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U.S. Office of Personnel Management.
Final rule.
The U.S. Office of Personnel Management is issuing a final rule to redefine the geographic boundaries of the Austin, TX, and Waco, TX, appropriated fund Federal Wage System (FWS) wage areas. The final rule redefines Burleson and Lampasas Counties, TX, from the Austin wage area to the Waco wage area. These changes are based on recent consensus recommendations of the Federal Prevailing Rate Advisory Committee to best match the counties proposed for redefinition to a nearby FWS survey area. This final rule makes an additional correction to add the entire Syracuse-Utica-Rome, NY, wage area to Appendix C to Subpart B of Part 532—Appropriated Fund Wage and Survey Areas, which was inadvertently deleted when the CFR was published in January 2004.
This regulation is effective on May 2, 2012.
Madeline Gonzalez, (202) 606-2838; email
On November 14, 2011, the U.S. Office of Personnel Management (OPM) issued a proposed rule (76 FR 70365) to redefine Burleson and Lampasas Counties, TX, from the Austin wage area to the Waco wage area. These changes are based on recent consensus recommendations of the Federal Prevailing Rate Advisory Committee (FPRAC) to best match the above counties to a nearby FWS survey area. FPRAC did not recommend other changes for the Austin and Waco wage areas at this time. In addition, this final rule adds the entire Syracuse-Utica-Rome, NY, FWS wage area to Appendix C to Subpart B of Part 532—Appropriated Fund Wage and Survey Areas. The Syracuse-Utica-Rome wage area was inadvertently deleted when the CFR was published in January 2004. This correction does not affect the pay of any FWS employees. The proposed rule had a 30-day comment period during which OPM received no comments.
I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will affect only Federal agencies and employees.
Administrative practice and procedure, Freedom of information, Government employees, Reporting and recordkeeping requirements, Wages.
Accordingly, the U.S. Office of Personnel Management amends 5 CFR part 532 as follows:
5 U.S.C. 5343, 5346; § 532.707 also issued under 5 U.S.C. 552.
U.S. Office of Personnel Management.
Final rule.
The U.S. Office of Personnel Management (OPM) is issuing a final regulation amending the Federal Employees Health Benefits (FEHB) regulations and also the Federal Employees Health Benefits Acquisition Regulation (FEHBAR). This final regulation makes minor changes to an interim final regulation on the same subject published June 29, 2011. The rule replaces the procedure by which premiums for community rated FEHB carriers are compared with the rates charged to a carrier's similarly sized subscriber groups (SSSGs). The new procedure utilizes a medical loss ratio (MLR) threshold, analogous to that defined in both the Affordable Care Act (ACA), and in Department of Health and Human Services (HHS) regulations and replaces the outdated SSSG methodology with a more modern and transparent calculation while still ensuring that the FEHB Program is receiving a fair rate. This will result in a more streamlined process for plans and increased competition and plan choice for enrollees. The new process will apply to all community rated plans, except those required by their state to use traditional community rating (TCR). This new process will be phased in over two years, with optional participation for non-TCR plans in the first year.
This final rule is effective May 2, 2012.
Louise Dyer, Senior Policy Analyst, (202) 606-0770.
The Office of Personnel Management is issuing a final regulation to establish a new rate-setting procedure for most FEHB plans that are subject to community rating. This final rule makes minor changes to an interim final rule published June 29, 2011 that replaced the current rate negotiation process with a requirement that most community rated plans meet an FEHB-specific medical loss ratio (MLR) target. Plans that are required to use traditional community rating (TCR) per their state regulator will be exempt from this new rate-setting procedure. This final rule makes several changes to the interim final rule published June 29, 2011. First, OPM has removed a clause that said that the previous year's MLR would have no effect on the current plan year. The change was added in response to public comments and is intended to give OPM appropriate flexibility to determine a fair and accurate MLR for each plan in each year. Second, OPM has laid out a deadline for publishing the FEHB-specific MLR threshold. Third, OPM made technical changes to a certificate attesting to accurate pricing in order to accommodate a change in timing. Fourth, clarifying language explains that OPM will substitute its own credibility adjustment for that defined by HHS.
We received two comment letters on the interim final rule from FEHB carriers and carrier groups. The comments and OPM's responses are detailed below.
In response to the concern about the subsidization penalty reserve acting as a disincentive to efficiency, OPM feels the penalty will encourage plans to offer a fair rate at the time of proposal and therefore will not act as a disincentive to efficiency.
OPM must balance its goal of negotiating the best rate for FEHB payers every year with the concerns of FEHB carriers about managing variation. For example, OPM may consider the MLR for one or more previous years when calculating the current year's MLR. This allows OPM the flexibility to prevent carriers who have historically offered favorable rates from being overly penalized for an unusually low MLR in
The interim final regulation on this subject published June 29, 2011 (76 FR 38282). In § 1602.170-14(b), the first sentence of the interim final rule read “The FEHB-specific MLR will be calculated on an annual basis with the prior year's ratio having no effect on the current plan year.” In this final rule, OPM removed the clause “with the prior year's ratio having no effect on the current plan year” since OPM may use an adjustment taking previous year's experience into account.
Also in § 1602.170-14(b), this final rule states that OPM will put forth the FEHB-specific MLR threshold no later than 12 calendar months before the beginning of plan years beginning with 2014. The final rule states that OPM will publish the 2013 threshold no later than 8 months before the beginning of that plan year. In § 1602.170-14(c), this final rule explains that OPM will set a credibility adjustment in place of the one defined by HHS at 45 CFR 158.230-158.232.
In the interim final rule, the supplementary information included a sentence stating that “To complete the FEHB-specific MLR threshold calculation after the carrier calculated the ACA-required MLR, FEHB carriers will report claims incurred in the plan year and paid through March 31 of the following year.” OPM has determined that a longer period of claims data would create a more stable calculation for carriers and therefore OPM will request through rate instructions that carriers submit claims through June 30 of the following year. To accommodate the change in timing, carriers using the MLR methodology will have to submit a “Certificate of Accurate Cost or Pricing Data for Community-Rated Carriers” followed by a “Certificate of Accurate MLR Calculation” at a later date. In the interim final rule there was only one certificate for all carriers. The new certificate language is in § 1615.406-2.
OPM has examined the impact of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review) and Executive Order 13563, which directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public, health, and safety effects, distributive impacts, and equity). A regulatory impact analysis must be prepared for major rules with economically significant effects of $100 million or more in any one year. This rule is not considered a major rule because OPM estimates that premiums paid by Federal employees and agencies will be very similar under the old and new payment methodologies. This rule will be cost-neutral. OPM's intention is to keep FEHB premiums stable and sustainable using this more transparent methodology.
Government employees, Health facilities, Health insurance, Health professions, Hostages, Iraq, Kuwait, Lebanon, Military personnel, Reporting and recordkeeping requirements, Retirement.
Government employees, Government procurement, Health insurance,
U.S. Office of Personnel Management.
For the reasons set forth in the preamble, OPM is adopting the interim rule published June 29, 2011, at 76 FR 38282 as final with the following changes:
5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.
(a)
(b) The FEHB-specific MLR will be calculated on an annual basis. This FEHB-specific MLR will be measured against an FEHB-specific MLR threshold to be put forth by OPM no later than 12 calendar months before the beginning of plan years 2014 and beyond. OPM will publish the FEHB-specific MLR threshold no later than 8 months before the beginning of plan year 2013.
(c) In place of the credibility adjustment at 45 CFR 158.230-158.232, OPM will set a separate credibility adjustment to account for the special circumstances of small FEHB plans in annual rate instructions to carriers.
Audit and records—5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301. Negotiation—5 U.S.C. 8902.
(c) * * *
(3) * * *
(ii) * * *
(A) For contracts with 1,500 or more enrollee contracts for which the FEHB Program premiums for the contract term will be at or above the threshold at FAR 15.403-4(a)(1), OPM will require the carrier to provide the data and methodology used to determine the FEHB Program rates. OPM will also require the data and methodology used to determine the medical loss ratio (MLR) as defined in the ACA (Pub. L. 111-148) and as defined by HHS in 45 CFR part 158 for all FEHB community rated plans other than those required by state law to use Traditional Community Rating. The carrier will provide cost or pricing data, as well as the FEHB-specific MLR threshold data required by OPM in its rate instructions for the applicable contract period. OPM will evaluate the data to ensure that the rate is reasonable and consistent with the requirements in this chapter. If necessary, OPM may require the carrier to provide additional documentation.
(a) The contracting officer will require a carrier with a contract meeting the requirements in 1615.402(c)(2) or (3) to execute one or more of the Certificates contained in this section. A carrier with a contract meeting the requirements in 1615.402(c)(2) will complete the appropriate Certificate(s) and keep such on file at the carrier's place of business in accordance with 1652.204-70. A carrier with a contract meeting the requirements in 1615.402(c)(3) will complete and submit the appropriate certificate(s) to OPM.
(b) A carrier using the SSSG methodology described in 1615.402(c)(3)(i) will submit the “Certificate of Accurate Cost or Pricing Data for Community-Rated Carriers (SSSG methodology)” along with its rate reconciliation during the first quarter of the applicable contract year. A carrier using the MLR methodology described in 1615.402(c)(3)(ii) will submit two forms. The “Certificate of Accurate Cost or Pricing Data for Community-Rated Carriers (MLR methodology)” will be submitted along with the rate reconciliation during the first quarter of the applicable contract year. The “Certificate of Accurate MLR Calculation” will be submitted when the carrier submits its FEHB-specific MLR calculation to OPM.
This is to certify that, to the best of my knowledge and belief: (1) The cost or pricing data submitted (or, if not submitted, maintained and identified by the carrier as supporting documentation) to the Contracting officer or the Contracting officer's representative or designee, in support of the ___*FEHB Program rates were developed in accordance with the requirements of 48 CFR Chapter 16 and the FEHB Program contract and are accurate, complete, and current as of the date this certificate is executed; and (2) the methodology used to determine the FEHB Program rates is consistent with the methodology used to determine the rates for the carrier's Similarly Sized Subscriber Groups.
*Insert the year for which the rates apply.
This is to certify that, to the best of my knowledge and belief: (1) The cost or pricing data submitted (or, if not submitted, maintained and identified by the carrier as supporting documentation) to the Contracting officer or the Contracting officer's representative or designee, in support of the ___*FEHB Program rates were developed in accordance with the requirements of 48 CFR Chapter 16 and the FEHB Program contract and are accurate, complete, and current as of the date this certificate is executed;
*Insert the year for which the rates apply.
This is to certify that, to the best of my knowledge and belief: the determination of the carrier's FEHB-
*Insert the year for which the MLR calculation applies.
5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.
(b) * * *
(4) If rates are determined by comparison with the FEHB-specific MLR threshold, then if the MLR for the carrier's FEHB plan is found to be lower than the published FEHB-specific MLR threshold, the carrier must pay a subsidization penalty equal to the difference into a subsidization penalty account.
Food and Nutrition Service, USDA.
Interim final rule; approval of information collection request.
The Food and Nutrition Service published an interim final rule entitled “National School Lunch Program: School Food Service Account Revenue Amendments Related to the Healthy, Hunger-Free Kids Act of 2010” on June 17, 2011. The Office of Management and Budget (OMB) cleared the associated information collection requirements (ICR) on February 6, 2012. This document announces approval of the ICR.
The ICR associated with the interim rule published in the
Lynn Rodgers-Kuperman, Chief, Program Analysis and Monitoring Branch, Child Nutrition Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, Room 640, Alexandria, Virginia 22302, (703) 305-2600, or
The June 2011 rule amended National School Lunch Program (NSLP) regulations to conform to requirements contained in the Healthy, Hunger-Free Kids Act of 2010 (Pub. L. 111-296) regarding equity in school lunch pricing and revenue from nonprogram foods sold in schools. It requires school food authorities (SFAs) participating in the NSLP to provide the same level of financial support for lunches served to students who are not eligible for free or reduced price lunches as is provided for lunches served to students eligible for free lunches, and also that all food sold in a school and purchased with funds from the nonprofit school food service account, other than meals and supplements reimbursed by the Department of Agriculture, must generate revenue at least equal to the cost of such foods. The rule too comments on its ICR until August 16, 2011. This document announces OMB's approval of the ICR under OMB Control Number 0584-0565.
Rural Utilities Service, USDA.
Final rule.
The Rural Utilities Service (RUS) is amending its regulations regarding electric distribution specifications for 15kV and 25 kV primary underground power cable. This rule will rescind Bulletin 50-70 (U-1), “REA Specification for 15 kV and 25 kV Primary Underground Power Cable,” and codify the material which was formerly incorporated by reference. The specifications and standards that appeared in the old RUS Bulletin 50-70 (U-1) will be incorporated by reference and will update the specifications for 15kV and 25kV underground power cable, and provide RUS borrowers with specifications for 35 kV underground power cable for use in 25 kV primary systems. These specifications cover single-phase and multi-phase primary underground power cable which RUS electric borrowers use to construct their rural underground electric distribution systems.
This rule is effective May 2, 2012.
Mr. Trung V. Hiu, Electrical Engineer, Electric Staff Division, Distribution Branch, Rural Utilities Service, United States Department of Agriculture, Room 1262-S, 1400 Independence Avenue SW., Washington, DC 20250-1569. Telephone: (202) 720-1877. FAX: (202) 720-7491. Email:
This final rule is exempted from the Office of Management and Budget (OMB) review for purposes of Executive Order 12866 and, therefore, has not been reviewed by OMB.
This final rule is excluded from the scope of Executive Order 12372, Intergovernmental Consultation, which may require consultation with State and local officials. A notice of the final rule entitled “Department Programs and Activities Excluded from Executive Order 12372,” (50 FR 47034) exempted the Rural Utilities Service loans and loan guarantees to form coverage under this order.
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. The Rural Utilities Service has determined that this rule meets the applicable standards provided in section 3 of the Executive Order. In
This final rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Under Executive Order 13132, this rule does not have sufficient federalism implications to require preparation of a Federalism Assessment.
It has been determined that the Regulatory Flexibility Act is not applicable to this rule since the Rural Utilities Service is not required by 5 U.S.C. et seq. or any other provision of law to publish a notice of proposed rulemaking with respect to the subject matter of this final rule.
This final rule contains no additional information collection and recordkeeping requirements and is cleared under control number 0572-0131 pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35, as amended).
The program described by this final rule is listed in the Catalog of Federal Domestic Assistance Programs under No. 10.850, Rural Electrification Loans and Loan Guarantees. This catalog is available on a subscription basis from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-9325, telephone number (202) 512-1800.
This final rule is excluded from the scope of Executive Order 12372, Intergovernmental Consultation, which may require consultation with State and local officials. See the final rule related notice titled “Department Programs and Activities Excluded from Executive Order 12372” (50 FR 47034), advising that Rural Utilities Service loans and loan guarantees are excluded from the scope of Executive Order 12372.
This final rule contains no Federal Mandates (under the regulatory provision of title II of the Unfunded Mandates Reform Act of 1995 [2 U.S.C. chapter 25]) for State, local, and tribal governments or the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act of 1995.
The Rural Utilities Service has determined that this final rule will not significantly affect the quality of the human environment as defined by the National Environmental Policy Act of 1969 (42 U.S.C. 4321
RUS maintains a system of bulletins that contain construction standards and specifications for materials and equipment which must be complied with when system facilities are constructed by electric and telecommunications borrowers in accordance with the loan contract. These standards and specifications contain standard construction units and material items and equipment units commonly used in electric and telecommunications borrowers' systems.
RUS in conjunction with the Office of the Federal Register determined that Bulletin 50-70 (U-1), “REA Specification for 15 kV and 25 kV Primary Underground Power Cable,” would be codified. The material will now appear in 7 CFR 1728.204. Rescinding Bulletin 50-70 (U-1) and codifying the material in its entirety provides greater convenience for RUS borrowers when searching for specifications and standards requirements. Additionally, the specifications and standards that appeared in the old RUS Bulletin 50-70 (U-1) will be incorporated by reference in 1728.97 and will update the specifications for 15kV and 25kV underground power cable, and provide RUS borrowers with specifications for 35 kV underground power cable for use in 25 kV primary systems. These specifications cover single-phase and multi-phase primary underground power cable which RUS electric borrowers use to construct their rural underground electric distribution systems. These changes provide standard requirements for 15kV and 25 kV single-phase and multi-phase primary underground power cable with cross-linked polyethylene with tree retardant or ethylene propylene rubber insulation, concentric neutral, and insulating outer jacket and updates the specifications for 15kV and 25 kV primary underground cable while adding specifications for 35 kV primary underground power cable.
1. Water blocking sealant would be required in all stranded conductor cables.
2. The plain cross-linked polyethylene (XLP) would be removed and be replaced by tree-retardant cross-linked polyethylene (TR-XLPE) as an acceptable insulation material.
3. Nominal insulation thickness on 25 kV cable would be reduced from 345 mils to 260 mils.
4. An optional semi-conducting jacketing material would be added to the specification for cables of all three specified voltages. Cables with semi-conducting jackets may be used by RUS borrowers in areas with soil resistivity greater than 25 ohm-meter, in lieu of using cables with an insulating jacket to help improve the effectiveness of system grounding in locations of high soil resistivity.
A proposed rule entitled “Specifications for Primary Underground Power Cable,” was published August 30, 2007, at 72 FR 50081, invited interested parties to submit comments. The National Rural Electric Cooperative Association Transmission and Distribution (NRECA T&D) Engineering Underground Subcommittee and the cable manufacturers—Prysmian Cables & Systems (PCS), Southwire, General Cable, Nexans Energy, Hendrix Wire and Cable (HWC), submitted comments. No comments from any other sources were received. The comments submitted by NRECA represent the views of its members.
This part should be changed to 4d which would require the conductor to be filled whether it be copper or aluminum. The requirement to fill the conductor interstices so as not to allow moisture to migrate through the conductor should be for both aluminum and copper conductor and not just for aluminum conductor. Filling the strands of a conductor is done to pick moisture out to the conductor and whereby limiting the moisture that can migrate into the insulation.
Electric power, Incorporation by reference, Loan programs—energy, Rural areas.
For the reasons set out in the preamble, 7 CFR part 1728 is amended as follows:
7 U.S.C. 901
(d) The American National Standards Institute/Insulated Cable Engineers Association, Inc. (ANSI/ICEA) makes the following material available for purchase from Global Engineering Documents for a fee at the following address: IHS Global Engineering Documents, 15 Inverness Way East, Englewood, CO 80112, Phone: (303) 397-7956; (800)-854-7179, Fax: (303) 397-2740, email:
(1) ANSI/ICEA S-94-649-2004—Standard for Concentric Neutral Cables Rated 5 Through 46 KV (ANSI/ICEA S-94-649-2004), approved September 20, 2005, incorporation by reference approved for § 1728.204.
(2) ANSI/ICEA T-31-610-2007—Test Method for Conducting Longitudinal Water Penetration Resistance Tests on Blocked Conductors (ANSI/ICEA T-31-610-2007), approved October 31, 2007, incorporated by reference approved for § 1728.204.
(e) Copies of American Society for Testing and Materials (ASTM) publications referenced in this specification can be obtained from ASTM for a fee at the following address: ASTM, 100 Barr Harbor Drive, West Conshohocken, PA 19428-2959, Telephone: (610) 832-9585, Web site:
(1) ASTM B 3-01 (Reapproved 2007)—Standard Specification for Soft or Annealed Copper Wire, (ASTM B 3-01) approved March 15, 2007, incorporated by reference approved for § 1728.204.
(2) ASTM B 8-04—Standard Specification for Concentric-Lay-Stranded Copper Conductors, Hard, Medium-Hard, or Soft (ASTM B 8-04), approved April 1, 2004, incorporated by reference approved for § 1728.204.
(3) ASTM B 230/B 230M-07—Standard Specification for Aluminum 1350-H19 Wire for Electrical Purposes (ASTM B 230/B 230M-07), approved March 15, 2007, incorporated by reference approved for § 1728.204.
(4) ASTM B 231/B 231M-04—Standard Specification for Concentric-Lay-Stranded Aluminum 1350 Conductors (ASTM B 231/B 231M-04), approved April 1, 2004, incorporated by reference approved for § 1728.204.
(5) ASTM B 400-08—Standard Specification for Compact Round Concentric-Lay-Stranded Aluminum 1350 Conductors (ASTM B 400-08), approved September 1, 2008, incorporated by reference approved for § 1728.204.
(6) ASTM B 496-04—Standard Specification for Compact Round Concentric-Lay-Stranded Copper Conductors (ASTM B 496-04), approved April 1, 2004, incorporated by reference approved for § 1728.204.
(7) ASTM B 609/B 609M-99—Standard Specification for Aluminum 1350 Round Wire, Annealed and Intermediate Tempers, for Electrical Purposes (ASTM B 609/B 609M-99), approved April 1, 2004, incorporated by reference approved for § 1728.204.
(8) ASTM B 786-08—Standard Specification for 19 Wire Combination Unilay-Stranded Aluminum 1350 Conductors for Subsequent Insulation (ASTM B 786-08), approved September 1, 2008, incorporated by reference approved for § 1728.204.
(9) ASTM B 787/B 787M-04—Standard Specification for 19 Wire Combination Unilay-Stranded Copper Conductors for Subsequent Insulation (ASTM B 787/B 787M-04), approved September 1, 2004, incorporated by reference approved for § 1728.204.
(10) ASTM B 835-04—Standard Specification for Compact Round Stranded Copper Conductors Using Single Input Wire Construction (ASTM B 835-04), approved September 1, 2004, incorporated by reference approved for § 1728.204.
(11) ASTM B902-04a—Standard Specification for Compressed Round Stranded Copper Conductors, Hard, Medium-Hard, or Soft Using Single Input Wire Construction (ASTM B902-04a), approved September 1, 2004, incorporated by reference approved for § 1728.204.
(12) ASTM D 1248-05—Standard Specification for Polyethylene Plastics Extrusion Materials for Wire and Cable (ASTM D 1248-05), approved March 1, 2005, incorporated by reference approved for § 1728.204.
(13) ASTM D 2275-01 (Reapproved 2008)—Standard Test Method for Voltage Endurance of Solid Electrical Insulating Materials Subjected to Partial Discharges (Corona) on the Surface (ASTM D 2275-01), approved May 1, 2008, incorporated by reference approved for § 1728.204.
(14) ASTM E 96/E 96M-05—Standard Test Methods for Water Vapor Transmission of Materials (ASTM E 96/E 96M-05), approved May 1, 2005, incorporated by reference approved for § 1728.204.
(g) The following material is available from the Insulated Cable Engineers Association (ICEA) and may be purchased from Global Engineering Documents for a fee at the following address: IHS Global Engineering Documents, 15 Inverness Way East, Englewood, CO 80112, Phone: (303) 397-7956; (800)-854-7179, Fax: (303) 397-2740, email:
(1) ICEA T-32-645-93—Guide for Establishing Compatibility of Sealed Conductor Filler Compounds with Conducting Stress Control Materials (ICEA T-32-645-93), approved February 1993, incorporated by reference approved for § 1728.204.
(2) [Reserved]
(a)
(1) The cable may be used in single-phase, two (V)-phase, or three-phase circuits.
(2) Acceptable conductor sizes are: No. 2 AWG (33.6 mm
(3) Except where provisions therein conflict with the requirements of this specification, the cable shall meet all applicable provisions of ANSI/ICEA S-94-649-2004 (incorporated by reference in § 1728.97). Where provisions of the ANSI/ICEA specification conflict with this section, § 1728.204 shall apply.
(b)
(c)
(2) Central copper phase conductors shall be annealed copper in accordance with ASTM B 3-01 (incorporated by reference in § 1728.97). Concentric-lay-stranded phase conductors shall conform to ASTM B 8-04 (incorporated by reference in § 1728.97) for Class B stranding. Compact round concentric-
(3) Central aluminum phase conductors shall be one of the following:
(i) Solid: Aluminum 1350 H12 or H22, H14 or H24, H16 or H26, in accordance with ASTM B 609/B 609M-99 (incorporated by reference in § 1728.97).
(ii) Stranded: Aluminum 1350 H14 or H24, H142 or H242, H16, or H26, in accordance with ASTM B 609/B 609M-99 (incorporated by reference in § 1728.97) or Aluminum 1350-H19 in accordance with ASTM B 230/B 230M-07 (incorporated by reference in § 1728.97). Concentric-lay-stranded (includes compacted and compressed) phase conductors shall conform to ASTM B 231/B 231M-04 (incorporated by reference in § 1728.97) for Class B stranding. Compact round concentric-lay-stranded phase conductors shall conform to ASTM B 400-08 (incorporated by reference in § 1728.97). Combination unilay stranded aluminum phase conductors shall conform to ASTM B 786-08 (incorporated by reference in § 1728.97). If not specified, stranded phase conductors shall be class B stranded.
(4) The interstices between the strands of stranded conductors shall be filled with a material designed to fill the interstices and to prevent the longitudinal migration of water that might enter the conductor. This material shall be compatible with the conductor and conductor shield materials. The surfaces of the strands that form the outer surface of the stranded conductor shall be free of the strand fill material. Compatibility of the strand fill material with the conductor shield shall be tested and shall be in compliance with ICEA T-32-645-93 (incorporated by reference in § 1728.97). Water penetration shall be tested and shall be in compliance with ANSI/ICEA T-31-610-2007 (incorporated by reference in § 1728.97).
(5) The center strand of stranded conductors shall be indented with the manufacturer's name and year of manufacture at regular intervals with no more than 12 inches (0.3 m) between repetitions.
(d)
(e)
(2) The thickness of insulation shall be as follows:
(f)
(2) The thickness of the extruded insulation shield shall be in accordance with ANSI/ICEA S-94-649-2004 (incorporated by reference in § 1728.97).
(3) The shield shall be applied such that all conducting material can be easily removed without the need for externally applied heat. Stripping tension values shall be 3 through 18 pounds (1.36 through 8.16 kg) for TR-XLPE and EPR discharge free cables. Discharge resistant cables shall have strip tension of 0 through 18 pounds (0 through 8.16 kg).
(4) The insulation shield shall meet all applicable tests of ANSI/ICEA S-94-649-2004 (incorporated by reference in § 1728.97).
(g)
(2) When a strap neutral is specified by the borrower, the neutral shall consist of uncoated copper straps applied concentrically over the insulation shield with uniform and equal spacing between straps and shall remain in intimate contact with the underlying extruded insulation shield. The straps shall not have sharp edges. The thickness of the flat straps shall be not less than 20 mils (0.5 mm).
(h)
(2) The jacket material shall fill the interstice area between conductors, leaving no voids. The jacket shall be free stripping. The jacket shall have three red stripes longitudinally extruded into the jacket surface 120° apart.
(3) Nonconducting jackets shall consist of low density, linear low density, medium density, or high density HMW black polyethylene
(4) Semi-conducting jackets shall have a maximum radial resistivity of 100 ohm-meter and a maximum moisture vapor transmission rate of 1.5 g/m
(5) The minimum thickness of the jacket over metallic neutral wires or straps shall comply with the thickness specified in ANSI/ICEA S-94-649-2004 (incorporated by reference in § 1728.97).
(i)
(i) Test results shall confirm compliance with each of the material tests, production sampling tests, tests on completed cable, and qualification tests included in ANSI/ICEA S-94-649-2004 (incorporated by reference in § 1728.97).
(ii) The testing procedure and frequency of each test shall be in accordance with ANSI/ICEA S-94-649-2004 (incorporated by reference in § 1728.97).
(iii) Certified test data results shall be submitted to the Agency for any test, which is designated by ANSI/ICEA S-94-649-2004 (incorporated by reference in § 1728.97) as being “for Engineering Information Only,” or any similar designation.
(2)
(i) Each shipping length of completed cable shall be tested and have certified test data results available indicating compliance with the partial discharge test requirements in ANSI/ICEA S-94-649-2004 (incorporated by reference in § 1728.97).
(ii) Manufacturers shall test production samples and have available certified test data results indicating compliance with ASTM D 2275-01 (incorporated by reference in § 1728.97) for discharge resistance as specified in the ANSI/ICEA S-94-649-2004 (incorporated by reference in § 1728.97). Samples of insulated cable shall be prepared by either removing the overlying extruded insulation shield material, or using insulated cable before the extruded insulation shield material is applied. The sample shall be mounted as described in ASTM D 2275-01 and shall be subjected to a voltage stress of 250 volts per mil of nominal insulation thickness. The sample shall support this voltage stress, and not show evidence of degradation on the surface of the insulation for a minimum of 100 hours. The test shall be performed at least once on each 50,000 feet (15,240 m) of cable produced, or major fractions thereof, or at least once per insulation extruder run.
(3)
(i) A Spark Test shall be performed on nonconducting jacketed cable in accordance with ANSI/ICEA S-94-649-2004 (incorporated by reference in § 1728.97) on 100 percent of the completed cable prior to its being wound on shipping reels. The test voltage shall be 4.5 kV AC for cable diameters <1.5 inches and 7.0 kV for cable diameters >1.5 inches, and shall be applied between an electrode at the outer surface of the nonconducting (insulating) jacket and the concentric neutral for not less than 0.15 second.
(ii) [Reserved]
(4) Frequency of sample tests shall be in accordance with ANSI/ICEA S-94-649-2004 (incorporated by reference in § 1728.97).
(5) If requested by the borrower, a certified copy of the results of all tests performed in accordance with this section shall be furnished by the manufacturer on all orders.
(j)
(2) Watertight seals shall be applied to all cable ends to prevent the entrance of moisture during transit or storage. Each end of the cable shall be firmly and properly secured to the reel.
(3) Cable shall be placed on shipping reels suitable for protecting it from damage during shipment and handling. Reels shall be covered with a suitable covering to help provide physical protection to the cable.
(4) A durable label shall be securely attached to each reel of cable. The label shall indicate the purchaser's name and address, purchase order number, cable description, reel number, feet of cable on the reel, tare and gross weight of the reel, and beginning and ending sequential footage numbers.
U.S. Small Business Administration.
Direct final rule.
This direct final rule amends SBA's existing regulations to clarify the eligible uses of loan proceeds by an Operating Company in connection with an SBA-guaranteed loan to an Eligible Passive Company.
This rule is effective on May 17, 2012 without further action, unless significant adverse comment is received by May 2, 2012. If significant adverse comment is received, SBA will publish a timely withdrawal of the rule in the
You may submit comments, identified by RIN 3245-AG48, by one of the following methods: (1) Federal eRulemaking Portal:
SBA will post all comments to this rule on
Grady B. Hedgespeth, Director, Office of Financial Assistance, U.S. Small Business Administration, 409 Third Street SW., Suite 8300, Washington, DC 20416; (202) 205-7562;
SBA generally makes business loans only to small businesses engaged in regular business activities, and prohibits such assistance to entities engaged in passive investment or real estate development, or which do not engage in regular and continuous activity as an operating business. SBA regulations at 13 CFR 120.111 currently provide an exception to this prohibition on providing financial assistance to passive entities if the passive entity is an Eligible Passive Company that leases real or personal property to an Operating Company for use in the Operating Company's business and complies with the conditions set forth in the regulation. SBA defines an “Eligible Passive Company” or “EPC” as an entity that does not engage in regular and continuous business activity, which leases real or personal property to an Operating Company for use in the Operating Company's business. An “Operating Company” or “OC” is an eligible small business actively involved in conducting business operations now or about to be located on real property owned by an Eligible Passive Company, or using or about to use in its business operations personal property owned by an Eligible Passive Company.
Section 120.111 requires the Eligible Passive Company to “use loan proceeds to acquire or lease, and/or improve or renovate, real or personal property (including eligible refinancing).” The regulation does not specifically state the eligible uses of loan proceeds for use by the Operating Company, but does require the Operating Company to be a guarantor or a co-borrower (with the Eligible Passive Company) on the loan. In a 7(a) loan including working capital for use by the Operating Company, the regulation requires the Operating Company to be a co-borrower.
When SBA promulgated the current regulations as described above, it offered the following explanation for allowing the Operating Company to be allocated a portion of the loan proceeds in a loan to an Eligible Passive Company:
[I]t is common for an Operating Company to need working capital when the Eligible Passive Company applies for a loan primarily to finance the acquisition of real or personal property. In the past, SBA has required the Eligible Passive Company to use the loan proceeds solely to acquire and improve property for lease to an Operating Company. Thus, two separate SBA loans would be needed—one to the Eligible Passive Company for the real estate and the other to the Operating Company for working capital.
The practice of structuring a loan with the real estate held by an EPC that leases the real estate to the OC for operation of its business has become increasingly common. Further, it has come to SBA's attention that many participating lenders have interpreted this rule to allow EPCs and OCs to borrow funds for the OC's purchase of other assets for its use, including the purchase of stock or intangible assets (such as trademarks, copyrights, intellectual property, or goodwill), as long as the OC was a co-borrower with the EPC. SBA recognizes the need for this type of financing. Thus, in order to allow it to continue, SBA is amending 120.111(a)(5) to clarify that if the OC is a co-borrower with the EPC, part of the loan proceeds of a 7(a) loan may be used for working capital or the purchase of other assets for use by the OC, including the purchase of stock or intangible assets (such as trademarks, copyrights, intellectual property, or goodwill). SBA is also amending 120.120(b)(4) to conform with this change.
Because this is a clarifying amendment that is consistent with industry practice, SBA expects no significant adverse comments. Based on that fact, SBA has decided to proceed with a direct final rule giving the public 30 days to comment. If SBA receives any significant adverse comment during the comment period, SBA will withdraw the rule and publish it as a proposed rule.
The Office of Management and Budget (OMB) has determined that this direct final rule does not constitute a significant regulatory action under Executive Order 12866. This direct final rule is also not a major rule under the Congressional Review Act.
This action meets applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or preemptive effect.
For the purposes of Executive Order 13132, SBA has determined that this direct final rule 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. Therefore, for the purpose of Executive Order 13132, SBA has determined that this direct final rule has no federalism implications warranting the preparation of a federalism assessment.
For the purposes of Executive Order 13563, SBA has received meaningful feedback from the industry over the past several months and has held discussions with various participating lenders that have requested this clarification. All of the input SBA has received has been supportive of this clarification.
SBA has determined that this direct final rule does not impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C., Chapter 35.
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, requires
Community development, Exports, Loan programs—business, Small businesses.
For the reasons stated in the preamble, SBA amends 13 CFR part 120 as follows:
15 U.S.C. 634(b)(6), (b)(7), (b)(14), (h), and note, 636(a), (h) and (m), 650, 687(f), 696(3), and 697(a) and (e); Pub. L. 111-5, 123 Stat. 115, Pub. L. 111-240, 124 Stat. 2504.
(a) * * *
(5) The Operating Company must be a guarantor or co-borrower with the Eligible Passive Company. In a 7(a) loan that includes working capital and/or the purchase of other assets, including intangible assets, for the Operating Company's use, the Operating Company must be a co-borrower.
