rehabilitation Act. DOJ also issued an ANPRM announcing that it was considering amending its regulations implementing Titles II and III of the ADA to ensure that equipment and furniture used in programs and services provided by state and local governments and by public accommodations are accessible to individuals with disabilities. See 75 FR 43452 (July 26, 2010). Among other things, the ANPRM stated that DOJ was considering amending its ADA regulations to specifically require health care providers to acquire accessible medical equipment and that it would consider adopting the standards issued by the Access Board. DOJ also indicated its intention to include in its ADA regulations scoping requirements that specify the minimum number of types of accessible medical equipment required in different types of health care facilities.
The Access Board worked closely with the FDA–CDRH in developing the proposed standards. The FDA–CDRH may develop a guidance document to inform manufacturers how it intends to apply its regulatory authority to clearance or approval of medical devices addressed in the Access Board's standards. If the FDA–CDRH develops such a guidance document, it will provide the public notice and opportunity to comment on a draft of the guidance document in accordance with its procedures for issuing guidance documents. See 21 CFR 10.115.
Questions are included in the preamble requesting comments on the economic and technical impacts of the technical criteria in the proposed standards, and whether alternative technical criteria would be appropriate. The Access Board plans to convene an advisory committee when the comment
The proposed standards do not impose any mandatory requirements on State and local governments. The proposed standards do not have any direct effects on the state governments, the relationship between the national government and state governments, or the distribution of power and responsibilities among the various levels of government. The proposed standards do not preempt state law. Therefore, the consultation and other requirements of Executive Order 13132 (Federalism) do not apply.
The proposed standards do not impose any mandatory requirements on state, local, or tribal governments or the private sector. Therefore, the Unfunded Mandates Reform Act does not apply.
Health care, Individuals with disabilities, Medical devices.
For the reasons stated in the preamble, the Access Board proposes to add part 1195 to title 36 of the Code of Federal Regulations to read as follows:
29 U.S.C. 794f.
The standards for accessible medical diagnostic equipment are set forth in the appendix to this part. Other agencies, referred to as an enforcing authority in the standards, may adopt the standards as mandatory requirements for entities subject to their jurisdiction.
• An examination chair converts to an examination table. The technical criteria in M302 for diagnostic equipment used by patients in a seated position; and in M301 for diagnostic equipment used by patients in a supine, prone, or side-lying position apply.
• A weight scale can be used by patients seated in a wheelchair, or seated on a built-in folding seat, or standing and holding onto supports. The technical criteria in M303 for diagnostic equipment used by patients seated in a wheelchair; in M302 for diagnostic equipment used by patients in a seated position; and in M304 for diagnostic equipment used by patients in a standing position apply.
Dimensions that are not stated as “maximum” or “minimum” are absolute.