(b) * * *
(4) Working capital (if the Operating Company is a co-borrower with the Eligible Passive Company, part of the loan proceeds may be applied for working capital and/or the purchase of other assets, including intangible assets, for use by the Operating Company).
U.S. Customs and Border Protection, Department of Homeland Security.
Final rule; technical corrections.
This document amends U.S. Customs and Border Protection (CBP) regulations by making technical corrections to reflect the repeal of one of the underlying statutory authorities regarding petitions for relief from a fine, penalty, forfeiture, or liquidated damages under a law administered by CBP. Administrative petitioning rights are not affected by removal of this authority because CBP has other existing statutory authority for these provisions. This document also amends regulations to reflect changes in delegation authority as effected by the transfer of CBP to the Department of Homeland Security (DHS), and makes non-substantive editorial and nomenclature changes.
The final rule is effective on April 2, 2012.
Todd Schneider, Penalties Branch, Regulations and Rulings, Office of International Trade, Customs and Border Protection, Tel. (202) 325-0261.
This document amends title 19 of the Code of Federal Regulations (19 CFR) by making technical corrections to 19 CFR parts 171 and 172, specifically, sections 171.11, 171.12, 172.11, and 172.12.
These regulations delegate to the Fines, Penalties, and Forfeitures Officer or the Chief, Penalties Branch, Regulations and Rulings, Office of International Trade, U.S. Customs and Border Protection (CBP) Headquarters the authority to remit or mitigate fines, penalties, or forfeitures, or cancel claims for liquidated damages.
The purpose of the technical corrections is to conform the statutory authority sections listed for 19 CFR parts 171 and 172 and the text of the relevant regulatory provisions to reflect the repeal of title 46, United States Code (U.S.C.) Appendix section 320 (24 Stat. 81), enacted June 19, 1886, which is currently cited as one of the underlying statutory authorities. Title 46 U.S.C. Appendix section 320 was repealed as part of the recodification of the appendix to title 46 of the United States Code, by Public Law 109-304, section 19 (120 Stat. 1711), which was enacted October 6, 2006, and this document removes the repealed statutory citation from the CBP regulations.
Please note that CBP has existing statutory authority to continue accepting administrative petitions under 19 U.S.C. 1618, 1623, and 31 U.S.C. 5321, as appropriate. Therefore, this rule does not alter the rights of a person alleged to have committed a violation, or a breach of a bond condition, to petition for relief.
This document also amends 19 CFR 171.12 to reflect the transfer of authority from the Treasury Department to the U.S. Department of Homeland Security (DHS) and the delegation of authority from DHS to the Commissioner of CBP.
On November 25, 2002, the President signed into law the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135. Accordingly, as of March 1, 2003, the former U.S. Customs Service of the Department of the Treasury was transferred to DHS and reorganized to become CBP.
On May 15, 2003, the Treasury Department issued Treasury Department Order Number No. 100-16 delegating to DHS its authority related to the customs revenue functions, with certain delineated exceptions in which the Treasury Department retained its authority.
Because the technical corrections set forth in this document are necessary to conform 19 CFR parts 171 and 172 to reflect the repeal of 46 U.S.C. Appendix section 320, pursuant to 5 U.S.C. 553(b)(B), CBP finds that good cause exists for dispensing with notice and
Because this document is not subject to the notice and public procedure requirements of 5 U.S.C. 553, it is not subject to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601
As these amendments are technical corrections to the regulations to reflect statutory changes, these amendments do not meet the criteria for a “significant regulatory action” as specified in Executive Order 12866.
This document is limited to technical corrections of the CBP regulations. Accordingly, it is being signed under the authority of 19 CFR 0.1(b)(1).
Administrative practice and procedure, Customs duties and inspection, Law enforcement, Penalties, Seizures and forfeitures.
Administrative practice and procedure, Customs duties and inspection, Penalties.
For the reasons stated in the preamble, parts 171 and 172 of title 19 of the Code of Federal Regulations (19 CFR parts 171 and 172) are amended as set forth below.
18 U.S.C. 983; 19 U.S.C. 66, 1592, 1593a, 1618, 1624; 22 U.S.C. 401; 31 U.S.C. 5321.
19 U.S.C. 66, 1618, 1623, 1624.
Food and Drug Administration, HHS.
Final rule; correction.
In the
Effective April 9, 2012.
Steven Gitterman, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, rm. 5518, Silver Spring, MD 20993-0002, 301-796-6694.
In FR Doc. 2012-5675 appearing on page 14272 in the
1. On page 14274, in the first column, in section VI. Analysis of Impacts, in the first paragraph, in the last sentence, correct the phrase “proposed rule” to read “final rule”, and in the second paragraph, in the last sentence, correct the phrase “proposes to certify” to read “certifies”.
2. On page 14274, in the second column, in the first full sentence, correct the phrase “proposed rule” to read “final rule”.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing special local regulations on the Savannah River in Savannah, Georgia during the Savannah Tall Ships Challenge. The Savannah Tall Ships Challenge will take place from Thursday, May 3, 2012 through Monday, May 7, 2012. Approximately 15 vessels are anticipated to participate in the event. These special local regulations are necessary to provide for the safety of life and property on navigable waters of the United States during the event. The special local regulations establish the following three areas: Mooring zones; buffer zones; and
This rule is effective from 10:30 a.m. on May 3, 2012 through 4:30 p.m. on May 7, 2012.
Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2012-0039 and are available online by going to
If you have questions on this temporary final rule, call or email Chief Petty Officer Benjamin Mercado, Marine Safety Unit Savannah Office of Waterways Management, Coast Guard; telephone (912) 652-4353, email
On February 7, 2012, we published a notice of proposed rulemaking (NPRM) entitled Special Local Regulations; Savannah Tall Ships Challenge, Savannah River, Savannah, GA in the
The legal basis for the temporary final rule is the Coast Guard's authority to establish special local regulations: 33 U.S.C. 1233. The purpose of the rule is to insure safety of life and property on navigable waters of the United States during the Savannah Tall Ships Challenge.
The Coast Guard received two comments regarding the NPRM. One comment stated that the proposed rule provided the Captain of the Port of Savannah with almost unlimited discretion as to navigation of regions of the Savannah River for the time period in question. As a result, the comment recommended that the proposed rule be rewritten to limit the discretion of the Captain of the Port of Savannah to ensure large shipping vessels are not disrupted from their activities at the Port of Savannah. There was also concern that many such ships are traveling from a great distance and would not receive notice of any disruption in the Port, and the ramifications of such ships being unable to make a delivery could be significant.
The Coast Guard understands these concerns. However, the Captain of the Port has the authority under 33 U.S.C. 1233 and 33 CFR 100.35 to promulgate special local regulations to promote the safety of life on navigable waters of the United States during regattas or marine parades. These regulations may include restrictions and controls over vessel movement immediately before, during, and after the event. The Coast Guard issued a marine event permit for the Savannah Tall Ships Challenge under 33 CFR part 100 because the event (due to its nature, circumstances, or location) will introduce extra or unusual hazards to the safety of life on the navigable waters of the United States. Specifically, the Coast Guard believes the Savannah Tall Ships Challenge will attract a significant amount of recreational boating traffic not normally present on the Savannah River. Additionally, due to the narrow width of the Savannah River, the Coast Guard finds it necessary to establish the mooring and buffer zones to protect the vessels participating in the Savannah Tall Ships Challenge, as well as the commercial and recreational vessels that will be present on the Savannah River during the event. Before publishing the NPRM, the Coast Guard limited the scope of the special local regulations to the extent necessary to provide for the safety of life and property on navigable waters of the United States during the event. The Coast Guard also understands the concerns about large shipping vessels not having notice or being able to make a delivery. As such, the NPRM was published in the
The second comment requested a change to the location of the Tall Ships Challenge race start. The comment stated that the race start in the NPRM is in the middle of a pilot boarding area, and because these tall ships are under sail power they require space away from commercial vessel traffic to maneuver safely. Therefore, it was recommended that the race start be moved. The Coast Guard understands this comment about the starting area to be referring to the staging area that is set forth in the NPRM. The Coast Guard concurs with the recommendation to move the staging area. As a result, the Coast Guard has moved the staging area to encompass all waters within one nautical mile radius of position 31°59′30″ N 80°42′55″ W. This new area is approximately two miles north of the original area. If you are aware of problems caused by this new area, please contact the person indicated in the
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 14 of these statutes or executive orders.
Executive Orders 13563, Improving Regulation and Regulatory Review, and 12866, Regulatory Planning and Review, direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic,
The economic impact of this rule is not significant for the following reasons: (1) The special local regulations will be enforced for a total of 102 hours; (2) although persons and vessels will not be able to enter, transit through, anchor in, or remain within the regulated areas without authorization from the Captain of the Port Savannah or a designated representative, they may operate in the surrounding area during the enforcement periods; (3) persons and vessels will still be able to enter, transit through, anchor in, or remain within the regulated areas if authorized by the Captain of the Port Savannah or a designated representative; and (4) the Coast Guard will provide advance notification of the special local regulations to the local maritime community by Local Notice to Mariners, Broadcast Notice to Mariners, and a Maritime Safety and Security Bulletin.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this 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 rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to enter, transit through, anchor in, or remain within that portion of the Savannah River encompassed within the special local regulations from 10:30 a.m. on May 3, 2012 through 4:30 p.m. on May 7, 2012. For the reasons discussed in the Regulatory Planning and Review section above, this rule will not have a significant economic impact on a substantial number of small entities.
In the NPRM, and in accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce or determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls 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 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. We have analyzed this rule under that Order and determined that this rule 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 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This 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 rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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 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 (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this 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 concluded that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction. This rule involves establishing special local regulations issued in conjunction with a regatta or marine parade. Under figure 2-1, paragraph (34)(h), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule.
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
33 U.S.C. 1233.
(a)
(1)
(2)
(3)
(b)
(c)
(2) Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated areas may contact the Captain of the Port Savannah by telephone at (912) 652-4353, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the regulated areas is granted by the Captain of the Port Savannah or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Savannah or a designated representative.
(3) The Coast Guard will provide notice of the regulated areas, including the names and mooring locations of the vessels participating in the Savannah Tall Ships Challenge and the identities of the lead safety vessel and the last safety vessel as the vessels transit to the staging area, prior to the event by Local Notice to Mariners, Broadcast notice to Mariners, and a Maritime Safety and Security Bulletin. Notice will also be provided by on-scene designated representatives.
(d)
Coast Guard, DHS.
Final rule.
By this final rule, the Coast Guard amends the list of special areas in effect under Annex V of the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978, as amended, to include the Wider Caribbean Region special area. The current list of special areas in effect is outdated because it does not include this special area, which went into effect May 1, 2011. This rule will correct the list of special areas in effect to provide accurate information to the public.
This final rule is effective April 2, 2012.
Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2011-0187 and are available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590,between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet by going to
If you have questions on this rule, call or email David Condino, U.S. Coast Guard Office of Port and Facility Activities; telephone 202-372-1145, email
On August 6, 2009, we published a notice and request for comments entitled “Comment Request on MARPOL Annex V Wider Caribbean Region Special Area” in the
On March 22-26, 2010, the Marine Environmental Protection Committee (MEPC) of the IMO met at IMO headquarters in London, England. On April 12, 2010, the MEPC published their “REPORT OF THE MARINE ENVIRONMENT PROTECTION COMMITTEE ON ITS SIXTIETH SESSION” (available free at
On April 7, 2011, we published a notice entitled “Notice of Entry into Effect of MARPOL Annex V Wider Caribbean Region Special Area” in the
This Final Rule amends the regulations in 33 CFR part 151 to reflect the entry into effect of the WCR special area. The Coast Guard did not publish a Notice of Proposed Rulemaking (NPRM) for this amendment. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM, because this final rule does not call for any substantive legal changes. In short, the rule merely corrects in the Coast Guard's regulations the list of special areas currently in effect. Under IMO rules, as incorporated by the Act to Prevent Pollution from Ships (APPS) and 33 CFR 151.53(b), the WCR is already in effect under U.S. law. Further, under 5 U.S.C. 553(d)(3), the Coast Guard finds that, for the same reasons, good cause exists for making this rule effective less than 30 days after publication in the
Good cause exists when publication would be impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B). Publishing an NPRM and delaying the effective date are unnecessary because the change being made is a conforming amendment required by existing authority—33 CFR 151.53(b)—and because, as explained
Also, this rulemaking merely restates a legal responsibility already in effect under MARPOL and APPS (33 U.S.C. 1901
The opportunity for public comment on the regulations related to APPS, including the IMO process for bringing special areas into effect, was provided in 1989. The original APPS regulations in 33 CFR parts 151, 155, and 158 were implemented through a full informal rulemaking process, including an Advance Notice of Proposed Rulemaking (53 FR 23884, June 24, 1988), an Interim Rule with Request for Comments (54 FR 18384, April 28, 1989), and a Final Rule (55 FR 35986, September 4, 1990) (APPS rulemaking). The Coast Guard held three public meetings, received public comments, and responded to all comments received. The Coast Guard received no comments on the IMO process for bringing special areas into effect. There have been no substantive changes regarding this process since the APPS rulemaking and this rulemaking also does not change that process.
In the 2009 notice and request for comments, the Coast Guard specifically requested information on issues that impact port reception facilities, commercial vessels, and recreational vessels operating in the WCR special area and requested recommendations to address any issues. We summarize and respond to those comments in section V of this document. We did not receive any additional data or information on the impacts of the WCR special area.
MARPOL consists of 20 articles and Annexes I-VI. Annex V regulates the discharge of garbage from ships. The United States became a party to MARPOL through APPS, and became a party to Annex V through section 2101 of the Marine Plastic Pollution Research and Control Act (Pub. L. 100-220). MARPOL establishes nine “special areas,” eight of which apply to Annex V. In a MARPOL Annex V special area, the rules on the discharge of garbage are more restrictive than outside of a MARPOL Annex V special area.
This final rule modifies 33 CFR 151.53(c) and Appendix A of Part 151 to add the WCR special area to the list of special areas currently in effect. This change harmonizes Coast Guard regulations with MARPOL and clarifies where the discharge restrictions found at 33 CFR 151.71 (Operating Requirements: Discharge of garbage within special areas) apply.
A MARPOL Annex V special area is a sea area where the adoption of special mandatory methods for the prevention of sea pollution by garbage is required. The Coast Guard is updating the list of special areas in effect at 33 CFR 151.53(c) to include the WCR special area.
A special area under MARPOL Annex V enters into force when sufficient parties to MARPOL agree that the adoption of special mandatory methods for the prevention of sea pollution by garbage is required in that area. “Enters into force,” means that the special area
A special area enters into effect on the date set by the IMO after the IMO receives sufficient notification from Member states bordering a special area of adequate port reception facilities. This date is the special area's “effective date.” In a special area prior to its effective date, 33 CFR 151.69 (Operating requirements: Discharge of garbage outside special areas) applies. In a special area after its effective date, the more restrictive requirements of 33 CFR 151.71 (Operating Requirements: Discharge of garbage within special areas) apply.
The special area that this rule addresses is the WCR special area, as defined in Regulation 5(1)(h) of MARPOL Annex V and 33 CFR 151.06. This special area entered into force (but not effect) on April 4, 1993, as agreed to by Parties to MARPOL Annex V.
The MEPC decided to set the effective date after hearing a report, co-sponsored by 22 WCR Member States, during its March 2010 meeting that all but three states (Belize, Jamaica, and Nicaragua) in the WCR reported that they had adequate garbage reception facilities in their ports.
The special discharge restrictions for the WCR special area entered into effect on May 1, 2011 (IMO Circ. Letter No. 3053, April 14, 2010
The list of special areas currently in effect at 33 CFR 151.53(c) does not include the WCR. This list, and Appendix A to part 151, must be corrected to provide the maritime community an accurate list of special areas currently in effect.
As noted above, on August 6, 2009, we published a notice and request for comments entitled “Comment Request on MARPOL Annex V Wider Caribbean Region Special Area” in the
One commenter brought up the problem of dry bulk cargo wash-water. Dry bulk cargo ships are not generally designed to store wash-water and port facilities are generally not able to receive and treat wash-water. Pending a final decision by IMO, the Coast Guard supports the current IMO exception to Annex V for dry cargo wash-water discharges in special areas. Under IMO MEPC.1/Circ.675/Rev.1 26 March 2010, dry cargo residue wash-water is not considered garbage under Annex V in the WCR special area and, therefore, is not a subject of this rulemaking.
One comment expressed the commenter's belief that the Resource Conservation and Recovery Act disincentivizes commercial vessels from disposing of garbage at a shore facility. We agree that additional efforts are necessary to protect the environment from the discharge of hazardous materials at sea. However, those efforts are outside the scope of this rulemaking.
Another comment addressed the different requirements for reception facilities for garbage under MARPOL and U.S. Department of Agriculture, Animal and Plant Health Inspection Service (APHIS) regulations in titles 7 and 9 of the CFR. Garbage subject to APHIS regulations is a subset of garbage regulated under MARPOL. APHIS regulations relate to foreign plant and/or animal waste, including galley waste and any materials that have come in contact with such waste. Requirements for APHIS regulated plant and animal wastes remain unchanged and are not a subject of this rulemaking.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 14 of these statutes or executive orders.
Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has not been designated a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the final rule has not been reviewed by the Office of Management and Budget.
A regulatory assessment follows:
Prior to Annex V becoming effective in the WCR on May 1, 2011, the rules governing discharge of garbage applicable to the WCR were found at 33 CFR 151.69. That is, the standards found at 33 CFR 151.69 define the regulatory baseline for the 2010 MEPC actions establishing an effective date for the WCR as a special area. The final rule will correct 33 CFR 151 to reflect that the discharge restrictions for special areas found at 33 CFR 151.71 apply to the WCR.
MARPOL Annex V segregates garbage into the following types:
• Plastics, including synthetic ropes, fishing nets, and plastic bags;
• Dunnage (i.e. bracing materials), lining, and packing materials that float;
• Paper, rags, glass, metal, bottles, crockery and similar refuse;
• Paper, rags, glass, etc., comminuted or ground;
• Victual waste not comminuted or ground; and
• Victual waste comminuted or ground.
Sections 151.69 and 151.71 of 33 CFR set the rules for each garbage type by these zones, defined according to distances from the nearest land: less than 3 miles, less than 12 miles, less than 25 miles, and greater than 25 miles.
Below are comparisons of the restrictions in § 151.69 and § 151.71 by garbage type:
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Table VI.1 shows the provisions of §§ 151.69 and 151.71. The more restrictive provisions of § 151.71 prohibit the discharge of any materials other than Victual Waste or Ground Victual Waste anywhere in the WCR.
As the table shows, the differences between §§ 151.69 and 151.71, which identify the changes applicable to any special area after its effective date as established by the IMO, are these additional prohibitions:
• Dunnage in the greater than 25 miles zone;
• Paper, etc. in the 12-25 mile zone and greater than 25 miles zone; and
• Ground paper etc. in the 3-12 mile, 12-25 mile, and greater than 25 miles zones.
In the Background section we described how, at the March 2010 meeting, the IMO's MEPC set the effective date for the WCR special area as May 1, 2011. At that meeting, the United States (and 21 other WCR countries) reported to the IMO that they had adequate port reception facilities at ports and terminals bordering the WCR. However, the United States had adequate port reception facilities established years before the 2010 meeting; the Coast Guard began issuing MARPOL Annex V Certificates of Adequacy (certification that a facility may receive garbage in compliance with MARPOL and APPS) in 2001. Other WCR countries party to MARPOL have been ready since March 2010 or earlier.
The Coast Guard estimates that the IMO's action does not impose an additional burden on the U.S. maritime community. We evaluated the vessels transiting the WCR by different sectors (cruise line, commercial fishing vessel, other commercial vessel, and recreational vessel) and then researched waste management rules and practices in each sector to establish a baseline of current practices. Table VI.2 summarizes the results of our findings for each sector.
Below we present our findings for each sector.
The cruise line sector is international in scope and its vessels are subject to the provisions of MARPOL. In June 2001, the International Council of Cruise Lines and its members adopted a set of practices and procedures entitled “Cruise Industry Waste Management Practices and Procedures.”
The Cruise Lines International Association (CLIA) in 2010 published a document “CLIA at 35: Steering a Sustainable Course”
In general, cruise ships are fitted with on-board recycling systems for many materials, other materials are incinerated or brought ashore, and the only solid waste discharged at sea is food waste of either the Victual Waste or Ground Victual Waste type. We concluded that the cruise line sector is currently compliant with the current MARPOL regulations, the APPS, and other U.S. laws. As this final rule will only add the references to the MARPOL restrictions to the CFR, the Coast Guard estimates that there will be no additional costs to this sector.
We compared Annex V restrictions to the characteristics of commercial fishing vessels (CFVs). As noted in Table VI.1, Annex V increased the discharge restrictions for the Dunnage, Paper, and Ground Paper types in special areas.
With respect to the Dunnage type, CFVs, as single-purpose vessels, carry supplies and equipment related to their fishing operations. They do not carry general cargo or bracing, lining, or other materials included in the Dunnage type that are used in freight ships. Thus, the special area restrictions of Annex V, prohibiting the discharge of Dunnage anywhere in the WCR, will not impact CFVs operating out of U.S. ports in the WCR.
CFVs operating out of U.S. ports in the WCR typically engage in short voyages with small crews. This means that they will not generate large waste streams, obviating the need for a specialized paper grinder or shredder like those found on cruise ships. Also, a grinder or shredder would take up space that would otherwise be used for the vessel's fishing operations. Because U.S. CFVs operating in the WCR do not generate ground paper, we believe that the Annex V restrictions on Ground Paper will not result in additional compliance costs for them.
The Annex V restrictions on the Paper type will apply to CFVs. Under the less stringent standards found at § 151.69, discharge of Paper is permitted if greater than 12 miles from the nearest land. As mentioned above, CFV operations consist of short voyages, returning to the same port they left from to deliver their catch. Our previously cited research also indicates that any Paper waste is produced in the galley primarily, commingled and packaged with victual and other waste, and disposed of when returned to home port. Although Annex V prohibits the discharge of Paper waste throughout the WCR, our assessment is that Paper waste on CFVs is currently being commingled with other garbage. The Coast Guards estimates that this final rule will not affect current behavior or result in additional costs to this sector.
This sector is comprised of commercial vessels other than the cruise ships and commercial fishing vessels (“other commercial vessels”). The other commercial vessels sector includes both foreign-flag and U.S.-flag vessels that transit or operate in the WCR. With regard to foreign-flag vessels, they are engaged in international transits and may transit the other special areas that have been in effect longer than the WCR. For that reason, we conclude that they are already complying with Annex V restrictions and that the WCR coming into effect will not impose any additional costs to them.
To identify the other U.S.-flag commercial vessels that will be affected by the final rule, we extracted from the Marine Information for Safety and Law Enforcement (MISLE) database information about the U.S.-flag vessels as of September 2011. We used the SOLAS certificate documentation to identify the subset of such vessels that have international capability. The resulting population of U.S.-flag other commercial vessels is dominated by offshore supply vessels (OSVs), towing vessels, and freight ships. The population also includes specialty oil service and passenger vessels. OSVs includes vessels supporting near-coastal and harbor work. The towing vessel sector is diverse and includes some vessels that work exclusively in inland waters, some vessels that work in the intracoastal waterways and some vessels that remain within 3 miles of land.
We analyzed the characteristics of this population of other commercial vessels with respect to existing regulatory requirements and we found that all of these vessels are subject to one or more compliance regimes. All of these vessels are in at least one of the following categories: (1) Coast Guard inspected vessels, or (2) uninspected vessels which have voluntarily adopted an audit-based safety management system (SMS) such as the IMO's International Safety Management Code (ISM) or the American Waterways Operator's Responsible Carrier Program (RCP). Below, we discuss the garbage management requirements under these compliance regimes and summarize our findings.
Coast Guard inspected vessels are already required to comply with the requirements of MARPOL. Under 33 CFR 151.61, the Coast Guard may inspect any “ship subject to inspection” for compliance with the APPS regulations. APPS regulations include the waste management plan requirements of 33 CFR 151.57. Section 151.57 requires compliance with MARPOL and waste management plans for vessels in a defined group; that group includes all of the inspected vessels in the other commercial vessels population. Compliance with these requirements is part of the Coast Guard safety and security inspection regime.
All of the vessels which are not subject to Coast Guard inspection, but are part of the other commercial vessels population, have voluntarily adopted one of the two major audit-based safety management system (SMS): Either the IMO's International Safety Management Code (ISM), or the American Waterways Operator's Responsible Carrier Program (RCP). Both the ISM and the RCP require that ships adhere to applicable laws and regulations, including MARPOL Annex V. Each regime also includes requirements relating to sanitation. For example, the RCP's section II.D, “Environmental Policy and Procedures,”
Each company subject to the ISM or RCP documents the specific processes and policies its vessels will follow to comply with all of the applicable SMS's
We conclude that these commercial vessels currently meet the garbage management requirements of the final rule. The Coast Guard therefore estimates that there will be no additional costs to these vessels.
As described earlier in this section, the passing of the effective date of the WCR special area increased the restrictions on the discharge of the Dunnage, Ground Paper, and Paper types. The Dunnage type would not apply to recreational vessels, because they do not carry containers or other general cargo that would require the bracing and lining materials that comprise this garbage type.
With respect to Ground Paper, Coast Guard experience indicates that recreational vessels do not have space for a specialized shredder or grinder to process the materials in the Ground Paper type. Instead, this material is commingled with other garbage types. Our assessment then is that the Ground Paper type is not relevant to the recreational vessel sector.
The remaining garbage type that has a new restriction in the WCR is Paper. Once the WCR special area came into effect, ships were prohibited from discharging Paper anywhere in the WCR. Before the WCR special area came in to effect, such discharge was allowed 12 miles or more from the nearest land.
To address pollution on the waterways, which may be from either shoreside or vessel sources, the recreational boating community is actively engaged in education, which we refer to as “clean water/marina programs,” collectively. These programs are focused on comprehensive waste management actions and already incorporate the restrictions of Annex V. The list below summarizes some of the programs pursued by leading recreational boating organizations:
• BoatU.S. Foundation: The BoatU.S. Foundation promotes safety and clean water. Its clean water program, called “Stash the Trash”, advises boaters to know and follow the applicable laws and regulations, throw no trash of any kind overboard, return everything to land that they take out to sea, and pick up trash on the waters and in marinas.
• U.S. Power Squadron (USPS): The USPS has a national Environmental Committee, whose goals include educating boaters about applicable laws, regulations, and good environmental management practices; and promoting activities to clean up waterways.
• Association of Marina Industries (AMI): The AMI's Clean Marina program “is a voluntary compliance program that stresses environmental and managerial best management practices that exceed regulatory requirements * * * A typical Clean Marina program will have components that cover marina [siting] and design considerations, marina management, emergency planning, petroleum control, sewage and gray water, waste containment and disposal, storm water management, habitat and species protection and boater education.”
• American Boating Association (ABA): The Clean Trash Discharge part of the ABA's Clean Boating program includes information about the Marine Plastic Pollution Research and Control Act and MARPOL Annex V, and advocates proper stowage of all articles and return of everything taken aboard.
For the recreational boater, the application of increased restrictions in the WCR, by itself, is narrow, because it only affects the Paper type in the two farthest zones. Moreover, because clean water/marina programs are already advocating the practices consistent with the increased restrictions described in 33 CFR 151.71, we conclude that the publication of this final rule will not require recreational boaters to learn or adopt any new behavior. The Coast Guard estimates that there will be no additional costs to the owners of recreational vessels.
In both the commercial and recreational sectors, we estimate current garbage and waste management practices are already consistent with the changes enacted by IMO. These include recycling on the larger vessels and stowage and onshore disposal for vessels of all sizes and types. In summary, the Coast Guard estimates that there will be no additional costs to the public by this final rule.
Without the promulgation of this final rule, discrepancies between the CFR and the requirements found in the APPS and MARPOL would continue and provide inconsistent information to operators of industrial and recreational vessels that transit the WCR.
The primary benefit of this rule is to provide consistent information on MARPOL Annex V special area requirements in order to increase the regulated community's awareness of the requirements. The secondary benefit is more efficient regulations through greater consistency between U.S. domestic regulations and MARPOL Annex V.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. However, when an agency is not required to publish an NPRM for a rule, the RFA does not require the agency to prepare a regulatory flexibility analysis. The Coast Guard was not required to publish an NPRM for this rule for the reasons stated in Section II, “Regulatory History.” Therefore, the Coast Guard is not required to publish a regulatory flexibility analysis.
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 the rule so that they can better evaluate its effects on them and participate in the rulemaking. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
Small businesses may send comments on the actions of federal employees who enforce, or otherwise determine compliance with, federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This rule does not call for any new collections of information, as defined by 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 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. We have analyzed this rule under that Order. States do not have the authority to regulate special areas under MARPOL Annex V, including the Wider Caribbean Region special area. Therefore, we have determined that the final rule 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 rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will 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 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 rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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 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 (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this 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 (42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded under section 2.B.2, figure 2-1, paragraph (34)(a) of the Instruction and under section 6(b) of the “Appendix to National Environmental Policy Act: Coast Guard Procedures for Categorical Exclusions, Notice of Final Agency Policy” (67 FR 48244, July 23, 2002). This rule involves regulations which are editorial or procedural, in that the regulatory change merely restates an already-existing obligation in a more convenient place. Accordingly, paragraph 34(a) of the Instruction applies. This rule also involves regulations mandated by Congress in APPS; congressionally mandated regulations designed to improve or protect the environment are excluded under section 6(b) of the Appendix. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Administrative practice and procedure, Oil pollution, Penalties, Reporting and recordkeeping requirements, Water pollution control.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 151 as follows:
33 U.S.C. 1321, 1902, 1903, 1908; 46 U.S.C. 6101; Pub. L. 104-227 (110 Stat. 3034); Pub. L. 108-293 (118 Stat. 1063), Sec. 623; E.O. 12777, 3 CFR, 1991 Comp. p. 351; DHS Delegation No. 0170.1, sec. 2(77).
Coast Guard, DHS.
Final rule.
The Coast Guard is establishing a Regulated Navigation Area (RNA) at the Zidell Waterfront Property located on the Willamette River in Portland, Oregon. This RNA is necessary to preserve the integrity of an engineered sediment cap as part of an Oregon Department of Environmental Quality (DEQ) required remedial action. This RNA will prohibit activities that could disturb or damage the engineered sediment cap.
This rule is effective May 2, 2012.
Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2011-0254 and are available online by going to
If you have questions on this rule, call or email BM1 Silvestre Suga III, Waterways Management Division, Coast Guard Sector Columbia River, telephone 503-240-9319, email
On August 8, 2011, we published a notice of proposed rulemaking (NPRM) titled Regulated Navigation Area, Zidell Waterfront Property, Willamette River, OR, in the
The Zidell Waterfront Property is placing an engineered sediment cap over contaminated sediments adjacent to the west bank of the Willamette River between approximate river miles 13.5 and 14.2 as part of an Oregon Department of Environmental Quality (DEQ) required remedial action. Geographically this location starts at approximately the west bank of the Marquam Bridge and continues southerly, along the west bank of the Willamette River to the North end of Ross Island.
The engineered sediment cap is designed to be compatible with normal port operations, but could be damaged by other maritime activities including anchoring, dragging, dredging, grounding of large vessels, deployment of barge spuds, etc. Such damage could disrupt the function or impact the effectiveness of the cap to contain the underlying contaminated sediment and shoreline soil in these areas. As such,
The engineered sediment cap will also reduce the depth of the water close to the west bank of the Willamette River and, as a result, may limit some vessels from using that area of the river.
The location of the engineered sediment cap was previously used for industrial activities related to shipbuilding and dismantling, scrap metal operations, wire burning, aluminum smelting, and housing construction. It was determined that the site soils and sediments contain contaminants, including metals, petroleum hydrocarbons and associated polycyclic aromatic hydrocarbons, polychlorinated biphenyls, and tributyltin, which present unacceptable levels of risk to human and ecological receptors. Following extensive analysis, the engineered sediment cap was deemed appropriate by the Oregon DEQ because the engineered sediment cap will protect human and ecological receptors from exposure to contamination, and the establishment of this RNA prevents activities that could result in an unacceptable threat to public health and the environment.
The Coast Guard received no comments during the comment period such that no changes have been made to the rule.
We developed this 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 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. The modification of the existing anchorage does not have any significant costs.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this 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 rule will not have a significant economic impact on a substantial number of small entities: The owners or operators of vessels operating in the area covered by the RNA. The RNA will not have a significant economic impact on a substantial number of small entities, however, because the RNA is limited in size and will not limit vessels from transiting or using the waters covered, except for activities that may damage the engineered sediment cap. 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), in the NPRM we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls 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 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 rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will 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 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 rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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 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”
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 (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this 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 concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph 34 (g) of the instruction. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
Federal Emergency Management Agency, DHS.
Final rule.
This rule identifies communities where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP) that are scheduled for suspension on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will not occur and a notice of this will be provided by publication in the
If you want to determine whether a particular community was suspended on the suspension date or for further information, contact David Stearrett, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2953.
The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program
In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.
Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.
Flood insurance, Floodplains.
Accordingly, 44 CFR part 64 is amended as follows:
42 U.S.C. 4001
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
We, the National Marine Fisheries Service (NMFS), are issuing a final rule under the Endangered Species Act (ESA) of 1973, as amended, that redefines the geographic range of the endangered Central California Coast (CCC) coho salmon (
Effective June 1, 2012.
Assistant Regional Administrator, Protected Resources Division, Attn: Craig Wingert, Southwest Region, National Marine Fisheries Service, 501 W. Ocean Blvd., Suite 5200, Long Beach, CA, 90802-4213.
Craig Wingert, NMFS, Southwest Region, (562) 980-4021; or Dwayne Meadows, NMFS, Office of Protected Resources, (301) 427-8403.
The Central California Coast (CCC) coho salmon Evolutionarily Significant Unit (ESU) was listed as a threatened species on October 31, 1996 (61 FR 56138) and subsequently reclassified as an endangered species on June 28, 2005 (70 FR 37160). At the time it was reclassified as endangered in 2005, the ESU was defined to include all naturally spawning populations of coho salmon found in coastal watersheds from Punta Gorda in northern California southward to and including the San Lorenzo River in central California, as well as four artificially propagated stocks of coho salmon. For more information on the status, biology, and habitat of this coho salmon ESU, see “Endangered and Threatened Species: Final Listing Determinations for 16 ESUs of West Coast Salmonids and Final 4(d) Protective Regulations for Threatened Salmonid ESUs; Final Rule” (70 FR 37160; June 28, 2005) and “Final Rule Endangered and Threatened Species; Threatened Status for Central California Coast Coho Salmon Evolutionarily Significant Unit (ESU)” (61 FR 56138; October 31, 1996).
The geographic boundaries of west coast coho salmon ESUs ranging from British Columbia to central California were originally delineated as part of a west coast status review for the species (Weitkamp
In 2003, NMFS received a petition to delist those populations of the CCC coho salmon ESU that spawn in coastal streams south of the entrance to San Francisco Bay. The petition was eventually accepted by NMFS (75 FR 16745; April 2, 2010), which triggered a formal status review focused on determining whether the populations south of the entrance to San Francisco Bay were part of the ESU, what the appropriate southern boundary of the ESU should be, and the biological status of any revised ESU. In conducting this status review, new information became available indicating that the range of the ESU should be extended southward (Spence
In December 2004, the Office of Management (OMB) issued a Final Information Quality Bulletin for Peer Review establishing minimum standards for peer review. Similarly, a joint NMFS/U.S. Fish and Wildlife Service (FWS) Policy for Peer Review in Endangered Species Act Activities (59 FR 34270; July 1, 1994) requires us to solicit independent expert review from at least three qualified specialists on proposed listing determinations. Accordingly, we solicited reviews from three scientific peer reviewers having expertise with coho salmon in California and received comments from all three reviewers. We carefully reviewed the peer review comments and have addressed them as appropriate in this final rule. A summary of the peer review comments and our responses follow below.
Based on the arguments presented in Spence
Their reasons for not recommending inclusion of the Pajaro River in the range extension were: (1) The lack of recent or historical first hand accounts of coho salmon in the watershed, (2) the likelihood that environmental conditions were not favorable for coho salmon in the southern and eastern portions of the watershed because of habitat and environmental changes that occur in watersheds south of the Santa Cruz Mountains, (3) the high likelihood that any suitable habitat for coho salmon in the watershed (most likely in areas draining the Santa Cruz Mountains) would lose its connectivity to the ocean, unlike Soquel and Aptos creeks, during periods of drought, thereby precluding successful adult and juvenile migration to and from the ocean, and (4) the relatively low likelihood that coho salmon from streams to the north would stray into the watershed given its relative large distance from Aptos Creek and the San Lorenzo River (16 and 26 kilometers, respectively).
The proposed range extension for the CCC coho salmon ESU was published on February 4, 2011 (76 FR 6383) with a 60-day public comment period. Based on a request from one individual, we extended the public comment period for an additional 60 days, so the public comment period finally closed on June 6, 2011. Two written comment submittals were received on the proposed action. One set of comments was provided by the petitioner and largely focused on the scientific issues addressed in our 12-month finding on that petition as well as our scientific evaluation of the petition (Spence
For the area south of the entrance to San Francisco Bay, the TRT compared intrinsic habitat modeling population estimates with coho salmon abundance data collected by Shapovalov and Taft (1954) in Waddell Creek. Shapovalov and Taft (1954) estimated adult abundance of coho salmon in Waddell Creek over a nine year period covering the spawning seasons from 1933-1942. The average annual adult run size for coho salmon during that period was estimated to be 313 fish (range 111-748). In comparison, the intrinsic habitat modeling for the smallest independent population in the area south of San Francisco Bay yielded an estimate of 365 potential adult spawners. Because the habitat conditions in Waddell Creek at the time of the study were less than pristine due to heavy timber harvest in the past, the TRT concluded the modeled adult abundance projection was realistic and not an overestimate. Based on these and other results presented by the TRT (Agrawal
Although we do not have genetic data for coho salmon from the San Lorenzo River, there are comprehensive genetic data from coho salmon populations in other watersheds south of San Francisco Bay, as well as watersheds north of San Francisco Bay, and that information was carefully analyzed by the BRT (Spence
Moreover, regardless of the number of fish out-planted into Waddell Creek or any other watershed south of San Francisco Bay, the BRT (Spence
The ESU boundaries for west coast coho salmon, ranging from southern British Columbia to Central California, were first delineated in a 1994 status review (Weitkamp
The 1994 status review (Weitkamp
In reviewing the petition to delist coho salmon populations south of San Francisco Bay, the BRT reviewed recently collected information on the distribution of coho salmon in this area (Spence
During the summer of 2008, juvenile coho salmon were observed in Soquel Creek by NMFS scientists for the first time in many years. Soquel Creek enters the Pacific Ocean about 6.5 km south of the San Lorenzo River. A total of approximately 170 juvenile fish were observed in the East Branch of Soquel Creek and some were photographed. These observations demonstrated that suitable spawning and rearing habitat for coho salmon occurs in Soquel Creek. A total of 28 of these fish were captured for tissue sampling and subsequent genetic analysis. Genetic analyses of these samples used 18 microsatellite loci to genotype the fish, investigate the origins of their parents, and to estimate the minimum number of reproductive events that contributed to the observed juveniles. Standard genetic stock identification techniques were used with a baseline reference database that included representative stocks from all regional California groups of coho salmon. The Soquel Creek fish were compared to coho salmon from a south of San Francisco Bay reference population (Scott Creek in Santa Cruz County, California) and it was determined, with very high confidence, that they were closely related. This analysis demonstrated that the juvenile fish observed in Soquel Creek were the progeny of locally produced adults returning to reproduce in nearby streams, and that they were native to streams draining the Santa Cruz Mountains south of San Francisco Bay.
Genetic analysis of tissue samples from these juveniles (Garza
In reviewing the ecological conditions of streams south of San Francisco Bay that originate from the Santa Cruz Mountains, Spence
Status reviews by Weitkamp
As part of a recent 5-year status review update for listed salmon and steelhead in California, Spence and Williams (2011) updated the biological status of the CCC coho salmon ESU, taking into consideration the recent discovery of coho salmon in Soquel Creek. Their review concluded that despite the lack of long-term data on coho salmon abundance, available information from recent short-term research and monitoring efforts demonstrates that the status of coho populations in this ESU has worsened since it was reviewed in 2005 (Good
Our review of factors affecting the CCC coho salmon ESU concluded that logging, agriculture, mining activities, urbanization, stream channelization, dams, wetland loss, water withdrawals, and unscreened diversions have contributed to its decline. Land-use activities associated with logging, road construction, urban development, mining, agriculture, and recreation have significantly altered coho salmon habitat quantity and quality (61 FR 56138, October 31, 1996; 70 FR 37150, June 28, 2005). Impacts of these activities include alteration of streambank and channel morphology, alteration of ambient stream water temperatures, elimination of spawning and rearing habitat, fragmentation of available habitats, elimination of downstream recruitment of spawning gravels and large woody debris, removal of riparian vegetation resulting in increased stream bank erosion, and degradation of water quality (61 FR 56138, October 31, 1966; 70 FR 37150, June 28, 2005).
Land-use and extraction activities leading to habitat modification can have significant direct and indirect impacts to coho salmon populations. Land-use activities associated with residential and commercial development, road construction, use and maintenance, recreation, and past logging practices have significantly altered coho salmon freshwater habitat quantity and quality throughout this ESU, as well as in the Aptos and Soquel watersheds. Associated impacts of these activities include alteration of streambank and channel morphology, alteration of ambient stream water temperatures, degradation of water quality, elimination of spawning and rearing habitats, removal of instream large woody debris that forms pool habitats and overwintering refugia, removal of riparian vegetation resulting in increased bank erosion, loss of floodplain habitats and associated refugia, and increased sedimentation input into spawning and rearing areas resulting in the loss of channel complexity, pool habitat, and suitable gravel substrate.
The loss and degradation of habitats and instream flow conditions were identified as threats to coho salmon in Soquel and Aptos creeks in the draft recovery plan for this ESU (NMFS, 2010). Although many historically harmful practices have been halted, particularly removal of large woody debris by Santa Cruz County, much of the historical damage to habitats limiting coho salmon in these watersheds remains to be addressed. Habitat restoration activities and threat abatement actions will likely require more focused effort and time to stabilize and improve habitat conditions in order to improve the survival of coho salmon in these watersheds. Additionally, some land-use practices such as water diversions, floodplain development, unauthorized removal of inchannel woody debris, quarrying, and road maintenance practices continue to pose risks to the survival of local coho salmon populations. Insufficient flow during the summer due to authorized and unauthorized water diversions is likely one of the most significant limiting factors to coho salmon, particularly on the lower mainstem of Soquel Creek.
Commercial and recreational fisheries are closed for coho salmon in California; however, coho salmon in this ESU can still be incidentally captured in fisheries for other species. The impacts to coho salmon of this type of incidental bycatch are poorly understood, but may be significant in watersheds where population abundance is low. Recreational fishing for steelhead is allowed in Soquel and Aptos creeks, and coho salmon, if present, may unintentionally be caught by anglers targeting steelhead. The risk of unintentional capture is believed to be higher in these watersheds than in many other coastal streams with coho salmon because the current State of California fishing regulations allow catch and release of steelhead based on calendar dates regardless of river flow. Steelhead fishing season opens on December 1, which is a time of year when coho salmon typically begin their upstream migration and is typically one month before the main steelhead migration. Fishing for steelhead during low-flow periods may expose coho salmon adults to increased rates of incidental capture and injury.
At the time the CCC coho salmon ESU was listed in 1996, collection for scientific research and educational programs was believed to have little or no impact on California coho salmon populations. In California, most scientific collection permits are issued by CDFG and NMFS to environmental consultants, Federal resource agencies, and educational institutions. Regulation of take is achieved by conditioning individual research permits (61 FR 56138, October 31, 1996). Given the extremely low population levels throughout this ESU, but especially in watersheds south of San Francisco Bay, any collections could have significant impacts on local populations and need to be carefully controlled and monitored. In Soquel and Aptos creeks, two researchers are currently sampling juvenile salmonid populations using electrofishing as part of their sampling methodology. Only one researcher is authorized to capture coho salmon and the other must stop collections if juvenile coho salmon are detected.
Relative to the effects of habitat degradation, disease and predation were not believed to be major factors contributing to the decline of West Coast coho salmon populations in general or for this ESU in particular. Nevertheless, disease and predation could have substantial adverse impacts in localized areas. Specific diseases known to be present in the ESU and affect salmonids are discussed in a previous listing determination (69 FR 33102; June 14, 2004). No historical or current information is available to estimate infection levels or mortality rates for coho salmon attributable to these diseases.
Habitat conditions such as low water flows and high water temperatures can exacerbate susceptibility to infectious diseases (69 FR 33102). The large quantity of water diverted from Soquel Creek, which results in decreased summer flows, may increase the susceptibility of rearing coho salmon to disease and predation. Avian predators have been shown to impact some juvenile salmonids in freshwater and near shore environments. In Scott Creek, which is near Soquel and Aptos creeks, NMFS staff (Hayes, personnel communication) have documented substantial predation impacts on out-migrating salmonid smolts, based on the discovery of pit tags in gull nesting areas. Predation may significantly influence salmonid abundance in some
At the time this ESU was originally listed, most Federal and non-Federal regulatory efforts were not found to adequately protect coho salmon due to a variety of factors including uncertain funding and implementation, the voluntary nature of many programs, or simply their ineffectiveness. Detailed information on regulatory mechanisms and other protective efforts for coho salmon is provided in NMFS' Draft Recovery Plan for this ESU (NMFS, 2010) and the 1996 and 2005 final listing determinations for this ESU. Since the original listing determination for this ESU in 1996, few significant improvements in regulatory mechanisms have been made aside from efforts implemented under the ESA (i.e., NMFS' efforts under section 7 of the ESA and the designation of critical habitat for this ESU). A variety of State and Federal regulatory mechanisms exist to protect coho salmon habitat, but they have not been adequately implemented (61 FR 56138; October 31, 1996). Overall, we believe that most current regulatory mechanisms and/or other protective efforts are not sufficiently certain to be implemented and/or are not effective in reducing threats to coho salmon in this ESU (70 FR 37160; June 28, 2005).
In Soquel and Aptos creeks, one recent beneficial regulatory change has been the termination of funding for Santa Cruz County's in-stream wood removal program in 2009. Curtailment of this program is expected to eventually result in improvements to summer and winter rearing habitat for coho salmon in the County. Problems with other regulatory efforts, including poor oversight and enforcement of State water law pertaining to permitted and unpermitted diversions, are a significant concern in Soquel and Aptos creeks.
Long-term trends in rainfall and marine productivity associated with atmospheric conditions in the North Pacific Ocean have a major influence on coho salmon production on the West Coast. Natural climatic conditions may have exacerbated or mitigated the problems associated with degraded and altered freshwater and estuarine habitats that coho salmon depend upon (69 FR 33102). Detailed discussions of these factors can be found the 1996 and 2005 listing determinations for this ESU (61 FR 56138, October 31, 1996 and 70 FR 37160, June 28, 2005, respectively). No significant changes to this listing factor have occurred since the original listing, although the risk of climate change may well have increased.
The best available scientific information indicates that the Earth's climate is warming, driven by the accumulation of greenhouse gasses in the atmosphere (Oreskes, 2004; Battin
Based on a consideration of the best available information, including new information on the presence of coho salmon in Soquel Creek, genetic data indicating the fish from Soquel Creek are closely related to fish from nearby watersheds, the similarity of habitat in Soquel and Aptos creeks to that in nearby watersheds presently or historically supporting coho salmon, and the proximity of Soquel and Aptos creeks to nearby watersheds supporting coho salmon, we conclude that the southern boundary of the CCC coho salmon ESU should be moved southward to include Soquel and Aptos creeks in Santa Cruz County, California. Based on an updated status assessment of coho salmon populations throughout the range of the ESU, including the recent discovery of juvenile coho salmon in Soquel Creek, and consideration of the factors affecting this species throughout the range of the ESU, we conclude that the redefined ESU continues to be an endangered species.
The CCC coho salmon ESU is an endangered species and Section 9 of the ESA prohibits certain activities that directly or indirectly affect endangered species. The section 9(a) prohibitions apply to all individuals, organizations, and agencies subject to U.S. jurisdiction. Section 9 prohibitions apply automatically to endangered species such as the CCC coho salmon ESU, throughout its range. As a result of this range extension, the section 9 take prohibitions now will apply to all naturally produced coho salmon in Soquel and Aptos creeks.
Section 7(a) of the ESA, as amended, requires Federal agencies to evaluate their actions with respect to any species that is listed as endangered or threatened and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the ESA are codified at 50 CFR part 402. Section 7(a)(4) of the ESA requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in the destruction or adverse modification of proposed critical habitat. If a species is subsequently listed, section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with us under the provisions of section 7(a)(2). Federal agencies and actions that may be affected by the revision of the CCC coho salmon ESU include the U.S. Army Corps of Engineers and its issuance of permits under the Clean Water Act.
Sections 10(a)(1)(A) and 10(a)(1)(B) of the ESA provide us with authority to grant exceptions to the ESA's “take” prohibitions. Section 10(a)(1)(A) scientific research and enhancement permits may be issued to entities (Federal and non-Federal) for scientific purposes or to enhance the propagation or survival of the affected species. NMFS has issued section 10(a)(1)(A) research/enhancement permits for listed salmonids, including CCC coho salmon, to conduct activities such as trapping and tagging and other research and monitoring activities.
Section 10(a)(1)(B) incidental take permits may be issued to non-Federal entities conducting activities that may incidentally take listed species so long as the taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. The types of activities potentially requiring a section 10(a)(1)(B) incidental take permit include, but are not limited to, state-regulated angling, academic research not receiving Federal authorization or funding, road building, timber management, grazing, and diverting water onto private lands.
NMFS and the FWS published a policy in the
1. Any incidental take of listed fish from this ESU resulting from an otherwise lawful activity conducted in accordance with the conditions of an incidental take permit issued by NMFS under section 10 of the ESA;
2. Any action authorized, funded, or carried out by a Federal agency that is likely to adversely affect listed fish from this ESU when the action is conducted in accordance with the terms and conditions of an incidental take statement issued by NMFS under section 7 of the ESA;
3. Any action carried out for scientific purposes or to enhance the propagation or survival of listed fish from this ESU that is conducted in accordance with the conditions of a permit issued by NMFS under section 10 of the ESA
Activities that are likely to result in a violation of section 9 prohibitions against the “taking” of fish from this ESU include, but are not limited to, the following:
1. Unauthorized killing, collecting, handling, or harassing of individual fish from this ESU;
2. Land-use activities that adversely affect habitats supporting coho salmon, such as logging, development, road construction in riparian areas and in areas susceptible to mass wasting and surface erosion;
3. Destruction/alteration of the habitats supporting coho salmon, such as removal of large woody debris and “sinker logs” or riparian shade canopy, dredging, discharge of fill material, sandbar breaching, draining, ditching, diverting, blocking, or altering stream channels or surface or ground water flow;
4. Discharges or dumping of toxic chemicals or other pollutants (e.g., sewage, oil, gasoline) into waters or riparian areas supporting coho salmon in the ESU;
5. Violation of discharge permits into the ESU;
6. Application of pesticides affecting water quality or riparian areas supporting coho salmon in the ESU;
7. Introduction of non-native species likely to prey on coho salmon within the ESU or displace them from their habitat.
Other activities not identified here will be reviewed on a case-by-case basis to determine if violation of section 9 of the ESA may be likely to result from such activities. Questions regarding whether specific activities may constitute a violation of the section 9 take prohibition, and general inquiries regarding prohibitions and permits, should be directed to NMFS (see
In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for peer review establishing minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation. The OMB Bulletin, implemented under the Information Quality Act, is intended to enhance the quality and credibility of the Federal Government's scientific information and applies to influential or highly influential scientific information disseminated on or after June 16, 2005. To satisfy our requirements under the OMB Bulletin, we obtained independent peer review of the scientific information compiled in the BRT report (Spence
A joint NMFS/U.S. Fish and Wildlife policy (59 FR 34270; July 1, 1994) requires us to solicit independent expert review from at least three qualified specialists on proposed listing determinations such as this range extension. Accordingly, we solicited reviews from three scientific peer reviewers having expertise with coho salmon in California and received comments from all three reviewers. We carefully reviewed the peer review comments and have addressed them as appropriate in this final rule (see summary of peer review comments above).
Critical habitat is defined in section 3 of the ESA as: “(i) The specific areas within the geographic area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical and biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the species” (16 U.S.C. 1532(5)(A)). Conservation means the use of all methods and procedures needed to bring the species to the point at which listing under the ESA is no longer necessary. Section 4(b)(2) requires that designation of critical habitat be based on the best scientific data available, after taking into consideration the economic, national security, and other relevant impacts of specifying any particular area as critical habitat.
Once critical habitat is designated, section 7 of the ESA requires Federal agencies to ensure that they do not fund, authorize, or carry out any actions that are likely to destroy or adversely modify that habitat. This requirement is in addition to the section 7 requirement that Federal agencies ensure that their actions do not jeopardize the continued existence of the listed species.
Section 4(a)(3)(A) of the ESA requires that, to the maximum extent prudent and determinable, NMFS designate critical habitat concurrently with a determination that a species is endangered or threatened. Critical habitat for the CCC coho salmon ESU was designated on May 5, 1999 (64 FR 24049) and presently includes all river reaches accessible to coho salmon in rivers between Punta Gorda and the San Lorenzo River. Within these streams, critical habitat includes all waterways, substrate and adjacent riparian habitat below longstanding, natural impassable
A complete list of all references cited herein is available upon request (see
The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in
As noted in the Conference Report on the 1982 Amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the ESA listing process. Thus, this final rule is also exempt from review under Executive Order 12866. This final rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act.
In keeping with the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual State and Federal interest, development of this rule included coordination with the State of California through the CDFG.
Endangered marine and anadromous species.
For the reasons set out in the preamble, 50 CFR part 224 is amended as follows:
12 U.S.C. 1531-1543 and 16 U.S.C. 1361
(a) * * *
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS implements accountability measures (AMs) for commercial greater amberjack in the Gulf of Mexico (Gulf) for the 2012 fishing year through this temporary final rule, and announces the closure of the 2012 commercial sector for greater amberjack of the Gulf reef fish fishery. This rule reduces the 2012 commercial quota for greater amberjack to 237,438 lb (107,700 kg), based on the 2011 quota overage. The commercial fishing season opened on January 1, 2012 and is closed March 1-May 31. The season is scheduled to re-open on June 1, however, NMFS has determined that the 2012 adjusted commercial quota for Gulf greater amberjack was harvested in January and February of 2012. Therefore, the commercial sector for greater amberjack will remain closed for the remainder of the 2012 fishing year. These actions are necessary to reduce overfishing of the Gulf greater amberjack resource.
This rule is effective April 2, 2012, through December 31, 2012.
Copies of the final rule for Amendment 30A, the Final Supplemental Environmental Impact Statement (FSEIS) for Amendment 30A, and other supporting documentation may be obtained from Rich Malinowski, NMFS, Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701; telephone: 727-824-5305.
Rich Malinowski, telephone: 727-824-5305, email
NMFS manages the reef fish fishery of the Gulf under the Fishery Management Plan for Reef Fish Resources of the Gulf of Mexico (FMP). The Gulf of Mexico Fishery Management Council (Council) prepared the FMP and NMFS implements the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
The 2006 reauthorization of the Magnuson-Stevens Act established new requirements including annual catch limits (ACLs) and AMs to end overfishing and prevent overfishing from occurring. AMs are management controls to prevent ACLs from being exceeded, and correct or mitigate overages of the ACL if they occur. Section 303(a)(15) of the Magnuson-Stevens Act mandates the establishment of ACLs at a level such that overfishing does not occur in the fishery, including measures to ensure accountability.
On July 3, 2008, NMFS issued a final rule (73 FR 38139) to implement Amendment 30A to the FMP. Amendment 30A established commercial and recreational quotas for Gulf greater amberjack and AMs that would go into effect if the commercial and recreational quotas for greater amberjack are exceeded. In accordance with regulations at 50 CFR 622.49(a)(1)(i), when the applicable commercial quota is reached, or projected to be reached, the Assistant Administrator for Fisheries, NOAA, (AA), will file a notification with the Office of the Federal Register to close the commercial sector for the remainder of the fishing year. If despite such closure, commercial landings exceed the quota, the AA will reduce the quota the year following an overage by the amount of the overage of the prior fishing year.
Finalized 2011 commercial landings data indicated the adjusted 2011 commercial quota of 342,091 lb (155,170 kg) was exceeded by 78 percent, or 265,562 lb (120,457 kg). Therefore, the reduced 2012 commercial quota for Gulf greater amberjack is 237,438 lb (107,700 kg) (
Accordingly, NMFS is closing commercial sector harvest of greater amberjack in the Gulf EEZ for the remainder of the 2012 fishing year. The operator of a vessel with a valid commercial vessel permit for Gulf reef fish having greater amberjack aboard must have landed, bartered, traded, or sold such greater amberjack prior to 12:01 a.m., local time, March 1, 2012.
During the closure, all commercial harvest or possession of greater amberjack in or from the Gulf EEZ, and the sale or purchase of greater amberjack taken from the EEZ is prohibited. The prohibition on sale or purchase does not apply to sale or purchase of greater amberjack that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, March 1, 2012, and were held in cold storage by a dealer or processor. In addition to the Gulf EEZ closure, a person on board a vessel for which a commercial vessel permit for Gulf reef fish has been issued must comply with these closure provisions regardless of where the Gulf greater amberjack are harvested,
The 2013 commercial quota for greater amberjack will return to the quota of 503,000 lb (228,157 kg) specified at 50 CFR 622.42(a)(1)(v) unless AMs are implemented due to a quota overage and NMFS specifies a reduced quota through notification in the
The Regional Administrator, Southeast Region, NMFS, (RA) has determined this temporary rule is necessary for the conservation and management of the Gulf greater amberjack component of the Gulf reef fish fishery and is consistent with the Magnuson-Stevens Act, the FMP, and other applicable laws.
The temporary rule has been determined to be not significant for purposes of Executive Order 12866.
These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.
NMFS prepared a Final Environmental Impact Statement (FEIS) for Amendment 30A. A notice of availability for the FEIS was published on April 18, 2008 (73 FR 21124). A copy
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive the requirements to provide prior notice and opportunity for public comment on this temporary rule. Such procedures are unnecessary because the AMs established by Amendment 30A and located at 50 CFR 622.49(a)(1)(i) authorize the AA to file a notification with the Office of the Federal Register to close the commercial sector for the remainder of the fishing year when the quota is reached or projected to be reached and reduce the commercial quota the following fishing year if an overage occurs. The final rule for Amendment 30A that implemented these AMs was already subject to notice and comment and all that remains is to notify the public of the 2012 commercial quota, and the closure of the commercial sector for Gulf greater amberjack.
Also, providing prior notice and opportunity for public comment on this action would be contrary to the public interest. Given the regulatory obligation for NMFS to announce the duration of the commercial season in a timely manner, it is important this announcement be made as soon as possible to allow affected participants the maximum amount of time to adjust their fishing activities to account for the closure of the commercial sector.
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific cod by catcher vessels (CVs) using trawl gear in the Central 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 CVs using trawl gear in the Central Regulatory Area of the GOA.
Effective 1200 hrs, Alaska local time (A.l.t.), April 1, 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 Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.
The A season allowance of the 2012 Pacific cod total allowable catch (TAC) apportioned to CVs using trawl gear in the Central Regulatory Area of the GOA is 8,936 metric tons (mt), as established by the final 2012 and 2013 harvest specifications for groundfish of the GOA (77 FR 15194, March 14, 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 CVs using trawl gear in the Central Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 7,936 mt, and is setting aside the remaining 1,000 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 CVs using trawl gear in the Central 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 CVs using trawl gear in the Central 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 March 26, 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
Food Safety and Inspection Service, USDA.
Correction.
On March 19, 2012, the Food Safety and Inspection Service (FSIS) published a proposed rule to amend the meat and poultry products regulations pertaining to the schedule of operations. The Regulatory Identification Number (RIN) was inadvertently omitted. The RIN number for this proposed rule is 0583-AD48. Comments on the March 19 proposed rule must still be received by the agency on or before April 18, 2012, to be assured of consideration.
Submit comments on or before April 18, 2012.
FSIS invites interested persons to submit comments on this notice. Comments may be submitted by one of the following methods:
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•
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Daniel L. Engeljohn, Assistant Administrator, Office of Policy and Program Development, FSIS, U.S. Department of Agriculture, 1400 Independence Avenue SW., Washington, DC 20250-3700, telephone: (202) 205-0495.
On March 19, 2012 (77 FR 15976), the Food Safety and Inspection Service published a proposed rule. Due to an editing error, the RIN number was omitted. The RIN number for this rule is 0583-AD48.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Saab AB, Saab Aerosystems Model 340A (SAAB/SF340A) and SAAB 340B Airplanes. This proposed AD was prompted by reports indicating that wear of the elevator pushrods have occurred on some airplanes after extended time in service. This proposed AD would require determining if a certain part number is installed, performing a detailed inspection for individual play between the elevator pushrod assembly and degradation of elevator pushrod assembly, and replacing the affected elevator pushrod assembly with a new elevator pushrod assembly if necessary. We are proposing this AD to prevent a free elevator from affecting the pitch control authority, which may result in reduced controllability of the airplane.
We must receive comments on this proposed AD by May 17, 2012.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Saab AB, Saab Aerosystems, SE-581 88, Linköping, Sweden; telephone +46 13 18 5591; fax +46 13 18 4874; email
You may examine the AD docket on the Internet at
Shahram Daneshmandi, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone (425) 227-1112; fax (425) 227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2011-0078, dated May 5, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Field experience has indicated that wear of the elevator pushrod has occurred on some aeroplanes after extended time in service. Although properly installed, the locknut has been able to back off within a limited range, leading to degradation of the pushrod which causes backlash in between the rod end threads.
This condition, if not detected and corrected, may lead to a free elevator affecting the pitch control authority, possibly resulting in reduced control of the aeroplane.
To address this unsafe condition, SAAB AB Aeronautics have issued Service Bulletin (SB) 340-27-100, accomplishment of which will reduce the probability for backlash and minimize the possibility of failure in the pitch control system.
For the reasons described above, this [EASA] AD requires the identification of the pushrod assembly Part Number (P/N) as installed on the aeroplane, replacement of P/N TDF11755 pushrod assemblies, inspection of P/N 12003-33 and P/N R20990 elevator pushrod assemblies [for individual play between the elevator pushrod assembly and degradation of elevator pushrod assembly] and corrective actions [replacement], depending on findings.
You may obtain further information by examining the MCAI in the AD docket.
Saab AB, Saab Aerosystems has issued Saab Service Bulletin 340-27-100, dated February 1, 2011. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
Based on the service information, we estimate that this proposed AD would affect about 162 products of U.S. registry. We also estimate that it would take about 1 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $13,770, or $85 per product.
In addition, we estimate that any necessary follow-on actions would take about 7 work-hours and require parts costing $1,588 for a cost of $2,183 per product. We have no way of determining the number of products that may need these actions.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
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.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
We must receive comments by May 17, 2012.
None.
This AD applies to Saab AB, Saab Aerosystems Model 340A (SAAB/SF340A) and SAAB 340B airplanes, certificated in any category, all serial numbers.
Air Transport Association (ATA) of America Code 27: Flight Controls.
This AD was prompted by reports indicating that wear of the elevator pushrods have occurred on some airplanes after extended time in service. We are issuing this AD to prevent a free elevator from affecting the pitch control authority, which may result in reduced controllability 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.
Within the applicable time specified in table 1 of this AD, inspect each elevator pushrod assembly to determine the part number (P/N).
(1) If a P/N TDF11755 elevator pushrod assembly is installed, or if the part number cannot be determined: Before further flight, replace the affected elevator pushrod assembly with a P/N R20990 elevator pushrod assembly, in accordance with the Accomplishment Instructions of Saab Service Bulletin 340-27-100, dated February 1, 2011.
(2) If P/N 12003-33 or P/N R20990 elevator pushrod assembly is installed: Do a detailed inspection for individual play between the rod end and the pushrod at the locking device and degradation of elevator pushrod assembly (including rod end threads not visible through the inspection hole in the pushrod, and the nut and locking device not properly locked with the lock wire), in accordance with the Accomplishment Instructions of Saab Service Bulletin 340-27-100, dated February 1, 2011.
If, during the inspection of elevator pushrod assembly required by paragraph (g)(2) of this AD, individual play between the rod end and the pushrod at the locking device, or degradation of the elevator pushrod assembly (including rod end threads not visible through the inspection hole in the pushrod, and the nut and locking device not properly locked with the lock wire) is found: Before further flight, replace the affected elevator pushrod assembly with a new elevator pushrod assembly, P/N R20990, in accordance with the Accomplishment Instructions of Saab Service Bulletin 340-27-100, dated February 1, 2011.
As of the effective date of this AD, no person may install an elevator pushrod assembly with P/N TDF11755, on any airplane.
Submit a report of the findings (both positive and negative) of the inspection and replacement required by paragraphs (g) and (h) of this AD to Saab AB, Support and Services, SE-581 88 Linköping, Sweden; fax +46 13 18 48 74; email
(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 EASA Airworthiness Directive 2011-0078, dated May 5, 2011; and Saab Service Bulletin 340-27-100, dated February 1, 2011; for related information.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Airbus Model A318-112 and -121 airplanes; Model A319-111, -112, -115, -132, and -133 airplanes; Model A320-
We must receive comments on this proposed AD by May 17, 2012.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Airbus, Airworthiness Office—EAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
You may examine the AD docket on the Internet at
Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone (425) 227-1405; fax (425) 227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2011-0120R1, dated July 13, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
During structural part assembly in Airbus production line, some nuts Part Number (P/N) ASNA2531-4 were found cracked. Investigations were performed to determine the batches of the affected nuts and had revealed that these nuts have been installed in production on the fuselage of aeroplanes listed in the applicability section of this [EASA] AD.
Static, fatigue and corrosion tests were performed, which demonstrated that no immediate maintenance action is necessary. However, a large number of these nuts are fitted on primary structural elements, which could have long-term consequences.
This condition, if not corrected, could impair the structural integrity of the affected aeroplanes.
For the reasons described above, this [EASA] AD requires [an inspection to determine if certain fuselage nuts are installed,] a detailed inspection [for cracking] of the affected nuts, associated corrective actions, [general visual inspection for scratching of the hole if necessary] depending on findings, and replacement of the affected P/N ASNA2531-4 nuts with new ones, having the same P/N.
Required actions include related investigative and corrective actions if necessary. Related investigative actions include a general visual inspection for scratching of the hole. Corrective actions include replacing the fastener and installing a new fuselage nut. You may obtain further information by examining the MCAI in the AD docket.
Airbus has issued Service Bulletin A320-53-1218, Revision 01, including Appendices 01 and 02, dated June 17, 2010. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
Based on the service information, we estimate that this proposed AD would affect about 152 products of U.S. registry. We also estimate that it would take about 15 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $193,800, or $1,275 per product.
In addition, we estimate that any necessary follow-on actions would take about 10 work-hours and require parts costing $362, for a cost of $1,212 per product. We have no way of determining the number of products that may need these actions.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in
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.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
We must receive comments by May 17, 2012.
None.
This AD applies to Airbus Model A318-112 and -121 airplanes; Model A319-111, -112, -115, -132, and -133 airplanes; Model A320-214, -232, and -233 airplanes; and Model A321-211, -212, -213, and -231 airplanes; certificated in any category; manufacturer serial numbers 3339, 3340, 3350, 3355, 3360, 3367, 3369, 3372, 3380, 3382, 3385, 3387, 3388, 3390, 3393, 3395, 3397 through 3508 inclusive, 3510 through 3519 inclusive, 3522, 3523, 3525, 3527, 3529, 3530, 3537, 3539, 3542, 3544, 3546, 3548, 3552, and 3555.
Air Transport Association (ATA) of America Code 53: Fuselage.
This AD was prompted by reports of cracked nuts on the fuselage. We are issuing this AD to detect and correct cracked nuts on the fuselage 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.
Within 72 months since first flight of the airplane or within 90 days after the effective date of this AD, whichever occurs later, do an inspection for nuts having part number (P/N) ASNA2531-4 located in the fuselage. If a nut having P/N ASNA2531-4 is found, before further flight, do a detailed inspection for cracking of the nut, and all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-53-1218, Revision 01, including Appendices 01 and 02, dated June 17, 2010. If any cracking is found, before further flight, repair, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-53-1218, Revision 01, including Appendices 01 and 02, dated June 17, 2010.
Submit a report of the findings in accordance with Appendix 01 of the inspection required by paragraph (g) of this AD to Airbus in accordance with Appendix 01 of Airbus Service Bulletin A320-53-1218, Revision 01, including Appendices 01 and 02, dated June 17, 2010, at the applicable time specified in paragraph (h)(1) or (h)(2) of this AD.
(1) If the inspection was done on or after the effective date of this AD: Submit the report within 90 days after the inspection.
(2) If the inspection was done before the effective date of this AD: Submit the report within 90 days after the effective date of this AD.
This paragraph provides credit for inspections and replacements required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Airbus Service Bulletin A320-53-1218, including Appendices 01 and 02, dated February 8, 2010.
The following provisions also apply to this AD:
(1)
(2)
(3)
Refer to MCAI European Aviation Safety Agency (EASA) Airworthiness Directive 2011-0120R1, dated July 13, 2011; and Airbus Service Bulletin A320-53-1218, Revision 01, including Appendices 01 and 02, dated June 17, 2010; for related information.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a special local regulation during the Chesapeake Bay Workboat Race, a series of boat races to be held on the waters of Back River, Poquoson, Virginia on June 24, 2012. This event will consist of approximately 75 powerboats conducting high-speed competitive races on the waters of the Back River. This regulation is necessary to provide for the safety of life on navigable waters during the event. This action is intended to restrict vessel traffic in portions of the Back River, Messick Point, Poquoson, Virginia during the event.
Comments and related material must be received by the Coast Guard on or before May 2, 2012.
You may submit comments identified by docket number USCG-2012-0169 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 If you have questions on this temporary rule, call or email LCDR Christopher O'Neal, Waterways Management Division Chief, Sector Hampton Roads, Coast Guard; telephone 757-668-5581, 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-2012-0169), 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 using one of the four methods specified under
For information on facilities or services for individuals with disabilities or to request special assistance at the public meeting, contact LCDR Christopher O'Neal at the telephone number or email address indicated under the
Marine events are frequently held on the navigable waters within the boundary of Fifth Coast Guard District. The water activities that typically comprise marine events include sailing regattas, power boat races, swim races and holiday parades. For a description of the geographical area of each Coast Guard Sector—Captain of the Port Zone, please see 33 CFR 3.25.
This regulation proposes to add an enforcement period of a new special local regulation for one marine event within Fifth Coast Guard District.
On June 24, 2012, the Chesapeake Bay Workboat Race Committee will sponsor the “2012 Chesapeake Bay Workboat Races” on the waters of Back River. The event will consist of approximately 75 powerboats conducting high-speed competitive races on the waters of Back River, Messick Point, Poquoson, VA. A fleet of spectator vessels is expected to gather near the event site to view the competition. To provide for the safety of participants, spectators, support and transiting vessels, the Coast Guard will temporarily restrict vessel traffic in the event area during the races. The regulation at 33 CFR 100.501 would be enforced for the duration of the event. Under the provisions of 33 CFR 100.501, from 11 a.m. to 5 p.m. on June 24, 2012, vessels may not enter the regulated area unless they receive permission from the Coast Guard Patrol Commander.
The Coast Guard is establishing a temporary special local regulation on specified waters of the Back River, Messick Point in Poquoson, Virginia. The regulated area will be established in the interest of public safety during the “Chesapeake Bay Workboat Race”, and will be enforced from 11 a.m. to 5 p.m. on June 24, 2012. The Coast Guard, at its discretion, when practical, will allow the passage of vessels when races are not taking place. Except for participants and vessels authorized by the Captain of the Port or his Representative, no person or vessel may enter or remain in the regulated area.
This regulation would establish an enforcement location to include all waters of the Back River, Poquoson, Virginia, bounded to the north by a line drawn along latitude 37°06′30″ N, bounded to the south by a line drawn along latitude 37°16′15″ N, bounded to the east by a line drawn along longitude 076°18′52″ W and bounded on the west by a line drawn along longitude 076°19′30″ W.
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, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. Although this rule prevents traffic from transiting a portion of certain waterways during specified times, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via marine information broadcasts, local radio stations and area newspapers so mariners can adjust their plans accordingly. Additionally, this rulemaking does not change the permanent regulated areas that have been published in 33 CFR 100.501, Table to § 100.501. In some cases, vessel traffic may be able to transit the regulated area when the Coast Guard Patrol Commander deems it is safe to do so.
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 this section of the Back River during the event.
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 LCDR Christopher O'Neal. 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 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. We have analyzed this proposed rule under that Order and determined that this rule 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
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 (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This proposed rule 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 rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction. This rule involves implementation of regulations within 33 CFR part 100 that apply to organized marine events on the navigable waters of the United States that may have potential for negative impact on the safety or other interest 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, 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. In § 100.501, Table to § 100.501, add temporary line No. 26 to read as follows:
Table To § 100.501.—All coordinates listed in the Table to § 100.501 reference Datum NAD 1983.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary safety zone on the navigable waters of the Boston Inner Harbor in the vicinity of Anthony's Pier 4, Boston, MA for a wedding fireworks display. This temporary safety zone is necessary to protect spectators and vessels from the hazards associated with fireworks displays.
Comments and related material must be received by the Coast Guard on or before May 2, 2012. Requests for public meetings must be received by the Coast Guard on or before April 9, 2012. The Coast Guard anticipates that this proposed rule will be effective from 8 p.m. to 11 p.m. on May 19, 2012.
You may submit comments identified by docket number USCG-2012-0130 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. Mark Cutter, Coast Guard Sector Boston Waterways Management Division, telephone 617-223-4000, 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-2012-0130), 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 by using one of the four methods specified under
The legal basis for the proposed rule is 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish safety zones.
This proposed safety zone is necessary to ensure the safety of spectators and vessels from hazards associated with the fireworks display.
Ocean State Pyrotechnics, Inc is sponsoring a wedding fireworks display on the waters of Boston Inner Harbor in the vicinity of Anthony's Pier 4, Boston, MA. The Captain of the Port (COTP) Boston has determined that fireworks displays in close proximity to watercraft and waterfront structures pose a significant risk to public safety and property. Such hazards include obstructions to the waterway that may cause marine casualties and the explosive danger of fireworks and debris falling into the water that may cause death or serious bodily harm. Establishing a safety zone around the location of this fireworks event will help ensure the safety of spectators, vessels and other property and help minimize the associated risks. This proposed safety zone will encompass a 450-foot radius around the firework barge.
The fireworks display will occur from approximately 8:30 p.m. until 10:30 p.m. on May 19, 2012. To ensure public safety the proposed safety zone will be enforced immediately before, during, and immediately after the fireworks launch. If the event is cancelled due to inclement weather, then the proposed safety zone will not be enforced.
All persons and vessels shall comply with the instructions of the COTP or the designated on-scene representative. Entry into, transiting, or anchoring within the regulated area is prohibited unless authorized by the COTP or the designated on-scene representative. The COTP Boston or the on-scene representative may be contacted via VHF Channel 16.
The Final Rule will not be published 30 days before the event and the effective date of this proposed rule as is generally required by 5 U.S.C. 553(d)(3). The Coast Guard will accept comments on this shortened period and address them in the final rule.
Public notifications will be made prior to the event via appropriate means, and may include the Local Notice to Mariners and marine information broadcasts.
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 rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
This determination is based on the limited time that vessels will be restricted from the fireworks display area. The safety zone will be in effect for approximately three hours during the evening hours. The Coast Guard expects minimal adverse impact to mariners from the activation of the zone as information on the event will be extensively advertised in the public, affected mariners may request authorization from the COTP or the designated on-scene representative to transit the zone, and advance notification will be made to the maritime community via Local Notice to Mariners and Broadcast Notice to Mariners.
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 will affect the following entities, some of which may be small entities: The owners and operators of vessels intending to transit or anchor in a portion of the Boston Inner Harbor in the vicinity of Anthony's Pier 4, Boston, MA during the effective period.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule will be in effect for only three hours on a single day during the late evening and vessels will be able to transit around the safety zone. Before the effective period, we will issue maritime advisories widely available to users of the waterway.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have 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 1-888-REG-FAIR (1-888-734-3247). 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 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
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 that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination will be available in the docket where indicated under
We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
1. The authority citation for part 165 continues to read as follows:
33 U.S.C. 1231; 46 U.S.C Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
2. Add § 165.T01-0130 to read as follows:
(a)
(b)
(c)
(d)
(1) The general regulations contained in 33 CFR 165.23, as well as the following regulations, apply.
(2) No vessels, except for fireworks barge and accompanying vessels, will be allowed to enter into, transit, or anchor within the safety zone without the permission of the COTP or the designated on-scene representative.
(3) All persons and vessels shall comply with the instructions of the COTP or the designated on-scene representative. Upon being hailed by a U.S. Coast Guard vessel by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed.
(4) Vessel operators desiring to enter or operate within the regulated area shall contact the COTP or the designated on-scene representative via VHF channel 16 or 617-223-3201 (Sector Boston Command Center) to obtain permission.
(5) Vessel operators given permission to enter or operate in the regulated area must comply with all directions given to them by the COTP or the designated on-scene representative.
Federal Communications Commission.
Notice of proposed rulemaking.
In this document, the Commission seeks comment on whether the customers of Lower 700 MHz B and C Block licensees would experience harmful interference—and if so, to what degree—if the Lower 700 MHz band were interoperable. The Commission also explores the next steps should it find that interoperability would cause
Interested parties may file comments on or before June 1, 2012, and reply comments on or before July 16, 2012.
You may submit comments, identified by WT Docket No. 12-69, by any of the following methods:
Brenda Boykin, Wireless Telecommunications Bureau, (202) 418-2062, email
This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM) in WT Docket No. 12-69, adopted March 21, 2012, and released March 21, 2012. The full text of the NPRM is available for inspection and copying during business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. Also, it may be purchased from the Commission's duplicating contractor at Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554; the contractor's Web site,
1. The Communications Act directs the Commission to, among other things, promote the widest possible deployment of communications services, ensure the most efficient use of spectrum, and protect and promote vibrant competition in the marketplace. On each occasion where the Commission has made available new spectrum for mobile telephony and/or broadband, it has strived to meet these important goals. This was the case when the Commission launched its proceeding to free up the 700 MHz band for commercial mobile services, as it expressly recognized the need to “balance several competing goals, including facilitating access to spectrum by both small and large providers, providing for the efficient use of the spectrum, and better enabling the delivery of broadband services in the 700 MHz Band.”
2. Since the completion of the 700 MHz auction and the subsequent clearing of the spectrum, however, certain Lower 700 MHz A Block licensees have asserted that the development of two distinct band classes within the Lower 700 MHz band has hampered their ability to have meaningful access to a wide range of advanced devices. The result, they argue, is that this spectrum is being built out less quickly than anticipated (and in some cases not at all), so that a large number of Lower 700 MHz A Block licensees are unable to provide the level of service and degree of competition envisioned at the close of the auction and as contemplated by the Communications Act. The 700 MHz band, at 70 megahertz, one of the largest commercial mobile service bands, is the only non-interoperable commercial mobile service band.
3. The record to date in response to the underlying Petition for Rulemaking reveals disagreement over the rationale for the distinct band classes, and the wisdom of maintaining both. At its core, the dispute is whether a unified band class would result in harmful interference to Lower 700 MHz licensees in the B and C Blocks and whether, if harmful interference exists, it reasonably can be mitigated.
4. There is express agreement, however, that a unified band class across the Lower 700 MHz band has the potential to yield significant benefits for all licensees. Indeed, as AT&T, the primary holder of Lower B and C Block licenses, affirmed in a recent letter to the Commission, “[AT&T] indeed anticipate[s] that there would be increased opportunity [if interference concerns were addressed] for commercial relationships with A Block licensees.” Unfortunately, no industry-led solution to the lack of interoperability has yet emerged.
5. Therefore, the Commission initiates this rulemaking proceeding to promote interoperability in the Lower 700 MHz band and to encourage the efficient use of spectrum.
6.
7. As shown above, the Lower 700 MHz band spectrum (698-746 MHz) consists of 48 megahertz of commercial spectrum, with three blocks of 12 megahertz each of paired spectrum (Lower A, B, and C Blocks), and two blocks of 6 megahertz each of unpaired spectrum (Lower D and E Blocks). The Lower A Block spectrum is adjacent to Channel 51 (692-698 MHz), which has been allocated for TV broadcast operations at power levels of up to 1000 kW.
8.
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12. The Commission received 18 comments and 13 reply comments in response to the Petition. Commenters are divided on the merits of the relief sought in the Petition. Commenters in support of the Petition include smaller, regional 700 MHz licensees, a coalition including Sprint Nextel and T-Mobile, trade associations representing rural and smaller providers, a coalition of public interest groups, and public safety associations. These supporters assert that the mobile devices currently being developed for AT&T and Verizon Wireless preclude supporting operation on Lower A Block spectrum and that this is contrary to the public interest and anti-competitive. They argue that small providers that acquired Lower band 700 MHz Block A spectrum are left without viable and widely usable equipment options. Thus, they contend that unless Verizon Wireless and AT&T are required to support Band Class 12 in their devices, Lower A Block licensees will not be able to obtain devices with competitive economies of scale. They also argue that requiring full 700 MHz support will maximize roaming opportunities. Specifically, Petitioners assert that a prerequisite for negotiating roaming agreements is the availability of capable devices and that there is no basis for negotiation if there are no mobile devices that work across 700 MHz frequency blocks. While the Petition requests interoperability across the entire 700 MHz band, subsequent filings from some of the proponents of an interoperability requirement, including parties to the Petition, have asked the Commission to first focus on establishing an interoperability requirement for the Lower 700 MHz band.
13. In their initial comments, parties such as AT&T and Verizon Wireless, device manufacturers Motorola and Qualcomm, and TIA, a manufacturer trade association, opposed the Petition. They argued that without Band Class 17 filtering, Lower 700 MHz B and C licensees will face greater levels of harmful interference. Further, they suggested that an interoperability requirement at that time, spring 2010, would have unnecessarily delayed the deployment of 700 MHz mobile broadband devices. They contended that the existing 3GPP band classes were crafted through an open process and are responsive to the realities of the engineering and manufacturing constraints of the Commission-defined spectrum blocks. Further, AT&T asserted that nothing prevents 700 MHz A Block licensees from negotiating roaming deals with any provider offering services on other 700 MHz blocks. AT&T also argued that even if A Block licensees will have greater difficulty or face higher costs in developing handsets for use on the A Block, those disadvantages are fully reflected in the lower prices A Block licensees paid to obtain A Block spectrum.
14.
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17. The Commission historically has been interested in promoting interoperability. Beginning with the licensing of cellular spectrum, the Commission has opined that consumer equipment should be capable of operating over the entire range of cellular spectrum as a means to “insure full coverage in all markets and compatibility on a nationwide basis.” Although the Commission did not adopt a rule to require band-wide interoperability for PCS, it again stressed the importance of interoperability by acknowledging industry efforts to establish voluntary interoperability standards and asserted that “[t]he availability of interoperability standards will deliver important benefits to consumers and help achieve the Commission's objectives of universality, competitive delivery of PCS, that includes the ability of consumers to switch between PCS systems at low cost, and competitive markets for PCS equipment.” The Commission also stated that if PCS technology did not develop in a manner to accommodate roaming and interoperability, it might consider “what actions the Commission may take to facilitate the more rapid development of appropriate standards.”
18.
19. Petitioners and other proponents also claim that an interoperability requirement should enable Lower A Block licensees and other Lower 700 MHz licensees to benefit from economies of scale with respect to mobile devices, which in turn would promote greater affordability that can be passed along to consumers. RCA argues that even where Band Class 12 equipment can be made available, the costs are unnecessarily inflated by the limited scale resulting from the lack of interoperability across the 700 MHz spectrum. According to the record, Cellular South was able to find a manufacturer willing to supply it with devices that included, at a minimum, Band Class 12 frequencies, but “the cost of obtaining such devices without the economies of scale available based upon demand for similar devices by a nationwide carrier made pursuing the opportunity not economically feasible.” Cellular South asserts that the necessary “scale” to obtain pricing that would allow it to bring devices to market would be expected to involve more than one million devices and in any case no less than a half million devices.
20. Nationwide providers AT&T and Verizon Wireless respond that Lower 700 MHz A Block licensees are free to negotiate with device manufacturers. Verizon Wireless claims that “those decisions have to be made by those carriers to meet their own individual business plans. Verizon Wireless has nothing to do with those decisions.” Verizon Wireless also asserts that there are at least 33 companies that manufacture devices for the U.S. market and that Petitioners “provide no evidence about their efforts (or the apparent lack thereof) to obtain the devices they want, either individually or through a consortium, from any of these potential suppliers.”
21. The Commission seeks comment on Petitioners' and other proponents' argument that an interoperability requirement in the 700 MHz band is necessary to obtain affordable, advanced mobile devices to deploy service to consumers in smaller, regional, and rural service areas. To what extent have any Lower A Block licensees successfully negotiated with equipment vendors to date? What efforts have other Lower A Block licensees undertaken to negotiate with equipment vendors? Would an interoperability requirement help enable Lower A Block licensees to benefit from economies of scale with respect to mobile devices, and what would be the benefits to consumers? Do manufacturers require a provider to purchase a minimum number of devices? If so, what is that number and is it prohibitive for a smaller provider to achieve such a scale? The Commission seeks data and evidence in support of all of these claims.
22.
23. AT&T responds that an interoperability requirement in the Lower 700 MHz spectrum would impose unreasonable burdens on
24. The Commission asks commenters to submit additional detailed metrics to evaluate the effects of an interoperability requirement on competition. Specifically, would the use of interoperable equipment promote consumer choice by facilitating the portability of mobile devices between service providers, thereby allowing consumers to switch more easily between providers? At the same time, would deployment of Lower 700 MHz B and C Block service be delayed by a move towards interoperability, either by rule or industry agreement? What would be the relevant costs associated with possible Commission action? What costs would Lower 700 MHz B and C licensees who have already committed to Band Class 17, or who plan to do so, incur if the Commission adopts an interoperability rule in the Lower 700 MHz spectrum?
25. Would a requirement that mobile user equipment be capable of operating on all paired commercial Lower 700 MHz spectrum facilitate deployment of facilities-based mobile broadband networks in rural and unserved areas? Are Lower A Block licensees just as likely to obtain funding and obtain affordable mobile equipment without Commission action? The Commission also seeks specific data and anecdotal evidence to support claims that an interoperability obligation would require complete redesign and upgrade of devices and base stations. The Commission seeks additional information on the necessary changes to chipsets and the timeframes these changes will impose.
26. U.S. Cellular recently announced the planned launch of a 4G LTE network that will cover 25 percent of U.S. Cellular's customers and will use the 700 MHz licenses of its partner, King Street Wireless. C-Spire, in contrast, reportedly has delayed its previously announced launch of its 4G LTE network. The Commission asks Lower A Block licensees to provide detailed information on the effect that a lack of interoperability has had, if any, on their efforts to deploy service. Commenters should be as specific as possible and should, where possible, include data or affidavits.
27.
28. NTCA states that mobile customers rely on and expect a “seamless experience” that is made possible by roaming arrangements. Without roaming, NTCA explains that customers will experience “isolated islands of service.” Further, Petitioners and other supporters assert that even if Band Class 12 equipment were available, from a technical perspective, Band Class 17 device users would be unable to roam on Band Class 12 networks operating on Block A. They argue that a lack of interoperability leaves customers of small carriers “without an option for a nationwide service, perpetually unable to roam on the networks of the large carriers.”
29. AT&T and Verizon Wireless respond that the Lower A Block licensees are not prevented from negotiating roaming arrangements with providers offering services on the other 700 MHz blocks. AT&T also responds that A Block licensees are free to negotiate with handset manufacturers to design, manufacture and deploy wireless handsets and other devices that operate within the spectrum bands that are needed based upon their spectrum holdings and business plans, including Band Class 12 or other commercial spectrum.” AT&T argues that “[t]he Commission should not take action to force carriers to utilize a certain spectrum band for roaming,” but that carriers should be able “to choose their roaming partners based on factors like network compatibility, price, coverage, and call quality.” The Commission seeks comment on whether interoperability would promote reasonable roaming arrangements among 700 MHz providers and would increase the number of providers that are technologically compatible for roaming partnership.
30. Even if the record demonstrates that the existence of two distinct band classes in the Lower 700 MHz band is creating a device and network deployment problem, the Commission must ultimately resolve the central question as to whether a single band class would cause widespread harmful interference to Lower 700 MHz B and C Block licensees, who would otherwise use Band Class 17 devices rather than Band Class 12.
31. Interoperability issues are particularly relevant at this time, as licensees are in the process of deploying LTE in the Lower 700 MHz band. As of December 2011, AT&T has launched LTE service using its Lower 700 MHz B and C Block licenses in 15 markets. In addition, as noted above, U.S. Cellular recently announced the planned launch of an LTE network that will cover 25 percent of its customers and will use the 700 MHz licenses of its partner, King Street Wireless. As discussed earlier, there are two Lower 700 MHz band LTE standards for the Lower 700 MHz band, with 3GPP Band Class 17 spanning the B and C Blocks, and Band Class 12 spanning the A, B, and C Blocks. Some commenters have argued that this, in turn, fragments the device ecosystem for LTE devices that operate in the Lower 700 MHz band and prevents interoperability.
32. Commenters argue that there would be two primary interference concerns for providers operating in the
33. AT&T asserts that both reverse intermodulation and blocking interference are significant issues. It expects that managing and mitigating the interference from Channel 51 and any high power Lower E Block broadcasts to its network would account for the greatest expenses, and that its customers would not, on balance, benefit from AT&T migrating to Band Class 12. AT&T argues that if it were required to use Band Class 12 devices as opposed to Band Class 17 devices, its customers would be forced to use devices that would expose them to interference risks (from Channel 51 and the E Block) they otherwise would not face. Notwithstanding the foregoing, AT&T affirms that it does not object to supporting interoperability in the Lower 700 MHz band, assuming supply chain availability, if interference challenges from Channel 51 and the Lower 700 MHz E Block licensees are addressed to its satisfaction.
34. With regard to the Channel 51 interference concerns, Motorola's view in its original 3GPP proposal to create Band Class 17 was that reverse intermodulation interference could happen when Band Class 12 devices are close to high-powered Channel 51 transmission towers, which it believes could result in in-band interference because of the limited radio frequency (RF) filtering capability of Band Class 12 filters. According to Motorola's paper, “the key issue” in determining the possibility of such interference is “the level of the DTV Channel 51 wideband signal that would be present at the UE antenna port based on a reasonable deployment scenario,” but Motorola does not provide evidence showing the circumstances that could produce conditions suitable to create reverse intermodulation interference from Channel 51.
35. Proponents of an interoperability requirement argue that no reverse intermodulation interference would occur, and that if an operator does experience any such interference, solutions exist to mitigate Channel 51 interference concerns to Band Class 12 devices operating in the B and/or C Blocks. According to Cellular South and King Street Wireless, “With [less than five megahertz] Tx bandwidth, any Channel 51-700 intermodulation products would not fall within the device receive blocks (no self-interference issue).” They represent that this is because a strong signal from Channel 51 must mix with a full-power Lower 700 MHz B and C Block device transmission, but “LTE base stations do not allow devices to transmit at full power with [greater than five megahertz] bandwidth due to a self-desense issue.” Essentially, Cellular South and King Street Wireless argue that power amplifier linearity in a mobile device improves considerably when it is not transmitting at full power and that if the device transmitted bandwidth is less than five megahertz, then intermodulation products resulting from the combination of Channel 51 and Lower 700 MHz band C Block transmit frequencies would not cause intermodulation interference. Finally, they point out that if intermodulation interference is experienced, the wireless operator “may deploy an LTE base station several hundred meters away from the Channel 51 station to control device transmit power and provide a stronger downlink desired signal.”
36. Vulcan performed lab and field tests to test the assertion that “reverse intermodulation distortion caused by Channel 51 using a Band Class 12 device would create an interfering signal in the B Block receiver.” Based on the results of lab tests, Vulcan concludes that a minimum signal level of 0 dBm from Channel 51 would be necessary to create an interference signal at the noise floor of the B Block receiver, and field measurements showed that Channel 51 transmissions were no stronger than -21 dBm. The report indicates that the strongest signal strength in the field measurements of DTV Channel 51 is typically much lower than necessary to generate noticeable reverse intermodulation interference. AT&T responds that the tests referenced by Vulcan do not represent real-world situations, because the tests occurred only within a two kilometer radius of the Channel 51 tower, whereas stronger signals from Channel 51 can occur at closer distances.
37. With regard to interference from Lower E Block operations, Motorola asserts that receiver blocking performance may be degraded when Band Class 12 devices are close to high-powered Lower E Block transmission towers, due to limited Band Class 12 device out-of-band blocking rejection. According to AT&T, Band Class 17, with an extra six megahertz of separation from the Lower E Block, was created to alleviate this concern, so that the device filter can provide sufficient attenuation of the E Block transmissions. It further asserts that Band Class 12 has sub-optimal filtering because of the lack of sufficient frequency separation between the Lower E Block and the starting frequencies of Band Class 12.
38. The Coalition for 4G asserts that network operators can eliminate potential interference from Lower E Block operations by deploying the A, B, or C Block base stations near the E Block transmitters. In support of its position that interference from Lower 700 MHz E Block transmitters is manageable for Band Class 12 devices operating in Lower 700 MHz B and C blocks, Vulcan's lab and field tests assess the severity of interference issues to Band Class 12 devices from high power 50 kW transmissions in the Lower 700 MHz E Block. The tests indicate that the Atlanta field measurements of the highest signal power ratios between the 50 kW Lower E Block and B Block are typically 15 to 30 dB lower than necessary to produce Lower B Block receiver blocking. The tests conclude that real-world tests found the anticipated interference circumstances are manageable and Band Class 17 is redundant. Vulcan also asserts that the test results confirm Band Class 12
39. In response, AT&T disagrees generally with the effectiveness of these potential mitigation techniques, stating that (1) increasing the number of cell sites near E Block transmitters or Channel 51 towers would increase the cost of providing 4G service, which would eventually be passed on to consumers, and (2) given the limited number of available site locations, coordination alone is insufficient to solve Band Class 12 interference issues. AT&T also asserts that adequate coverage of a 50 kW mobile broadcast service in the market in which Vulcan conducted its testing would require at least thirteen Lower 700 MHz E Block transmitters, which would lead to higher signal levels compared to the four transmitters that were active when testing was conducted by Vulcan. It is unclear, however, how much higher the signal levels may be close to a Lower E Block transmitter that is surrounded by twelve additional E Block transmitters versus one that is surrounded by only three. Whereas more base stations will improve overall signal levels and coverage, basic engineering calculations would suggest that any increase to the signal levels close to each base station, where signals may be strong enough to cause in-band receiver blocking interference to neighboring bands, would be negligible.
40. The Commission seeks comment on these and any additional technical and operational factors that should be taken into consideration in any transition to an interoperable Lower 700 MHz band. The Commission asks interested parties to submit measurements and quantitative analyses regarding the magnitude and extent of the interference risk from adjacent Channel 51 and Lower Block E transmissions for Band Class 12 devices operating in the Lower B and C Blocks. How effective are existing mitigation measures, such as coordination between Lower 700 MHz and DTV Channel 51 licensees? Further, what innovative technical measures might be introduced in the near future, such as better performing RF duplexers and filters? What additional interoperability solutions exist or are being developed to address these interference concerns? The Commission also seeks comment on the performance of Band Class 12 devices compared to Band Class 17 devices, as well as on other factors relating to the operations in the Lower B and C Blocks. Furthermore, in the event unwanted harmful interference cannot be mitigated in some areas, the Commission seeks comment on whether the potential harm resulting from interference in those areas is outweighed by the public interest benefits that would result from interoperability in the Lower 700 MHz band, and what factors should be considered in balancing these concerns.
41. As noted above, should Band Class 12 be substituted in devices for Band Class 17, operational issues may arise to the extent that a single network must be capable of supporting more than one device band class. That is, if a licensee chooses to continue supporting its existing grandfathered Band Class 17 devices, the wireless network will need to support both Band Class 17 devices and Band Class 12 devices. The Commission seeks comment on possible ways to address this issue. Since the two Band Classes overlap in frequencies, the Commission thinks it is likely that there are relatively simple, cost effective solutions that will allow a single network to accommodate devices from both band classes. For example, would the Equivalent Home Public Land Mobile Network file (EHPLMN) update in devices allow the LTE network to support both Band Class 12 and Band Class 17 devices?
42. The Commission seeks comment on whether there are measures it should take to address Lower 700 MHz interference concerns that may be preventing the voluntary adoption of Band Class 12 by Lower B and C Block licensees. The Commission notes that AT&T asks it to “modify the rules governing service in Channel 51 and in the 700 MHz Lower E Block to permit power levels, out of band emissions and antenna heights that are no greater than those currently permitted in the 700 MHz Lower A and B blocks, to allow downlink only in the Lower E Block and uplink only in Channel 51, and to relocate any incumbent high power broadcast operations out of Channel 51 and the Lower E Block.” In approving AT&T's acquisition of Qualcomm's Lower 700 MHz licenses (comprising all of the Lower 700 MHz D Block licenses and five of the Lower E Block licenses), the Commission included a condition that AT&T operate under the same power limits and height restrictions applicable to Lower 700 MHz A and B Block licensees, which will reduce the instances of high-powered operations in the Lower D and E Blocks. Specifically, the Commission stated that “AT&T must operate on the Lower D and E Block licenses consistent with the limits set forth in Section 27.50(c), excluding Subsection 27.50(c)(7).” The Commission also conditioned the transaction on AT&T's use of this spectrum only for downlink transmissions. In addition, it conditioned the transaction on AT&T taking certain steps to mitigate possible interference caused by AT&T's use of the Lower D and E Blocks to the uplink operations of licensees operating in the Lower 700 MHz A, B, and C Blocks, including mitigating interference within 30 days after receiving written notice from the A, B, or C Block licensee.
43. The Commission seeks comment on whether it should modify its rules for Lower 700 MHz D and E Block operations, using the technical conditions set forth in the AT&T/Qualcomm decision as a template. Modifying the Commission's rules in this manner would lead to consistency in the technical requirements for the Lower D and E Blocks and would help to address potential harmful interference from operations on the Lower E Block licenses that are not held by AT&T. Would these modifications adequately address concerns that Lower B and C Block licensees may experience harmful interference from Lower D and E Block operations if they transition to Band Class 12? As a practical matter, would modifying the Commission's rules in this manner encourage Lower B and C Block licensees to voluntarily adopt interoperable devices? The Commission also seeks comment on how such modifications would affect the operations and plans of Lower E Block licensees, other than AT&T. What other modifications to the Lower 700 MHz D and E Block technical operational rules should the Commission consider and what are the costs and public interest benefits of these alternative rules?
44. With respect to potential interference as a result of Channel 51 operations, are there steps the Commission could take to reduce the threat of such potential interference that would balance the needs and rights of Channel 51 incumbents with Lower 700 MHz licensees? What role, if any, should the passage of the Middle Class Tax Relief and Job Creation Act of 2012, which gives the Commission authority to conduct incentive auctions, including in the television broadcast bands, have in the Commission's approach to potential interference from Channel 51 to the Lower 700 MHz band licensees? Could any measures be implemented without causing an undue burden on existing licensees? What is the likelihood that Channel 51 licensees will experience interference from operations in the Lower 700 MHz band? Vulcan asserts that “Band Class 12 device interference into TV receivers is a claim that has never been substantiated,” and that the potential for Channel 51 licensees to cause interference to A Block base stations “is a deployment issue to be managed by the Lower A Block licensees.” Aside from regulatory measures, what steps should the Commission take to encourage voluntary industry efforts to find solutions to interference concerns?
45.
46. Finally, the Commission seeks comment on whether its efforts should be focused exclusively—as they are now—on interoperability in the Lower 700 MHz band, as opposed to the entire band. As the Commission noted above, although the Petition initially requests an interoperability requirement that requires mobile equipment to be capable of operating on all paired commercial frequency blocks in both the Upper and Lower 700 MHz bands, subsequent filings from some of the proponents of an interoperability requirement focus on requiring the use of Band Class 12 devices in the Lower 700 MHz band.
47. Assuming the Commission concludes that concerns regarding harmful interference to Lower 700 MHz B and C Block licensees are not a reasonable obstacle to interoperability or can be mitigated through industry efforts and/or Commission action, the Commission seeks comment on whether there is likely to be a timely industry solution to interoperability in the Lower 700 MHz band, or whether additional regulatory measures will be necessary to promote interoperability across the Lower 700 MHz band. Commenters currently supporting Band Class 17 suggest that resolving interference concerns would encourage the use of Band Class 12. For example, Verizon asserts that it “fully supports commercial development of Band Class 12 devices,” and that “actions addressing interference issues would spur evolution of the device market toward full Lower 700 MHz interoperability.” AT&T asserts that, if interference challenges from high power broadcasts in Channel 51 and in the Lower 700 MHz E Block are addressed satisfactorily, it will not object to supporting interoperability in the Lower 700 MHz band. Further, AT&T contends that “these challenges can and should be addressed.” Absent a regulatory mandate to implement interoperability, will Lower 700 MHz licensees voluntarily ensure that all of the Lower 700 MHz spectrum used for mobile transmit is included in their mobile equipment?
48. In what timeframe would a voluntary migration to interoperable devices reasonably take place? The Commission notes that while U.S. Cellular recently announced that it has impending plans to launch 4G LTE service, together with its partner King Street Wireless L.P., it nevertheless asserts that “the Commission must still act quickly to address issues related to interoperability within the lower 700 MHz bands.” Similarly, proponents of an interoperability requirement argue that action must be taken by the end of 2012. Aside from the widespread and exclusive adoption of Band Class 12 in devices, which would necessitate only a single duplexer solution, what other solutions exist that might address interoperability concerns without regulatory intervention and within a reasonable timeframe? What would be a reasonable timeframe for a path to interoperability, and how will this timing affect consumers and competition?
49. The Commission thinks that an industry solution to the question of interoperability in the Lower 700 MHz band would be preferable because such a solution allows the market greater flexibility in responding to evolving consumer needs and dynamic and fast-paced technological developments. At the same time, the Commission recognizes that if the industry fails to move timely toward interoperability once interference concerns are adequately addressed (by regulatory action or otherwise), additional regulatory steps might be appropriate to further the public interest. The Commission staff will remain vigilant in monitoring the state of interoperability in the Lower 700 MHz band to ensure that the industry is making sufficient progress. What metrics and quantifiable data can the Commission use to measure whether the industry is making adequate progress towards achieving interoperability in the Lower 700 MHz band? In the event that such steps are warranted, the Commission seeks
50. In the event that interference concerns are reasonably addressed and the Commission is left with no other option to maximize innovation and investment in the Lower 700 MHz band besides mandating mobile device interoperability, one approach would be to require Lower 700 MHz A, B, or C Block licensees, with respect to their networks operating in this spectrum, to use only mobile user equipment that has the capability to operate across all of these blocks. For example, those licensees deploying LTE in the Lower 700 MHz band would no longer be allowed to offer mobile units operating on Band Class 17, which provides for operation on only the Lower 700 MHz B and C Blocks. Those licensees deploying LTE in the Lower 700 MHz band would substitute Band Class 17 with Band Class 12. The Commission notes that this approach focuses on mobile user device interoperability and would not require modifications to Lower 700 MHz B and C Block licensees' base stations beyond those necessary to support Band Class 12 devices operating on these licensees' authorized Lower 700 MHz frequencies only. In other words, the Commission is not contemplating requiring licensees to implement base station operations on frequencies they do not have the potential to use, in order to spur production of base station elements that can be used only by licensees operating on other frequencies. The Commission seeks comment on this approach and how, if adopted, it would promote key public interest objectives, including competition and consumer choice among mobile broadband service providers, the widespread deployment of 4G networks, particularly in rural and unserved areas, the availability of additional innovative 4G devices, and increased roaming opportunities. In order to facilitate a smooth transition to interoperable mobile equipment use in the Lower 700 MHz band, the Commission would propose a reasonable transition period of no longer than two years after the effective date of an interoperability requirement, thereby minimizing the possibility of stranded investments in existing equipment. Furthermore, the Commission would propose to grandfather the use of devices already in use by consumers as of the transition deadline, so that consumers using existing Band Class 17 equipment would not be adversely affected. The Commission seeks comment on this approach—as well as on any alternative approaches, including associated costs and benefits—that might equally satisfy the Commission's public interest objectives in promoting the widespread deployment of broadband service and increased competition and consumer choice in the mobile broadband marketplace.
51. The Commission notes that, in considering whether to adopt rules to promote the development of interoperable equipment in the Lower 700 MHz band, the Commission will consider a number of factors, including the costs or burdens that any such new obligation would impose on licensees or others, and whether the costs would be offset by benefits to consumers, including those that would result from innovation in the marketplace, increased investments in networks, or additional competition. The Commission therefore requests comment on the costs and the benefits of adopting rules that would promote interoperability. The Commission also seeks comment on the costs and benefits of an industry-based solution to interoperability in the Lower 700 MHz band. Are there cost savings to consider, or conversely, are there costs that Lower 700 MHz licensees would incur if the industry resolved the interoperability issue without a regulatory mandate?
52. Commenters should quantify the costs of implementing any proposed solutions to the interference issues discussed above. The Commission seeks comment on costs that Lower 700 MHz B and C licensees are likely to incur in order to comply with a device interoperability requirement, including quantification of the costs to develop and obtain new compatible chipsets or front ends; design and manufacture new mobile devices; and develop any hardware or software changes necessary to implement an interoperability requirement. How much will the costs and prices of devices change as a result of an interoperability requirement? The Commission seeks comment on the revenue implications an interoperability requirement would have for providers and device manufacturers. The Commission also seeks comment on quantifiable ways in which licensees may benefit from a sunset of devices capable of operating only on a subset of paired Lower 700 MHz frequencies. For example, will Lower 700 MHz licensees achieve economies of scale in devices? The Commission seeks quantification of these economies of scale. What cost savings might result from an interoperability rule? The Commission also seeks comment on the potential costs associated with interoperability if interference cannot be mitigated in some areas. In these areas, will the public interest benefits from interoperability outweigh the costs?
53. The Commission seeks data on consumer benefits that may result from interoperability, including greater affordability and availability of 4G equipment, increasing consumer choice in equipment, promoting the widespread deployment of broadband services, providing greater options in selecting a service provider, and facilitating greater roaming opportunities. How would a rule requiring interoperability affect innovation and investment, both in the near term and in the longer term? Would such a requirement foster additional competition, and how would any increase in competition be measured?
54. What are the particular benefits to consumers or others that would result from a device interoperability requirement that includes a reasonable transition period (
55. In providing responses to these questions, the Commission asks commenters to take into account only those costs and benefits that directly result from the implementation of particular rules that could be adopted. Commenters should identify the various costs and benefits associated with a particular requirement. Further, to the extent possible, commenters should provide specific data and information, such as actual or estimated dollar figures for each specific cost or benefit addressed, including a description of how the data or information was calculated or obtained, and any supporting documentation or other evidentiary support.
56.
57. On the other hand, other commenters argue that Petitioners fail to cite a valid legal basis to adopt such an interoperability requirement. Both Verizon and AT&T argue that Sections 201 and 202 prohibit providers from unreasonable practices or discrimination among consumers. Verizon and AT&T also argue that the other provisions referenced by supporters of an interoperability requirement do not grant the Commission the authority to regulate equipment, or else are not substantive grants of authority for Commission action.
58. The Commission observes that, under Title III of the Communications Act, the Commission has broad and extensive authority to manage the use of spectrum.
59. The Commission seeks comment on its statutory authority to adopt a device interoperability requirement. The Commission notes that it has previously required interoperability across licensed spectrum as a means to “insure full coverage in all markets and compatibility on a nationwide basis.”
60. In this
61. As required by the Regulatory Flexibility Act of 1980, as amended (the RFA),
62. Certain Lower 700 MHz A Block licensees have asserted that the development of two distinct band classes within the Lower 700 MHz band has hampered their ability to have meaningful access to a wide range of advanced devices. The Commission initiates this rulemaking proceeding to promote interoperability in the Lower 700 MHz band. The Commission states that the Communications Act directs it to, among other things, promote the widest possible deployment of communications services, ensure the most efficient use of spectrum, and protect and promote vibrant competition in the marketplace. In this NPRM, the Commission's objective is to evaluate whether the customers of Lower 700 MHz B and C Block licensees would experience harmful interference, and if so to what degree, if the Lower 700 MHz were interoperable. Assuming that interoperability would cause limited or no harmful interference to Lower 700 MHz B and C Block licensees or that such interference can reasonably be mitigated through industry efforts and/or through modifications to the Commission's technical rules or other regulatory measures, the Commission asks whether there is likely to be a timely industry solution to interoperability in the Lower 700 MHz band, or whether additional regulatory measures will be necessary to promote interoperability across the Lower 700 MHz band, such as requiring Lower 700 MHz A, B, or C Block licensees, with respect to their networks operating in this spectrum, to use only mobile user equipment that has the capability to operate across all of these paired commercial 700 MHz blocks.
63. The Commission considers whether a requirement that mobile user equipment be capable of operating on all paired commercial Lower 700 MHz spectrum could foster deployment of facilities-based mobile broadband networks, particularly in rural and unserved areas. The Commission also considers whether such a requirement would increase the likelihood that the Lower A Block licensees can obtain the necessary financing to deploy networks and devices, particularly in smaller and regional areas. The Commission considers the extent to which Lower A Block licensees have successfully negotiated with equipment vendors, whether an interoperability requirement will enable the A Block licensees to benefit from economies of scale with respect to mobile devices and whether manufacturers require a provider to purchase a minimum number of devices. The Commission considers whether interoperability would promote reasonable roaming arrangements among 700 MHz providers and would increase the number of providers that are technologically compatible for roaming partnership.
64. With respect to the technical issues, the Commission states that it must ultimately resolve the central question as to whether a single band class would cause widespread harmful interference to Lower 700 MHz B and C Block licensees, who would otherwise use Band Class 17 devices rather than Band Class 12. The Commission's goal is to determine the extent of two primary interference concerns for providers operating in the Lower 700 MHz B and C Blocks if these providers substitute Band Class 12 for Band Class 17 in newly-offered devices: (1) Reverse intermodulation interference from adjacent DTV Channel 51 operations; and (2) blocking interference from neighboring high-powered operations in the Lower 700 MHz E Block. The Commission considers and seeks comment on the extent of the interference risk from adjacent Channel 51 and Lower Block E transmissions for Band Class 12 devices operating in the Lower B and C Blocks, the effectiveness of existing mitigation measures, and the extent of any innovative technical measures in the near future, or that can be developed. The Commission also considers how licensees can continue to support its existing grandfathered Band Class 17 devices and Band Class 12 devices.
65. Through the NPRM, the Commission's objective is to develop a record to determine whether there are measures it should take to address Lower 700 MHz interference concerns that may be preventing a voluntary adoption of Band Class 12 by Lower B and C Block licensees. For instance, the Commission seeks comment on whether to modify its technical rules for Lower 700 MHz D and E Block operations. In addition, the Commission considers steps to take to reduce the threat of potential interference to balance the needs and rights of Channel 51 incumbents with Lower 700 MHz licensees.
66. The Commission thinks that an industry solution to the question of interoperability in the Lower 700 MHz band would be preferable to a regulatory approach because such a solution allows the market greater flexibility in responding to evolving consumer needs and dynamic and fast-paced technological developments. The Commission considers what would be a reasonable timeframe for a voluntary migration to interoperability and how such timing may affect consumers and competition.
67. However, the Commission recognizes that if the industry fails to move timely toward interoperability once interference concerns are adequately addressed, by regulation or otherwise, additional regulatory steps might be appropriate to further the public interest. If interference concerns are reasonable addressed and the Commission is left with no other option to maximize innovation and investment in the Lower 700 MHz band besides mandating mobile device interoperability, one approach to achieve the Commission's goals would be to require Lower 700 MHz A, B, or C Block licensees, with respect to their networks operating in this spectrum, to use only mobile user equipment that has the capability to operate across all of these blocks. For example, the Commission considers whether to prohibit those licensees deploying LTE in the Lower 700 MHz band from offering mobile units that operate on Band Class 17, which provides for operation on only the Lower 700 MHz B and C Blocks. In order to facilitate the goal of a smooth transition to interoperable mobile equipment use in the Lower 700 MHz band, the Commission would propose a transition period of no longer than two years after the effective date of an interoperability requirement. The Commission also would propose to grandfather the use of devices already in use by consumers as of the transition deadline, so that consumers using existing Band Class 17 equipment would not be adversely affected.
68. The authority for the actions taken in this Notice is contained in Sections 1, 2, 4(i), 4(j), 301, 302(a), 303(b), 303(e), 303(f), 303(g), 303(r), 304, 307(a), 309(j)(3), and 316(a)(1) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 301, 302a(a), 303(b), 303(e), 303(f), 303(g), 303(r), 304, 307(a), 309(j)(3), and 316(a)(1), and Sections 1.401
69. The RFA directs agencies to provide a description of, and, where feasible, an estimate of, the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”
70. In the following paragraphs, the Commission further describes and estimates the number of small entity licensees that may be affected by an interoperability rule. Implementing a mobile user equipment interoperability requirement in the Lower 700 MHz band affects 700 MHz spectrum licensees.
71. This IRFA analyzes the number of small entities affected on a service-by-service basis. When identifying small entities that could be affected by the Commission's new rules, this IRFA provides information that describes auction results, including the number of small entities that were winning bidders. However, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily reflect the total number of small entities currently in a particular service. The Commission does not generally require that licensees later provide business size information, except in the context of an assignment or a transfer of control application that involves unjust enrichment issues.
72.
73.
74.
75. In 2007, the Commission reexamined its rules governing the 700 MHz band in the 700 MHz Second Report and Order.
76.
77. This NPRM proposes no new reporting or recording keeping requirements.
78. The RFA requires an agency to describe any significant alternatives that it has considered in developing its approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
79. As an alternative to a regulatory approach, the Commission considers the impact of a timely voluntary industry solution to interoperability in the Lower 700 MHz band. The Commission considers how this alternative approach may affect consumers and competition. The Commission seeks comment on the economic impact of this approach on licensees, including small entities. In addition, the Commission seeks comment on other alternative approaches to interoperability in the Lower 700 MHz band that would reduce or eliminate economic adversity on licensees, including small entities.
80. Whether the Commission implements an interoperability requirement, or an industry solution, it seeks comment on the relevant costs and benefits on small entities. The Commission considers the potential benefits to consumers, innovation, and investment. In addition, it considers the revenue implications, cost savings, or adverse economic impact of an interoperability rule or an industry-based solution for Lower 700 MHz providers and device manufacturers.
81. None.
82. The proceeding initiated by this Notice of Proposed Rulemaking shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's
83. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (“ECFS”), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies.
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Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
○ All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of
○ Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
○ U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554.
84. Comments, reply comments, and
85. To request information in accessible formats (Braille, large print, electronic files, audio format), send an email to
86. For additional information on this proceeding, contact Brenda Boykin of the Spectrum and Competition Policy Division, Wireless Telecommunications Bureau, at (202) 418-2062.
87. As required by the Regulatory Flexibility Act of 1980 (“RFA”), the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) relating to this NPRM. The IRFA is attached to this NPRM. Written public comments are requested on the IRFA. These comments must be filed in accordance with the same filing deadlines as comments filed in response to this Notice of Proposed Rulemaking as set forth on the first page of this document and have a separate and distinct heading designating them as responses to the IRFA.
88. This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
89. Accordingly,
90.
91.
92.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of public listening session.
FMCSA announces that it will hold a public listening session to solicit information, concepts, ideas, and comments on Electronic On-Board Recorders (EOBRs) and the issue of driver harassment. Specifically, the Agency wants to know what factors, issues, and data it should consider as it addresses the distinction between productivity and harassment: What will prevent harassment from occurring; what types of harassment already exist; how frequently and to what extent harassment happens; and how an electronic device such as an EOBR, capable of contemporaneous transmission of information to a motor carrier, will guard against (or fail to guard against) harassment. Additionally, the Agency will solicit concepts, ideas, and comments from enforcement personnel on the hours-of-service (HOS) information they would need to see on the EOBR display screen to effectively enforce the HOS rules at the roadside and the type of evidence they would need to retain in order to support issuing drivers citations for HOS
The listening session will be held on Thursday, April 26, 2012, at the Commercial Vehicle Safety Alliance (CVSA) meeting in Bellevue, WA. The listening session will run from 1:30 p.m.-5:30 p.m., with a break between 3:30 p.m. and 4 p.m., and continue from 4 p.m.-5:30 p.m. local time, or earlier, if all participants wishing to express their views have done so.
The listening session will be held at the Hyatt Regency Bellevue, 900 Bellevue Way NE., Bellevue, WA 98004, telephone: (425) 462-1234 and fax: (425) 646-7567. The session will be held in the Grand Ballroom IJK on the 2nd floor.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket ID FMCSA-2010-0167 using any of the following methods:
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Each submission must include the Agency name and the docket number for this notice. Note that DOT posts all comments received without change to
For information concerning the listening session or the live Webcast, please contact Ms. Shannon L. Watson, Senior Advisor for Policy, FMCSA, (202) 385-2395,
Should you need sign language interpretation or other assistance to participate in this listening session, please contact Ms. Watson by Thursday, April 12, 2012, to allow us to arrange for such services. There is no guarantee that services requested on short notice can be provided.
On February 13, 2012, FMCSA published a notice of intent in the
The following discussion summarizes the recent regulatory history of the agency's EOBR program:
On April 5, 2010, the Agency issued a final rule (EOBR 1) (75 FR 17208) that provided new technical requirements for EOBRs. The EOBR 1 final rule also required the limited, remedial use of EOBRs for motor carriers with significant HOS violations. The EOBR 1 final rule required a motor carrier found to have a 10 percent violation rate for any HOS regulation listed in Appendix C of 49 CFR part 385 during a single compliance review to install and use EOBRs on all of its CMVs for a period of 2 years. The compliance date for the rule was June 4, 2012.
The Owner-Operator Independent Drivers Association (OOIDA) challenged the final rule in the United States Court of Appeals for the Seventh Circuit. OOIDA raised several concerns relating to EOBRs and their potential use for driver harassment. On August 26, 2011, the Court vacated the entire final rule.
USE OF MONITORING DEVICES. If the Secretary of Transportation prescribes a regulation about the use of monitoring devices on commercial motor vehicles to increase compliance by operators of the vehicles with hours of service regulations of the Secretary, the regulation shall ensure that the devices are not used to harass vehicle operators. However, the devices may be used to monitor productivity of the operators.
The court's expectation about how the Agency should address harassment and productivity under the statutory directive included the following:
In addition, an adequate explanation that addresses the distinction between productivity and harassment must also describe what precisely it is that will prevent harassment from occurring. The Agency needs to consider what types of harassment already exist, how frequently and to what extent harassment happens, and how an electronic device capable of contemporaneous transmission of information to a motor carrier will guard against (or fail to guard against) harassment. A study of these problems with EOBRs already in use, and a comparison with carriers that do not use these devices, might
As a result of the vacatur, carriers relying on electronic devices to monitor HOS compliance are currently governed by the Agency's previous rules regarding the use of automatic on-board recording devices (49 CFR 395.15). The requirements set forth in 49 CFR 395.15 were not affected by the Seventh Circuit's decision regarding the technical specifications set out in 49 CFR 395.16 in the EOBR 1 Final Rule.
The listening session is open to the public. Speakers' remarks will be limited to five minutes each. The public may submit material to the FMCSA staff at the session for inclusion in the public docket, FMCSA-2010-0167. FMCSA will docket the transcription of the listening session that will be prepared by an official court reporter.
FMCSA tasked the MCSAC with addressing harassment through Task 12-01, titled, “Measures to Ensure Electronic On-Board Recorders (EOBRs) Are Not Used to Harass Commercial Motor Vehicle (CMV) Operators”. MCSAC held public meetings on this task on February 7-8, 2012, and based on its deliberations, submitted a report to the FMCSA Administrator on February 8, 2012. This report is available for review at
The comments sought from the questions below may be submitted in written form at the session and summarized verbally, if desired:
1. In terms of motor carriers' and enforcement officials' monitoring or review of drivers' records of duty status (RODS), what would constitute driver harassment? Would that definition change based on whether the system for recording HOS is paper or electronically based? If so, how? As a starting point, the Agency is interested in potential forms of harassment, including but not limited to those that are: (1) Not prohibited already by current statutes and regulations; (2) distinct from monitoring for legitimate business purposes (e.g., efforts to maintain or improve productivity); and (3) facilitated or made possible solely by EOBR devices and not as a result of functions or features that motor carriers may choose to purchase, such as fleet management system capabilities. Is this interpretation appropriate? Should it be broader? Or narrower?
2. Are there types of driver harassment to which drivers are uniquely vulnerable if they are using EOBRs rather than paper logs? If so, what and how would use of an EOBR rather than a paper log make a driver more susceptible to harassment? Are there ways in which the use of an EOBR rather than a paper log makes a driver less susceptible to harassment?
3. What types of harassment are motor carrier drivers subjected to currently, how frequently, and to what extent does this harassment happen? How would an electronic device capable of contemporaneous transmission of information to a motor carrier guard against (or fail to guard against) this kind of harassment? What experience have motor carriers and drivers had with carriers using EOBRs as compared to those who do not use these devices in terms of their effect on driver harassment or complaints of driver harassment?
4. What measures should the Agency consider taking to eliminate the potential for EOBRs to be used to harass drivers? Are there specific functions and capabilities of EOBRs that should be restricted to reduce the likelihood of the devices being used to harass vehicle operators?
5. Motor carriers are often responsible for managing their drivers and equipment to optimize efficiency and productivity and to ensure transportation services are provided in accordance with a planned schedule. Carriers commonly use electronic devices, which may include but are not limited to EOBRs, to enhance productivity and optimize fleet operation. Provided such devices are not used to coerce drivers into violating Federal safety regulations, where is the line between legitimate productivity measures and inappropriate oversight or actions that may be construed as harassment?
FMCSA also seeks concepts, ideas, and comments from enforcement personnel on the HOS information they would need to see on the EOBR display screen at the roadside to effectively enforce the HOS rules and the type of evidence they would need to retain in order to support issuing drivers a citation for HOS violations observed during roadside inspections.
FMCSA will webcast the listening session on the Internet. Specific information on how to participate via the Internet and the telephone access number will be on the FMCSA Web site at
Surface Transportation Board.
Notice of proposed rulemaking.
The Surface Transportation Board (Board or STB) proposes regulations that would require parties to participate in mediation in certain types of cases and would modify its existing regulations that permit parties to engage voluntarily in mediation. The Board also proposes an arbitration program under which carriers and shippers would agree voluntarily to arbitrate certain types of disputes that come before the Board, and proposes modifications to clarify and simplify its existing rules governing the use of arbitration in other disputes. The Board seeks comments regarding these proposed rules.
Comments are due by May 17, 2012. Replies are due June 18, 2012.
Comments, information, or questions regarding this proposed rule should reference Docket No. EP 699 and be in writing addressed to: Chief, Section of Administration, Office of Proceedings, Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001.
Amy C. Ziehm at 202-245-0391. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.]
The Board favors the resolution of disputes through the use of mediation and arbitration procedures, in lieu of formal Board
The proposed changes to the existing mediation rules would establish procedures under which the Board could compel mediation in certain types of adjudications before the Board, on a case-specific basis, as well as to grant mediation requests of parties to disputes.
The proposed changes to the Board's arbitration rules are intended to consolidate the separate arbitration procedures in Parts 1108 and 1109, to encourage greater use of arbitration to resolve disputes before the Board by simplifying the process, and by clarifying the types of disputes that may be submitted for arbitration.
Under the arbitration program, rail carriers would agree, in advance, to submit to binding arbitration certain defined types of disputes, such as complaints related to demurrage and accessorial charges, or the misrouting or mishandling of rail cars, where the complainant seeks monetary damages for past harm, not for injunctive or prospective relief. The Board also proposes to limit the relief that an arbitrator could award to no more than $200,000, plus interest. Commenters are invited to suggest a different dollar cap that they believe would better capture the majority of such disputes that would be best resolved through arbitration. Arbitration under the arbitration program would be mandatory for the carrier either where the dispute involves only carriers that are participants in the Board's arbitration program, or where the dispute involves at least one carrier-participant and all other parties to the dispute consent to arbitration pursuant to the arbitration program.
In addition, the proposed rules provide for arbitration of most other types of adjudicatory disputes before the Board where all parties agree, on a case-by-case basis, to participate in binding arbitration. In all arbitrations, the Board would assign an arbitrator from a roster of eligible arbitrators, or could grant a mutual request from the parties to use a particular arbitrator, whether listed on the roster or not.
The proposed mediation and arbitration rules would not be available, however, to resolve any matter in which the Board is statutorily required to determine the public convenience and necessity (PCN). Thus, these procedures would not be available to obtain the grant, denial, stay or revocation of any license, authorization (e.g., construction, abandonment, purchase, trackage rights, merger, pooling) or exemption related to these matters. Should participants in such matters, however, reach a voluntary agreement resolving certain issues pertaining to a license or authorization proceeding, the Board would give due consideration to that resolution in weighing the PCN. These rules would also not be available to arbitrate a labor protection dispute, which has its own procedures; however, voluntary mediation of such disputes under the proposed rules would be available.
Additional information is contained in the Board's decision. The full decision is available on the Board's Web site at
This action will not significantly affect either the quality of the human environment or the conservation of energy resources.
1. The Board proposes to amend its rules as set forth in this decision. Notice of the proposed rules will be published in the
2. Comments regarding these proposed rules are due by May 17, 2012. Replies are due by June 18, 2012.
3. This decision is effective on the day of service.
Administrative practice and procedure, Common carriers, Freedom of information.
Administrative practice and procedure, Authority delegations (Government agencies), Organization and functions (Government agencies).
Administrative practice and procedure, Railroads.
Administrative practice and procedure, Maritime carriers, Motor carriers, Railroads.
Administrative practice and procedure, Investigations.
Administrative practice and procedure.
By the Board, Chairman Elliott, Vice Chairman Mulvey, and Commissioner Begeman.
For the reasons set forth in the preamble, the Surface Transportation Board proposes to amend parts 1002, 1011, 1108, 1109, 1111, and 1115 of title 49, chapter X, of the Code of Federal Regulations as follows:
1. The authority citation for part 1002 continues to read as follows:
5 U.S.C. 552(a)(4)(A) and 553; 31 U.S.C. 9701; and 49 U.S.C. 721. Section 1002.1(g)(11) also issued under 5 U.S.C. 5514 and 31 U.S.C. 3717.
2. Amend § 1002.2 by revising paragraph (f)(87) and by removing and reserving paragraph (f)(88) to read as follows:
(f) * * *
3. The authority citation for part 1011 continues to read as follows:
5 U.S.C. 553; 31 U.S.C. 9701; 49 U.S.C. 701, 721, 11123, 11124, 11144, 14122, and 15722.
4. Amend § 1011.7 by adding paragraphs (a)(2)(xvii), (a)(2)(xviii) and (a)(2)(xix) to read as follows:
(a) * * *
(2) * * *
(xvii) To authorize parties to a proceeding before the Board, upon mutual request, to participate in meditation with a Board-appointed mediator, for a period of up to 30 days.
(xviii) To authorize a proceeding held in abeyance while mediation procedures are pursued, pursuant to a mutual request of the parties to the matter.
(xix) To order arbitration of program-eligible matters under the Board's regulations at 49 CFR Part 1108, or upon the mutual request of parties to a proceeding before the Board.
5. The authority citation for part 1011 continues to read as follows:
49 U.S.C. 721(a).
6. Revise § 1108.1 to read as follows:
As used in this part:
(a)
(b)
(c)
(d)
(e)
(f)
7. Amend § 1108.2 by revising paragraph (b) and removing paragraph (d) to read as follows:
(b) These procedures shall be available for use in the resolution of all matters arbitrated before the Board, other than matters involving labor protective conditions, which are subject to different rules. These procedures shall not be available to obtain the grant, denial, stay or revocation of any license, authorization (e.g., construction, abandonment, purchase, trackage rights, merger, pooling), or exemption related to such matters.
8. Revise § 1108.3 to read as follows:
(a)
(2)
(3)
(4)
(b)
(i) File a notice, under docket number EP 699, informing the Board of its opt-out decision no later than 20 days following the effective date of these rules, and subsequently, no later than January 10 (or the immediately following business day) of each calendar year. Such notice shall take effect immediately.
(ii) File a notice with the Board, under docket number EP 699, at any time. Such notice shall take effect 90 days after filing and shall not excuse the filing carrier from arbitration proceedings that are ongoing, or permit it to withdraw its consent to participate in any arbitration program-eligible dispute associated with any matter pending before the Board at any time within the 90-day period before the opt-out notice takes effect. Class I and Class II rail carriers that opt out of the arbitration program will be deemed to be participants in the program in subsequent years if they do not file a new notice with the Board each year. A carrier that has opted out of the arbitration program may opt into the arbitration program at any time by notifying the Board. Opt-in notices shall take effect immediately.
(2)
(3)
(c)
(d)
9. Amend § 1108.4 by revising paragraphs (a)(1) and (a)(2) and removing paragraph (b) to read as follows:
(a) * * *
(1) Monetary damages, to the extent available under the Interstate Commerce Act, shall be available through the arbitration. In disputes arbitrated pursuant to the Board's arbitration program, damages shall not exceed $200,000, exclusive of interest at a reasonable rate to be specified by the arbitrator. Participants in the Board's arbitration program shall not be obligated to arbitrate any dispute in which the alleged damages exceed $200,000.
(2) No prospective or injunctive relief shall be available through the Board's arbitration program, or through any other arbitration before the Board.
10. Revise § 1108.5 to read as follows:
When parties use the Board's arbitration procedures to resolve a dispute, the party filing the complaint shall pay the applicable filing fee pursuant to 49 CFR Part 1002. The Board shall pay any fees and/or costs charged by the arbitrator, except where parties agree to use an arbitrator not included on the roster of arbitrators maintained by the Board, as described in § 1108.6(a), in which case the parties shall share the fees and/or costs of the arbitrator.
11. Revise § 1108.6 to read as follows:
(a) Arbitration shall be conducted by a single arbitrator selected, as provided herein, from a roster of persons (other than active government officials) experienced in rail transportation or economic issues similar to those capable of arising before the STB. The roster of arbitrators shall be established by the Chairman of the STB with input from interested parties who may nominate individuals for inclusion on the list. The roster shall thereafter be maintained and updated by the Chairman of the STB on an every other year basis. The roster may also be augmented or revised at any time, and interested parties are encouraged to nominate qualified individuals for addition to the list. The roster shall be available to the public, upon request, and shall be posted on the Board's Web site at
(b) Matters arbitrated under these rules shall be resolved by a single neutral arbitrator, selected by the Board, from the roster of qualified arbitrators. If the parties to an arbitration proceeding mutually agree upon an arbitrator (whether listed on the roster or not) to resolve their dispute, they may petition the Board to appoint that arbitrator to the arbitration proceeding.
(c) If, at any time during the arbitration process, a selected arbitrator becomes incapacitated, unwilling, or unable to fulfill his/her duties, or if all parties agree that the arbitrator should be replaced, a replacement arbitrator will be selected promptly under the process set forth in paragraphs (a) and (b) of this section.
12. Revise § 1108.7 to read as follows:
(a) Each arbitration under these rules shall commence with a written complaint, which shall be filed and served in accordance with Board rules contained at Part 1104. Each complaint must contain a statement that the complainant is a participant in the Board's arbitration program pursuant to § 1108.3(b), or that the complainant is willing to arbitrate voluntarily all or part of the dispute pursuant to the Board's arbitration procedures. Following the filing of a complaint whose subject matter is arbitration program-eligible, the Board shall issue a notice advising other parties of whether any carrier-parties to the matter are participants in the arbitration program.
(b) Any respondent must, within 20 days of the date of the filing of a
13. Revise § 1108.8 to read as follows:
The arbitrator shall establish all rules for each arbitration proceeding, including with regard to discovery, the submission of evidence and the treatment of confidential information, subject to the requirements that the evidentiary process shall be completed within 90 days from the start date established by the arbitrator, and that the arbitrator's decision will be issued within 30 days following completion of the evidentiary phase.
14. Revise § 1108.9 to read as follows:
(a) Decisions of the arbitrator shall be in writing and shall contain findings of fact and conclusions.
(b) The arbitrator simultaneously shall serve a copy of the decision on the parties and upon the Board. The arbitrator may serve the decision via any service method permitted by the Board's regulations that is consistent with protecting the confidentiality of the decision, if so requested by the parties.
(c) By arbitrating pursuant to these procedures, each party agrees that the decision and award of the arbitrator shall be binding and judicially enforceable in law and equity in any court of appropriate jurisdiction, subject to a limited right of appeal to the STB, as provided below.
15. Revise § 1108.11 to read as follows:
(a) A party may petition the Board to modify or vacate an arbitral award. The appeal must be filed within 20 days of service of a final arbitration decision, and is subject to the page limitations of § 1115.2(d) of this chapter. Copies of the appeal shall be served upon all parties in accordance with the Board's rules at Part 1104. The appealing party shall also serve a copy of its appeal upon the arbitrator. Replies to such appeals shall be filed within 20 days of the filing of the appeal with the Board, and shall be subject to the page limitations of § 1115.2(d) of this chapter.
(b) The timely filing of a petition will not automatically stay the effect of the arbitration decision. A stay may be requested under § 1115.3(f) of this chapter.
(c) The STB will review, and may modify or vacate, an arbitration award, in whole or in part, only on grounds that such award reflects a clear abuse of arbitral authority or discretion.
16. Revise Part 1109 to read as follows:
5 U.S.C. 571
Parties may seek to resolve a dispute brought before the Board using the Board's mediation procedures. These procedures shall not be available to obtain the grant, denial, stay or revocation of any license, authorization (e.g., construction, abandonment, purchase, trackage rights, merger, pooling), or exemption related to such matters. The Board may, by its own order, direct the parties to participate in mediation using the Board's mediation procedures.
(a)
(1) Pursuant to a Board order issued in response to a written request of one or more parties to a matter;
(2) Where the Board orders mediation by its own order; or
(3) In connection with a rate complaint, as provided by § 1109.4 and Part 1111 of this chapter.
(b)
(a) The Board will appoint a Board employee, who is a qualified mediator, to facilitate any dispute assigned for mediation. Alternatively, the parties to a matter may agree to use a non-Board mediator if they so inform the Board within 10 days of an order assigning the dispute to mediation. If a non-Board mediator is used, the parties shall share the fees and/or costs of the mediator. The following restrictions apply to any mediator selected by the Board or the parties:
(1) No person may serve as a mediator who has previously served as an advocate or representative, in any matter, for any party to the mediation;
(2) No person serving as a mediator may thereafter serve as an advocate for a party in any other proceeding arising from or related to the mediated dispute, including, without limitation, representation of a party to the mediation before any other federal court or agency; and
(3) If the mediation does not fully resolve all issues before the Board, the person serving as a mediator may not thereafter advise the Board regarding the future disposition of the dispute.
(b) Parties shall have 30 days from the date of the first mediation session to reach a settlement agreement, or to narrow the issues in dispute, or to agree to stipulations that may be incorporated into any adjudication before the Board if mediation does not fully resolve the dispute. The mediator may assist the parties in preparing a settlement agreement. The mediator shall notify the Board whether the parties have reached any agreement by the end of the 30-day period.
(c) Any settlement agreement reached during or as a result of mediation must be in writing, and signed by all parties to the mediation. The parties need not provide a copy of the settlement agreement to the Board, or otherwise make the terms of the agreement public, provided that the parties, or the mediator, notify the Board that the parties have reached a mutually
(d) If the parties reach only a partial resolution of their dispute, they or the mediator shall so inform the Board, and the parties shall file any stipulations they have mutually reached, and ask the Board to reactivate the procedural schedule in the underlying proceeding to decide the remaining issues.
(e) The Board may extend mediation for additional periods of time not to exceed 30 days per period, pursuant to mutual written requests of all parties to the proceeding. The Board will not extend mediation for additional periods of time where one or more parties to a matter do not agree to an extension. The Board will not order mediation more than once in any particular proceeding, but may permit it if all parties to a matter mutually request another round of mediation.
(f) Mediation is a confidential process except for those limited exceptions permitted by the Administrative Dispute Resolution Act at 5 U.S.C. 574.
(1) All notes taken by participants (including but not limited to the mediator, parties, and their representatives) during the mediation must be destroyed following the conclusion of the matter subject to mediation. As a condition of participation, the parties and any interested parties joining the mediation must agree to the confidentiality of the mediation process. The parties to mediation, including the mediator, shall not testify in administrative or judicial proceedings concerning the issues discussed in mediation, nor submit any report or record of the mediation discussions, other than the settlement agreement with the consent of all parties, except as required by law.
(2) Evidence of conduct or statements made during mediation are not admissible in any Board proceeding. However, if mediation fails to result in a full resolution of the dispute, evidence that is otherwise discoverable may not be excluded from introduction into the record of the underlying proceeding merely because it was presented during mediation. Such materials may be used if they are disclosed through formal discovery procedures established by the Board or other adjudicatory body.
(g) Except as otherwise provided for in 49 CFR 1109.4(f) and Part 1111, the mutual request of all parties that a proceeding be held in abeyance while mediation procedures are pursued should be submitted to the Chief, Section of Administration, Office of Proceedings. The Board shall promptly issue an order in response to such requests. Except as otherwise provided for in 49 CFR 1109.4(f) and Part 1111, the Board may also direct that a proceeding be held in abeyance pending the conclusion of mediation. The period while any proceeding is held in abeyance to facilitate mediation shall not be counted toward any applicable statutory deadlines.
(a) A shipper seeking rate relief from a railroad or railroads in a case involving the stand-alone cost methodology must engage in non-binding mediation of its dispute with the railroad upon filing a formal complaint under 49 CFR Part 1111.
(b) Within 10 business days after the shipper files its formal complaint, the Board will assign a mediator to the case. Within 5 business days of the assignment to mediate, the mediator shall contact the parties to discuss ground rules and the time and location of any meeting. At least one principal of each party, who has the authority to bind that party, shall participate in the mediation and be present at any session at which the mediator requests that the principal be present.
(c) The mediator will work with the parties to try to reach a settlement of all or some of their dispute or to narrow the issues in dispute, and reach stipulations that may be incorporated into any adjudication before the Board if mediation does not fully resolve the dispute. If the parties reach a settlement, the mediator may assist in preparing a settlement agreement.
(d) The entire mediation process shall be private and confidential. No party may use any concessions made or information disclosed to either the mediator or the opposing party before the Board or in any other forum without the consent of the other party.
(e) The mediation shall be completed within 60 days of the appointment of the mediator. The mediation may be terminated prior to the end of the 60-day period only with the certification of the mediator to the Board. Requests to extend mediation, or to re-engage it later, will be entertained on a case-by-case basis, but only if filed by all interested parties.
(f) Absent a specific order from the Board, the onset of mediation will not affect the procedural schedule in stand alone cost rate cases, set forth at 49 CFR 1111.8(a).
17. The authority citation for part 1111 continues to read as follows:
49 U.S.C. 721, 10704, and 11701.
18. Amend § 1111.10 by revising paragraph (b) to read as follows:
(b)
19. The authority citation for part 1115 continues to read as follows:
5 U.S.C. 559; 49 U.S.C. 721.
20. Revise § 1115.8 to read as follows:
An appeal of right is permitted. The appeal must be filed within 20 days of a final arbitration decision, unless a later date is authorized by the Board, and is subject to the page limitations of § 1115.2(d). The standard of review will be whether there is a showing of a clear abuse of arbitral authority or discretion. The timely filing of a petition will not automatically stay the effect of the arbitration decision. A stay may be requested under § 1115.3(f).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Status review; notice of finding.
We, NMFS, announce a 12-month finding on a petition to list the Chinook salmon (
The finding announced in this notice was made on April 2, 2012.
Information used to make this finding is available for public inspection by appointment during normal business hours at the office of NMFS Southwest Region, Protected Resources Division, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802. This file includes the status review report, information provided by the public, and scientific and commercial information gathered for the status review. The petition and the status review report can also be found at:
Rosalie del Rosario at (562) 980-4085 or Ann Garrett at (707) 825-5175, NMFS, Southwest Region Office; or Lisa Manning at (301) 713-1401, NMFS, Office of Protected Resources.
On January 28, 2011, the Secretary of Commerce received a petition from the Center for Biological Diversity, Oregon Wild, Environmental Protection Information Center, and The Larch Company (hereafter, the petitioners), to list Chinook salmon (
After reviewing the petition, the literature cited in the petition, and other literature and information available in our files, we found that the petition met the criteria in our implementing regulations at 50 CFR 424.14(b)(2) that are applicable to our 90-day review and determined that the petition presented substantial information indicating that the petitioned action may be warranted (76 FR 20302; April 12, 2011). In that 90-day finding, we explained why we would not further consider Petitioners' second alternative for listing Chinook salmon in the UKTR ESU. We described NMFS' Policy on Applying the Definition of Species Under the Endangered Species Act to Pacific Salmon (ESU Policy; 56 FR 68612; November 20, 1991), which explains that a Pacific salmon stock will be considered a distinct population segment, and hence a “species” under the ESA, if it represents an ESU of the biological species. We also explained the two criteria for delineating an ESU. Under its second alternative, Petitioners suggest that, even if we determine that spring-run Chinook salmon in the UKTR ESU do not meet the criteria to be delineated as a separate ESU under the ESU Policy, we should apply the two criteria under the U.S. Fish and Wildlife Service (USFWS) and NMFS Policy Regarding the Recognition of Distinct Vertebrate Population Segments under the Endangered Species Act (DPS Policy; 61 FR 4722; February 7, 1996) to determine that spring-run Chinook salmon in the UKTR ESU are a separate distinct population segment within the UKTR ESU. As we described in the 90-day finding, NMFS will continue to apply the criteria in the ESU Policy to Pacific salmon, which includes Chinook salmon, rather than the criteria in the DPS Policy. Because the ESU Policy explains under what criteria Pacific salmon populations will be considered a distinct population segment, and hence a “species” under the ESA, if we evaluate spring-run Chinook salmon in the UKTR according to the criteria of the ESU Policy, we will be determining whether spring-run Chinook salmon are considered a distinct population segment. In the 90-day finding, we also solicited information pertaining to the species and the issues raised in the petition. Following publication of our 90-day finding, we commenced a status review of Chinook salmon in the UKTR ESU. In response to the 90-day finding we received over 50 written comments from the public, which we considered in making this 12-month finding.
In support of the status review, NMFS' Southwest Fisheries Science Center (SWFSC) convened a Biological Review Team (BRT) charged with compiling and reviewing the best available scientific and commercial information on Chinook salmon necessary to: (1) Evaluate whether this information supports the current UKTR Chinook salmon ESU configuration or the separation of spring-run and fall-run Chinook salmon into separate ESUs; and (2) assess the biological status of Chinook salmon populations comprising whichever ESU configuration was best supported by the available information using NMFS' viable salmonid population (VSP) framework for the analysis. The BRT was composed of scientists from the SWFSC and Northwest Fisheries Science Center, USFWS, and U.S. Forest Service with expertise in the biology, genetics, and ecology of UKTR ESU Chinook salmon. The BRT compiled, reviewed, and evaluated the best available scientific and commercial
If a petition is found to present substantial scientific information indicating that the petitioned action may be warranted, ESA section 4(b)(3)(B) (16 U.S.C. 1533(b)(3)(B)) requires the Secretary of Commerce to make a finding within 12 months of receipt of the petition (commonly referred to as a 12-month finding) as to whether a petitioned action is warranted. The Secretary has delegated the authority to make this finding to the NOAA Assistant Administrator for Fisheries. This
Information on the biology and life history of UKTR Chinook salmon is summarized in Myers
Two hatcheries are operated in the UKTR basin, Iron Gate Hatchery on the Klamath River and Trinity River Hatchery on the Trinity River, that annually release large numbers of spring-run and fall-run Chinook salmon fingerlings and yearlings into the basin. Marine recoveries of coded-wire tags indicate that hatchery-origin fall- and spring-run Chinook salmon from these hatcheries have a similar coastal distribution offshore of California and Oregon (Myers
ESA Section 3(16) (16 U.S.C. 1532(16)) defines a “species” to include any subspecies of fish or wildlife or plant, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature. In 1991, we published the ESU Policy (56 FR 58612; November 20, 1991), which describes how we apply the definition of “species” in evaluating Pacific salmon populations for listing under the ESA. Under this policy, a group of Pacific salmon populations is considered an ESU if it is (1) reproductively isolated from other con-specific population units, and (2) represents an important component in the evolutionary legacy of the species. Under this policy, an ESU is considered to be a “distinct population segment” and thus a “species” under the ESA.
Based on biological, genetic, and ecological information compiled and reviewed as part of a previous west coast status review for Chinook salmon (Myers
Under our ESU policy, Williams
As discussed in Williams
In contrast, spring-run and fall-run Chinook salmon populations found in the coastal basins in California, Oregon, and Washington or the lower Columbia River basin have not been separated into separate ESUs despite differences in adult run-timing, life-history strategies, and other phenotypic characteristics that sometimes accompany genetic differences (Williams
Williams
The petition contends that genetic differentiation of Chinook salmon populations in the UKTR ESU and the Central Valley is of a similar scale, and that our separation of spring and fall-run Chinook into separate ESUs in the Central Valley means that spring-run and fall-run Chinook salmon in the UKTR ESU should also be separated. The structure of Central Valley spring-run and fall-run Chinook salmon populations was recently reviewed by Lindley
Based on a review and evaluation of this information, Williams
UKTR spring-run Chinook salmon do not warrant being separated into a separate ESU because they fail to meet the reproductive isolation and evolutionary legacy criteria in our ESU Policy for Pacific Salmon. The available genetic evidence considered by Williams
In 2005, NMFS published a policy on how it would consider hatchery-origin fish when making ESA listing determinations for Pacific salmon and steelhead (Hatchery Listing Policy; 70 FR 37204; June 28, 2005). Under this policy, hatchery stocks are considered part of an ESU in making ESA listing determinations if their level of genetic divergence relative to local natural populations is no more than what occurs between natural populations in the ESU. NMFS used this policy and a previous assessment of all west coast hatchery programs (NMFS 2003) to determine which hatchery stocks would be considered part of west coast salmon and steelhead ESUs in a series of listing determinations published in 2005 and 2006, respectively (70 FR 37160; June 28, 2005 and 71 FR 834; January 5, 2006). The assessment of hatchery stocks (NMFS 2003) used to support these listing determinations evaluated each hatchery stock associated with individual salmon and steelhead ESUs to determine its level of genetic divergence relative to natural populations. Based on this assessment and application of our Hatchery Listing Policy (70 FR 37204; June 28, 2005), we determined that hatchery stocks that were no more than moderately divergent from natural populations would be considered part of an ESU in making listing determinations under the ESA.
Iron Gate Hatchery (IGH) produces fall-run Chinook salmon and releases approximately 6 million fish (fingerlings and yearlings combined) annually in the upper Klamath River. Trinity River
Williams
Williams
As reported in Williams
Williams
Williams
Williams
Abundance of spawning populations in the ESU appear to have been fairly stable for the past 30 years and since the review by Myers
There is no indication that growth rates or productivity of populations have changed since the review of Myers
There is a broad geographic distribution of fall-run Chinook salmon throughout the UKTR ESU, with genetic data (
Although there are extant spring-run and fall-run Chinook salmon populations in the basin, the low spawner abundance in spring-run populations continues to be a concern, as it was in the previous review (Myers
To assess the overall extinction risk of the UKTR Chinook salmon ESU, Williams
Under NMFS' Hatchery Listing Policy, any hatchery stocks that are part of an ESU must be considered in status assessments for the ESU if it is being considered for possible listing (70 FR 37204; June 28, 2005). As discussed in the policy, any status assessment of an ESU which includes hatchery stocks should evaluate the manner in which the hatchery stocks contribute to conserving natural populations by considering their impact on the VSP criteria for natural populations comprising the ESU. As noted previously, the SWFSC determined that the fall-run Chinook salmon stock from IGH and the spring-run and fall-run Chinook salmon stocks from TRH are no more than moderately diverged from the local, natural populations, and as a result NMFS has concluded that these three hatchery stocks are part of the UKTR Chinook salmon ESU. Based on the hatchery operations and releases, as well as the assessment of hatchery-origin fish spawning in natural areas presented by Williams
As part of their status review, Williams
Williams
Section 4(a)(1) of the ESA (16 U.S.C. 1533(a)(1)) and NMFS' implementing regulations (50 CFR Part 424) set forth factors and procedures for listing species. NMFS must determine if a species is endangered or threatened based upon any one or a combination of the following factors: (1) The present or threatened destruction, modification, or curtailment of its habitat or range; (2) its overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; or (5) other natural or manmade factors affecting its continued existence. NMFS has previously reviewed and evaluated these listing factors for west coast Chinook salmon, including those populations that comprise the UKTR Chinook salmon ESU (63 FR 11482, March 9, 1998; and NMFS 1998). These reviews have identified a wide range of factors that have adversely impacted Chinook salmon and their habitat on the west coast as well as in the UKTR ESU. The following discussion is based on those reviews and other more recent sources of information.
Previous reviews as cited above have identified a range of historical and ongoing land management activities and practices that adversely impact freshwater habitat used by Chinook salmon in the UKTR ESU, including construction of dams and other barriers that block access to historical habitat, water diversions, agriculture, timber harvest, road construction, grazing, and mining. The impacts associated with these activities have altered or in some cases eliminated habitat for Chinook salmon. A more detailed discussion of the impacts associated with these activities can be found in Nehlsen
Within the freshwater range of the UKTR ESU there are two important migration barriers that block access to historical spawning and rearing habitat: Iron Gate Dam on the Klamath River (DOI and CDFG 2011) and Lewiston Dam on the Trinity River (DOI 2000). Many of the streams blocked by these dams were high quality snowmelt-driven tributaries or groundwater dominated streams that supported adult spring-run and fall-run Chinook salmon (Moyle 2002). The presence of these dams has impacted the production of both spring-run and fall-run Chinook salmon in the UKTR ESU, but they have had a greater impact on the distribution and abundance of spring-run Chinook salmon (63 FR 11482; March 9, 1998).
Water diversion and agricultural activities in the Klamath River and Trinity River basins have altered the timing and volume of flows in streams, reduced habitat availability, reduced water quality, and contributed to the reduced productivity of natural-origin Chinook salmon (NMFS 2010; DOI 2000). Stream water is diverted for consumptive use in the Upper Klamath Basin, in the Shasta and Scott River valleys, and from the Trinity River into other river basins (e.g., Rogue River, Sacramento River). Substantial water diversions, particularly during dry water years, can nearly dewater sections of rivers, creating barriers to Chinook salmon migration (e.g., Scott River), reducing the amount of available juvenile rearing habitat, and contributing to poor water quality. The Klamath River is impaired by a variety of water quality problems, including temperature, dissolved oxygen, nutrients, organic matter, and microcystin (NCRWQCB 2010), all of which can adversely impact Chinook salmon.
Historical and ongoing timber harvest activities in the UKTR ESU have reduced habitat quality for Chinook salmon (Moyle 2002). Timber harvest can result in the loss of riparian vegetation, increased stream sedimentation, warmer water temperatures, reduced availability of large woody debris, increased peak runoff events, and simplified stream habitat, including filling of pools (Chamberlain
UKTR Chinook salmon are harvested in commercial and recreational fisheries in the ocean as well as Tribal and recreational fisheries in the Klamath Basin. Ocean harvest of Klamath Basin fall-run Chinook salmon is coordinated by the Pacific Fishery Management Council (PFMC), Tribal harvest is managed by the individual tribes in the Klamath Basin, and in-river recreational fisheries are managed by the California Fish and Game Commission. From the mid-1980s through 2011, the PFMC managed the Klamath Basin fall-run Chinook salmon fishery with twin conservation objectives aimed at not surpassing a maximum total exploitation rate of 67 percent of projected returning natural adult spawners and achieving a minimum of at least 35,000 natural area adult spawners, with occasional allowances for smaller harvests when projected
Ocean exploitation rates for Klamath Basin spring-run Chinook salmon are not available (Williams
In-river recreational fishery exploitation rates in the Klamath Basin for spring-run Chinook salmon are unknown. Williams
Because of the relatively robust regulatory controls on the harvest and other uses of Chinook salmon in the UKTR ESU and the reductions in overall harvest from historic levels, overutilization of Chinook salmon in this ESU for commercial, recreational or scientific purposes is unlikely to threaten the ESU's continued existence now or in the foreseeable future.
Diseases that cause mortality to UKTR Chinook salmon adults and juveniles are prevalent in the Klamath Basin, particularly in the mainstem Klamath River. In the fall of 2002, over 30,000 fall-run Chinook salmon died in the Klamath River as a result of low water discharge, large run size, high water temperatures, and an epizootic outbreak of the bacterium
An area of high parasite infections exists in the upper Klamath River from its confluence with the Shasta River downstream to the Seiad Valley (Foote
Naturally-produced Chinook salmon fry are preyed upon by hatchery steelhead in the upper Trinity River (Naman and Sharpe 2011). There is limited information on pinniped predation of Chinook salmon in the UKTR ESU, but one study from the Klamath River estuary in 1997 estimated that over 8 percent of the fall-run Chinook salmon escapement was consumed by pinnipeds (Hillemeier 1999).
Diseases are unlikely to threaten the ESU's continued existence now or in the foreseeable future, unless climate change in the basin causes a substantial increase in disease related mortality. However, the magnitude of any such effects is difficult to predict with any degree of certainty. Predation is unlikely to threaten the ESU's continued existence now or in the foreseeable future.
Forest practices, managed by the State and the Federal Government, have generally improved since 1998, although some practices do not adequately protect Chinook salmon or other salmonids. About 68 percent of the land within the UKTR ESU is managed by the U.S. Forest Service (USFS) and the Bureau of Land Management (BLM) under the Northwest Forest Plan (NWFP). The NWFP and its associated Aquatic Conservation Strategy (ACS), which was designed to protect salmon and steelhead habitat by maintaining and restoring ecosystem health at watershed and landscape scales, has improved the landscape through changes in timber harvesting and road maintenance and construction. A recent report assessing the overall effectiveness of the NWFP indicates that there have been positive changes in watershed condition scores throughout the range of the NWFP, with trends indicating small increases in vegetation scores (Lanigan
Since 1998, NMFS has actively engaged with the State Board of Forestry to facilitate improvements in California's state forest practice rules to improve aquatic habitat protection. The Board of Forestry has made some improvements to the rules. However, the current forest practice rules will continue to be considered inadequate for anadromous salmonids until the full suite of needed protections outlined by NMFS in public hearings and the Northern California steelhead listing (65 FR 36074; June 7, 2000) are adopted.
Enforcement of State fishery regulations and Tribal trust fishing rights is a challenge within the UKTR
While some water diversions in the UKTR Chinook salmon ESU are well monitored, consumptive water use is often poorly or, in some cases, entirely undocumented. Groundwater withdrawals are not monitored or quantified and water master service is lacking in much of the UKTR Chinook salmon ESU. The effects of water utilization on UKTR Chinook salmon are not well understood, and few studies have been developed to quantify the effects.
Current regulatory mechanisms are not quantifying or addressing consumptive water use, land clearing, chemical spills, and fertilizer and pesticide use associated with outdoor cannabis cultivation in the UKTR ESU.
There is no comprehensive drought plan for the Klamath Basin (including the Trinity River) or coordinated strategy that directs actions of resource management agencies to reduce the effects of drought or climate change on Chinook salmon. However, parties to the Klamath Basin Restoration Agreement have drafted a Drought Plan which, if finalized and implemented, is expected to reduce the effects of drought on UKTR Chinook salmon in the mainstem Klamath River. Without appropriate mechanisms in place to reduce the effects of drought or climate change throughout the UKTR ESU, both remain threats to the ESU.
Though there are examples of existing regulatory mechanisms not adequately protecting Chinook salmon in the UKTR ESU, Chinook salmon populations in the ESU have persisted at current levels for several decades despite these limitations. Overall, we conclude that it is unlikely that inadequacies in these regulatory mechanisms threaten the continued existence of the ESU.
Natural events like prolonged drought or catastrophic flooding could pose significant threats to UKTR Chinook salmon. Prolonged drought (more than two years) would magnify already challenging water quality, disease, and freshwater habitat conditions for UKTR Chinook salmon. A decadal scale drought, such as the one that lasted from the late 1920s until the late 1930s (McCabe
Catastrophic flooding events like those in 1955, 1964 and 1997 in the Klamath Basin destroyed a large area of salmonid habitat, the effects of which are still presently evident (Cover
Climate change projections for the Klamath Basin predict greater relative warming in the summer than in other seasons, drier summers, less snowpack, lower stream flow, and changes in predominant vegetation types such that wildfires are projected to increase in frequency and area (Woodson
Iron Gate Hatchery and Trinity River Hatchery release roughly 14.2 million hatchery salmonids into the UKTR basin annually, of which 10.3 million are Chinook salmon that we have determined are part of this ESU. Releases of hatchery fish can create a host of ecological (Kostow 2009) and genetic (Reisenbichler and Rubin, 1999; Araki
Floods and droughts are natural phenomena that have affected UKTR Chinook salmon for millennia. Although these natural phenomena temporarily reduce the ability of freshwater habitat to support UKTR Chinook salmon, they are unlikely to threaten the continued existence of the species. Climate change has the potential to threaten the ESU's continued existence, particularly if precipitation and snowpack markedly decrease and temperatures substantially increase. However, the magnitude of climate driven changes in precipitation and snowpack in the foreseeable future and the response of Chinook salmon populations in the ESU to any such changes is unknown. Efforts to reform hatchery practices at Trinity River and Iron Gate hatcheries are increasing, in part driven by the recent scientific review of hatchery operations by the California Hatchery Scientific Review Group. If changes in hatchery operations resulting from this process are implemented in the future, they are expected to reduce the potential adverse effects of hatchery releases on the
When considering the listing of a species, section 4(b)(1)(A) of the ESA (16 U.S.C. 1533(b)(1)(A)) requires consideration of efforts by any State, foreign nation, or political subdivision of a State or foreign nation to protect the species. On March 28, 2003, NMFS and the USFWS published the final Policy for Evaluating Conservation Efforts When Making Listing Decisions (68 FR 15100), that provides guidance on evaluating current protective efforts identified in conservation agreements, conservation plans, management plans, or similar documents (developed by Federal agencies, State and local governments, Tribal governments, businesses, organizations, and individuals) that have not yet been implemented, or that have been implemented but have not yet demonstrated effectiveness.
There is a wide range of conservation efforts focused on salmonids, including Chinook salmon, in the UKTR ESU. One important effort is the Trinity River Restoration Program. This ongoing program established restoration goals for spring-run and fall-run Chinook salmon, identified actions that must be taken to restore Trinity River Chinook salmon populations, established quantifiable performance measures, and incorporated the principles of adaptive management (TRRP 2012). Removing Iron Gate Dam and three other dams upstream of Iron Gate Dam on the Klamath River (if the Secretary of the Interior makes an affirmative determination under the Klamath Hydroelectric Settlement Agreement) or adding fish passage facilities around these and other upper basin dams on the Klamath River (if the Secretary of the Interior does not make an affirmative determination under the Klamath Hydroelectric Settlement Agreement) and associated restoration efforts will likely improve the viability of UKTR Chinook salmon (CDFG and DOI 2011), but there are uncertainties regarding which of these efforts will be implemented. Several other efforts are ongoing in the Klamath Basin; in particular, improved forest practices, land management, and purchase of private land for conservation. Ongoing research on diseases that afflict UKTR Chinook salmon is expected to provide greater understanding of the factors that contribute to disease infection and management efforts that can ameliorate disease impacts in the UKTR ESU.
We have reviewed the status of the UKTR Chinook salmon ESU and considered the best scientific and commercial data available, and we conclude that the petitioned action is not warranted. In reaching this conclusion, we conclude that spring-run and fall-run Chinook salmon in the UKTR Basin constitute a single ESU. We have considered the conservation efforts for the ESU. In addition, we have considered the ESA section 4(a)(1) (16 U.S.C. 1533(a)(1)) factors in the context of the biological status of the species, the assessment of the risks posed by those threats, the possible cumulative impacts, and the associated uncertainties. Despite the issues discussed under those factors, consistent with the 1998 status review and listing determination for the UKTR Chinook salmon ESU, and based on a comprehensive review of the best scientific and commercial data currently available, NMFS concludes the overall extinction risk of the ESU is considered to be low over the next 100 years.
Based on these considerations and others described in this notice, we conclude that the UKTR Chinook salmon ESU is not in danger of extinction throughout all or a significant portion of its range, nor is it likely to become so in the foreseeable future. Therefore, the UKTR Chinook salmon ESU does not meet the ESA definition of an endangered or threatened species, and listing the UKTR Chinook salmon ESU under the ESA is not warranted at this time.
A complete list of references cited herein is available upon request (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability of fishery management plan amendments; request for comments.
The North Pacific Fishery Management Council (Council) submitted Amendments 10, 11, and 12 to the Fishery Management Plan for the Salmon Fisheries in the EEZ off the Coast of Alaska (FMP) to NMFS for review. If approved, Amendment 10 would provide authority for NMFS to recover the administrative costs of processing applications for any future permits that may be required under this FMP, except for exempted fishing permits and prohibited species donation permits. If approved, Amendment 11 would revise the timeline associated with the Council's process to identify Habitat Areas of Particular Concern so that the process coincides with the Essential Fish Habitat (EFH) 5-year review, revise habitat research priority objectives, and update EFH conservation recommendations for, and the analysis of the impacts of, non-fishing activities. If approved, Amendment 12 would comprehensively revise and update the FMP to reflect the Council's salmon management policy and Federal law. Amendments 10, 11, and 12 are intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the FMP, and other applicable laws.
Written comments on the amendment must be received on or before 5 p.m., Alaska local time, on June 1, 2012.
You may submit comments, identified by FDMS Docket Number NOAA-NMFS-2011-0295, by any one of the following methods:
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Instructions: Comments must be submitted by one of the above methods to ensure that the comments are received, documented, and considered by NMFS. Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered. All comments received are a part of the public record and will generally be posted to
NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
Electronic copies of the proposed Fishery Management Plan for the Salmon Fisheries in the EEZ off Alaska that incorporates Amendments 10, 11, and 12, and the draft Environmental Assessment/Regulatory Impact Review prepared for Amendment 12 may be obtained from
Gretchen Harrington, 907-586-7228.
The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that each regional fishery management council submit any fishery management plan or fishery management plan amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce. The Magnuson-Stevens Act also requires that NMFS, upon receiving a fishery management plan amendment, immediately publish a notice in the
This notice announces that proposed Amendments 10, 11, and 12 to the FMP are available for public review and comment. The salmon fisheries in the exclusive economic zone (EEZ, 3 to 200 nautical miles) off Alaska are managed under the FMP. The FMP was prepared by the Council under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801
The FMP originally was approved in 1979 and last comprehensively revised in 1990. The FMP conserves and manages the Pacific salmon commercial and sport fisheries that occur in the EEZ off Alaska. The FMP establishes two management areas: the East Area is the EEZ in the Gulf of Alaska east of Cape Suckling (143°53.6″ West Longitude) and the West Area is the EEZ off the coast of Alaska west of Cape Suckling. The FMP manages commercial salmon fisheries differently in each area. In the East Area, the FMP delegates management of the commercial troll salmon fishery to the State of Alaska (State) to manage in compliance with the Pacific Salmon Treaty, Magnuson-Stevens Act, and FMP. The FMP prohibits commercial salmon fishing with net gear in the East Area. In the West Area, the FMP prohibits commercial salmon fishing, except for commercial salmon fishing with net gear in three defined areas of the EEZ adjacent to Cook Inlet, Prince William Sound, and the Alaska Peninsula. The FMP delegates management of the sport fishery to the State in both areas.
Although the FMP has been amended nine times in the last two decades, no comprehensive consideration of management strategy or scope of Federal management has occurred since 1990. State fisheries regulations and Federal and international laws affecting Alaska salmon have changed since 1990, and the reauthorized Magnuson-Stevens Act expanded the requirements for FMPs. Additionally, the current FMP is vague with respect to management authority for commercial salmon fishing in the three defined areas that occur in the West Area.
Therefore, the Council determined that the FMP must be updated, in order to comply with the current Magnuson-Stevens Act requirements, and amended, to more clearly reflect the Council's policy with regard to the State's continued management authority over commercial fisheries in the West Area, the Southeast Alaska commercial troll fishery, and the sport fishery.
In December 2011, the Council voted unanimously to recommend Amendment 12 to the FMP. The Council considered revisions to the FMP at five separate meetings that occurred over more than a year. At each regularly scheduled and noticed public meeting, the Council took public testimony and considered written and oral public comments, providing stakeholders with opportunities for involvement on this issue. Additionally, the Council conducted a special open workshop for stakeholders in September 2011, which was attended by more than 20 members of the public, three Council members, Council staff, and State and Federal agency staff. The Council considered the comments and suggestions made during that workshop in developing Amendment 12.
Amendment 12 would comprehensively revise the FMP to reflect the Council's salmon management policy, which is to facilitate State of Alaska salmon management in accordance with the Magnuson-Stevens Act, Pacific Salmon Treaty, and applicable Federal law. Under this policy, the Council identified six management objectives to guide salmon management under the FMP and achieve the management policy: (1) Prevent overfishing and achieve optimum yield, (2) manage salmon as a unit throughout their range, (3) minimize bycatch and bycatch mortality, (4) maximize economic and social benefits to the Nation over time, (5) protect wild stocks and fully utilize hatchery production, and (6) promote safety. The Council, NMFS, and the State of Alaska will consider these management objectives in developing FMP amendments and associated management measures.
To reflect the Council's policy and objectives, Amendment 12 would redefine the FMP's management area to
In the East Area, Amendment 12 would maintain the current scope of the FMP and would reaffirm that management of the commercial and sport salmon fisheries in the East Area is delegated to the State. The FMP relies on a combination of State management and management under the Pacific Salmon Treaty to ensure that salmon stocks, including trans-boundary stocks, are managed as a unit throughout their ranges and interrelated stocks are managed in close coordination. Maintaining the FMP in the East Area would leave existing management structures in place, recognizing that the FMP is the nexus for the application of the Pacific Salmon Treaty and other applicable Federal law.
The Council also recommended a number of FMP provisions to update the FMP and bring it into compliance with the Magnuson-Stevens Act and other applicable Federal law. Amendment 12 would include these changes in a reorganized FMP with a more concise title, “Fishery Management Plan for the Salmon Fisheries in the EEZ off Alaska.”
The primary new FMP provision is a mechanism to establish annual catch limits (ACLs) and accountability measures (AMs) for the salmon stocks caught in the East Area commercial troll fishery, the only commercial fishery authorized under the FMP. Amendment 12 would not establish ACLs or AMs in the West Area because no commercial salmon fisheries are authorized in the West Area. The mechanism to establish ACLs and AMs for the commercial troll fishery builds on the FMP's existing framework for establishing status determination criteria. The commercial troll fishery harvests primarily Chinook and coho salmon; though chum, sockeye, and pink salmon are also harvested occasionally. The FMP currently separates these salmon stocks into three tiers for the purposes of status determination criteria.
Tier 1 stocks are Chinook salmon stocks covered by the Pacific Salmon Treaty. Amendment 12 would not establish a mechanism for specifying ACLs and AMs for Chinook salmon because the Magnuson-Stevens Act exempts stocks managed under an international fisheries agreement in which the United States participates from the ACL requirement (16 U.S.C. 1853 note).
Under Amendment 12, the mechanisms for specifying ACLs for Tier 2 (coho salmon) and Tier 3 (coho, pink, chum, and sockeye salmon stocks managed as mixed-species complexes) salmon stocks would be established using the State's scientifically-based management measures to control catch and prevent overfishing. This approach represents an alternative approach to the methods prescribed in NMFS's National Standard 1 Guidelines (50 CFR 600.310) for specifying ACLs. The National Standard 1 Guidelines contemplate limited circumstances where the standard approaches to specification of reference points, including ACLs, and management measures detailed in the guidelines may not be appropriate. The National Standard 1 Guidelines specifically cite Pacific salmon as an example of stocks that may require an alternative approach. Under this flexibility within the guidelines, the Council may propose an alternative approach for satisfying the requirements of National Standard 1, other than those set forth in the guidelines. The guidelines require that the Council document its rationale for proposing an alternative approach in an FMP amendment and document its consistency with the Magnuson-Stevens Act. Amendment 12 would modify the FMP to include the rationale for this alternative approach as the mechanism for specifying ACLs.
The Council proposes an alternative approach because the State's escapement-based management system is a more effective management system for preventing overfishing of Alaska salmon than a system that places rigid numeric limits on the number of fish that may be caught. Escapement is defined as the annual estimated size of the spawning salmon stock in a given river, stream, or watershed. Given salmon's particular life history attributes, the Council's preferred method to annually ensure that surviving spawners will maximize present and future yields is a system that establishes escapement goals intended to maximize surplus productivity of future runs, estimates run strength in advance, monitors actual run strength and escapement during the fishery, and utilizes in-season management measures, including fishery closures, to ensure that minimum escapement goals are achieved. Further, escapement-based management, with real-time monitoring of run strength, inherently accounts for total catch and all sources of natural mortality. As part of the alternative approach the Council recommends that Amendment 12 establish a peer review process in the FMP that utilizes the State's existing salmon expertise and processes for developing escapement goals as fishing level recommendations.
The State's escapement-based management system includes the added features of in-season monitoring to confirm actual run strength and in-season management measures that adjust fishing pressure, or close a fishery, to ensure that escapement goals are met if pre-season predictions of run strength prove inaccurate. Under Amendment 12, these features would be the AMs to prevent ACLs from being exceeded and to correct overages of the ACL if they do occur.
Amendment 12 also would revise the definition of optimum yield. For the East Area, several economic, social, and ecological factors are involved in the definition of OY. For Chinook salmon stocks in Tier 1, an all-gear maximum sustainable yield (MSY) is prescribed in terms of catch by the Pacific Salmon Treaty and takes into account the biological productivity of Chinook salmon and ecological factors in setting this limit. Under Amendment 12, the portion of the all-gear catch limit allocated to troll gear would represent the OY for that fishery and takes into account the economic and social factors considered by the State of Alaska in making allocation decisions. For stocks in Tiers 2 and 3, MSY currently is defined in terms of escapement. MSY escapement goals account for biological productivity and ecological factors, including the consumption of salmon by a variety of marine predators. Under Amendment 12, the OY for the troll fishery would be that fishery's annual catch, which, when combined with the catch from all other salmon fisheries, results in a post-harvest run size equal to the MSY escapement goal for each
For the redefined West Area under Amendment 12, commercial fishing is prohibited; therefore the directed harvest OY would be zero. The redefined West Area has been closed to commercial net fishing since 1952 and commercial troll fishing since 1973 and there has not been any commercial yield from this area. This proposed OY recognizes that salmon are fully utilized by state-managed fisheries and that the State manages fisheries based on the best available information using the State's escapement goal management system. This OY also recognizes that non-Alaska salmon are fully utilized and managed by their respective management authorities when they return to their natal regions.
Amendment 12 would add a fishery impact statement to the FMP that includes fishery information required by the Magnuson-Stevens Act (16 U.S.C. 1853(a)(2), (3), (5), (9), (11), and (13)). The fishery impact statement contained in Amendment 12 analyzes the effects of the conservation and management measures on participants in the fisheries, fishing communities affected by the FMP, and safety of human life at sea. The fishery impact statement also describes the salmon fishery, specifies the present and probable future condition of the fishery, and describes the commercial, recreational, and charter fishing sectors which participate in the salmon fishery. Additionally, the fishery impact statement assesses the economic impacts of the salmon fishery by sector.
Amendment 12 also would revise the current FMP process for Federal review of State management measures to more fully describe the process and bring the process into compliance with Magnuson-Stevens Act requirements (16 U.S.C. 1856(a)(3)(B)). With the delegation of management authority of the East Area commercial troll salmon fishery and the East Area sport fishery to the State of Alaska, the Council and NMFS must stay apprised of State management measures governing commercial and sport salmon fishing in the East Area and, if necessary, review those measures for consistency with the FMP, the Magnuson-Stevens Act, and other applicable Federal law. Also, members of the public may request that the Secretary review State salmon management measures in the East Area for consistency with the FMP, the Magnuson-Stevens Act and other applicable Federal law. Under Amendment 12, the FMP would describe (1) how the Council and NMFS fulfill this oversight role, (2) the ways in which the Council and NMFS will monitor State management measures that regulate salmon fishing in the East Area, (3) the process by which NMFS will review State management measures governing salmon fisheries in the East Area for consistency with the FMP, the Magnuson-Stevens Act, and other applicable Federal law, (4) the process by which a member of the public can petition NMFS to review State management measures in the East Area for consistency with the FMP, the Magnuson-Stevens Act, and other applicable Federal law, and (5) the process NMFS will follow if NMFS determines that State management measures in the East Area are inconsistent with the FMP, the Magnuson-Stevens Act, or other applicable Federal laws.
Amendment 12 would remove existing FMP language governing the issuance of Federal salmon permits. The Council recommended removing FMP language related to Federal salmon permits because Federal permits are no longer necessary. All current participants have State of Alaska limited entry permits. According to language included in the original 1979 FMP, provisions for Federal salmon permits were established as a complement to the State limited entry permit, in order to limit capacity in the EEZ so that persons who did not receive a State limited entry permit would not simply shift their fishing efforts into Federal waters. Additionally, the 1979 FMP explains that there was an interest in ensuring that the few vessels that had fished in the EEZ but not landed their catch in Alaska could continue to have access to the EEZ, even if they were not eligible for a state limited entry permit. The problems identified in the 1979 FMP were addressed by this Federal permit system. In 1979 or 1980, NMFS issued 2 non-transferrable limited entry permits and these permits are no longer active in the fishery.
An Environmental Assessment/Regulatory Impact Review was prepared for Amendment 12 that describes the management background, the purpose and need for action, the management alternatives, and the environmental, social, and economic impacts of the alternatives (see
In October 2009, the Council adopted a motion to revise all six of its fishery management plans to provide authority for recovering the administrative costs of processing applications for permits required under those plans, except for exempted fishing permits and prohibited species donation permits. Amendment 10 would amend the FMP to provide authority for NMFS to recover the administrative costs of processing applications for any future permits that may be required under this FMP, except for exempted fishing permits and prohibited species donation permits. Amendment 10 would implement the following FMP language: “NMFS may assess and collect fees to recover the administrative costs incurred by the Federal government in processing applications for permits required to participate in the fisheries managed under this FMP as authorized by the Magnuson-Stevens Act, 16 U.S.C 1853(b).” If Amendments 10 and 12 are approved by NMFS, this language would be included at section 4.2 of the FMP. If Amendment 10 is approved but Amendment 12 is not, then this language would be included at section 5.2 of the FMP.
In April 2011, the Council recommended Amendment 11 to (1) revise the timeline associated with the Council's process to identify Habitat Areas of Particular Concern so that the process coincides with the EFH 5-year review, (2) revise habitat research priority objectives, and (3) update EFH conservation recommendations for, and the analysis of the impacts of, non-fishing activities. If Amendments 11 and 12 are approved by NMFS, Amendment 11 would to include the most recent scientific information resulting from the 5-year review in chapter 7 of the FMP and the FMP's Appendix A “Essential Fish Habitat and Habitat Areas of Particular Concern”. If Amendment 11 is approved but Amendment 12 is not, then this language would be included in section 6.3 of the FMP and in the FMP's Appendix E. These changes are necessary to update the FMP based upon the best scientific information available and the guidelines articulated in the final rule to implement the EFH provisions of the Magnuson-Stevens Act (see 50 CFR part 600, subpart J).
NMFS is soliciting public comments on proposed Amendments 10, 11, and 12 through the end of the comment period (see
NMFS intends to publish in the
16 U.S.C. 1801
U.S. Census Bureau, Department of Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
To ensure consideration, written comments must be submitted on or before June 1, 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, (202) 482-0336, (or via the Internet at
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to: Karla Allen, U.S. Census Bureau, SSSD HQ-8K183A, 4600 Silver Hill Road, Washington, DC 20233-6500, (301) 763-7208 (or via the Internet at
The Advance Monthly Retail Trade Survey (MARTS) provides an early indication of monthly sales for firms located in the United States and classified in the Retail Trade or Food Services sectors as defined by the North American Industry Classification System (NAICS).
The MARTS sample is comprised of approximately 5,000 firms selected from the larger Monthly Retail Trade Survey sample of about 12,000 firms (OMB Control Number: 0607-0717). Firms are selected into the MARTS sample using a stratified design where the strata are defined by industry and size. The MARTS sample is re-selected, generally at 2
The survey requests sales and e-commerce sales for the month just ending. If reporting data for a period other than the calendar month, the survey asks for the period's length (4 or 5 weeks) and date on which the period ended. The survey also asks for the number of establishments covered by the data provided and whether or not the sales data provided are estimates or more accurate “book” figures.
Survey results are available approximately 9 working days after the end of the reference month. The Bureau of Economic Analysis (BEA) uses the survey results as critical inputs to the calculation of the Gross Domestic Product (GDP). Policymakers such as the Federal Reserve Board (FRB) need to have the timeliest estimates in order to anticipate economic trends and act accordingly. The Council of Economic Advisors (CEA) and other government agencies and businesses use the survey results to formulate and make decisions about economic policy. These estimates have a high priority because of their timeliness. There would be approximately a one-month delay in the availability of these results if the survey were not conducted.
We will collect this information by mail, fax, telephone follow-up, and Internet (during the second half of 2012).
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.
On September 13, 2011, in the U.S. District Court, District of Delaware, Marc Knapp, (“Knapp”) was convicted of 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 Knapp's conviction for violating IEEPA and AECA, and have provided notice and an opportunity for Knapp to make a written submission to BIS, as provided in Section 766.25 of the Regulations. I have not received a submission from Knapp. 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 Knapp's export privileges under the Regulations for a period of ten years from the date of Knapp's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Knapp had an interest at the time of his conviction.
Accordingly, it is hereby
I. Until September 13, 2021, Marc Knapp, with the last known address at:
Inmate #—06450-015, FCI Safford, P.O. Box 9000, Safford, AZ 85548, and when acting for or on behalf of Knapp, 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 Knapp 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 September 13, 2021.
VI. In accordance with Part 756 of the Regulations, Knapp 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 Knapp. This Order shall be published in the
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (Department) received timely requests to conduct administrative reviews of the antidumping duty orders on certain frozen warmwater shrimp (shrimp) from Brazil, India, and Thailand. The anniversary month of these orders is February. In accordance with 19 CFR 351.221, we are initiating these administrative reviews. The Department received a request to revoke one antidumping duty order in part.
Kate Johnson at (202) 482-4929 (Brazil), Henry Almond at (202) 482-0049 (India), and Holly Phelps at (202) 482-0656 (Thailand), AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW, Washington, DC 20230.
During the anniversary month of February 2012, the Department received timely requests for administrative reviews of the antidumping duty orders on shrimp from Brazil, India, and Thailand from the Ad Hoc Shrimp Trade Action Committee (hereinafter, Domestic Producers), the American Shrimp Processors Association (ASPA), and certain individual companies, in accordance with 19 CFR 351.213(b). The Department is now initiating administrative reviews of these orders covering multiple companies for Brazil, India, and Thailand, as noted in the “Initiation of Reviews” section of this notice. The Department also received a timely request to revoke in part the antidumping duty order on certain frozen warmwater shrimp from India with respect to three exporters.
All deadlines for the submission of various types of information, certifications, or comments or actions by the Department discussed below refer to the number of calendar days from the applicable starting time.
If a producer or exporter named in this notice of initiation had no exports, sales, or entries during the period of review (POR), it must notify the Department within 60 days of publication of this notice in the
In the event the Department limits the number of respondents for individual examination in these administrative reviews, the Department intends to select respondents based on U.S. Customs and Border Protection (CBP) data for U.S. imports during the POR. We intend to release the CBP data under Administrative Protective Order (APO) to all parties having an APO within seven days of publication of this initiation notice and to make our decision regarding respondent selection within 21 days of publication of this
In general, the Department has found that determinations concerning whether particular companies should be “collapsed” (
Pursuant to 19 CFR 351.213(d)(1), a party that has requested a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that the Department may extend this time if it is reasonable to do so. In order to provide parties additional certainty with respect to when the Department will exercise its discretion to extend this 90-day deadline, interested parties are advised that, with regard to reviews requested on the basis of anniversary months on or after August 2011, the Department does not intend to extend the 90-day deadline unless the requestor demonstrates that an extraordinary circumstance has prevented it from submitting a timely withdrawal request. Determinations by the Department to extend the 90-day deadline will be made on a case-by-case basis.
In accordance with section 751(a)(1) of the Act, we are initiating administrative reviews of the antidumping duty orders on shrimp from Brazil, India and Thailand. We intend to issue the final results of these reviews by February 28, 2013.
Interested parties must submit applications for disclosure under administrative protective orders in accordance with 19 CFR 351.305. On January 22, 2008, the Department published
Any party submitting factual information in an antidumping duty proceeding must certify to the accuracy and completeness of that information.
These initiations and this notice are in accordance with section 751(a)(1) of the Act and 19 CFR 351.221(c)(1)(i) and (f)(2)(i).
Import Administration, International Trade Administration, Department of Commerce.
Notice of Extension of Time Limit for the Preliminary Results of Administrative Review of the Suspension Agreement on Hot-Rolled Flat-Rolled Carbon-Quality Steel Products from the Russian Federation.
The Department of Commerce (the Department) is extending the time limit for the preliminary results of the administrative review of the Agreement Suspending the Antidumping Investigation on Hot-Rolled Flat-Rolled Carbon-Quality Steel Products from the Russian Federation (the Agreement).
Sally C. Gannon or Anne D'Alauro, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230, telephone: (202) 482-0162 or (202) 482-4830.
The Department finds that it is not practicable to complete the preliminary results by April 2, 2012. In this administrative review, in accordance with section 751(a)(1)(C) of the Tariff Act, the Department is reviewing both the status of, and compliance with, the Agreement. Because domestic interested parties have raised the complex issue of whether the Agreement is fulfilling its statutory requirement to prevent price undercutting and suppression of domestic hot-rolled steel prices, the Department needs additional time to complete its preliminary analysis in this administrative review of the Agreement. The Department must carefully consider the information submitted by the respondent and domestic interested parties in this review and must address the issues raised in the context of this administrative review. Therefore, the Department is extending the time limit for completing the preliminary results of the review until May 24, 2012. The deadline for the final results of this review will continue to be 120 days after publication of the preliminary results.
This extension is published in accordance with section 751(a)(3)(A) of the Tariff Act.
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 and evaluate surrogate value submissions for purposes of the preliminary results. Therefore, the Department is fully extending the time limit for completion of the preliminary results of this administrative review by 90 days. The preliminary results will now be due no later than June 29, 2012. The final
We are issuing and publishing this notice in accordance with sections 751(a)(3)(A) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) has received a request for a new shipper review (NSR) of the antidumping duty order on certain preserved mushrooms from the People's Republic of China (PRC). In accordance with section 751(a)(2)(B) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.214(d), we are initiating an antidumping duty NSR of Shandong Yinfeng Rare Fungus Co., Ltd. (Yinfeng). The period of review (POR) of this NSR is February 1, 2011, through January 31, 2012.
Mark Flessner or Robert James, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, telephone: (202) 482-6312 or (202) 482-0649, respectively.
On February 19, 1999, the Department published the antidumping duty order on certain preserved mushrooms from the PRC.
Pursuant to the requirements set forth in section 751(a)(2)(B)(i) of the Act and 19 CFR 351.214(b)(2), Yinfeng certified that: (1) It did not export subject merchandise to the United States during the period of investigation (POI) (
Based on information on the record, and in accordance with section 751(a)(2)(B) of the Act and 19 CFR 351.214(d), we find the request Yinfeng submitted meets the statutory and regulatory requirements for initiation of an NSR.
In cases involving non-market economies, the Department requires that a company seeking to establish eligibility for an antidumping duty rate separate from the country-wide rate provide evidence of
Upon initiation, we shall direct U.S. Customs and Border Protection (CBP) to suspend liquidation of any unliquidated entries of subject merchandise produced and exported by Yinfeng. We shall instruct CBP to allow (at the option of the importer) the posting, until the completion of the review, of a bond or security in lieu of a cash deposit for certain entries of the subject merchandise produced and exported by Yinfeng in accordance with section 751(a)(2)(B)(iii) of the Act and 19 CFR 351.214(e). Because Yinfeng certified that it both produced and exported the subject merchandise, the sales of which form the basis for its NSR request, we shall instruct CBP to permit the use of a bond only for entries of subject merchandise where Yinfeng acted both as producer and exporter.
To assist in its analysis of the
Interested parties requiring access to business proprietary information in this NSR should submit applications for disclosure under administrative protective order in accordance with 19 CFR 351.305 and 351.306.
This notice serves as a reminder that any party submitting factual information in an AD/CVD proceeding must certify
This notice is published in accordance with section 751(a)(2)(B) of the Act and 19 CFR 351.221(c)(1)(i).
Import Administration, International Trade Administration, Department of Commerce.
Brenda E. Waters, Office of AD/CVD Operations, Customs Unit, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, telephone: (202) 482-4735.
Each year during the anniversary month of the publication of an antidumping or countervailing duty order, finding, or suspended investigation, an interested party, as defined in section 771(9) of the Tariff Act of 1930, as amended (“the Act”), may request, in accordance with 19 CFR 351.213, that the Department of Commerce (“the Department”) conduct an administrative review of that antidumping or countervailing duty order, finding, or suspended investigation.
All deadlines for the submission of comments or actions by the Department discussed below refer to the number of calendar days from the applicable starting date.
In the event the Department limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified below, the Department intends to select respondents based on U.S. Customs and Border Protection (“CBP”) data for U.S. imports during the period of review. We intend to release the CBP data under Administrative Protective Order (“APO”) to all parties having an APO within five days of publication of the initiation notice and to make our decision regarding respondent selection within 21 days of publication of the initiation
In the event the Department decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act:
In general, the Department has found that determinations concerning whether particular companies should be “collapsed” (
Pursuant to 19 CFR 351.213(d)(1), a party that has requested a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that the Department may extend this time if it is reasonable to do so. In order to provide parties additional certainty with respect to when the Department will exercise its discretion to extend this 90-day deadline, interested parties are advised that, with regard to reviews requested on the basis of anniversary months on or after April 2012, the Department does not intend to extend the 90-day deadline unless the requestor demonstrates that an extraordinary circumstance has prevented it from submitting a timely withdrawal request. Determinations by the Department to extend the 90-day deadline will be made on a case-by-case basis.
The Department is providing this notice on its Web site, as well as in its “Opportunity to Request Administrative Review” notices, so that interested parties will be aware of the manner in
None.
In accordance with 19 CFR 351.213(b), an interested party as defined by section 771(9) of the Act may request in writing that the Secretary conduct an administrative review. For both antidumping and countervailing duty reviews, the interested party must specify the individual producers or exporters covered by an antidumping finding or an antidumping or countervailing duty order or suspension agreement for which it is requesting a review. In addition, a domestic interested party or an interested party described in section 771(9)(B) of the Act must state why it desires the Secretary to review those particular producers or exporters.
Please note that, for any party the Department was unable to locate in prior segments, the Department will not accept a request for an administrative review of that party absent new information as to the party's location. Moreover, if the interested party who files a request for review is unable to locate the producer or exporter for which it requested the review, the interested party must provide an explanation of the attempts it made to locate the producer or exporter at the same time it files its request for review, in order for the Secretary to determine if the interested party's attempts were reasonable, pursuant to 19 CFR 351.303(f)(3)(ii).
As explained in
All requests must be filed electronically in Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (“IA ACCESS”) on the IA ACCESS Web site at
The Department will publish in the
For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period, of the order, if such a gap period is applicable to the period of review.
This notice is not required by statute but is published as a service to the international trading community.
Import Administration, International Trade Administration, Department of Commerce.
Every five years, pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”), the Department of Commerce (“the Department”) and the International Trade Commission automatically initiate and conduct a review to determine whether revocation of a countervailing or antidumping duty order or termination of an investigation suspended under section 704 or 734 of the Act would be likely to lead to continuation or recurrence of dumping or a countervailable subsidy (as the case may be) and of material injury.
The following Sunset Review is scheduled for initiation in May 2012 and will appear in that month's Notice of Initiation of Five-Year Sunset Review.
No Sunset Review of suspended investigations is scheduled for initiation in May 2012.
No Sunset Review of suspended investigations is scheduled for initiation in May 2012.
The Department's procedures for the conduct of Sunset Reviews are set forth in 19 CFR 351.218. Guidance on methodological or analytical issues relevant to the Department's conduct of Sunset Reviews is set forth in the Department's Policy Bulletin 98.3—
Pursuant to 19 CFR 351.103(c), the Department will maintain and make available a service list for these proceedings. To facilitate the timely preparation of the service list(s), it is requested that those seeking recognition as interested parties to a proceeding contact the Department in writing within 10 days of the publication of the Notice of Initiation.
Please note that if the Department receives a Notice of Intent to Participate from a member of the domestic industry within 15 days of the date of initiation, the review will continue. Thereafter, any interested party wishing to participate in the Sunset Review must provide substantive comments in response to the notice of initiation no later than 30 days after the date of initiation.
This notice is not required by statute but is published as a service to the international trading community.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the countervailing duty (CVD) order on certain welded carbon steel standard pipe from Turkey for the period January 1, 2010, through December 31, 2010. We preliminarily find that the net subsidy rate for both companies under review is
Jolanta Lawska at 202-482-8362 (for Borusan), Kristen Johnson at 202-482-4793 (for Erbosan), and Gayle Longest at 202-482-3338 (for Toscelik), AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.
On March 7, 1986, the Department published in the
On April 27, 2011, the Department initiated an administrative review of the CVD order on certain welded carbon steel standard pipe from Turkey for the period January 1, 2010, through December 31, 2010, covering Borusan, Erbosan, and Toscelik.
On April 27, 2011, we issued the initial questionnaire to Borusan, Erbosan, Toscelik, and the Government of the Republic of Turkey (GOT). On
To the GOT, we issued supplemental questionnaires on July 18, 2011, October 3, 2011, January 5, 2012, and February 1, 2012, and the GOT submitted its responses on September 12, 2011, November 4, 2011, December 15, 2012, January 30, 2012, and February 8, 2012, respectively. To Erbosan, we issued supplemental questionnaires on July 19, 2011, and October 3, 2011, and the company submitted its responses on September 12, 2011, and November 4, 2011, respectively. To Toscelik, we issued a supplemental questionnaire on July 25, 2011, and January 4, 2012, January 20, 2012, and February 1, 2012. Toscelik provided its questionnaire responses on August 29, 2011, January 20, 2012, January 30, 2012, and February 8, 2012. To Borusan, we issued supplemental questionnaires on September 8, 2011 and September 29, 2011, to which it responded on September 20, 2011 and October 6, 2011.
On August 3, 2011, United States Steel Corporation (U.S. Steel), a domestic interested party, submitted a letter requesting that the Department conduct verification of the questionnaire responses submitted by the respondents in this review.
On August 1, 2011, U.S. Steel requested an extension of time for the submission of new subsidy allegations. The original deadline for submitting new subsidy allegations was August 3, 2011. On August 4, 2011, we extended the time period until August 24, 2011.
On October 13, 2011, the Department initiated on the new subsidy allegations.
On October 20, 2011, the Department postponed the deadline for the preliminary results of this administrative review until March 30, 2012.
On October 27, 2011, the Department requested U.S. Customs and Border Protection (CBP) data on Type 3 entries (
On November 17, 2011, Erbosan reported that because the exports of subject merchandise to the United States during the POR were to an unrelated importer, the company does not have any entry documentation.
On December 20, 2011, the Department published a notice of intent to rescind the administrative review of Erbosan and provided interested parties with the opportunity to submit comments on the issue.
In accordance with 19 CFR 351.213(b), this review covers only those producers or exporters of the subject merchandise for which a review was specifically requested and not rescinded. Therefore, the only companies subject to this review are Borusan and Toscelik.
The products covered by this order are certain welded carbon steel pipe and tube with an outside diameter of 0.375 inch or more, but not over 16 inches, of any wall thickness (pipe and tube) from Turkey. These products are currently provided for under the Harmonized Tariff Schedule of the United States (HTSUS) as item numbers 7306.30.10, 7306.30.50, and 7306.90.10. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.
The period for which we are measuring subsidies is January 1, 2010, through December 31, 2010.
BMB and its affiliated foreign trading company, Istikbal, are both part of the Borusan Group. BMB produces subject merchandise for both the home and export markets. During the POR, all subject merchandise exported to the United States was exported from Turkey by BMB. For sales of subject merchandise to other destinations, Istikbal was the exporter from Turkey.
Toscelik Profil and its affiliated foreign trading company, Tosyali, are
Under 19 CFR 351.524(b), non-recurring subsidies are allocated over a period corresponding to the average useful life (AUL) of the renewable physical assets used to produce the subject merchandise. Pursuant to 19 CFR 351.524(d)(2), there is a rebuttable presumption that the AUL will be taken from the U.S. Internal Revenue Service's 1977 Class Life Asset Depreciation Range System (IRS Tables), as updated by the Department of Treasury. For the subject merchandise, the IRS Tables prescribe an AUL of 15 years. No interested party has claimed that the AUL of 12 years is unreasonable.
Further, for non-recurring subsidies, we applied the “0.5 percent expense test” described in 19 CFR 351.524(b)(2). Under this test, we compare the amount of subsidies approved under a given program in a particular year to sales (total sales or total export sales, as appropriate) for the same year. If the amount of subsidies is less than 0.5 percent of the relevant sales, then the benefits are allocated to the year of receipt rather than allocated over the AUL period.
To determine whether government-provided loans under review conferred a benefit, the Department uses, where possible, company-specific interest rates for comparable commercial loans.
Where no company-specific benchmark interest rates are available, as is the case for Borusan for 2009, the Department's regulations direct us to use a national average interest rate as the benchmark.
As discussed below, Borusan paid commissions with regard to loans received under several countervailable loan programs (
The benchmark short-term Turkish Lira interest rates sourced from
As discussed above, to determine whether government-provided loans under review conferred a benefit, the Department uses, where possible, company-specific interest rates for comparable commercial loans.
Addendum 4108 of Article 40 of the Income Tax Law, effective June 2, 1995, allows taxpayers engaged in export activities to claim a lump sum deduction from gross income, in an amount not to exceed 0.5 percent of the taxpayer's foreign-exchange earnings.
Consistent with prior determinations, we preliminarily find that this tax deduction is a countervailable subsidy.
The income tax deduction provides a financial contribution within the meaning of section 771(5)(D)(ii) of the Tariff Act of 1930, as amended (the Act), because it represents revenue forgone by the GOT. The deduction provides a benefit in the amount of the tax savings to the company pursuant to section 771(5)(E) of the Act. It is also specific under section 771(5A)(B) of the Act because its receipt is contingent upon export earnings. In this review, no new information or evidence of changed circumstances has been submitted to warrant reconsideration of the Department's prior finding of countervailability for this program.
During 2010, BMB, Istikbal, and Tosyali used the deduction for export earnings program with respect to their 2009 income taxes.
The Department typically treats a tax deduction as a recurring benefit in accordance with 19 CFR 351.524(c)(1). To calculate the countervailable subsidy rate for this program, we calculated the tax savings realized by BMB, Istikbal, and Tosyali in 2010, as a result of the deduction for export earnings. For BMB and Istikbal, we divided their combined tax savings by Borusan's total export sales for 2010. For Tosyali, we divided the tax savings realized by Toscelik's total export sales for 2010.
On this basis, we preliminarily determine the net countervailable subsidy for this program to be 0.08 percent
The Foreign Trade Company (FTC) loan program was established by the Turkish Export Bank to meet the working capital needs of exporters, manufacturer-exporters, and manufacturers supplying exporters.
To eligible companies, the Export Bank provides short-term export loans in Turkish Lira or foreign currency, based on their prior export performance and financial criteria, up to 100 percent of the free on board (FOB) export commitment.
Consistent with previous determinations, we preliminarily find that these loans confer a countervailable subsidy within the meaning of section 771(5) of the Act.
Pursuant to 19 CFR 351.505(a)(1), we calculated the benefit as the difference between the payments of interest that Istikbal made on its FTC loans during the POR and the payments the company would have made on comparable commercial loans.
Toscelik reported that it did not use this program during the POR.
The Pre-Export Credit program meets the working capital needs of exporters, manufacturers, and manufacturers supplying exporters, except for FTC and SFTC classified exporters, which are ineligible to receive credits under this program.
Consistent with previous determinations, we preliminarily find that these loans confer a countervailable subsidy within the meaning of section 771(5) of the Act.
Further, like the FTC loans, these loans are not tied to a particular export destination. Therefore, we treated this program as an untied export loan program rendering it countervailable regardless of whether the loans were used for exports to the United States.
Toscelik reported that it did not use this program during the POR.
Turkish Export Bank provides short-term pre-shipment export loans through intermediary commercial banks to exporters, manufacturer-exporters, and manufacturers supplying exporters and SFTCs to assist them in meeting their export commitments.
In previous determinations, the Department found this program to be countervailable because receipt of the loans is contingent upon export performance and a benefit was conferred to the extent that the interest rates paid on the government loan were less than the amount the recipient would pay on comparable commercial loans.
The Department also found that this program is an untied export loan program because the loans are not specifically tied to a particular destination at the time of approval and the borrower only has to demonstrate that the export commitment was satisfied (
In this review, no new information or evidence of changed circumstances has been submitted to warrant reconsideration of the Department's prior findings for this program. During the POR, Borusan (specifically, BMB) was the only respondent that paid interest against pre-shipment export credit loans.
Consistent with the prior findings, we preliminarily find that these loans confer a countervailable subsidy within the meaning of section 771(5) of the Act. The loans constitute a financial contribution in the form of a direct transfer of funds from the GOT, under section 771(5)(D)(i) of the Act. A benefit exists under section 771(5)(E)(ii) of the Act in the amount of the difference between the payments of interest that BMB made on the loans during the POR and the payments the company would have made on comparable commercial loans. The program is also specific in accordance with section 771(5A)(B) of the Act because receipt of the loans is contingent upon export performance.
Pursuant to 19 CFR 351.505(a)(1), we calculated the benefit as the difference between the payments of interest that BMB made on its pre-shipment export loans during the POR and the payments the company would have made on comparable commercial loans. It is the Department's practice to normally compare effective interest rates rather than nominal rates in making the loan comparison.
The benchmark short-term Turkish Lira interest rates sourced from
After computing the benefit amount, we subtracted from the benefit amount the fees which BMB paid to commercial banks for the required letters of guarantee, as provided under section 771(6)(A) of the Act. We then divided that amount by Borusan's total export value for 2010. On this basis, we preliminarily find that the net countervailable subsidy for this program is less than 0.005 percent
Toscelik reported that it did not use this program during the POR.
“Short Term Pre-Shipment Rediscount Program” (SPRP) was established in 1995. It is administered by Turkey's Export Bank.
We preliminarily find that these loans confer a countervailable subsidy within the meaning of section 771(5) of the Act. The loans constitute a financial contribution in the form of a direct transfer of funds from the GOT, under section 771(5)(D)(i) of the Act. A benefit exists under section 771(5)(E)(ii) of the Act in the amount of the difference between the payments of interest that BMB and Istikbal made on the loans during the POR and the payments the company would have made on comparable commercial loans. The program is also specific in accordance with section 771(5A)(B) of the Act because receipt of the loans is contingent upon export performance.
Pursuant to 19 CFR 351.505(a)(1), we calculated the benefit as the difference between the payments of interest that BMB and Istikbal made on its short-term pre-shipment rediscount loans during the POR and the payments the companies would have made on comparable commercial loans. It is the Department's practice to normally compare effective interest rates rather than nominal rates in making the loan comparison.
The benchmark short-term Turkish Lira interest rates sourced from
After computing the benefit amount, we subtracted from the benefit amount the fees which BMB and Istikbal paid to commercial banks for the required letters of guarantee, as provided under section 771(6)(A) of the Act. We then divided that amount by Borusan's total export value for 2010. On this basis, we preliminarily find that the net countervailable subsidy for this program is 0.17 percent
The Ministry of Finance of the GOT administers the withholding of income tax on wages and salaries program (withholding of income tax program) pursuant to Article 2 and Article 3 of Law 5084. The purpose of this program under Law 5084, as set forth in Article 3, is to increase investments and employment opportunities in certain provinces of Turkey by canceling the income tax calculated on the wages and salaries of the workers.
The GOT states that this program includes two levels of withholding based on where the enterprise is established in the 49 eligible provinces.
During the POR, Toscelik reported that it received a benefit under this program with respect to its facility in the Osmaniye OIZ.
With respect to the product tying arguments presented by Toscelik, we refer to 19 CFR 351.525(b)(5), which addresses the attribution of subsidies to a particular product. Section 351.525(b)(5)(i), states that if a subsidy is tied to the production or sale of particular products, the Secretary will attribute the subsidy only to those products. However, the respondent must demonstrate that the subsidy is, in fact, tied to out-of-scope merchandise and could not benefit production of in-scope merchandise. Because Toscelik produces hot-rolled coils at the Osmaniye plant that can be used as an input into the subject merchandise, we preliminarily determine that there is nothing on the record that demonstrates that this program is precluded from benefitting the subject merchandise.
In these
We attributed the subsidy to Toscelik's total sales pursuant to 19 CFR 351.525(b)(3).
To calculate the benefit from the income tax relief that Toscelik received under the income tax withholding program, we summed the total amount of income tax savings reported by Toscelik during the POR.
The Social Security Institution of the GOT administers the incentive for the Employer's Share in Insurance Premiums Program (Insurance Premiums Program) pursuant to Article 2 and Article 4 of Law 5084.
The GOT states that this program includes two levels of activity based on where the enterprise is established in the 49 eligible provinces.
In addition, Article 7 of Law 5084 states that this program shall be applicable for any new investments for five years for the ones completed by December 31, 2007, for four years for the ones completed by December 31, 2008 and for three years for the ones completed by December 31, 2009.
Toscelik reported that it received benefits under this program during the POR, because its Osmaniye plant is located in the OIZ zone in the Osmaniye province which is one of the 49 eligible provinces.
In these
To calculate the benefit from the social security insurance premium relief that Toscelik received under the insurance premiums program, we summed the total amount of insurance premium savings reported by Toscelik during the POR. See 19 CFR 351.509(a)(1). To calculate the net subsidy rate, we divided the benefit by Toscelk's total f.o.b. sales during the POR. On this basis, we preliminarily determined Toscelik's net subsidy rate under this program to be 0.15 percent
The Ministry of Science, Industry and Technology General Directorate of Industrial Zones administers the free land allocation support program.
With respect to companies in the OIZs, the GOT states that pursuant to Provisional Article 1, non-allocated parcels in the OIZ, located in the provinces subject to clause (b) of Article 2 of Law 5084 can be allocated to real or legal entities free of charge provided that the competent bodies of the OIZ decide accordingly.
According to the GOT, to apply for this program the investor fills out the application form and submits it to the OIZ administration.
Toscelik reported that it received free land in the Osmaniye OIZ under Law 5084 Provisional Article 1.
In these
We preliminarily determine to rely on publicly available information concerning industrial land prices in Turkey for purposes of calculating a comparable commercial benchmark price for land available in Turkey.
We considered other potential benchmarks submitted on the record but have preliminarily determined not to use them. Toscelik submitted transaction information with regard to an adjacent plot of land that it purchased from the GOT.
To calculate the benefit, we multiplied the area of land Toscelik obtained free of charge from the GOT by the unit benchmark land price discussed above. Next, we performed the 0.5 percent test by dividing the benefit by Toscelik's total sales in 2008.
In its questionnaire response, Toscelik argues that the Department should use a 55-year AUL that corresponds to a depreciation schedule utilized in its financial statement for purposes of performing the grant allocation calculation described under 19 CFR 351.524(d).
To calculate the net subsidy rate, we divided the benefit by Toscelk's total f.o.b. sales during the POR. On this basis, we preliminarily determined Toscelik's net subsidy rate under this program to be 0.11 percent
The Ministry of Economy, General Directorate of Incentives and Implementation and Foreign Investments administers the energy support program pursuant to Article 2 and Article 6 of Law 5084.
The GOT states that enterprises operating or investing in the designated provinces are eligible for the support at rates ranging from 20 percent to 50 percent of the cost of electricity energy consumption, depending on their existing employment levels and the number of new hires.
According to the GOT, in order to benefit from energy support, eligible firms must apply to the Provincial Offices of the Ministry of Science, Industry and Technology.
Toscelik reported that it received energy subsidies during the POR.
When a respondent claims that that a subsidy is tied to non-subject merchandise, the respondent must provide evidence to substantiate their claim. We preliminarily determine that the document to which Toscelik cites in Exhibit 12 of its response does not establish a tie between the subsidy and the non-subject merchandise. Furthermore, with respect to the investment certificate cited, we preliminarily determine that the language on the certificate does not indicate that the subsidy in question is linked specifically to spiral pipe. Therefore, as explained above, because Toscelik produces hot-rolled coils at the Osmaniye plant that can be used as an input into the subject merchandise, we preliminarily determine that there is nothing on the record that demonstrates that this program is precluded from benefitting the subject merchandise.
In these
To calculate the benefit from the energy subsidies that Toscelik received under the energy support program, we summed the total amount of energy subsidies reported by Toscelik during the POR and treated it as a non-recurring grant. Next, in accordance with 19 CFR 351.524(b)(2), we determined whether to allocate the non-recurring benefit from the grant over Toscelik's AUL by dividing the approved amount by Toscelik's total f.o.b. sales during the POR. The resulting ratio was less than 0.5 percent of Toscelik's total f.o.b. sales, therefore we allocated the benefit to the POR. On this basis, we preliminarily determine Toscelik's net subsidy rate under this program to be 0.02 percent
Toscelik reported that it received an exemption from property tax with respect to its Osmanye facilities because of their location in the OIZ, during the POR.
To calculate the benefit from the tax relief that Toscelik received under the property tax exemption program, we took the total amount of property tax savings reported by Toscelik during the POR and divided the amount of the benefit by Toscelik's total f.o.b. sales during the POR. On this basis, we preliminarly determine Toscelik's net subsidy rate under this program to be 0.01 percent
Under the Inward Processing Certificate (IPC)
To participate in this program, a company must hold an IPC, which lists the amount of raw materials/intermediate unfinished goods to be imported and the amount of product to be exported.
Concerning D-1 certificates, pursuant to 19 CFR 351.519(a)(1)(ii), a benefit exists to the extent that the exemption extends to inputs that are not consumed in the production of the exported product, making normal allowances for waste, or if the exemption covers charges other than import charges that are imposed on the input. With regard to the VAT exemption granted under this program, pursuant to 19 CFR 351.517(a), in the case of the exemption upon export of indirect taxes, a benefit exists to the extent that the Department determines that the amount exempted exceeds the amount levied with respect to the production and distribution of like products when sold for domestic consumption.
In prior reviews, the Department has found that, in accordance with 19 CFR 351.519(a)(4)(i), the GOT has a system in place to confirm which inputs, and in what amounts are consumed in the production of the exported product, and that the system is reasonable for the purposes intended.
During the POR, under D-1 certificates, Borusan and Toscelik received duty and VAT exemptions on certain imported inputs used in the production of steel pipes and tubes.
Therefore, consistent with past cases,
The GOT provides IEPs that qualified recipients can use to import items duty free. In past CVD proceedings, the Department has repeatedly found this program to be not countervailable because benefits are not specific.
Concerning Borusan, it reported receiving an IEP license after January 1, 2009, that allowed it to import a piece of equipment at a reduced duty rate. Borusan argues that the receipt of duty exemptions on this license was contingent upon the firm using the equipment to produce spiral welded pipe, which is non-subject merchandise. Upon review of the IEP license in question, we preliminarily determine that the benefit Borusan received on this license was tied to the production of spiral welded pipe at the time of bestowal.
We examined the following programs and preliminarily determine that Borusan and Toscelik did not apply for or receive benefits under these programs during the POR:
The Department's regulations provide that factual information upon which the Secretary relies for the final results of an administrative review will be verified if a domestic party timely requests verification and the Secretary has not conducted verification during either of the two immediately preceding administrative reviews.
In accordance with 19 CFR 351.221(b)(4)(i), we calculated an individual subsidy rate for each producer/exporter subject to this administrative review. For the period January 1, 2010, through December 31, 2010, we preliminarily determine the following total net countervailable subsidy rates: for Borusan is 0.27 percent
The Department intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of this review. If the final results remain the same as these preliminary results, the Department will instruct CBP to liquidate without regard to countervailing duties all shipments of subject merchandise produced by Borusan and Toscelik entered, or withdrawn from warehouse, for consumption from January 1, 2010, through December 31, 2010. The Department will also instruct CBP not to collect cash deposits of estimated countervailing duties on all shipments of the subject merchandise produced by Borusan and Toscelik, entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review.
We will instruct CBP to continue to collect cash deposits for non-reviewed companies at the most recent company-specific or country-wide rate applicable to the company. Accordingly, the cash deposit rates that will be applied to companies covered by this order, but not examined in this review, are those established in the most recently completed administrative proceeding for each company. Those rates shall apply to all non-reviewed companies until a review of a company assigned these rates is completed.
These cash deposit requirements, when imposed, shall remain in effect until further notice.
Pursuant to 19 CFR 351.224(b), the Department will disclose to parties to the proceeding any calculations performed in connection with these preliminary results within five days after the date of the public announcement of this notice. Pursuant to 19 CFR 351.309, interested parties may submit written comments in response to these preliminary results. Case and rebuttal briefs will be due at the dates specified by the Department. The Department will notify interested parties of the case and rebuttal due dates once those dates are finalized. Parties who submit argument in this proceeding are requested to submit with the argument: (1) A statement of the issues, and (2) a brief summary of the argument. Parties submitting case and/or rebuttal briefs are requested to provide the Department copies of the public version on disk. Case and rebuttal briefs must be served on interested parties in accordance with 19 CFR 351.303(f). Also, pursuant to 19 CFR 351.310(c), within 30 days of the date of publication of this notice, interested parties may request a public hearing on arguments to be raised in the case and rebuttal briefs. Unless the Secretary specifies otherwise, the hearing, if requested, will be held two days after the date for submission of rebuttal briefs.
Representatives of parties to the proceeding may request disclosure of proprietary information under administrative protective order no later than 10 days after the representative's client or employer becomes a party to the proceeding, but in no event later than the date the case briefs, under 19 CFR 351.309(c)(1)(ii), are due. The Department will publish the final
These preliminary results of review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
Import Administration, International Trade Administration, Department of Commerce.
Toni Page, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1398.
On July 1, 2011, the Department of Commerce (Department) published a notice of opportunity to request an administrative review of the countervailing duty (CVD) order on polyethylene terephthalate film, sheet and strip from India covering the period January 1, 2010, through December 31, 2010.
On August 26, 2011, the Department published a notice of initiation of administrative review with respect to Ester, Garware, Jindal, Polyplex, SRF, Vacmet, and Polypacks.
On September 12, 2011, SRF filed a certification of no shipments and requested that the Department rescind the CVD administrative review of the company. On November 25, 2011, Petitioners timely withdrew their request for CVD administrative reviews of Ester, Garware, Polyplex, and Jindal. The Department published a rescission, in part, of the CVD administrative review with respect to Ester, Garware, Polyplex, and Jindal on January 11, 2012.
On February 21, 2012, we published a notice of intent to rescind this CVD administrative review with respect to SRF, and invited interested parties to comment.
Pursuant to 19 CFR 351.213(d)(3), the Department may rescind an administrative review with respect to a particular exporter or producer, if the Secretary concludes that, during the period covered by the review, there were no entries, exports, or sales of the subject merchandise to the United States by that exporter or producer. SRF submitted a letter on September 12, 2011, certifying that it did not have any shipments of subject merchandise to the United States during the period of review (POR). The Department received no comments from any other party on SRF's no-shipment claim.
We issued a “no shipments inquiry” message to U.S. Customs and Border Protection (CBP), which posted the message on October 12, 2011.
As such, we determine that there were no entries during the POR of subject merchandise produced or exported by SRF. Therefore, in accordance with 19 CFR 351.213(d)(3), and consistent with our practice,
The Department will instruct CBP to assess countervailing duties on all appropriate entries. Subject merchandise exported by SRF will be assessed CVDs at rates equal to the cash deposit of estimated CVDs required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions directly to CBP within 15 days of publication of this notice.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce preliminarily determines that countervailable subsidies are not being provided to producers and exporters of circular welded carbon-quality steel pipe (“circular welded pipe”) from the Sultanate of Oman (“Oman”).
Sergio Balbontin or Susan Kuhbach, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-6478 and (202) 482-0112, respectively.
The following events have occurred since the publication of the Department of Commerce's (“Department”) notice of initiation in the
On November 22, 2011, the Department released the U.S. Customs and Border Protection (“CBP”) data on imports of subject merchandise during the period of investigation (“POI”), under administrative protective order (“APO”) to all parties with APO access.
On December 16, 2011, the U.S. International Trade Commission (“ITC”) published its affirmative preliminary determination that there is a reasonable indication that an industry in the United States is materially injured by reason of allegedly subsidized imports of circular welded pipe from India, Oman, the United Arab Emirates, and the Socialist Republic of Vietnam.
On December 19, 2011, the Department postponed the deadline for the preliminary determination in this investigation until March 26, 2012.
On December 22, 2011, we issued a countervailing duty questionnaire to the Government of the Sultanate of Oman (“GSO”) and to Al Jazeera. We received responses from the GSO and Al Jazeera on February 17, 2012.
One of the petitioning parties, Wheatland Tube, requested two extensions of the deadline for filing new subsidy allegations. As a result, this deadline was extended from February 15 to February 24, and then to February 28, 2012.
A new subsidy allegation was received from Wheatland Tube on February 28, 2012. See Letter from Petitioner Wheatland Tube re New Subsidies Allegation and Additional Factual Information, dated February 28, 2012. On March 5, 2012, the Department included the newly alleged subsidy in the investigation.
We received pre-preliminary comments from Wheatland Tube on March 14, 2012.
The period for which we are measuring subsidies,
In accordance with the preamble to the Department's regulations, we set aside a period of time in our
On December 14, 2011, Allied Tube and Conduit, JMC Steel Group, and Wheatland Tube (collectively, “certain Petitioners”) responded to SeAH VINA's comments stating that the scope as it appeared in the
We agree with certain Petitioners that the Department seeks to define the scopes of its proceedings based on the physical characteristics of the merchandise.
This investigation covers welded carbon-quality steel pipes and tube, of circular cross-section, with an outside diameter (“O.D.”) not more than 16 inches (406.4 mm), regardless of wall thickness, surface finish (
(i) 1.80 percent of manganese;
(ii) 2.25 percent of silicon;
(iii) 1.00 percent of copper;
(iv) 0.50 percent of aluminum;
(v) 1.25 percent of chromium;
(vi) 0.30 percent of cobalt;
(vii) 0.40 percent of lead;
(viii) 1.25 percent of nickel;
(ix) 0.30 percent of tungsten;
(x) 0.15 percent of molybdenum;
(xi) 0.10 percent of niobium;
(xii) 0.41 percent of titanium;
(xiii) 0.15 percent of vanadium;
(xiv) 0.15 percent of zirconium.
Subject pipe is ordinarily made to ASTM specifications A53, A135, and A795, but can also be made to other specifications. Structural pipe is made primarily to ASTM specifications A252 and A500. Standard and structural pipe may also be produced to proprietary specifications rather than to industry specifications. Fence tubing is included in the scope regardless of certification to a specification listed in the exclusions below, and can also be made to the ASTM A513 specification. Sprinkler pipe is designed for sprinkler fire suppression systems and may be made to industry specifications such as ASTM A53 or to proprietary specifications. These products are generally made to standard O.D. and wall thickness combinations. Pipe multi-stenciled to a standard and/or structural specification and to other specifications, such as American Petroleum Institute (“API”) API-5L specification, is also covered by the scope of this investigation when it meets the physical description set forth above, and also has one or more of the following characteristics: is 32 feet in length or less; is less than 2.0 inches (50mm) in outside diameter; has a galvanized and/or painted (
The scope of this investigation does not include: (a) Pipe suitable for use in boilers, superheaters, heat exchangers, refining furnaces and feedwater heaters, whether or not cold drawn; (b) finished electrical conduit; (c) finished
The pipe subject to this investigation is currently classifiable in Harmonized Tariff Schedule of the United States (“HTSUS”) statistical reporting numbers 7306.19.1010, 7306.19.1050, 7306.19.5110, 7306.19.5150, 7306.30.1000, 7306.30.5025, 7306.30.5032, 7306.30.5040, 7306.30.5055, 7306.30.5085, 7306.30.5090, 7306.50.1000, 7306.50.5050, and 7306.50.5070. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise under the investigation is dispositive.
On November 22, 2011, the Department initiated an AD investigation concurrent with this CVD investigation of circular welded pipe from Oman.
The average useful life (“AUL”) period in this proceeding, as described in 19 CFR 351.524(d)(2), is 15 years according to the U.S. Internal Revenue Service's 1977 Class Life Asset Depreciation Range System.
The Department's regulations at 19 CFR 351.525(b)(6)(i) state that the Department will normally attribute a subsidy to the products produced by the corporation that received the subsidy. However, 19 CFR 351.525(b)(6)(ii) through (v) directs that the Department will attribute subsidies received by certain other companies to the combined sales of those companies if (1) cross-ownership exists between the companies, and (2) the cross-owned companies produce the subject merchandise, are a holding or parent company of the subject company, produce an input that is primarily dedicated to the production of the downstream product, or transfer a subsidy to a cross-owned company.
According to 19 CFR 351.525(b)(6)(vi), cross-ownership exists between two or more corporations where one corporation can use or direct the individual assets of the other corporation(s) in essentially the same ways it can use its own assets. This regulation states that this standard will normally be met where there is a majority voting interest between two corporations or through common ownership of two (or more) corporations. The Court of International Trade (“CIT”) has upheld the Department's authority to attribute subsidies based on whether a company could use or direct the subsidy benefits of another company in essentially the same way it could use its own subsidy benefits.
Al Jazeera reported no affiliates in Oman and, consequently, has responded on behalf of itself. (AJ QR at 2-3.) Thus, the subsidies received by Al Jazeera have been attributed to its total sales, its sales of subject merchandise, or its export sales, in accordance with 19 CFR 351.525(b)(1)-(5).
Section 771(5)(E)(ii) of the Act states that the benefit for loans is the “difference between the amount the recipient of the loan pays on the loan and the amount the recipient would pay on a comparable commercial loan that the recipient could actually obtain on the market.” In addition, 19 CFR 351.505(a)(3)(i) stipulates that when selecting a comparable commercial loan that the recipient “could actually obtain on the market” the Department will normally rely on actual loans obtained by the firm. However, when there are no comparable commercial loans, the Department “may use a national average interest rate for comparable commercial loans,” pursuant to 19 CFR 351.505(a)(3)(ii). According to 19 CFR 351.505(a)(2)(i), a “comparable” loan is similar in structure (fixed versus variable interest rate), maturity and currency denomination.
In allocating benefits over time, the Department normally uses as the discount rate the company's cost of long-term fixed rate debt at the time the government approves the subsidy. If such rates are not available, the Department will use the average cost of long-term fixed rate loans in the country in question.
Al Jazeera had government-provided loans outstanding during the POI for which benchmarks are needed. However, none of Al Jazeera's non-government loans provides a suitable rate because none was taken out in the years the government loans were approved. Therefore, we are relying on the national average cost of long-term fixed-rate loans as reported by the World Bank and submitted by the GSO. (GSO QR at Appendices B.1.I-1 and B.1.I-2.) We have included in the average cost of fixed-rate long-term loans, the additional fees that would be incurred in obtaining loans from commercial banks, as reported by the GSO. (GSO QR at 25.)
Based upon our analysis of the petition and the responses to our questionnaires, we preliminarily determine the following:
Royal Decree (“RD”) 17/97 made soft loans available to the private sector with the goals of diversifying the economy of Oman and developing industry, agriculture, fisheries, tourism, education, health services, and traditional crafts in Oman. Under this program, applicants approved by the Ministry of Commerce and Industry received loans at three percent interest from commercial banks in Oman, with the difference between the three percent rate and the commercial interest rate covered by the GSO. (GSO QR at 15.) The soft loan program under RD 17/97 originated in 1997 and terminated in 2006. (GSO SQR at 12 and Appendix SQ-20.) Beginning in 2007, soft loans were made by the Oman Development Bank. (GSO QR at 16.) The GSO reported that Al Jazeera had soft loans under the earlier RD 17/97 program outstanding during the POI, but has not received any loans from the Oman Development Bank. (GSO QR at 15.) The two loans outstanding were granted in 1998 and 2004, respectively. (GSO QR at 24.) According to the GSO, both loans have now been repaid in full. (GSO SQR at 12.)
According to the GSO, firms operating the agriculture, fisheries, industry, tourism, education, health and traditional crafts sectors could apply for loans to set up, support or expand a project. (GSO QR at 17.) After review by the relevant ministries, a ministerial committee would approve or disapprove of the loan. (GSO QR at 18.) According to Article 12 of RD 17/97, the maximum amounts that could be approved varied by region (150 percent of paid up capital if the applicant was located in the Governorate of Muscat and 250 percent of paid up capital elsewhere) and by corporate form (a maximum of 500,000 Omani Rial (“OR”) or up to 5,000,000 OR if the applicant was a public joint-stock company which covered at least 40 percent of its capital by public subscription). (GSO QR at 20.)
In response to the Department's request to provide information about the amounts of assistance provided under the program to the different recipients, the GSO provided the aggregate amount of loans approved during the pendency of the program broken out between industry, tourism, education, health, and agriculture/fishing. (GSO QR at Appendix B.1.G-3.) In response to the Department's request for a breakdown of the information among different sectors under the “industry” heading, by year, the GSO responded that it does not maintain the information in that manner. Moreover, because there were no sectoral criteria that affect eligibility, the GSO stated there was no requirement to include that information in the applications. (GSO SQR at 15.) The GSO did provide the amounts of individual loans disbursed to recipients in the industrial category. (GSO SQR at Appendix SQ-24.)
We preliminarily determine that the soft loans received by Al Jazeera under RD 17/97 confer a countervailable subsidy. The loans are a financial contribution in the form of a direct transfer of funds and they confer a benefit in the amount of the difference between the interest Al Jazeera paid on the loans and the amount the company would have paid on a comparable commercial loan.
To calculate the benefit, we computed the difference between the amounts Al Jazeera would have paid under the benchmark interest rates described above and the amounts it actually paid during the POI. Because the loans were given to finance Al Jazeera's pipe mills, we divided the subsidy during the POI by Al Jazeera's sales of circular welded pipe during the POI.
On this basis, we preliminarily determine that Al Jazeera received a countervailable subsidy of 0.12 percent
Under RD 61/2008, industrial enterprises in Oman are able to import machinery, equipment, parts, raw materials, semi-manufactured materials and packing material duty free. According to the GSO, the purpose of RD 61/2008 is to encourage and develop all industrial projects, to raise the contribution of the industrial sector in the gross domestic product, and to expand the bases of economic linkage in the Arab States of the Gulf. RD 61/2008 supersedes similar earlier schemes under the Organization and Promotion of Industry Law (RD 1/79) and the Foreign Business Investment Law (102/94). (GSO QR at 4 and Appendix A.1.D-1.)
RD 1/79 entered into force on January 4, 1979. According to the GSO, the purpose of this law was to encourage diversification of the Omani economy and to stimulate industrial development. (GSO SQR at 1.) Under Article 19 of RD 1/79, licensed or
Both RD 61/2008 and RD 1/79 provide similar definitions of the “industrial enterprises” that are eligible to receive the tariff exemptions: establishments whose basic objective is to convert raw materials or semi-manufactured goods into manufactured goods. (GSO QR at Appendices A.1.D-1 and GSO SQR at Appendix SQ-3.) Also, both decrees outline the process for receiving an industrial license. Under RD 61/2008, the procedure for obtaining an industrial license is “automatic,” according to the GSO, upon submission of the required documentation (commercial registration, business plan and approval from the Ministry of Environment). Further, the GSO states that there is no discretion in the procedure, as the application process has been fully automated through a “one stop shop” IT system. (GSO QR at 8.)
Al Jazeera's industrial license was obtained under RD 1/79, as well as its initial tariff exemption. According to Article 5 of RD 1/79, industrial enterprises could not be established or change their capacity, size, purpose or site without obtaining an industrial license from the Ministry of Commerce and Industry. To obtain an industrial license, companies would submit an application to the Ministry. This application requested a wide range of information including: a list of shareholders, estimated investment, a description of the products to be produced, annual output, a description of the manufacturing process, the numbers and types of labor required, market and marketing information (imports of the product, domestic production of the product, exports, and proposed distribution channels), details of plant and machinery, raw materials requirements, and utilities requirements. (GSO QR at Appendix A.1.G-6.) The decision of whether to grant the industrial license rested with the Directorate General of Industry (Ministry of Commerce and Industry). (GSO SQR at Appendix SQ-3.) According to the GSO, the Ministry relied upon non-binding guidelines for granting these licenses. (GSO SQR at 2.)
To obtain the tariff exemption under RD 1/79, the industrial enterprise would submit to the Ministry of Commerce and Industry its industrial license along with a list of the materials and equipment it intended to import and the annual amounts. (GSO SQR at 2 and Appendix SQ-4.) The procedure under RD 61/2008 is similar except that final approval of the Ministry of Finance is also required in order to ensure that the application conforms with the uniform customs law of the Arab Gulf Cooperation Council. (GSO SQR at 3 and Appendix SQ-6.) RD 61/2008 also provides at Article 16 that priority in granting the tariff exemptions will be given,
As noted above, Al Jazeera received its industrial license and initial tariff exemption under RD 1/79. According to the GSO, if a company needs to import raw materials in excess of the amount for which the exemption was granted, it must file a new request with the Ministry of Commerce and Industry. (GSO QR at 6.) Al Jazeera received a new approval under RD 61/2008. (GSO QR at 11.)
The GSO states that processes for granting industrial licenses in Oman are “automatic.” Regarding the former, companies apply though an online system administered by the Ministry of Commerce and Industry. According to the Ministry of Commerce and Industry, no firm that met the legal and regulatory requirements for an industrial license has been denied a license. (GSO QR at Appendix A.1.G-4 and GSO SQR at 6.) Specifically, rejections of license applications occur only when the applicant does not constitute an “industrial enterprise,” or when the applicant cancels its plans and does not complete the steps for registration. (GSO QR at 8.)
In its pre-preliminary comments, Wheatland Tube points to Al Jazeera's application for its industrial license and, in particular, the section of the application that requests information about exports. Citing 19 CFR 351.514 and prior findings by the Department,
As explained above, applications for tariff exemptions are filed with the Ministry of Commerce and Industry. According to the GSO, the approval process for duty exemptions is automatic and does not take into account the export performance or potential of the applicant, the use of domestic over imported goods, the industry or sector in which the applicant operated, or the location of the applicant. (GSO QR at 9-10 and GSO SQR at 4-5.) More recently, the tariff exemptions application has also been referred to the Ministry of Finance, which carries out a formal check of whether the applicant corresponds to the company named in the industrial license, whether the capital goods pertain to the activity of the company, and whether the quantity the applicant seeks to import is consistent with its output. (GSO QR at 6.) The GSO states that there is no discretion in deciding whether to grant the duty exemption when the regulations are met (GSO QR at 6-7) and that no qualifying companies have been denied tariff exemptions. (GSO QR at Appendix A.F.1-2 and GSO SQR at 6.) The submitted data shows that hundreds of approvals are made per year. (GSO SQR at Appendix SQ-5.) The GSO further explains that the “priority” described in Article 16 of RD 61/2008 for granting tariff exemptions to certain enumerated sectors means that if two or more applications were filed contemporaneously, the enterprise in the designated sector would receive the tariff exemption prior to the other applicants. (GSO QR at 7-8.)
In response to the Department's request to provide information about the amounts of assistance provided under the program to the different industries in Oman, the GSO explained that it does not maintain this data. Specifically, recipients of the import duty exemptions are not classified by the International Standard Industrial Classification. (GSO SQR at 6.) Nor does the GSO maintain information on the
In summary, based on information submitted by the GSO, the tariff exemptions are granted automatically and without regard to the firm's export performance or potential, use of domestic over imported goods, industry sector or location. Moreover, hundreds of applications are approved in a year and no applications have been rejected. The GSO has explained that it is not able to provide information regarding the distribution of duty exemptions because of the nature of the benefit (exemptions) and the manner in which the recipients submit their data.
On this basis, we preliminarily determine that the GSO's program providing tariff exemptions on imported raw materials and equipment does not confer a countervailable subsidy because it is not specific within the meaning of section 771(5A) of the Act. At verification, we intend to examine the applications and the approval process to confirm that the tariff exemptions are, in fact, used by industries producing a wide variety of products. Also, we invite the parties to comment on the distinction we have made in this preliminary determination to focus on the application process for benefits under the tariff exemption program rather than on the application for the company's industrial license.
The provision of electricity to consumers in Oman is heavily regulated. (GSO QR at Appendix C.1-5 at 15.) In particular, in accordance with Article 10 of RD78/2004, the rates that are charged for electricity are approved by the Council of Ministers. (GSO QR at Appendix C.1-1.) During the POI, all industrial users in all regions of Oman paid uniform rates. (GSO QR at 37.) To be eligible for the industrial user rate, a company must have a letter of recommendation from the Ministry of Commerce and Industry and meet a stipulated power factor. (GSO QR at Appendix C.1-3 at 37.) According to the GSO, letters of recommendation are given to all companies with an industrial license. (GSO QR at 39.) During the POI, there were over 1.5 million industrial users of electricity in Oman. (GSO QR at Appendix C.1-3 at 10.)
The electricity bills submitted by Al Jazeera show that it paid the established rates. (AJ QR at Exhibit 13.)
Because all industrial users pay the same rates for electricity, we preliminarily determine that any potential subsidy related to the GSO's provision of electricity is not specific within the meaning of section 771(5A) of the Act.
Ministerial Decision 11/2000 establishes a uniform water tariff for all commercial users in Oman. (GSO QR at Appendix C.2-1.) The water bills submitted by Al Jazeera show that it paid the established rates. (AJ QR at Exhibit 14.)
Because all commercial users pay the same tariff for water, we preliminarily determine that any potential subsidy related to the GSO's provision of water is not specific within the meaning of section 771(5A) of the Act.
According to the GSO, the Ministry of Oil and Gas is the central buyer and seller of gas in the Sultanate. The Ministry buys gas from producers and resells it to power plants, industrial estates, and LNG producers. Further, according to the GSO, the natural gas network delivers gas for industrial purposes only and companies using gas for industrial purposes must be located in or close to an industrial estate. (GSO QR at 43.)
The GSO states that virtually all industries in Oman are located in industrial estates or free trade zones. (GSO QR at 33.) This is due in part to infrastructural constraints, such as the fact that natural gas is not readily available outside of these areas. Additionally, according to the GSO, the zoning in the Sultanate is very strict: an industry seeking to locate outside an industrial estate or free trade zone would have to apply to have the land reclassified as industrial land. Id. Finally, industrial estates serve as “one-stop-shops” where all the applications for an industrial installation can be made, rather than having to apply to many different agencies.
Regarding natural gas, all industrial companies located in all of industrial estates pay the same rate. (GSO QR at 42.) Al Jazeera is located in the Sohar Industrial Estate and the natural gas bills it submitted show that it paid the standard rate charged to all industries located in Sohar Industrial Estate and all other industrial estates. (AJ QR at Exhibit 15.) Companies located nearby, but outside of industrial estates normally purchase gas from the Ministry of Oil and Gas, but are supplied by the industrial estates. According to the GSO, these companies would normally pay the same for natural gas as companies within the industrial estates, but might pay more if the cost of providing the gas was higher due, for example, to having constructed a pipeline. (GSO SQR at 13.)
Because all industrial users proximate to the gas pipeline pay the same price for natural gas, we preliminarily determine that any potential subsidy related to the GSO's provision of natural gas is not specific within the meaning of section 771(5A) of the Act.
As explained above under “Provision of Natural Gas for LTAR,” the GSO states that virtually all industries in Oman are located in industrial estates or free trade zones. These estates and zones have been established on government-owned land and are managed by the Public Establishment for Industrial Estates. (GSO QR at 33.) A small number of very large industrial companies, established by the GSO, are located outside the industrial estates on government-owned land, but the GSO does not provide land under lease outside of the industrial estates. (GSO SQR at 13.)
Privately owned “industrial land” outside of the estates differs from land in the estates, according to the GSO. (GSO SQR at 14.) The plots cannot exceed 85 square meters and rental periods are shorter than those in the estates (which range about 25 years). (GSO SQR at 14.) Companies located outside the estates are small workshops such as carwashes and welders which cannot rent land in the industrial estates because they are not industrial establishments per RD 61/2008.
Regarding lease rates in the industrial estates, the GSO reports that they are set taking into account the location of the industrial estate and lease rates in neighboring countries.
According to the GSO, these higher prices reflect additional services and
In summary, the GSO provides industrial land under leases in industrial estates and free trade zones. Companies locating in free trade zones receive benefits or services that are not received in the industrial estates and the lease rates in free trade zones are, therefore, higher. Within the industrial estates, the rates are uniform except for the existence of “introductory” rates in certain zones. Because Al Jazeera has been located in Sohar Industrial Estate beyond any “introductory” period in the other industrial estates, it would face the uniform rate of 0.50 OR.
Because all recipients of industrial leases in the industrial estates that have been located there beyond five years pay the same lease rates, we preliminarily determine that any potential subsidy related to the GSO's provision of industrial leases is not specific within the meaning of section 771(5A) of the Act.
Based on information included in Al Jazeera's questionnaire response, Wheatland Tube alleged that Al Jazeera benefitted from a countervailable exemption from income tax during the POI. Al Jazeera's response indicates that the company has a tax loss for 2009 (relating to the tax return filed during the POI) (AJ SQR at 5) and did not belatedly pay corporate income taxes in 2009 for prior years. (AJ NSQR at 2.) Therefore, we preliminarily determine that any income tax exemption was not used during the POI.
The Export Credit Guarantee Agency of Oman (“ECGA”) is the national export credit agency of the Sultanate. Exporters whose sales are insured by ECGA can discount their export bills with commercial banks and ECGA provides a one percent subsidy on the export sales it has insured. (GSO QR at 26.) Al Jazeera received an interest subsidy for a loan outstanding during the POI. (AJ QR at 13-14.) However, the interest subsidy for this loan was received after the POI. (AJ SQR at 4.) Consequently, the interest subsidy does not give rise to a benefit during the POI.
We intend to seek further information from Al Jazeera regarding possible interest subsidies received during the POI arising from loans outstanding prior to the POI.
In accordance with section 782(i)(1) of the Act, we will verify the information submitted by the respondents prior to making our final determination.
In accordance with section 703(d)(1)(A)(i) of the Act, we have calculated an estimated countervailable subsidy rate for Al Jazeera. Further, because Al Jazeera is the only company for which a rate has been calculated, we are also assigning that rate to all other producers and exporters of circular welded pipe from Oman.
Because all of the rates are
In accordance with section 703(f) of the Act, we will notify the ITC of our determination. In addition, we are making available to the ITC all non-privileged and non-proprietary information relating to this investigation. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an administrative protective order, without the written consent of the Assistant Secretary for Import Administration.
In accordance with section 705(b)(3) of the Act, if our final determination is affirmative, the ITC will make its final determination within 75 days after the Department makes its final affirmative determination.
In accordance with 19 CFR 351.224(b), we intend to disclose to the parties the calculations for this preliminary determination within five days of its announcement. Due to the anticipated timing of verification and issuance of verification reports, case briefs for this investigation must be submitted no later than one week after the issuance of the last verification report.
Section 774 of the Act provides that the Department will hold a public hearing to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs, provided that such a hearing is requested by an interested party. If a request for a hearing is made in this investigation, we intend to hold the hearing two days after the deadline for submission of the rebuttal briefs, pursuant to 19 CFR 351.310(d), at the U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, DC 20230. Parties should confirm by telephone the time, date, and place of the hearing 48 hours before the scheduled time.
Interested parties who wish to request a hearing, or to participate if one is requested, must electronically submit a written request to the Assistant Secretary for Import Administration using IA ACCESS, within 30 days of the publication of this notice, pursuant to 19 CFR 351.310(c). Requests should contain: (1) The party's name, address, and telephone; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs.
This determination is published pursuant to sections 703(f) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
The Department published the preliminary results of a changed circumstances review of the antidumping duty order on low enriched uranium (LEU) from France on February 10, 2012,
Emily Halle or Dana Mermelstein, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-0176 or (202) 482-1391, respectively.
On February 13, 2002, the Department published an antidumping order on LEU from France.
As for evaluating AREVA's request, the Department published, in accordance with sections 751(b)(1) and (d)(1) of the Tariff Act of 1930, as amended (Act), and 19 CFR 351.216, the
The product covered by the order is all low enriched uranium (LEU). LEU is enriched uranium hexafluoride (UF
Certain merchandise is outside the scope of the order. Specifically, the order does not cover enriched uranium hexafluoride with a U
Also excluded from the order is LEU owned by a foreign utility end-user and imported into the United States by or for such end-user solely for purposes of conversion by a U.S. fabricator into uranium dioxide (UO
The merchandise subject to this order is classified in the Harmonized Tariff Schedule of the United States (HTSUS) at subheading 2844.20.0020. Subject merchandise may also enter under 2844.20.0030, 2844.20.0050, and 2844.40.00. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to the order is dispositive.
Because no parties have submitted comments opposing the Department's
The Department will inform CBP that the deadline for re-exportation of this single entry only is extended to November 1, 2013. The Department will instruct CBP to collect amended certifications from AREVA and its end-user by May 1, 2012.
This notice serves as a reminder to parties subject to administrative
We are issuing and publishing these final results and notice in accordance with sections 751(b) of the Act and 19 CFR 351.216 and 351.221(c)(3).
Import Administration, International Trade Administration, Department of Commerce.
In accordance with section 751(c) of the Tariff Act of 1930, as amended (“the Act”), the Department of Commerce (“the Department”) is automatically initiating a five-year review (“Sunset Review”) of the antidumping duty orders listed below. The International Trade Commission (“the Commission”) is publishing concurrently with this notice its notice of
The Department official identified in the
The Department's procedures for the conduct of Sunset Reviews are set forth in its
In accordance with 19 CFR 351.218(c), we are initiating the Sunset Review of the following antidumping duty orders:
As a courtesy, we are making information related to Sunset proceedings, including copies of the pertinent statue and Department's regulations, the Department schedule for Sunset Reviews, a listing of past revocations and continuations, and current service lists, available to the public on the Department's Internet Web site at the following address:
This notice serves as a reminder that any party submitting factual information in an AD/CVD proceeding must certify to the accuracy and completeness of that information.
Pursuant to 19 CFR 351.103(d), the Department will maintain and make available a service list for these proceedings. To facilitate the timely preparation of the service list(s), it is requested that those seeking recognition as interested parties to a proceeding contact the Department in writing within 10 days of the publication of the Notice of Initiation.
Because deadlines in Sunset Reviews can be very short, we urge interested parties to apply for access to proprietary information under administrative protective order (“APO”) immediately following publication in the
Domestic interested parties defined in section 771(9)(C), (D), (E), (F), and (G) of the Act and 19 CFR 351.102(b) wishing to participate in a Sunset Review must
If we receive an order-specific notice of intent to participate from a domestic interested party, the Department's regulations provide that all parties wishing to participate in the Sunset Review must file complete substantive responses not later than 30 days after the date of publication in the
This notice of initiation is being published in accordance with section 751(c) of the Act and 19 CFR 351.218 (c).
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) initiated a new shipper review of the antidumping duty order on chlorinated isocyanurates (chlorinated isos) from the People's Republic of China (PRC) for the period of June 1, 2011, through February 29, 2012. As discussed below, we determine that the producer and exporter Puyang Cleanway Chemicals Ltd. (Puyang Cleanway) did not satisfy the regulatory requirements to request a new shipper review; therefore, we are rescinding this new shipper review.
Andrew Huston, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4261.
SUPPLEMENTARY INFORMATION
The antidumping duty order on chlorinated isos from the PRC was published on June 24, 2005.
Usually, in accordance with 19 CFR 351.214(g)(1)(i)(B), the period of review (POR) for new shipper reviews initiated in the month immediately following the semi-annual anniversary month is the six-month period immediately preceding the semiannual anniversary month (in this instance, June 1, 2011, through November 30, 2011). Puyang Cleanway's sale, which took place in November of the POR, had not yet entered by the end of the standard regulatory POR. The Department, however, has in the past extended a POR forward to capture entries for sales made during the POR that have not yet entered during the POR specified by the Department's regulations. Therefore, consistent with 19 CFR.214(f)(2)(ii), the Department stated, in the
The products covered by the order are chlorinated isocyanurates (chlorinated isos), which are derivatives of cyanuric acid, described as chlorinated s-triazine triones. There are three primary chemical compositions of chlorinated isos: (1) Trichloroisocyanuric acid (Cl
Chlorinated isos are currently classifiable under subheadings 2933.69.6015, 2933.69.6021, 2933.69.6050, 3808.40.50, 3808.50.40 and 3808.94.5000 of the Harmonized Tariff Schedule of the United States (HTSUS). The tariff classification 2933.69.6015 covers sodium dichloroisocyanurates (anhydrous and dihydrate forms) and trichloroisocyanuric acid. The tariff classifications 2933.69.6021 and 2933.69.6050 represent basket categories that include chlorinated isos and other compounds including an unfused triazine ring. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the order is dispositive.
In the
Any entries of exports made by Puyang Cleanway will be subject to the PRC-wide rate. The Department is currently conducting an administrative review for the POR, June 1, 2010, through May 31, 2011, in which the PRC-wide rate is under review.
This notice is the only reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under the APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This notice serves as a reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are publishing this determination and notice in accordance with sections 751(a)(2)(B) and 777(i) of the Act and 19 CFR 351.214(f)(3).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Ad